Mr I Donskoy v Hogan Lovells International LLP: 1310564/2020

EMPLOYMENT TRIBUNALS

Case No 1310564/2020

Between

Mr I DonskoyClaimant

Hogan Lovells International LLPRespondent

Before

Employment Judge Kelly

In person for claimant

Date 4 December 2023

REASONS

[1]This is the respondent’s application made under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the Rules”), to strike out the claimant’s case under Rule 37. The claimant represented himself and Ms Duane of counsel represented the respondent.

[2]The strike-out application is made on two principal grounds. It is said that the claimant’s case:a. is scandalous or vexatious or has no reasonable prospects of success; and

b. that the manner in which the proceedings have been conducted by or on behalf of the claimant has been scandalous, unreasonable or vexatious.

[3]The claimant was engaged by the respondent to provide services relating to a significant legal matters being worked upon by the respondent. It is neither necessary nor appropriate to set out the underlying details of the legal matters worked upon by the claimant in this judgment.

[4]There is a dispute over the claimant’s employment status, in the sense of whether he was an employee or a worker, but for reasons that will become apparent, it was not necessary to address that issue in the context of this application.

[5]In relation to second latter limb, it is suggested that there is a risk that there is no prospect of a final hearing being a fair hearing given the way in which the claimant has dealt with matters.

[6]I am not persuaded that there is no prospect of a fair hearing in relation to the issues that are raised by reason of the way in which the claimant has conducted himself to date. Ms Duane was unable to provide any meaningful basis upon which a final hearing could not be said to be conducted fairly.

[7]However, the other ground, that the claim itself is scandalous or vexatious or has no reasonable prospects of succeeding, this is very much a different matter.

[8]The key focus is in relation to whether there is a reasonable prospect of the Claimant succeeding at a final hearing. The claimant’s claims are essentially threefold.

[9]Initially, there was a claim for ordinary unfair dismissal which of course required the two-year qualifying period. That claim was dismissed at a preliminary hearing on 14 July 2021 by Employment Judge Broughton. The claimant was not so clear that the claim had been dismissed, but it was clear from the fact of the order by Employment Judge Broughton, that it was, and indeed, to the extent that it was not dismissed, I would have struck it out today. To the extent that the claim had not been previously dismissed, I strike it today as it is clear that the Claimant does not have the requisite two-year qualifying period. The claimant sought to suggest that this Tribunal should change that qualifying requirement of two-year continuous service, but he seems to now recognise that this tribunal simply has no power to do that. The two-year qualifying period is written into primary legislation in the form of s. 108(1) of the Employment Rights Act 1996 (“the 1996 Act”).

[10]There is an claim for automatic unfair dismissal by reason of a protected disclosure, under section 103A of the 1996 Act, for which a qualifying period of two years is not required, but relevant to that would be whether there has been a protected disclosure that causes or relates to the dismissal in some way. In respect of that, the Respondent says that there can be no nexus between the dismissal in this case and any protected disclosure, put simply, because any potentially protected disclosure relied upon comes after the dismissal.

[11]Further, there is a claim for detriment arising by reason of a protected disclosure under s. 47B of the 1996 Act, with the detriment under that section being identified as the termination of his engagement.

[12]In his Grounds of Complaint, the claimant referenced a disclosure made in early November 2020 (in three iterations), some 2 ½ months after being dismissed, following further review being taken of the underlying matters that said to have caused him concern. His engagement was terminated in August 2020.

[13]Despite my efforts in seeking to drill down into what disclosures might have been made prior to November 2020, to ascertain whether there was a basis of claim that any such disclosure might have resulted in dismissal, the claimant was unable to identify one. Indeed, the claimant’s position was that he was suggesting at best that some steps could have been taken in a different way in terms of reviewing the underlying matter with which he was involved, but that at best, he was “on his way” to being able to identify issues and make a disclosure – he was only able to do so following his dismissal and after a thorough review of the underlying matter.

[14]The respondent additionally referred to the guidance in Blackbay Ventures v Gahir

[2014] IRLR 416

as to how tribunals should approach the issue of determining whether there was a protected disclosure. Essentially, the steps are as follows:a. the disclosure should be identified by reference to its date and content (in this case, the only specific disclosure upon which the claimant can and did rely occurred on 2, 3 and 4 November 2020 and they related to the way in which the respondent was handling the underlying case);

b. the alleged failure or likely failure to comply with a legal obligation should be identified;

c. the basis upon which the disclosure is said to be protected and qualifying should be addressed;

d. each failure or likely failure should be separately identified;

e. save in obvious cases if a breach of a legal obligation is asserted, the source of the obligation should be identified and capable of verification by reference for example to statute of regulation;

f. the tribunal should determine whether or not the claimant had the reasonable belief referred to in s.43B(1) and whether it was made in the public interest;

g. where it is alleged that the claimant has suffered a detriment, short of dismissal, it is necessary to identify the detriment in question and where relevant, the date of the act or deliberate failure to act that is relied upon.

