Mrs A Amos-Osebeyo v Crystal Blockchain UK Ltd and others: 1400251/2024 and 1400252/2024

EMPLOYMENT TRIBUNALS

Case No 1400251/2024, 1400252/2024

Between

Mrs A Amos-OsebeyoClaimant

Crystal Blockchain UK Ltd and othersRespondent

Before

Employment Judge Cadney

In person for claimant

Ms Rezaie (instructed by Counsel) for respondent

Date 27 January 2025

REASONS

[1]On 17th September 2024 this case came before me for a TCMPH at which I listed the claim for final hearing; and for a preliminary hearing today to determine the following issues: First Respondent i) Whether the claim against R1 of automatic unfair dismissal (s103A ERA 1996) should be dismissed/struck out as having no reasonable prospect of success on the basis that the disclosures relied on are not capable of amounting to qualifying disclosures within the meaning of s43 ERA 1996, and/or should be the subject of a deposit order as having little reasonable prospect of success; ii) If and to the extent that one is made to determine any amendment application made by the claimant in respect of R1; iii) In the event that the claimant seeks to pursue the claims whether the claims must be dismissed as having already been unequivocally withdrawn; and/or 2 of 33 iv) Whether the claimant’s claim against R2 of automatic unfair dismissal (s103A ERA 1996) be dismissed/struck out as having no reasonable prospect of success; and/or should be the subject of a deposit order as having little reasonable prospect of success; v) If and to the extent that one is made to determine any amendment application made by the claimant in respect of R2; Third Respondent . vi) Whether the claimant’s claim against R3 of automatic unfair dismissal (s103A ERA 1996) be dismissed/struck out as having no reasonable prospect of success; vii) Whether the claimant’s claim against R3 of aiding and abetting public interest disclosure detriment be dismissed/struck out as having no reasonable prospect of success; and/or whether the claimant requires permission to amend to pursue any such claim and if so whether permission is granted; viii) Whether the claimant’s claim against R3 of sex and/or race discrimination be dismissed/struck out as having no reasonable prospect of success, the claimant having not in response to EJ Livesey’s direction set out the basis for any such claim; and/or should be the subject of a deposit order as having little reasonable prospect of success; and/or whether the claimant requires permission to amend to pursue any such claim and if so whether permission is granted; ix) If and to the extent that one is made to determine any amendment application made by the claimant in respect of R2; x) To determine R3’s costs application. Further Directions xi) To give further case management directions for the final hearing; and/or xii) If necessary to determine the claimant’s application for specific disclosure. Case Summary from the CMO 17th September 2024

[2]In the Case Summary I summarised the position the claims and litigation had reached up to that point: 32. By a claim form presented on 12th November 2023 the claimant brought the claims set out below against the first respondent; and by a claim form presented on 18th December 2023 she brought the same claims against R2 and R3.(a) Discrimination on the grounds of race and/or sex; 3 of 33

(b) Automatic Unfair Dismissal on the grounds of public interest disclosure; 33. The case came before EJ Livesey on 15th May 2024. He: i) Listed the case for final hearing (now vacated as set out above); ii) Summarised the claims (see paras 61 – 63) iii) Listed the Issues; and iv) Gave case management instructions 34. By an application dated 6th June 2024 the respondents made the applications set out below: i) That the automatic unfair dismissal claim against R1 be dismissed/struck out on the basis that the alleged disclosures relied on were not capable of amounting to qualifying disclosures and/or that in consequence the claim had no reasonable prospect of success; ii) That the claims against R2 be dismissed on withdrawal by the claimant (see below); iii) That the claims against R3 be struck out/dismissed on the basis that the claim as set out by the claimant in her response to EJ Livesey’s directions (see below) did not fall within the jurisdiction of the tribunal and/or had no reasonable prospect of success and/or constituted the unreasonable conduct of proceedings within the meaning of r37 ( ET Rules 2013); iv) Alternatively that a deposit order be made against the claimant as a condition of pursuing any claim having little reasonable prospect of success; v) A costs application on behalf of R3 against the claimant 35. The case was listed for hearing today to determine those applications but it was not possible in the time available to do more than understand the claimant’s position, consider whether the final hearing should be vacated and give directions for the further hearings as set out above 36. EJ Livesey’s direction- EJ Livesey had directed the claimant to consider whether she wished to pursue the claims against R2/R3 and if so to set out the basis of the claims being pursued; and gave guidance to the claimant as set out below. 37. Second Respondent – EJ Livesey set out that as R2 was not the claimant’s employer she could not be responsible for her dismissal (s103A ERA 1996). She potentially could be personally liable for the alleged acts of race/sex discrimination pursuant to s110 Equality Act 2010 but given that neither R1 (nor R3) were advancing the statutory defence that it was not obvious that there was any benefit in pursuing the second respondent personally. 4 of 33 38. Third Respondent – Again EJ Livesey set out that as R3 was not the claimant’s employer at the date of dismissal it could not be liable under s103A ERA 1996, but could potentially be liable for aiding and abetting any act of discrimination. 39. In her response the claimant withdrew the claims against R2 on the basis that the respondent was not advancing the statutory defence. However in the course of this hearing the claimant contended that she had not finally decided whether to withdraw the claims or not. As the EJ understands it, as the final hearing had to be postponed the claimant still reserves her position in respect of R2 (see below). 40. In respect of the third respondent she indicated that she did not wish to withdraw against the third respondent. The reasons she gives (para 4-9 of her response) relate solely to the public interest disclosure claim, and she suggests that she wants to pursue a claim of aiding and abetting whistleblowing detriment against the third respondent. She does not refer to the discrimination claims. 41. In the course of the hearing I expressed the view that the respondents assertions that this was not open to her in relation to R3 was correct for the following reasons: i) As pointed out by EJ Livesey, only the employer can be liable for the dismissal pursuant to s103A. ii) Whilst it is technically possible for a claimant to bring a claim against someone other than the employer for public interest detriment in procuring a dismissal (See: Timis and anor v Osipov) no such claim has been advanced by the claimant. In addition the reasons advanced (paras 4 –9) do not set out factually either that claim, or an aiding and abetting claim, but rather that because of the accounting relationship between R1 and R3 that that R1 could not commit the financial malpractice the claimant asserts is alleged in the protected disclosures without the participation of R3. Whilst this may or may not be correct it does not amount to an allegation that R3 participated in any detriment or dismissal. iii) There is no claim against either R1 or R2 of whistleblowing detriment and there is therefore no claim currently before the tribunal of any detriment that R3 could aid and abet. 42. Amendment – The respondents’ position was that in any event the claims the claimant wished to pursue, in particular that in respect of R3 aiding and abetting whistleblowing detriment would require permission to amend. Firstly the claimant would need to amend to bring whistleblowing detriment claims against either R1 and/or R2 ; and then permission to amend to pursue the claim against R3 of aiding and abetting the detriment. Without any such amendment the claim against R3 could not succeed on the basis which it is currently put. At present there are no amendment applications in respect of any of the respondents. Applications

