Employment Law Case Update: Victimisation and Whistleblowing

As an employer, if you have any concerns about the performance of an employee, it is vital that a thorough and fair investigation is carried out, and that there are no incidents of victimisation during the course of your actions.  Our Employment Law team here reviews the interesting case of Sinelnikova v ActivTrades which illustrates how continued victimisation, even after dismissal, can lead to a successful whistleblowing and unfair dismissal claim.

Ms Sinelnikova was employed as head of compliance at ActivTrades from April 2016 with a clean employment record. 

In June 2017, Ms Sinelnikova was contacted by the chief executive and asked to open an account in his name but told to keep the matter confidential. Ms Sinelnikova confided in the compliance director and found that many similar requests had been made previously and had been refused. During her employment she questioned various other requests made by the chief executive and head of sales, pointing out the issue of compliance with Financial Conduct Authority rules. When she did so she was accused of exerting “unfair power over her colleagues”.

Ms Sinelnikova was also asked to attend various meetings in which delays in processing new clients were discussed. During these meetings Ms Sinelnikova was blamed for delays regarding a new data security protocol and was shouted at. This resulted in Ms Sinelnikova being admitted to A&E for chest pains and suspected panic attacks. Subsequently, she was signed off in November 2017 for two weeks with stress and anxiety.

In December 2017, Ms Sinelnikova was asked to assist on a business trip to Dubai, which she did while remaining signed off, but she did consult with a specialist before attending the trip. The head of HR at the company suspected that Ms Sinelnikova and a colleague were having a “romantic holiday” at the company’s expense rather than working. The head of HR then carried out a “covert disciplinary investigation” and contacted Ms Sinelnikova’s GP to see if her sick note was genuine. He also checked her email account to see if she had sent work emails during her time in Dubai.

On her return from the trip, Ms Sinelnikova was signed off for a further period and prescribed medication for her condition. During this time she discovered that a new employee had been put in her place and given access to compliance records. Ms Sinelnikova was also prevented from accessing her emails. She was concerned with this action and the fact that this could breach the FCA rules so she lodged a grievance via email stating her concerns over financial malpractice within the company. She also accused her employer of sex discrimination. She was invited to a disciplinary hearing the same day and accused of gross misconduct.

Ms Sinelnikova resigned in February 2018. She was refused access to personal data held on her work computer by ActivTrades. They also accused Ms Sinelnikova of using a personal eBay account during working hours.

Ms Sinelnikova brought claims in the Employment Tribunal (ET) for unfair dismissal and whistleblowing protection.  The ET upheld Ms Sinelnikova’s claims and stated that all of the claims against her made by her employer were “unfounded”, and that she had been victimised and unfairly dismissed.

The ET commented that they were surprised at the head of HR’s actions for an investigation and outlined that the normal procedure of asking the employee directly about work on the business trip should have been followed.  The ET held that ActivTrades was “looking for a reason” for Ms Sinelnikova to leave the business, and “jumped to the conclusion” that she had committed gross misconduct.

The ET awarded a total of £76,510 in compensation to Ms Sinelnikova including an injury to feelings award of £40,000 due to having “a profound effect on almost every aspect of her life”.

This case illustrates the importance of undergoing a fair and open investigation procedure rather than a covert one. It highlights the importance of ensuring a thorough investigation is conducted and evidence is found to justify allegations before they are put to an employee.

If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

This was previously part of our weekly Employment Law Newsletter. If you would like to subscribe, please email us at events@warnergoodman.co.uk or just fill in our subscription form.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.