[15]In this case, at the last hearing before Employment Judge Broughton, the claimant accepted (amongst other things) that:a. he only became to the belief that some legal obligation was breached some 2.5 month after his engagement was terminated; and

b. He had not made a disclosure of information to any person prior to his dismissal.

[16]Hence, I am quite satisfied that the Claimant’s claim for any detriment arising by reason of any protected disclosure must fail, because the detriment in this case, being the dismissal, arose well before the alleged protected disclosure. It is not, therefore, strictly necessary to consider the specific elements of whether the disclosure made was in fact a disclosure that qualified as a protected disclosure.

[17]In my determination therefore, there can be no reasonable prospect of the Claimant’s claim succeeding at a final hearing in relation to a protected disclosure and alleged detriment of dismissal.

[18]Accordingly, the claim for automatic unfair dismissal under s.130A of the 1996 must fail, as indeed, must the detriment claim under s.47B of the 1996 Act. Costs

[19]I was invited to make a costs order against the Claimant by reason of his unreasonable behaviour in the way in which he had engaged with the Respondent post dismissal and in the course of these proceedings.

[20]The Respondent drew my attention to the fact that Employment Judge Broughton made clear to the Claimant at the hearing on 14 July 2021 that it was inappropriate to make serious allegations of impropriety against solicitors without a clear and proper basis for doing so. In this case, the Claimant has made numerous attacks on the professional integrity of Mr Ed Bowyer, a partner of the Respondent, by referring to him in terms, following the warning of Employment Judge Broughton, as follows: “Mr dear deceptive friend” (email of 11 August2021 to Mr Bowyer), “your greediness and lies have made me a bit tired”, “My dear deceitful Ed” (email of 19 August 2021), “My dear dodgy friend Ed” (email of 18 August 2021 and there are many more such examples.

[21]The Claimant made attacks upon the Respondent itself too, referring to it as “liars and scammers”.

[22]The material before the Tribunal was voluminous, the Claimant had submitted substantial numbers of documents, which he clearly expected the Tribunal to read, so much being clear from questions put by me, that I was told the answers were within the paper supplied and that they needed to be read. Several hours had been spent by me trying to review the Claimant’s materials prior to the hearing, most of which, it transpired, was irrelevant, a point the Claimant made when it can be considering whether a costs order should be made against him and if so, in what sum. The Claimant’s acceptance of this principally arose when seeking to argue that any costs order should be minimal, because most of the material before the Tribunal was irrelevant.

[23]The clamant had additionally copied in all of (or certainly a significant number of) partners at the respondent into communications, he suggested, for the purpose of seeking to prevent Mr Bowyers from lying. This is not an appropriate way for the claimant to be have behaved.

[24]I am conscious that the Claimant has some legal qualifications, albeit, not in the jurisdiction of England and Wales, and I treat him as a litigant in person, with a reasonable margin of appreciation for compliance with the Rules. However, the Claimant must have appreciated that the substantial volume of documentation in these proceedings, with his own statement of case being c. 78 pages, the majority of which was his analysis completed 2 ½ months after his dismissal was entirely unnecessary and it was unreasonable to include it. To the extent there were material points to be identified within it, they could have been extracted and referred to.

[25]Ultimately, I am satisfied that the claimant has behaved unreasonably in nature of his communications with the respondent, the unnecessary amount of material put before the tribunal and of course, the pursuit of a hopeless claim which would have been apparent after the hearing with Employment Judge Broughton on 14 July 2021. As such, and that such opens the door to the Tribunal making a costs award against him. I consider in the circumstances of this case and the exercise of my discretion, it would be appropriate to make a costs award against the claimant.

[26]The respondent sought the sum of £20,000 be ordered against the claimant. That would represent the bulk of the costs incurred in these proceedings, which were said to be £21,120 inclusive of VAT. Ms Duane agreed with my suggestion that the respondent had not provided a service and thus, VAT was unlikely to be chargeable on their costs, what was really being asked for was compensation for their time. There is no doubt that solicitors acting for themselves are entitled to recover costs orders in the courts in appropriate cases and I see no reason why costs should not be recovered in the same way in the Employment Tribunal.

[27]As to the amount, removing the VAT, the sum sound realistically was £17,600.