[3]I will deal with the applications not in the order set out above, but as they have been addressed before me. Before dealing with them individually I will make some general points, and deal firstly with the amendment application. 5 of 33

[4]General Points – The issues, as set out in EJ Livesey’s CMO were relatively narrow: i) Had the claimant made one or more protected disclosures? ii) If so was one or more the reason or principal reason for dismissal? iii) Was her dismissal an act of direct sex or race discrimination?

[5]Following EJ Livesey’s directions the claimant initially (24th May 2024): i) Withdrew the claims against the second respondent; ii) Sought to pursue the claim against R3 in respect of the s103A ERA claim only; iii) Indicated that the sex and race discrimination claims were being pursued solely against R1.

[6]At that point it appeared that the claims remained very straightforward. R2 would be dismissed from proceedings; and the sole remaining issue in respect of R3 was whether it could bear any legal responsibility for R1’s dismissal of the claimant. The claims against R1 were limited to the issues of whether the dismissal was automatically unfair (s103A ERA 1996) and/or was an act of direct sex and/or race discrimination.

[7]Unfortunately since that point the claim has become more and more complex. The claimant now seeks to resile from all of the positions set out above and to continue to pursue all claims against all respondents; and to add claims of whistleblowing detriment against all three respondents. As a result the position in respect of all three respondents is now in issue.

[8]In my judgment it is sensible to deal with the amendment applications first, as the outcome will inform the applications in relation to the other claims. Amendment Application

[9]By an application dated 22nd October 2024 the claimant applied to amend her claim and has attached amended Particulars of Claim setting out the claims she wishes to bring. She does not accept that these are new claims but asserts the simply involve re-labelling and providing Further and Better Particulars of claims already brought.

[10]The claims the claimant seeks to pursue are: i) The claimant has resiled from her earlier position that she only sought to pursue the sex and race discrimination claims against R1, and now wishes to pursue them against R2 and R3; ii) That she seeks to pursue the s103A unfair dismissal claim against R1 and R2 (para 35); iii) That she seeks to add a public interest disclosure detriment claim against R3 (on the basis of Timis v Osipov) 6 of 33 iv) She seeks to add claims against all respondents of whistleblowing detriment.

[11]The most significant application is to amend to add public interest disclosure detriment claims against all three respondents. In this section of the decision in considering the application to amend I will only deal with the application to add the public interest disclosure detriment claims against all three respondents as the considerations are identical in respect of each of them (in respect of the other applications which relate to the individual respondents I will deal with them in the discussion of the individual claims against R1 R2 and R3 below).

[12]The claims the claimant seeks to add are: 30. I claim the following as detriments against me by the First Respondent, Second Respondent, and Vadim Krutov, Manish Agarwal, and Stijn Ehren of the Third Respondent on the ground that I made protected disclosures:a. I was excluded and ostracised from meetings (investors and other internal) by the second and third respondents which I should have been a part of as stated in my job responsibilities. I raised the ostracization with the CEO on 23rd June 2023 without any response from her.

b. On 19th June 2023, Marina Khaustova (R2) and Vadim Krutov of Bitfury Group Limited (R3) were setting me up to fail by intentionally not giving final approval for payment to settle the suppliers and subsequently blamed me for non- payment.

c. I was being set unreasonable targets, setting me up to fail and being required to work longer hours. The request by Vadim Krutov of the Third respondent on 22nd June to set up a cost centre in the ERP system when this was not a possible task and couldn’t be done on the current ERP system.

d. My treatment by the Second Respondent on 14th July, responding angrily and commenting ‘I approve the payment regardless of whether it was included or not’ She wasn’t concerned if payment was budgeted for or not and the established process was being followed. The Second Respondent was undermining my role and giving other members of staff the impression that I was obstructing payment.

e. Derogatory comments being made about me by Vadim Krutov of the third respondent on 22nd June 2023 stating that a young, hungry, ambitious, smart, fast one, and cheaper, like one of his male reports, should be employed to take over my responsibilities in reaction to my protected disclosure made to the Director.

f. The belittling and angry comments made on 27 June 2023 stating that I should not be allowed to carry out my job responsibilities without going through the Marina Khaustova (R2) and Vadim Krutov of Bitfury Group (R3). Vadim Krutov of Bitfury Group Limited (R3) instructed Marina to gag/control me as much as possible from making further comments. 7 of 33

g. Unfair comments about my performance or conduct by Vadin Krutov of the Third respondent in an email dated 30 June 2023. Despite admitting that the Group Financial Director - Manish Agarwal was at fault, he still went ahead to blame me for Manish’s actions.

h. The response in the correspondence dated 29 September 2023 that I was dismissed based on unfounded criticisms of my work performance and based on the allegation which was incapable of justifying the dismissal as the Respondent sought to do. The company does have cashflow issues and is unable to make payment which was discussed on several occasions with the CEO.

i. The failure to provide me with details of any allegations made against me and to follow the Acas Code of Practice on Disciplinary and Grievance Procedures in relation to these allegations and my dismissal. The email received from the colleague provided as evidence of allegation was dated 20th July 2023 but the termination took place on 18 July.

j. The decision that I should be dismissed on 18th July 2023 with no given reason on the termination letter.

k. The dismissal, as instigated by Vadim Krutov of the third respondent (pleaded as a detriment) - Timis & Anor v Osipov

[2018] EWCA Civ 2321

l. The manner (as opposed to the fact of) my dismissal on 18th July 2023, and in particular: i. The absence of any recognised procedure; ii. That I was summoned to the dismissal meeting under false pretence and without being informed of the purpose of the meeting;

m. The failure to provide an appeal procedure in line with the Acas Code of Practice on Disciplinary and Grievance Procedures. There was no mention of the appeal procedure in the termination letter.

n. A lack of openness and transparency within the organisation. 31. I am also relying on detriments (a, b, d, f, h, i, j, k, l, m ) as against the Second Respondent personally and detriments ( b, c, e, f, g, i, j, k, l ) against Vadim Krutov of the third Respondent.

