Employment Tribunal Orders Re-engagement in Hong Kong of Trader Unfairly Dismissed in the UK By Daisy Watson, Solicitor, Womble Bond Dickinson (UK) LLP; Jo Martin, Partner, Womble Bond Dickinson (UK) LLP & Karen Plumbley-Jones, Practice Dev

In Bradley Jones (claimant) v JP Morgan Securities plc (respondent), case Number: 3201630/2020 V heard at the London East Hearing Centre, UK, before Judge S. Knight, an employment tribunal (ET) ordered a bank to re-engage a trader it had unfairly dismissed and to pay him more than £1.5 million (HK$11 million) in lost salary and benefits for the period between dismissal and re-engagement. The tribunal held that the claimant had been unfairly dismissed for alleged gross misconduct: it found that the employer did not have a genuine belief in misconduct having occurred and that the procedure adopted was also unfair. This finding did not change the employer’s position that it would provide a regulatory reference stating that it did not consider the claimant to be a fit and proper person. The claimant sought a reinstatement or re-engagement order.

Facts

Jones was a financial analyst and cash equities trader employed by JP Morgan (JPM). JPM dismissed him on 31 January 2020, alleging gross misconduct following an incident of suspected “spoofing” that had occurred in 2016. Spoofing is a form of market manipulation, where a trader makes a bid or offer with the sole intention of cancelling it before execution, in order to create a misleading impression about the demand or supply of a particular commodity. It is a criminal offence and a breach of regulatory rules. Jones was alleged to have engaged in spoofing in one afternoon in 2016.

Background

JPM had investigated the alleged incident at the time but decided that it did not warrant disciplinary action. Following the introduction of a new spoofing policy and an internal Market Conduct Review in 2019, JPM decided to re-investigate the alleged incident. Following a short disciplinary procedure, where Jones said he could not remember details of the relevant trades, he was dismissed for gross misconduct and brought a claim for unfair dismissal in the ET.

Decision

The ET found that the true reason for dismissal was not misconduct and the dismissal was unfair. JPM did not have a genuine belief in Jones’ misconduct in January 2020. It had not carried out a reasonable investigation, given its size, and the dismissal would have been unfair on procedural grounds even if JPM had had a potentially fair reason to dismiss Jones.

A remedies hearing took place subsequently. Jones sought reinstatement or re-engagement, in addition to compensation for lost earnings. He contended that he would not get a job elsewhere because, among other reasons, JPM had said it would provide a regulatory reference stating that it did not consider him to be a fit and proper person to perform the role.

JPM argued that Jones did not want to be reinstated or re-engaged and that it was simply a way to maximise his compensation by side-stepping the cap on unfair dismissal compensation. JPM also argued that it was not practical for Jones to be reinstated due to the fact there had been redundancies in his team. Furthermore, when he had been dismissed, JPM had not sought to replace him, with his work being absorbed by the wider team. Jones identified a suitable role with an associated employer in Hong Kong, indicating that he was willing to relocate. The new role was comparable to the role from which he had been dismissed and he would be working in a new team.

The ET found that if re-engagement was not awarded, Jones would not be able to work in a regulated role in the financial services sector in the UK due to the negative regulatory reference provided by JPM. Given that JPM is a global organisation with more than 250,000 employees, re-engagement would work. On this basis, the ET decided that the re-engagement order was the only way that Jones’ unfair dismissal could be “made right” and so it ordered re-engagement to the Hong Kong role within three months. The ET also awarded Jones over £1.5 million in compensation for lost earnings, including his base salary, incentive compensation, and a fixed award.

Legal principles

This case is interesting because it deals with the implications of a bank stating that it would provide a negative regulatory reference, even though the ET had found that the dismissal was unfair and the reason given for it was untrue. Because the respondent had indicated that it would provide an adverse regulatory reference for the trader, despite the finding of unfair dismissal, it would mean that Jones would not be able to find a similar job in the UK. The employment tribunal therefore ordered the respondent to re-engage the trader at an associated employer in Hong Kong.

The ET judgment will have international reach so it is significant for global businesses. The ET decided to make a re-engagement order that is seeking to bind a Hong Kong-based JPM entity. If JPM fails to comply with the re-engagement order, there are likely to be practical difficulties in enforcing the order. The fact that the ET was willing to countenance requiring an international business to re-engage an individual in an overseas company is an interesting move, and one that should be watched by organisations with international clout.

Finally, the case highlights the perils of re-opening a previously concluded investigation where a decision was made not to take disciplinary action, even if that might be desirable to appease a regulator.

Takeaways for employers and HR practitioners

Despite Jones’ win at the ET, he may find he has difficulties if he leaves JPM because there is nothing to prevent JPM from issuing a negative regulatory reference in the future. Furthermore, there is no way of appealing against the decision that an individual lacks fitness and propriety. This may be something that regulators will need to address, given the issues this case has highlighted.

JPM may decide to appeal the ET’s decision, given the significant compensation awarded, so there may be more useful commentary on this case in the future.