[28]I am prepared to give the claimant the benefit of the doubt that he had a genuine claim to start with, although as I say, this realisation must have dissipated after the 14 July 2021 hearing, but yet, the claim was pursued to this strike out hearing and continued his barrage of unreasonable correspondence with Mr Bowyers. Although it is open to tribunal to award all costs from all started in the proceedings, I consider this inappropriate in light of the observations made, and will therefore limit the costs to those costs that are likely to be incurred post 14 July 2021. In that respect, the respondent was unable to provide a useful breakdown as to what those might be, what time was spent or the hourly rates that were applied in seeking the sums of costs it did. Accordingly, and with the desire to achieve a degree of rough justice in respect of costs, the sum of £4,000 costs is a reasonable sum to award to the respondent in respect of the works carried out post 14 July 2021 and this is the sum I award.

[1]On 11 April 2023, I heard the Respondent’s Application for strike out of the claimant’s claim under Rule 37 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 (“the Rules”) (“the Strike Out Application”). I provided written reasons setting out my conclusions in respect of the Strike Out Application, as required by the Rules (“the Judgment”).

[2]The Strike Out Application succeed before me and the Claimant’s claim was struck out (part of the claim, for ordinary unfair dismissal had been previously struck out by order of Employment Judge Broughton and all that remained was a claim for automatic unfair dismissal said to arise by reason of a dismissal arising due to a protected disclosure (per s.43 of the Employment Rights Act 1996 (“the 1996 Act”) being made).

[3]By an application to the Tribunal by letter and accompanying documents dated 28 April 2023, the Claimant requested the Tribunal to reconsider its decision (“the Reconsideration Request”). A party may seek a reconsideration of a judgment under Rule 71 of the Rules, and this was a request made within 14 days of the Judgment.

[4]There is only one ground upon which a reconsideration request may be made, albeit a broad one, that it is “necessary in the interests of justice” to do so. In this particular case, the Claimant says that this test is met, because, he says, in broad terms, that the Tribunal misunderstood his position in material respects and that he was disadvantaged by the way in which the hearing on 11 April 2023 proceeded, because he did not have the benefit of a translator – the Claimant is a native Russian speaker. A number of other grounds were raised, which I set out below extracted from the 17-page Reconsideration Request, which criticised the majority of my earlier decision.

[5]The Respondent referred me to a number of authorities in relation to reconsideration, which essentially point out that there is no general right for a losing party to have a second attempt at obtaining a different decision. The effect of the authorities essentially is to identify that the tribunal has a broad discretion about when to reconsider a judgment, but that such discretion should be exercised by reference to principle.

[6]I am satisfied that, in light of the alleged difficulties said to arise by the absence of a translator, and given the numerous issues raised, I considered it appropriate to proceed to a hearing of the Reconsideration Request and hear more fully from the parties. That hearing took place on 30 October 2023.

[7]From the content of the Reconsideration Request, it has been possible to discern the following grounds of challenge to the Judgment (taken in order in which they are raised in the Reconsideration Request): 7.1. That no interpreter was invited to the hearing on 11 April 2023, despite it was said, the Claimant having difficulties “to perceive a foreign language, English) by ear, and also to speak it, especially on the topic of labour law”; 7.2. That the Tribunal had “completely ignored the Claimant’s arguments and evidence” and the “Claimant’s statements and appeals to the ET regarding obtaining evidence from the Respondent …”; 7.3. That answers given by the Claimant were “distorted” and that I had “inserted the distortions into the text of the decision”; 7.4. That the Strike Out Application was decided only on the basis of “the allegations of the Respondent without any evidence of the Respondent to support such allegations”; 7.5. That the Claimant had proven that the Respondent lied to the Tribunal “as to the reasons and circumstances of the dismissal” and that the Tribunal failed to find out why the Claimant was dismissed; 7.6. That the Tribunal “did not examine the materials to which the Claimant refers as constituting a protected disclosure”; 7.7. That “all [his] objections re significant deviations from the proper proxcedural order made in favour of the Defendant, etc.”; 7.8. That the Tribunal did not apply the balance of proof standard in deciding the case.

[8]At the conclusion of the Reconsideration Hearing, I confirmed the outcome of the Reconsideration Request, and that I would not reverse the decision to strike out the claim. I informed the Claimant that, despite not yet being provided with written reasons, which I confirmed I would provide, that his time to appeal my decision would run from the date of that hearing.

[9]I turn to consider the specifics of the issues raised by the Claimant. Interpreter / language grounds

[10]There was no interpreter at the hearing on 11 April 2023, although I am more than satisfied that this did not render the hearing unfair.

[11]I was satisfied at the time, and remain satisfied, that the Claimant fully understood the hearings before me, and was able to effectively and fully engage with all issues raised before the Tribunal, both on 11 April 2023, and indeed, at the reconsideration hearing on 30 October 2023 (“the Reconsideration Hearing”).

[12]Despite the Claimant’s suggestion of difficulty speaking on the topic of labour law, there was nothing in the English used at that hearing, or indeed, at the Reconsideration Hearing, that was technical or complex by reference to employment law principles. A fundamental objective of the approach in the Employment Tribunals is to ensure accessibility to lay litigants, including those whose first language is other than English, by adopting an informal approach and avoiding the use of complex and technical terms. I am quite satisfied that such an approach was adopted at the April hearing, and indeed, at the Reconsideration Hearing. Not once did the Claimant seek to clarify with me the meaning of any words of phrases.