[13]The application in respect of each respondent is: i) As against the first respondent to be permitted to rely on all of the allegations as whistleblowing detriments; ii) As against the second respondent to rely on the allegations set out in para 31; iii) As against the third respondent, that its vicariously liable for the actions of Vadim Krutov, Manish Agarwal, and Stijn Ehren (and specifically the allegations against Mr Krutov set out in para 31). 8 of 33

[14]It is possible to make some general points which apply in respect of all three respondents: i) The whistleblowing detriment claims consist of fourteen separate factual allegations (para 30 a-n above ) which will, if permitted to be pursued against all or any of the respondents increase every aspect of preparation for and the length of the final hearing. ii) If permitted the allegations will significantly expand the factual and legal issues before the tribunal and it is extremely unlikely that the final hearing could be limited to four days as currently listed; iii) Granting any or all of the applications will therefore, necessarily mean postponing the final hearing for a second time. iv) The claimant has previously confirmed (as recorded in EJ Livesey’s CMO) that the only whistleblowing claims related to her dismissal, a position from which she now very substantially resiles.

[15]Before setting out the application and objections the legal principles to be applied are (in summary) as set out below: Employment tribunals have a broad discretion to allow amendments at any stage of the proceedings, either on the tribunal’s own initiative or on application by a party (rule 29) Such a discretion must be exercised in accordance with the overriding objective in rule 2 of dealing with cases fairly and justly. On the basis of Chaudhry v Cerberus Security and Monitoring Services Ltd

[2022] EAT 172

, a two-step approach should be adopted. First, the amendment or amendments sought should be identified, ideally in writing. Secondly, it is necessary to balance the injustice and/or hardship of allowing or refusing the amendment or amendments, taking account of all the relevant factors, including, to the extent appropriate, those referred to in Selkent. The balancing of the injustice and/or hardship of allowing or refusing the amendment is paramount (as stressed for example in Vaughan v Modality Partnership

[2021] ICR 535

(EAT). Vaughan was dealt with in the EAT by the same Judge who later dealt with Chaudhry (see below). The paradigm analysis was set out by the EAT in Selkent Bus Company Ltd-v-Moore

[1996] ICR 836

EAT,( which was endorsed by the Court of Appeal in Ali-v-Office of National Statistics

[2005] IRLR 201

CA). The EAT held in Selkent that, in determining whether to grant an application to amend, the Tribunal must always carry out a careful balancing exercise of all the relevant factors, having regard to the interests of justice and to the relative hardship that 9 of 33 would be caused to the parties by granting or refusing the amendment. The relevant factors were set out by Mummery J, and include: 1. The nature of the proposed amendment; 2 The applicability of time limits; if a new claim or cause of action is proposed to be added by way of amendment, whether or not it arises out of the same facts as the original claim, it is “essential” (per Mummery J in Selkent) for the Tribunal to consider whether that claim or cause of action is out of time and, if so, whether the time limit should be extended. Where the amendment is simply changing the basis of, or “re-labelling”, the existing claim, it raises no question of time limitation (see, for example, Foxtons Ltd-vRuwiel

UKEAT/0056/08

per Elias P at para 13). 3 The timing and manner of the application; an application should not be refused solely because there has been a delay in making it. The later the application is made, the greater the risk of the balance of hardship being in favour of rejecting the amendment (Martin-v-Microgen Wealth Management Systems Ltd EAT 0505/06). However, an application to amend should not be refused solely because there has been a delay in making it, as amendments may properly be made at any stage of the proceedings.. These factors are not exhaustive and there may be additional factors to consider. In Vaughan v Modality Partnership

2021 ICR 535

, EAT, the EAT gave detailed guidance on the correct procedure to adopt when considering applications to amend tribunal pleadings. “A practical approach should underlie the fundamental exercise of balancing the hardship and injustice of allowing as against refusing the amendment. Representatives would be well advised to start by considering, possibly putting the Selkent factors to one side for a moment, what will be the real practical consequences of allowing or refusing the amendment. If the application to amend is refused how severe will the consequences be, in terms of the prospects of success of the claim or defence; if permitted what will be the practical problems in responding. This requires a focus on reality rather than assumptions. It requires representatives to take instructions, where possible, about matters such as whether witnesses remember the events and/or have records relevant to the matters raised in the proposed amendment. Representatives have a duty to advance arguments about prejudice on the basis of instructions rather than supposition. They should not allege prejudice that does not really exist. It will often be appropriate to consent to an amendment that causes no real prejudice. This will save time and money and allow the parties and tribunal to get on with the job of determining the claim. 10 of 33 The Selkent factors are: the nature of the amendment, the applicability of time limits and the timing and manner of the application. The examples were given to assist in conducting the fundamental balancing exercise. They are not the only factors that may be relevant. Where the prejudice of allowing an amendment is additional expense, consideration should generally be given as to whether the prejudice can be ameliorated by an award of costs, provided that the other party will be able to meet it” Following Vaughn, tribunals should consider what evidence there is of the real, practical consequences of allowing or refusing the amendment will be. If the application to amend is refused, how severe will the consequences be, in terms of the prospects of success of the claim or defence? If permitted, what will be the practical problems in responding? No one factor is likely to be decisive. The balance of justice is always key. A balancing exercise always requires express consideration of the interests of both parties, both quantitively and qualitatively. It is not merely a question of the number of factors, but of their relative and cumulative significance in the overall balance of justice.

