The outcome of the Employment Tribunal claim brought by Gulnaz Raja against Starling Bank Limited (1) (Starling), and Matthew Newman (2) was reported last month.
This article was first published by Thomson Reuters Regulatory Intelligence
The outcome of the Employment Tribunal claim brought by Gulnaz Raja against Starling Bank Limited (1) (Starling), and Matthew Newman (2) was reported last month.
The Judgment which is available online should be of significant interest to employers, including regulated organisations, in relation to Covid and medical conditions in general. The case shows how an employer should treat a disabled employee to minimise legal risk by complying with applicable laws and good practice. It should also be of major interest and serve as a cautionary example to every employee who, like the second respondent, is subject to the Senior Managers and Certification Regime (SMCR), or the rules of a regulator such as the Solicitors Regulation Authority (SRA).
Miss Raja represented herself at the Employment Tribunal hearing. Both Respondents were represented by the same Queen’s (now King’s) Counsel.
Miss Raja was employed by Starling as Deputy Company Secretary.
Mr Newman, a solicitor, is Chief Administrative Officer, GC and Company Secretary of Starling. According to the Financial Services Register, he has been the bank’s SMF24 (Chief Operations Officer) since 13 January 2020.
Miss Raja began working for Starling in July 2019.
At the time of her employment Starling had about 1,000 employees.
From October 2019,Miss Raja was frequently absent or worked from home because of illness or medical appointments connected to her asthma.
In January 2020, Mr Newman, who was Miss Raja’s manager, approached HR about terminating her employment for performance reasons.
On 6 March 2020, HR emailed all staff about the worsening pandemic, asking them to contact their manager if they had concerns.
On 9 March 2020, Miss Raja asked to speak to Mr Newman about the email. He invited her to a meeting 25 minutes later at which he dismissed Miss Raja on the grounds of her performance and because she was “not a Starling person”.
Miss Raja’s disability (asthma) and the Respondent’s knowledge of that disability were not in issue.
Regarding the second complaint that the Tribunal upheld, they concluded that:
The Tribunal considered whether the Respondents’ disclosure exercise had been unsatisfactory, as alleged, because that might have been a matter from which they drew relevant inferences.
It seemed to the Tribunal that Starling was not very good at documenting matters or keeping employee records, however they concluded that there was no good evidence before them that the Respondents had not done a through and conscientious search for documents as part of the disclosure exercise or that led them to consider that documents had been suppressed or concocted.
There are a number of regulatory rules which could mean that the Tribunal’s decision is not the end of proceedings in relation to this matter. It remains to be seen what further action might ensue, and the extent to which any of the following consideration may yet have practical ramifications.
The SMCR has a carve out for GCs, but this is limited to the legal advice they provide to their employer. Conduct rules apply to virtually all employees at firms authorised by the Financial Conduct Authority (FCA) alone, or on a ‘dual’ basis with the Prudential Regulation Authority (PRA), with specific rules for senior managers, and more detailed considerations as to the regulatory requirements for their ‘fitness and propriety’
The PRA and FCA have published extensively on the importance of equality, diversity and inclusion (EDI) as features of firms’ cultures and of their various HR (eg recruitment, retention, and incentivisation) processes. Regulators have also made it clear that senior managers’ approach to EDI issues is a material factor for firms and regulators to consider in ongoing assessments of managers’ fitness and propriety.
For both private practice and ‘in-house’ solicitors, SRA Principle 1 requires conduct that upholds the constitutional principle of the rule of law, and the proper administration of justice. Principle 6 requires solicitors to act in a way that encourages EDI. Solicitors can report themselves to the SRA or it can decide to investigate them of its own accord or because a complaint has been made by a third party.
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