[13]Notwithstanding my view of the Claimant’s language abilities at the hearing in April, I decided that, in light of his arguments in the Reconsideration Request, that the appropriate step to take was to ensure that a Russian interpreter was present. This would ensure that there could be no suggestion of any misunderstanding or difficulties in language being said to arise.

[14]At the outset of the Reconsideration Hearing, the Claimant was content to address me and liaise in English, despite having an interpreter present, and I suggested that, given his stated position on language in the Reconsideration Request, he ought to perhaps use the interpreter.

[15]This is, for the most part, then what the Claimant then did. However, it is important to note that, despite this suggestion from me, on occasion, the Claimant proceeded to answers questions from me in English without awaiting the translation or in seeking assistance in translating his answer. Indeed, on one occasion, he seemed unhappy with the translation actually provided, and told the translator that he would explain his position to me directly.

[16]Furthermore, I note, with interest, that the Claimant’s Curriculum Vitae (set out in English), which was sent to the Respondent when applying for his role, that the Claimant set out the following information: 16.1. as regards his language abilities, he stated: “Languages: native Russian speaker; English – fluent; Ukrainian, Belarusian – reading comprehension”; and 16.2. that he had worked for 13 employers in the UK, including defending cases as a locum lawyer, and that he had an “LLM in Maritime Law at the University of Southampton, UK”. 16.3. An individual that has clearly achieved an LLM, a masters’ degree, in a highly technical area such as Maritime Law, is not likely an individual that would struggle in any way with the language used at the hearings on 11 April 2023 and 30 October 2023, albeit, I recognise, this does not necessarily mean his oral comprehension is as advanced as his reading and/or written abilities. Nonetheless, my assessment of him was that he had no difficulties whatsoever with understanding and engaging in the issues in either hearing before me. 16.4. On 12 July 2021, the Tribunal directed the Claimant to inform it immediately if he required an interpreter for a case management hearing listed for 14 July 2021. The Claimant made no request for an interpreter either before or at that hearing. 16.5. I do not accept any argument by the Claimant that there has been a misunderstand, or distortion, as he puts it, on anything which he said at the 11 April 2023 hearing (indeed, he suggests that the same misunderstandings or distortions were made by Employment Judge Broughton). 16.6. Indeed, I have formed the view that the Claimant raising language issues as he has is nothing more than an unmeritorious attempt to try and find fault with the procedure from the first hearing in the hope that the decision will be reversed.

[17]To the extent, therefore, that any “distortions” are said to have arisen by reason of a language barrier – I reject that view. Further, I am satisfied that there are no such “distortions” in what has been recorded in my written reasons, from what had been said by the Claimant. Witnesses and evidence related issues

[18]A claimant must set out his case and it is for him to prove that case. In ordinary unfair dismissal claims, the burden of proving the dismissal was for a potentially fair reason switches to the employer, but this is not so in complaints of automatic unfair dismissal.

[19]In any event, I have proceeded on the basis, as is right to do so on an application for strike out, that the Claimant will succeed in establishing the facts upon which he relies. As such, the Claimant’s criticism that the balance of probability should be applied is wrong in principle, as the approach adopted is to assume that the facts relied upon by the Claimant will ultimately be proven and so they should be taken at their highest now.

[20]A claimant presents his or her case by setting out the facts upon which they say form the basis for bringing a claim. A claimant does not need to prove their claim at the time they present an ET1 claim form. No evidence is required. Unfortunately, the 78-page document filed by the Claimant is unduly convoluted, setting out almost every piece of detail that the Claimant could identify the set out his complaint, and indeed, to argue it at the same time.

[21]The requirement to prove the claim comes later, at trial, following the provision of witness statements and documentary evidence in accordance with directions from the Tribunal. The initial ET1 does not need, and indeed, should not contain detailed evidence to prove a basis of claim.

[22]The difficulty with this case is not realistically one related to evidence. It is one related to a lack of evidence, because even if the Claimant’s evidence (as set out in his 78-page document) is accepted, it remains that his case cannot succeed.

[23]It is wrong for the Claimant to say that there has been no consideration of his evidence. It is further wrong for the Claimant to say that there needed to be evidence from the Respondent - there does not, because this is claim that could not succeed even if the facts relied upon by the Claimant, without any further input from the Respondent, were proven at a final hearing.

[24]At the Reconsideration Hearing, the Claimant sought to persuade me that, if I was not satisfied there was enough to go on in respect of his claim before me at this stage, I should make a disclosure order that required the provision of evidence from the Respondent relating to his dismissal. This would then assist him in getting to the truth of his dismissal, he believes.