[16]The respondent objects to all the applications on the basis that: i) Relabelling - It is not correct to assert that the application simply involves the relabelling of and/or providing Further and Better Particulars of the existing claims; but introduces wholly new legal and factual claims which not only have not been made before, but which the claimant specifically disavowed and stated she was not bringing (at least in respect of the whistleblowing detriment claims) at the TCMPH before EJ Livesey. ii) Timing and Manner of the Application - The whole purpose of case management hearings is to identify the issues and allow the parties to know the claims they have to prove or defend, and it is not a proper use of an amendment application to seek to introduce claims that the claimant has already confirmed that she is not bringing (or at least that this should be a very powerful factor to be taken into account in determining the application). The respondent points out that the question of whether the claimant was in fact bringing any whistleblowing detriment claims was discussed in the earlier TCMPH and the claimant confirmed that her only whistleblowing claims related to her dismissal (see paras 67/68 EJ Livesey’s CMO). The fact that the only whistleblowing claim recorded in the List of Issues is the claim of automatic unfair dismissal, reflects the claimant’s own position before EJ Livesey iii) The respondent points to the fact that on 3rd September 2024 the claimant applied to amend EJ Livesey’s List of Issues by the addition of a further protected disclosure. The respondents objected and the application was refused by EJ Livesey. At that stage the claimant was not seeking any further amendment, and had it been possible for the final hearing to proceed as originally listed this application would never have arisen. The fact that the final hearing had to be postponed is not a proper basis for allowing the claimant to recast and significantly expand her claim. 11 of 33 iv) Time Limits - The amendment applications are all necessarily out of time having been made first on 22nd October 2024, just less than a year after the claim was initially brought; v) Prejudice The claims the claimant is now seeking to bring vastly increase the scope of the claims identified by EJ Livesey; vi) It would be wholly unjust to require the respondents effectively to start again, and face new claims which significantly expand disclosure, the documentary evidence, the final hearing bundle and witness evidence and the length of the final hearing, none of which would have been pursued or occurred if it was possible for the final hearing to go ahead. vii) The prejudice to the respondents were the amendment application to be allowed would therefore be very significant indeed.

[17]The claimant contends that: i) She is a litigant in person and has been trying to navigate a complex process and complex claims and legal concepts. If it has taken her some time fully and finally to grasp and elucidate all the claims she wishes to bring she should not be criticised, and should be permitted to do so. ii) Her ET1 and/or her accompanying particulars should be read as including public interest disclosure detriment claims, and if and to the extent that she appeared to be limiting her claim solely to automatic unfair dismissal in either the ET1 and/or EJ Livesey’s TCMPH it is not just for her claim to be limited because of that. iii) It would be fundamentally unjust to prevent her from pursuing all these claims; and that unless she is permitted to do so she will kept out of potentially meritorious claims which should be heard.

[18]Conclusions – In my judgement the respondent is fundamentally correct. If the application is dismissed the claimant will still be able to pursue all the claims she has previously accepted were the claims she was bringing (subject to the other applications dealt with below) and will effectively suffer little prejudice. If however the application is allowed the final hearing will have to be postponed, or at very least significantly expanded, and will require the process of disclosure and hearing preparation to effectively restart, which will involve significant time and expense and is necessarily prejudicial. In my judgment this is correct and the balance of hardship / prejudice clearly favours the respondent.

[19]Accordingly the application to amend is refused and the issues to be determined in respect of the public interest disclosure claims will be solely those relating to the automatic unfair dismissal claim identified by EJ Livesey, subject to the resolution of the further applications below. 12 of 33

[20]The other amendment applications will be dealt with as part of the discussion of the claims against the individual respondents (For the avoidance of doubt the conclusions set out above do not apply to the allegation against the third respondent as set out at para 30(k) above which appears to me to be an alternative way of putting the claimant’s claim in respect of the third respondent’s alleged participation in the claimant’s dismissal) .

[21]Withdrawal – The first issue is whether the claims against the second respondent were unequivocally withdrawn, and if so the effect and consequences of that withdrawal.

[22]The history of the claim is that the claim against the second respondent was presented on 18th December 2023, bringing claims of race and sex discrimination and whistleblowing dismissal (s103A ERA 1996). In the first CMO EJ Livesey set out the difficulties of the claimant’s claim against R2 in respect of the whistleblowing dismissal, as she was not the claimant’s employer; and gave the guidance as to the discrimination claims as the statutory defence was not being relied on by R1. On 28th May 2024 the claimant replied to EJ Livesey’s direction and in respect of R2 stated: i) As the CEO of R1’s business R2 was actively involved in the decision making and overall management of R1’s business; ii) R1 has accepted to be vicariously liable for conducts direct and indirect of R2…. iii) In the light of R2's position and the fact that she will be the lead witness for the respondents I will be withdrawing my claim against R2 whilst reserving my right to cross examine her at the hearing (my underlining).

[23]In addition at para 10 of the document she sets out the claims she wishes to pursue against R1 and R3 going forward, and specifically asserts that the sex and race discrimination claims are brought solely against R1.

[24]Following an application made by the respondent in which it sought amongst other things the dismissal of the claims against R2 on withdrawal, the claimant replied on 10th June 2024 confirming that the claims against R2 had been withdrawn.

[25]As a consequence in respect of the claims originally brought by the claimant against R2 the respondents make the following two straightforward points: i) The claim of automatic unfair dismissal (s103A ERA 1996) is bound to be dismissed irrespective of withdrawal as R2 was not the claimant’s employer and the claim is bound to fail; ii) That the claims have been unequivocally withdrawn; and that withdrawal was itself repeated. 13 of 33

[26]The case came before me on 24th September 2024 and the claimant subsequently made an application to amend on 22nd October 2024. In respect of R2 the claimant reiterated the point made orally in the hearing that she now wished R2 to remain as a respondent, and for the claim against her to proceed. She stated that was formally withdrawing her earlier withdrawals. The basis for this is that she contends that in her original case management agenda for EJ Livesey’s hearing that she was bringing claims of whistleblowing detriment as well as dismissal; and that EJ Livesey has failed accurately to record the claims being brought. The respondent points out that the question of whether the claimant was in fact bringing any whistleblowing detriment claims was discussed in the hearing and the claimant confirmed that her only whistleblowing claims related to her dismissal (see paras 67/68 EJ Livesey’s CMO). The fact that the only claim whistleblowing claim recorded in the List of Issues is the claim of automatic unfair dismissal, reflects the claimant’s own position before EJ Livesey; and that in any event whatever the precise position in respect of whistleblowing detriment claims, and whether they were or were not accurately recorded by Livesey, the claimant subsequently withdrew all claims against R2.