[中文版本]

僱傭審裁處判令被不公平解僱的交易員在香港復職 

撰文：Daisy Watson，Womble Bond Dickinson (UK) LLP律師;  Jo Martin，Womble Bond Dickinson (UK) LLP合夥人; 及Karen Plumbley-Jones，Womble Bond Dickinson (UK) LLP執業律師

• 僱傭審裁處的裁決，說明僱主在提供監管參考時的立場，可如何影響審裁處判令再次聘用被不公平解僱員工的決定。

• 審裁處並不考慮若答辯人未能遵行再次聘用員工的判令，會衍生什麼後果。

在英國東倫敦審裁中心由S. Knight法官審理的Bradley Jones（索償人）訴JP Morgan Securities plc（答辯人）一案中（案件編號：3201630/2020 V），僱傭審裁處（employment tribunal）判令一家銀行再次聘用一名被其不公平解僱的交易員，並向該交易員支付超過150萬英鎊（1100萬港元），以賠償其於解僱至再次聘用期間的薪酬和福利損失。審裁處認為，索償人因被指稱涉及嚴重不當行為而被不公平解僱，然而僱主對其相信發生的不當行為並無實證，所採取的程序也不公平。此裁定並無改變僱主在監管參考中訂明索償人不是合適及適當人選的立場。 索償人尋求判令其復職或獲再次聘用。

實情

Jones（下稱鍾斯）是JP Morgan（JPM）聘用的金融分析員和股票交易員。JPM於 2020 年 1 月 31 日解僱鍾斯，指稱他在 2016 年涉嫌「炒作」，構成嚴重不當行為。炒作是一種造市手法，交易員開價買入或沽出，唯一目的是在成交前取消交易，從而對某一商品的需求或供應造成虛假市況。 這是一種刑事罪行，並違反監管規則。鍾斯被指稱在 2016 年某日下午從事炒作。

背景

JPM曾就有關指控進行調查，但決定無須採取紀律處分。在2019年引入新的炒作政策和內部市場行為檢討後，JPM決定重新調查有關事件。在簡短的紀律聆訊程序中，鍾斯表示不記得相關交易的細節，他因嚴重不當行為被解僱，並為此向僱傭審裁處就不公平解僱索償。

裁決

僱傭審裁處發現解僱的真正原因不是不當行為，解僱並不公平。JPM未能確切相信鍾斯在 2020年1月作出不當行為，鑑於規模龐大，JPM並無進行合理調查，即使有潛在理由公平解僱鍾斯，就程序而言，解僱仍屬不公平。

在隨後舉行的補償聆訊中，鍾斯要求賠償收入損失，並尋求復職或再次聘用。他聲稱難以在其他地方找到工作，除其他原因外，還因JPM曾表示其提供的監管參考將明言認為他不適宜擔任有關職位。

JPM辯稱鍾斯並不想復職或獲得再次聘用，只是藉此迴避不公平解僱賠償上限，以盡量提高可獲賠償。JPM還辯稱，讓鍾斯復職不切實際，因他所屬團隊已有冗員。此外，解僱鍾斯時，JPM並沒有派人取代，其工作由全團隊分擔。鍾斯在僱主的香港關聯機構中找到合適職位，顯示他願意調遷。新職位與他被解僱前的職位相若，他將在一個新團隊中工作。

僱傭審裁處認為，由於JPM提供負面監管參考，如果不再次聘用鍾斯，鍾斯將無法在英國金融界獲得受監管認可的職位。鑑於JPM是一家擁有超過 25萬名員工的全球機構，再次聘用有關僱員實屬可行。據此，僱傭審裁處裁定再次聘用是「糾正」不公平解僱鍾斯的唯一方法，並頒令在三個月內在香港予以再次聘用。僱傭審裁處還授予鍾斯超過 150 萬英鎊的收入損失補償，其中包括他的基本薪酬、獎金和固定獎賞。

法律原則

此案的影響值得關注，因為即使僱傭審裁處認定解僱不公平，解僱理由也不真確，有關銀行仍聲稱將提供負面監管參考。由於答辯人曾表示，儘管被認定解僱不公平，仍將對有關交易員提供對其不利的監管參考，這意味鍾斯將無法在英國找到相關工作。為此，勞資審裁處判令答辯人在香港的聯繫機構再次聘用該交易員。

在某些情況下，由於沒有遵循正確程序，或僱主的決定超出合理反應範圍，僱員可能會在不公平解僱索償中勝訴，但若有證據表明僱員行為不當，在監管參考中作出負評可能仍屬合理。然而，在本案中，由於JPM未能成功以雙方共同過失辯解，因此僱傭審裁處認定鍾斯沒有從事炒作行為。儘管有此認定，JPM並沒有改變其提供負面監管參考的立場，即使此舉有助補救。

僱傭審裁處的判決將舉世皆知，因此對全球企業具有重大意義。僱傭審裁處判令再次聘用有關僱員，並涉及JPM在香港的機構。如果JPM未能遵行再次聘用令，強制執行判令可能有實質困難。僱傭審裁處介入要求國際企業於其海外公司再次聘用個別人員，實為異常之舉，應該受國際知名機構關注。

最後，該個案顯示，若在紀律調查中決定不採取紀律處分，重新展開先前已結束的調查會帶來惡果，即使此舉可能是為了討好監管者。

對僱主和人力資源從業員的啟示

儘管鍾斯在僱傭審裁處獲得勝訴，但如果他離開JPM，將發現自己面對困境，因為無法阻止JPM將來發出帶有負評的監管參考。此外，他也無法就個人缺乏適當和合適性的定評提出上訴。就此個案突顯的問題，監管機構或須予以處理。

由於賠償額鉅大，JPM 可能對僱傭審裁處的判決提出上訴，未來可能會有更多有關此案的評論。