[25]This is not an appropriate approach to take. A tribunal will not make disclosure orders to enable a basis of claim to be identified, nor in relation to a fishing exercise to try and find a basis of claim that might stick in circumstances when the only remaining head of claim does not amount to a cause of action. Queries 1 to 14 – Protected Disclosures?

[26]The Claimant says that his “Queries 1 to 14” should have been considered at the initial hearing. However, this was not necessary, simply because the Claimant accepted that they were not a disclosure of information at the initial hearing and that any disclosure arose only after he was dismissed.

[27]The Claimant seems to disagree that this is what happened at the initial hearing now. Indeed, he seems to disagree about quite a few things, including, what was said to EJ Broughton (and recorded by him on the face on his order), and indeed, what was said to me at the April 2023 hearing (and recorded by me in the written reasons given).

[28]He told me at the April 2023 hearing, I specifically recall him saying so, that he was “on his way” to making a disclosure.

[29]In his initial 78-page pleading, filed on 12 November 2023, the Claimant stated: “[a]fter my dismissal the following happened. In almost three months, I have read through on the Claimant’s case in the open press to get the understanding, based on my knowledge and past experience, of how the fraudulent scheme works (para 2.8) … At that point I finally realised that [R] did not understand the essence of the Client’s case they were ‘investigating’ (para 2.0) … I was hired by [R] to find evidence in favour of the Client, and I did it honestly, and I was fired precisely because I did it well (para 2.14) … In my comments emailed to [R] in early November 2020, I deliberately did not mention a possible wilful misconduct of [R], sincerely assuming that [R] was simply mistaken in their incorrect instructions (para 2.15) …” (my emphasis added)

[30]In his Amended Particulars of Claim, at paragraph 12.1, the Claimant states: “12.1. In my ET1 claim I stated (and this was in fact) that during my work for the Respondents I did not reported (sic) to the Respondents that they were either incompetent or negligent, or colluded with the defendants in the case of their Clients …. It was because I saw only a several signs of these and did not realise the whole picture. I thought that these were mere mistakes of the Respondents (it happens time after time and not just with the Respondents). I flagged the "errors" to the Respondents and suggested how to fix them and/or how to improve the work of the Respondents' Team. // 12.2. Only after my dismissal while studying all possible reasons the Respondents could have against me and Mr Olivier's strange statement that I was dismissed for my doing some investigation of their Clients (Privatbank) case I realised that the Respondents were either incompetent or negligent, or colluded with the defendants in the case of their Clients, and were afraid that I could understand it and expose them. I started to explain this to the Respondents in my Comments emailed to the Respondents right the next working day after the dismissal”. (my emphasis added)

[31]Indeed, what I have recorded him saying, and what EJ Broughton records his accepting, is indeed consistent with his pleaded position. However, that appears to now be something the Claimant wishes to resile from, no doubt, I expect, as a consequence of the conclusions reached by the Tribunal that his claim cannot succeed by reason of his own stated position.

[32]It is clear from the written position set out by the Claimant that he only discovered that there was something potentially to report, in this case, that the Respondent’s alleged negligence and/or incompetence, and/or collusion with the defendants in the underlying case, after his dismissal.

[33]Nonetheless, without the need to do so, but out of a desire to be seen to be as fair and reasonable to the Claimant as possible, I consider the essence of the queries the Claimant now seeks to rely upon as being protected disclosures.

[34]A disclosure is a protected disclosure if it comes within the definition of a “qualifying disclosure” in section 43B of the 1996 Act. By the section, it must have the following characteristics: 34.1. it must be a disclosure of information; 34.2. the subject matter of the disclosure must be one of six listed types of failure in section 43B(1)(a) to (f)); 34.3. there must be a reasonable belief by the worker that the information tends to show of the failures mentioned; 34.4. that the worker must have a reasonable belief that the disclosure is made in the public interest.

[35]It is not possible in this case to determine three of the above on a preliminary basis, but it is possible to clearly identify that none of “Queries 1 to 14” were in fact disclosures of information. Accordingly, a claim for a protected disclosure cannot succeed.