[27]The consequence of an unequivocal withdrawal is to bring the claim to an end (rule 51 ET Rules of Procedure 2013). Rule 52 provides for the automatic dismissal of a withdrawn claim unless one of the specified reasons for not dismissing the claim exists. Irrespective, however of whether the claim is dismissed, as Rule 51 makes clear an unambiguous withdrawal brings the proceedings in the employment tribunal to an end in any event.

[28]The claimant does not in my judgement, in fact dispute that she has unequivocally withdrawn the claims against R2, but that she has reconsidered and wishes to withdraw the withdrawal as the final hearing has been adjourned. In my judgement the claims against R2 were unequivocally withdrawn and as a result automatically came to an end; and it is not open to the claimant to withdraw the withdrawal and continue to pursue the claims. Pursuant to rule 52 the claims will be dismissed on withdrawal.

[29]Amendment – The claimant has sought in her amendment application to bring whistleblowing detriment claims against the second respondent (as set out at para 30 amendment application). For the reasons set out above this application has been dismissed.

[30]In addition and for completeness sake, the respondent submits that if the claims against the second respondent have been unequivocally withdrawn, and can no longer be pursued in the tribunal pursuant to rule 51 there is no existing claim to amend and the application would have been bound to fail irrespective of the usual tests for determining amendment applications. In my judgment this must be correct and as the claim against the second respondent came to an end on withdrawal, there is no existing claim to amend and the amendment application against the second respondent would inevitably have been dismissed in any event.

[31]Sex/Race discrimination – In her amendment application the claimant has sought to resile from her earlier position that she was not seeking to pursue these 14 of 33 claims. However her earlier withdrawal was a withdrawal of all claims against the second respondent which can no longer be pursued, and she will be dismissed as a respondent to the claim for the reasons set out above. It follows automatically that these claims can no longer be pursued. Third Respondent

[32]The claim against R3 as set out by the claimant in the 24th May 2024 and 10th June 2024 documents are solely a claim for “aiding and abetting concealing information relating to disclosures under ERA 43B (1)(f)”. She also contends that the third respondent assisted the first, in that the financial malpractice she alleges she disclosed could not have occurred without the assistance of the third respondent; and that the third respondent assisted the first respondent in dismissing her in that it provided her replacement to the first respondent.

[33]The third respondent submits that these allegations, even if true do not disclose any claim falling within the jurisdiction of the employment tribunal. The section of the ERA relied on by the claimant simply identifies one of the potential categories of a protected disclosure, and does not itself provide the basis for any claim against the third respondent. The third respondent is a separate legal person from the first respondent and is not employed by it or a worker of it. The only legal mechanism by which any liability could potentially attach to the third respondent is as an agent of the first respondent (ERA s47B(1A). However, that would only relate to any potential claim for whistleblowing detriment, and as set out above none was originally being brought in any event against the first respondent, and it was not therefore possible for the third respondent to act as the first respondents agent in relation to a detriment claim which does not exist against the first respondent. There is no equivalent provision relating aiding and abetting a dismissal and/or concealing information relating to a disclosure. There is, put simply, no legal route by which any liability could attach to the third respondent in respect of the claimant’s original claim against the first respondent, and/or as put against the third respondent. Before reaching a concluded view on this it is also necessary to consider the claimant’s application of 22nd October 2024.

[34]Amendment Application – The claimant has made an application to amend to pursue claims of whistleblowing detriment against R3, and to recast the claim against R3 in respect of her dismissal as a detriment (on the basis of Timis v Osipov). As set out above I have not permitted the amendment application to add claims of public interest disclosure detriment generally, but that leaves the question of the application at 30(k) to be permitted to rely on as a detriment “The dismissal, as instigated by Vadim Krutov of the third respondent (pleaded as a detriment) - Timis & Anor v Osipov

[2018] EWCA Civ 2321

”. This appears to me not necessarily a new claim, but an alternative way of alleging participation by the third respondent in the claimant’s dismissal.

[35]The allegations as set out in the application are alleged to be made personally against Vadim Krutov of the third respondent. There is no application to join him 15 of 33 personally as a respondent to the claim, and the claim is presumably put on the basis that the third respondent is vicariously liable for his actions.

[36]This, in my judgement gives the claimant some significant difficulties. It is not alleged that either the third respondent or Mr Krutov were the claimant’s employer or a co-worker. As is set out above the only basis for any legal liability would be that under s47B(1A), that Mr Krutov, for whose actions the third respondent is vicariously liable was acting as the agent of the first respondent. Section 47(1B) provides that the employer of a worker within s47(1A)(a) is also liable for, ”treated as done by” the workers employer. However a worker within the meaning of s47(1A)(a) is a worker of the claimant’s employer, which Mr Krutov was not. It follows that the third respondent is not attached with any liability for Mr Krutov’s alleged actions by the ERA itself, and it is not at all clear to me how any liability could attach to them. In addition the factual allegation is in fact the other way round; she alleges that her dismissal was instigated by Mr Krutov, and the first respondent was acting on his instructions. There is no factual allegation that he was acting as the agent of the first respondent with its authority. It follows that in my judgement even if the application to amend were to be permitted, the claim against the third respondent would be bound to fail and in those circumstances there is no purpose in permitting the amendment.

[37]Conclusions – It follows that in my judgement, the amendment application having been dismissed, that the aiding and abetting allegation as discussed in para 32 and 33 above does not provide the legal basis for any claim against the third respondent in respect of the claimants’ claim of automatic unfair dismissal. It is difficult not to have some sympathy with the claimant coming up against the complexity of the whistleblowing provisions, but in my judgment the respondents analysis is correct and it is not possible to identify any route by which any legal liability could attach to third respondent. It follows that I am bound to strike out this claim as having no reasonable prospect of success.

[38]Sex/Race Discrimination - She also seeks to restore the allegation of R3 aiding and abetting the sex and race discrimination, which she had confirmed in the 24th May 2024 document that she was not pursuing; and which were only being pursued against R1. In my judgement had the case been able to proceed to final hearing as originally listed it would have done so on the basis that the sex and race discrimination claims were being pursued against R1 only as that was the position the claimant had taken on 24th May 2024. Equally in my judgment it must follow that the race and sex discrimination claims against R3 must have in reality been withdrawn. Whilst the claim does not use the word “withdrawal”, it is clear from the document that she has taken a decision not to pursue those claims, which have in reality been unequivocally withdrawn, with the same consequences as those in relation to the withdrawal against the second respondent. In my judgement it is simply not open to the claimant to seek to revive those claims in those circumstances. Alternatively if it were open to her, and she was seeking permission to amend to restore those claims I would not have exercised my discretion to permit an application to amend to add claims that had already been effectively withdrawn. 16 of 33

[39]It follows that all as the amendment applications have been dismissed, and there is in my judgement no basis for the claims the claimant seeks to pursue against the third respondent, that the third respondent must be dismissed as a respondent the proceedings.

[40]Costs Application – the third respondent has applied for its costs to be paid by the claimant. The basis of the application is that: i) As set out in the Grounds of Resistance, the claimant’s claim against the third respondent stood no reasonable prospect of success as it could not be liable for the claimant’s dismissal; ii) The claimant then sought to recast her claim as aiding and abetting the concealment of information relating to protected disclosures, which equally is not a claim known to or falling within the jurisdiction of the Employment Tribunal, and which equally had no reasonable prospect of success; iii) Finally she sought to rescue the claim by seeking to amend to pursue a claim of whistleblowing detriment as set out above.

[41]The third respondent contends that the claims have and had no reasonable prospect of success, and that the claimant has acted unreasonably in a continuing misguided attempt to pursue claims against the third respondent in respect of her dismissal rather than simply focus on her employer, who will unquestionably be liable if the claim is held to be meritorious.

[42]The claimant makes similar points to those set out above: i) She contends that there is evidence that Mr Krutov was involved in the process that led to her dismissal; ii) In those circumstances there must be some mechanism by which he and/or the third respondent should bear some legal responsibility for her dismissal; and if not she will suffer significant injustice and/or the third respondent will not be held to account; iii) She is not a lawyer and she has done her best in a very complex area of law to identify a route by which liability would attach liability to the third respondent; iv) In doing so she has not acted unreasonably and she should not be held liable in costs for genuinely seeking to pursue what she believes are meritorious claims (at least morally) against the third respondent.

[43]Whilst I have some sympathy for the third respondent for having to defend claims which in the final analysis I have dismissed on their merits; in my judgement there is considerable force in the claimant’s submissions and even if the pursuit of the claims is sufficient to engage the costs jurisdiction pursuant to rule 76(1)(a) and/or (b) this is not a case in which I am persuaded that that I should exercise my discretion to make a costs order. 17 of 33 First Respondent

[44]The first respondent’s application is for the strike out of or a deposit order in respect of the public interest dismissal (detriment) claims on the basis that the contention that the disclosures are qualifying disclosures within the meaning of s43B ERA 1996 has no or little reasonable prospect of success.

[45]The disclosures as identified by EJ Livesey are:1.1.1.1 On 6 June 2023, by email to the Second Respondent and legal counsel, Mr Bratt, she highlighted discrepancies between a 2019 valuation report (which supported a value of the business at $16m) and the valuation which the First Respondent placed upon it for investment purposes ($16.5m);

1.1.1.2 On 11 July 2023, to the Second Respondent the Finance Director and Tax Compliance Director of Third Respondent, by email, the Claimant raised concerns about the sum $930,000 of income tax which was shown in the First Respondent’s 2022 accounts. She considered that it showed the company’s financial position to appear better than it was;

1.1.1.3 On 13 July 2023, by email to the First Respondent’s legal counsel, Mr Bratt, and the Second Respondent, the Claimant raised the same concerns as in 1.1.1.1 but also highlighted the inappropriateness of Directors valuing their own company;

1.1.1.4 On 18 July 2023, the Claimant made a further disclosure by email to the First Respondent’s legal counsel, Mr Bratt, about a vendor’s invoice because the business had an Israeli address. Potential money laundering and/or tax reporting issues arose;

1.1.1.5 Between the 12-18 July, the Claimant made representations about the First Respondent’s decision not to use Bitgo, a regulated wallet custodian which would have protected the First Respondent’s assets. She was informed that another company was to have been engaged, which was neither regulated nor a custodian. Their engagement was considered to have been likely to lead to an increase in sales. The Claimant raised concerns about the situation the Sales Director in a Microsoft Teams chat and in an email and to the Second Respondent verbally, all between 12 and 18 July.

[46]The claimant contended that they were protected disclosures in that they tended to show:1.1.5.1 A criminal offence had been, was being or was likely to be, committed. She alleges that the overstatement of a company’s financial position was a criminal act under the Companies Act;

1.1.5.2 A person had failed, was failing or was likely to fail to comply with any legal obligations. She alleges that the matters set out above constituted breaches of legal obligations which the First Respondent owed to its customers, potential customers, HMRC, investors and actual and potential employees; 18 of 33