[36]The Claimant set out his “Queries 1 to 14” in paragraph 8.1 to 8.1 and 91. To 9.7 of his document entitled “My Comments”. They were put together in a convoluted way, under attempts abbreviated headings, but essentially, they were are as follows: 36.1. Query 1 – queries raised by the Claimant as to whether certain documents should be interpreted by lawyers instead of accountants; 36.2. Query 2 – what approach should be adopted in finding control/ownership information of companies that were being researched; 36.3. Query 3 – whether corporate ownership only is relevant or whether practical control is relevant, and how should steps be taken to identify that; 36.4. Query 4 – whether issues relating to an alleged loan recycling scheme are relevant in some material way; 36.5. Query 5 – whether steps taken to amend a list of parties relevant to underlying issues in the claim was relevant in some way; 36.6. Query 6 – how might steps have been taken by parties in the underlying matter to misappropriate monies; 36.7. Query 7 – why were persons in the underlying matter simultaneously using several agreements in respect of the same relationships; 36.8. Query 8 – whether documents should be provided to the reviewing team members in PDF or Word format (one being easier to amend that the other); 36.9. Query 9 – how should documents be classified (or “coded”), as part of the structure of documents inheriting classifications by reference to other documents or on their own account; 36.10. Query 10 – whether only six parties in the underlying matter should be considered or whether a larger number should be considered; 36.11. Query 11 – whether the credit history of specific persons was relevant, as opposed solely to looking at credit relationships with banking entities; 36.12. Query 12 – the relativity case management system is said to have flagged entries which were useless or distracting, and a query was made as to how to use the system more effectively; 36.13. Query 13 – this query relates to a refusal by the supervising individual to permit individual reviewers to use their own customisations to the Relativity case management software; and 36.14. Query 14 – this relates to a difference of view between the Claimant and those supervising him as to whether there should be a page-by-page review of documents or there should be keyword searches utilised.

[37]Ultimately, however, in none of these issues was there a disclosure of information. As I noted above, the Claimant only formed the view that the Respondent was said to not understand the case it was advising on following his dismissal. The Claimant’s own case was that he was effectively making enquiries, from which he would later conclude that he may be able to make a protected disclosure. He had, he has previously confirmed, no basis to believe that he was able to make a disclosure – another essential requirement for making a protected disclosure.

[38]The Claimant was, in essence, obtaining evidence and making enquiries that would give him the information he needed to make a disclosure in due course. Gathering evidence and making enquiries which could have turned into a disclosure, but gathering evidence is different to making a disclosure of information (Aspinall v MSI Mech Forge Ltd

EAT/891/01

, and Bolton School v Evans [2006] EWCA (iv) 1653).

[39]I am satisfied therefore that even had the Claimant not have made the concession he did at the April 2023 hearing, that the disclosure of information did not take place until after his dismissal, that the “Queries 1 to 14” do not amount to a disclosure of information and, even if I am wrong about that, that none of them relate to any of the categories of failure set out in s.43B(1)(a) to (f). Other issues

[40]It seems that the Claimant intended not to appear at this Reconsideration Hearing, having submitted papers before the hearing indicating that he would prefer his case to be considered based on written material only. He said he had said everything he needed to say in writing and that he would not be appearing in person. However, he appears to have changed his mind at the last minute and did indeed appear.

[41]The Claimant took issue, in that paperwork, with Kate Holden lodging papers at the Tribunal. Those papers were a skeleton argument, various authorities and the previous bundle, and a new bundle comprising the new papers. The Claimant was unhappy about the short period of time to read these papers, but fundamentally, they were all papers he had seen before, except of course, for the skeleton argument and the various authorities. It is quite common practice for authorities and skeletons to be lodged just before the hearing. No criticism can properly be made of the Respondent in this regard. Costs

[42]The Claimant argued that I should not have imposed a costs order on the basis of unreasonable conduct because some of the email “attacks” on Mr Bowyer, a solicitor of the Respondent, were personal attacks and not in the course of these proceedings. It is the Respondent’s position that as the Claimant argues these attacks were made outside of these proceedings, I cannot reconsider this issue and that it is solely for the EAT. I disagree.

[43]The entitlement to reconsider arises in respects of “judgments” under Rule 70 of the Rules. Rule 70 states: “A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again.”

[44]A judgment is defined by Rule 1(3)(b) of the Rules: “a “judgment”, being a decision, made at any stage of the proceedings (but not including a decision under rule 13 or 19), which finally determines— (i)a claim, or part of a claim, as regards liability, remedy or costs (including preparation time and wasted costs); or (ii)any issue which is capable of finally disposing of any claim, or part of a claim, even if it does not necessarily do so (for example, an issue whether a claim should be struck out or a jurisdictional issue).”

[45]As a decision on costs is caught within the definition of “judgment”, it is something that I can reconsider.

[46]Further, it seems to me that if I have wrongly applied the basis upon which a costs order should be made, or taken into account factors that I ought not to have taken into account, then it would be in the interests of justice to reconsider that decision.

[47]Ultimately, however, I do not accept the Claimant’s position that these are private attacks and unrelated to these proceedings. They were made after the commencement of, and during the course of, these proceedings. I am quite satisfied that in reality, the attacks on Mr Bowyer are connected entirely to these proceedings and the issues raised within them. When assessing whether a party has engaged in unreasonable conduct, this does not mean that the enquiry is limited solely to acts in the face of the Tribunal, or indeed, correspondence with the Tribunal service. It involved the conduct between the parties too.