1.1.5.3 Information tending to show any of these things had been, was being or was likely to be deliberately concealed.

[47]In the amendment application the claimant has set out the allegations in relation to the protected disclosures in far greater detail . One of the disclosures she seeks to rely on (see 19.3 below) is the additional disclosure which she sought to add by way of amendment and which EJ Livesey has already rejected. In my judgment nothing has changed since EJ Livesey’s decision and it is not appropriate for the claimant simply to add it again in another amendment application, having neither appealed or sought reconsideration of EJ Livesey’s decision. For those reasons I do not grant the application to amend in respect of it, and have only considered those disclosures already identified by EJ Livesey. The disclosures: 19.1. The over-valuation of the Company (protected disclosure). 19.1.1. An initial report produced in or around 2019/2020 valued the Company at approximately $16 million. However, the Company’s directors subsequently valued the Company at $16.5 million when speaking to investors. I sought information to support these valuations but my requests were ignored and I was never allowed to review, comment on, or verify the report before it was presented to investors or used for issuing shares to the employees. 19.1.2. I emailed the legal counsel about my concern about the valuation, given that the valuation report will form the basis of issuing shares to employees and investors, including the CEO, who will receive the highest number of shares. 19.1.3. On 6 June 2023, I sent an email to Val Vavilov, Vadim Krutov (COO of Bitfury Group Limited, Marina Khaustova, and Manish Agarwal, the Group Finance Director for Bitfury raising my concern on these discrepancies and seeking to understand the basis of these figures but my requests and concerns were simply ignored, never responded to and investment was sought based on potentially incorrect and misleading information. 19.1.4. During May and June 2023, when on calls with the CEO, I brought up the issue of the company’s valuation. 19.1.5. The Company intended to issue shares based on an unsupported valuation which increased the Company’s value by around $500,000. I believed that incorrectly valuing the Company would mislead investors and employees. This is in contravention of the Company’s legal obligations. 19.1.6. On 13 July 2023 I emailed the Company’s legal counsel and CEO to repeat my concerns about the $16.5 million valuation of the Company and the need for supporting documentation to be provided for me to review and approve this. I also mentioned that it was not appropriate for the directors to determine the value of their own company without external 19 of 33 guidance and support. Legal counsel acknowledged my concerns and agreed that it was important to raise this with the Board. This email exchange was copied to the Company’s CEO. 19.1.7. Also on 13 July 2023, the Company’s legal counsel sent an email to the CEO. The email made clear that it would be sensible for me and legal counsel to participate in the call with the Board to explain the ‘final’ documents. My employment was unlawfully terminated before this conversation took place. Thereby adding to my concerns that due process was not being followed. 19.1.8. Issuing overvalued shares to employees or potential employees that form part of their employment contract is misleading and could create a false sense of value for employees. I made these disclosures in the interest of employees, potential employees, and investors, who might inadvertently believe the numbers shown to them before they make major life decisions – investing and joining a company 19.2. Falsification of financial statement (protected disclosure): 19.2.1. On 11 July 2023, I queried and raised concerns about the posting of a $930,000 entry for income tax in the 2022 accounts. This had been included without my knowledge or consent and I asked to see supporting evidence so that I could review and understand the entry. 19.2.2. The backup and supporting document for the entry was never provided instead the group financial Director mentioned that further clarification will be sought from the Auditor. 19.2.3. This is usually not the case as the auditors provide an explanation and reason for all adjustments before the entry can be posted, this clearly shows that the GFD has failed to follow good accounting practice or looking for ways to falsify the account. The entry posted was clearly stated as 2022 income tax in the description. 19.2.4. The entry was posted and approved using the Identification (ID) of the CFO who was no longer with the company. This is a major cause of concern as the falsification will not be linked to anyone within the organisation. 19.2.5. Due to the materiality of the amount, the group financial Director and/or tax Director should have been the people to approve the entry in the ERP system. 19.2.6. The tax posting in the ERP system is an entry that will impact the reporting to HMRC. 19.2.7. The Incorrect posting will cause the Company’s financial position to appear almost $1 million better than it was. In conjunction with the 20 of 33 Company’s potential overvaluation of its value, this was of particular concern to me. Including this entry in the signed financial statement for 2022 would mean that the Company had deliberately misstated its financial position and/or misled the auditors. 19.2.8. Given that Manish Agarwal the Group Finance Director of Third Respondent(R3) is already privy to the discussion about my dismissal before the posting of $930,000 in First Respondent’s books, I submit that it is a malicious attempt at getting me to validate the falsified numbers meant to go to investors. The implication for me is that when queries are raised, they can turn around and blame me for wrongdoing because they would have also succeeded in terminating my contract and I will no longer be there to defend myself. 19.2.9. Due to my concerns about the accuracy and completeness of the Company’s 2022 accounts and given that I will be required to provide the initial sign-off on the financial statement before the final sign-off by the CEO as the statutory Director. I engaged an external party to conduct a review. The appointment was subject to anti-money laundering (‘AML’) and ‘know your client’ (‘KYC’) checks being carried out. However, my employment was terminated before I could conduct these checks. The company’s failure to allow an external party to review the accounts reaffirms my belief that there could be a misstatement of the 2022 financial statement. ( See above- 19.3. Conflict of Interest by the Statutory Director (protected disclosure): 19.3.1. Statutory directors must act in the best interests of a company and should not engage in activities that could lead to a conflict of interest. 19.3.2. On 26 June 2023, I discovered that one of the Group statutory directors is also a partner in one of the vendor’s companies dealing with the Company’s VAT and statutory filing in the Netherlands which is a clear conflict of interest. 19.3.3. I raised this with the Company but my concerns were ignored when I explained to the CEO. 19.3.4. When I raised this with the statutory director concerned, he mentioned that Bitfury’s Group Senior management was aware of the situation and had instructed him not to update his LinkedIn page.) 19.4. Potential Money Laundry and Non-Compliance with Tax Reporting (protected disclosure): 19.4.1. On 18 July 2023, I queried an invoice from a vendor who was registered in the US but had an address in Israel after it was brought to my attention by the coordinator. 19.4.2. I was concerned about money laundering and tax reporting requirements so queried the situation with the Company’s legal counsel. 19.4.3. The legal counsel didn't see any issue with the requirement and mentioned 21 of 33 that it was a perfectly legal thing to do. 19.4.4. Couple with the other tax reporting issue with VAT that I have raised with the legal counsel, the attitude of the vendor and tax compliance director, this became a very big concern for me 19.4.5. The vendor responded to confirm that it would address the situation but, to the best of my knowledge before my contract was terminated, no changes were implemented. 19.5. Issue with safeguarding the company’s assets (protected disclosure): 19.5.1. Between 12 July and 18 July 2023, I tried to engage a regulated wallet custodian, Bitgo, to be the Company’s wallet address Custodian. 19.5.2. Having a regulated wallet custodian provides better protection for the Company’s financial assets and ensures that transactions are insured in the event of any problems arising. I was confident that Bitgo was suitably qualified and experienced to ensure the Company could meet its obligations. 19.5.3. When I sent a reminder to the CEO to complete the relevant form, I was contacted almost immediately by one of the Sales Directors who mentioned that the Company could engage an alternative company that was neither regulated nor a custodian. 19.5.4. The Sales Director stated that appointing this alternative company would lead to an increase in sales and, for him, an increase in his commission. The alternative company had agreed to reduce its fee from an initial $50,000 to $15,000 to match the fee of the regulated custodian identified. This doesn’t sit well with me and could be classified as a fraud risk scenario. 19.5.5. I was being pressured into agreeing with the appointment of the alternative company and my legitimate concerns about protecting the Company’s finances, particularly at a time when the Company was seeking investment were ignored. 19.5.6. My objections were cast aside and I was accused of not being a ‘team player’.