[48]A further application has been made by the Respondent in relation to costs on the basis of the Claimant’s unreasonable conduct. Whilst I heard submissions from both parties in relation to this at the Reconsideration Hearing, I reserved my decision in that respect until the written reasons were finalised.

[49]The Tribunal has the power to make a costs order under Rule 76 of the Rules in limited circumstances. It states: “(1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that:(a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted;

(b) any claim or response had no reasonable prospect of success …”

[50]If an order is to be made under the banner of unreasonableness, the Tribunal must consider the ‘nature, gravity and effect’ of a party’s unreasonable conduct. Whether there has been unreasonable conduct is a matter of fact for the tribunal.

[51]I am satisfied that the costs order made against the Respondent was one I was entitled, and right, to make. I do not accept any suggestion that these were private attacks on Mr Bowyer that should be divorced from the conduct of these proceedings. The reality is that they would not have been made but for the issues referred to in these proceedings and indeed, they relate to the issues in these proceedings. They are attacks upon those representing a party to the proceedings and should not be divorced arbitrarily from them.

[52]I remain critical of the substantial volume of documentation provided by the Respondent, which, being a lawyer from a different jurisdiction, and undoubtedly an intelligent individual, he ought to have been more constrained his approach to extracting relevant material and being concise in what he was alleging. He must have appreciated that the Respondent, and indeed, the tribunal, would have to spend considerable time wading through the significant number of documents provided. It had taken the Tribunal a significant period of time to review the materials provided, and indeed, it would have no doubt taken the Respondent significantly longer due to the need to investigate what was said and respond accordingly.

[53]In reconsidering the issue of costs, I am satisfied that such an order is further justified on the basis that this was an unmeritorious claim that never had any reasonable prospects of success.

[54]In his case management order of 14 July 2023, EJ Broughton stated: “8. … When we were attempting to establish the disclosed relied on, the claimant confirmed the following:a. He has only come to the belief that the respondent had breached some legal obligation(s) in relation to the case he was working on after extensive investigations in the 2.5 months after his contract was terminated.

b. He raised this with the respondent on 2 November 2020 and so, if this was a protected disclosed, it could not have been the reason for the earlier termination of his contract.

c. In the short period that the claimant did work for the respondent, he said he had raised a number of queries about the process being followed and had made suggestions for improvements. He said the details were in his claim form.

d. He said that, whilst still working for the respondent he: i. had no idea that they were, on his subsequent stated belief, doing anything wrong; ii. made no allegations of wrongdoing; iii. disclosed no information that would tend to show such alleged wrongdoing.

e. Contrary to 8(d)(i) the claimant did, at one stage, suggest that he couldn’t make any allegations of wrongdoing or disclose information pertaining to the same, because the feared he would be dismissed. 9. In any event, the claimant again confirmed that, whilst engaged, he didn’t know there was any alleged wrongdoing. As a result, he didn’t, at that time, believe that there was such wrongdoing. As a result, he didn’t at that time, believe that there was such wrongdoing and he couldn’t have disclosed it to the respondent, not did he suggest that he did. 10. In those circumstances it appeared that the claimant was acknowledging that a number of the key requirements for a protected disclosure (under section 43B Employment Rights Act 1996) could not be met such that his claim could not succeed. 11. The respondent has already made clear that they intend to apply to strike out the claim and apply for costs but this hearing wasn’t listed to consider that.”

[55]Indeed, if the weaknesses in the Claimant’s case were not apparent at the start, they would have been from 14 July 2021. It is after this time, from August 2021, that the attacks cited in my earlier decision were made on Mr Bowyer. The appropriate step for the Claimant to have taken was to withdraw the claim and not persist in a hopeless cause. Yet, despite that, the claim had to be addressed by the Strike Out Application and, now, falls to be considered yet again, as a result of the Reconsideration Application.

[56]It is clear that inappropriate allegations continue to be made by the Claimant. Indeed, this time, the tribunal is the subject it seems of an alleged collusion with the Respondent. In this Reconsideration Request, the Claimant says: “(49) …. I noticed one interesting feature about Employment Judge Broughton and Employment Judge Kelly that they used to help the Respondent in the present case. (50) There were two hearings…and they both did not offer me an interpreter, although they knew that English was not my native language … (51) Both took advantage: - of my problems with listening comprehension and spoken English, as well as of my answers, which because of these problems could not be stated by me intelligibly and briefly; - of the fact that it is forbidden in ET to record who said what during the hearings … (55) Both judges do not take into account anything I wrote to the ET (as well as not a single written evidence submitted by me to the ET: they do not notice then)… It seems that Sherlock Holmes is just a foolish child against them. (56) That is, I have been writing for two years about one thing, and in their hearing for an hour with a little conversation with them, I testify, for no apparent reason, against myself. Obviously, this does not happen, namely, one of us is lying about what I stated in the hearing… Therefore, these two judges are playing tricks with justice. (57) Well, I’m not really surprised, since the saying ‘a raven does not peck out an eye of another raven’ works worldwide. These two Judges and the Respondent are colleagues in trade, whereas the Claimant in this case for these three is nobody from nowhere. (58) However, the fact that this was done repeatedly indicated a systemic problem in the administration of justice in this ET. I think that the topic is worthy of public discussion, since it is likely that the same unfair approach is applied in other cases.”

[57]Towards the end of his grounds, the Claimant appears to make a veiled threat to the Respondent’s Mr Bowyer: “Again, Mr Bowyer is not even able to realise that because of his lies in the ET the £2bn clam … has already been destroyed… Tomorrow HL will loose (sic) the case for sure, day after tomorrow the case decision will be published and known in the whole Ukraine (sic) in all CIS countries with their best regards to Hogal Lovells and Mr Bowyer. Again, I will appeal to the EAT and further on also, till all my evidence is weighed and lies of Mr Bowyer exposed. In the meantime, good luck, my dear Mr Bowyer, you are the winner taking all and very soon you will take on board even more.”

[58]In a letter to the Tribunal dated 27 October 2027, the Claimant stated, amongst other things, including his apparent intention not to attend at the hearing for which a translator has been directed to be provided: “… the ET judge did not allow me ‘to call [my] evidence and present [my case] and to ensure ‘that any witnesses [I] wish to call can take part in the hearing. Accordingly, apart from what I have earlier submitted to the Tribunal in written (sic), nothing else can happen during the scheduled reconsideration hearing. Consequently,(a) My participation in the hearing of the case is useless and

(b) It looks that the ET judge does not want to find out anything relevant in this case, that is, the ET judge does not want to decide the case fairly. It seems that during the scheduled hearing the EJ judge wants to find a different pretext for refusing my claim, i.e. the one that will prevent the EAT from recognizing the ET judge as the inventor of a weird tale that I filed a claim that I was fired for protected disclosure … then I wrote about it to the ET judge throughout the 3 years of the ET trial, but at the hearings out of thin air I admitted that I done the disclosure after I was fired. That is, the ET judge’s story is about me being so mental that I do not understand that in this order of things that there is no causal connection between disclosure and dismissal and, as the result, there can be no claim on my part. With great respect, but such ‘reconsideration’ does not look relevant to rendering justice.”

[59]The Claimant’s conduct in these proceedings has been, and continued to be, unreasonable. It would seem that even the Tribunal’s impartiality is called into question, without any proper basis for doing so, and the attacks on Mr Bowyer continue.

[60]Despite seeking a reconsideration, raising issues about a language difficulties, which are then addressed by a further hearing with an interpreter present, the Claimant then declined in correspondence to attend, and raises issues about the impartiality of the Tribunal through some colourful metaphor concerning ravens and expressly stating that the Tribunal does not want to deal with the case fairly. Suggestions of the Tribunal Judges “inventing” a “weird tale” or a “story” are unreasonable and inappropriate.

[61]I am further of the view that the issues in relation to language difficulties were wrongly and unreasonably advanced by the Claimant in this case.

[62]I take the view that the Respondent’s approach is one designed to cause maximum disruption to the Respondent, perhaps in the hope of securing a settlement outside of these proceedings, or perhaps as some form of revenge for his dismissal. Either way, I am more than satisfied that his approach has been and continues to be unreasonable in these proceedings. I agree that the Respondent should have a further costs award in its favour.

[63]In an email to the Claimant of 26 October 2023, the Respondent indicated its intention to apply for a further costs order. It pointed out that Counsel’s fee for the hearing was £2,500, and that over 10 hours had been spent on dealing with the Reconsideration Request by the Respondent, for which it sought £1,140 per hour.

[64]I have already made clear my view that to seek £1,140 per hour for the Respondent’s time is unrealistic. It may well be that Mr Bowyer, whom I understand to have been principally dealing with this matter can charge such rates to his clients, and that his time may well have been diverted to this matter instead of rendering such charges, these are levels of costs which are unrealistic to recover on the basis of claims between parties to Employment Tribunal proceedings.

[65]I am content to allow Counsel’s fee of £2,500, because I have no doubt at all, that counsel has deserved that fee. There would have been considerable documents to review, and considerable time spent preparing for the hearing of the Reconsideration Request. As to the Respondent’s fees, I am prepared to allow a figure of £1,500, meaning, that I order a further sum of £4,000 be paid by the Claimant to the Respondent in relation to the reconsideration aspect of matters.

[66]This further costs order of £4,000 must be paid within 14 days of receiving these written reasons, whereas the former sum of £4,000, should have been paid within 14 days of my decision of 11 April 2023.