[48]As set out above on 3rd September 2024 the claimant applied to add a further protected disclosure, which was refused by EJ Livesey. This is the same disclosure referred to at 19.3 above.

[49]In order to determine the respondents application it is necessary to set out the emails relied on and the context in some detail.

[50]Law – In order to succeed in a claim for public interest disclosure automatically unfair dismissal / detriment the claimant must have made: 22 of 33 i) A disclosure of information ; which ii) In her reasonable belief was in the public interest ; and iii) Which tended to show a breach of falling within one or more categories within s43B ERA 1996.

[51]Those categories are:(a) a criminal offence had been, was being or was likely to be committed;

(b) a person had failed, was failing or was likely to fail to comply with any legal obligation;

(d) the health or safety of any individual had been, was being or was likely to be endangered;

(e) the environment had been, was being or was likely to be damaged;

(f) information tending to show any of these things had been, was being or was likely to be deliberately concealed.

[52]As set out above the claimant contends that the disclosures fall within(a) and/or

(b) and/or (f) .

[53]The central thrust of the respondents submission is that in each case the claimant did not make any disclosure factually which she could reasonably have believed showed any breach falling within any of those categories. The detailed submissions in respect of each are set out below. Public Interest Disclosure (PID) 1 and 3 - 6th June 2023 / 13th July 2023: i) On 6 June 2023, by email to the Second Respondent and legal counsel, Mr Braat, she highlighted discrepancies between a 2019 valuation report (which supported a value of the business at $16m) and the valuation which the First Respondent placed upon it for investment purposes ($16.5m); ii) On 13 July 2023, by email to the First Respondent’s legal counsel, Mr Bratt, and the Second Respondent, the Claimant raised the same concerns as in 1.1.1.1 but also highlighted the inappropriateness of Directors valuing their own company;

[54]Both these alleged disclosures relate to the underlying valuation of the company ($16 million / $16.5 million). The email of 6th June 2023 relied on by the claimant includes the following: ”The post money valuation is $18 million …..The valuation report I have is showing $16 million pre money valuation which I believe I still need to review for accuracy and validity based on the assumption used in the calculations but agreed and approved table is showing $16.5 million. Maybe there is another report with $16.5 m valuation?”

[55]The respondent contends that this email does not disclose any information which tends to show a breach of any legal obligation. It explains where the overall 23 of 33 figure of $18 million derives from, asserts that the claimant will need to review the figures for accuracy, and requests any further report with a £16.5m valuation. There is self-evidently no suggestion in the email that there is or will be any breach of any legal obligation, it is simply a request for information as to the source of the $16.5m figure.

[56]The second email of 13th July 2023 is part of a chain beginning on 11th July 2023. On 12th July 2023 at 4:00 PM David Braat, the first respondents Legal Counsel, sent the claimant an e-mail setting out a proposed executive summary of talking points with the board to close the valuation issue for the Columbus note conversion. He invited the claimant to review and add any financial implications consequences in item 7 below. The full list of items is as follows: 1. The convertible note signed April 2020 states a pre money valuation of $16.5 million subject to a valuation report and post money valuation of $18M. 2. This pre money valuation in the note does not match with the pre money external valuation report which was prepared by Moore ABC LLC in March 2020, and states a pre money market value of $16 million (Please note the equity value and enterprise value of crystal are set at $16.6M in the valuation report) 3. Per items 1 and 2 above we are seeking clarity and confirmation which pre money valuation should be used to the closing this transaction. The need for a clear and final decision comes from the fact that this valuation will be the basis for the transaction as it is the sole basis for the cap table and the number of issued shares of crystal after the transaction. 4. Per the upcoming transaction the note will be terminated and all rights and obligations of the note will be waived and no claim on those rights and obligations can be made in future. There is no risk that any of the clauses of the note may be used by Bitfury, Crystal or Columbus in any potential future discussions or claims - hence the legal risk of deviating from any term in the note is no longer existing after the transaction.… 5. Per the advice of Osborne Clarke (…) the pre-money valuation to be used by the parties is purely a commercial decision and agreement between the parties since the note will be terminated. Parties may decide to use the valuation including in the valuation report ($16M) or they may decide to use the valuation agreed between them in the note conversion ($16.5M). 6. The issue at hand is mostly a financial matter/ risk since the valuation used for this transaction may or will need to be supported in any future matters (e.g. audit of financial statements / audit of books / due diligence / upcoming investment rounds etc). 7. Using a valuation of $16M can be supported by an external valuation report while using a valuation of 16.5 million can be supported by the agreed note (only) …...…

[57]On 13th July 2023 at 9:59 the claimant replied stating “This is not about the convertible note. It is about the basis on which you will be issuing shares to the three parties involved - Bitfury, Columbus and ESOP. For posting the entries in the books after conversion, I will need supporting documentation for the number and the only number that can't be supported is the $16.5M. please obtain documented confirmation from OC that I can use to support the posting of $16.5. 24 of 33

[58]At 09.19 the same day Mr Braat replied stating ”.. OC called me back later yesterday and she had checked with her Senior Associate….. She informed me that they are not in a position to make any statements towards the valuation that will be used as consideration for the termination of the note (e.g. for the number of issued shares and the paid up capital) Angela reconfirmed during the call that the valuation that may be used is at the sole discretion of the parties involved and OC is not in a position to make any confirmations on numbers/valuations. Per your suggestion below I will add that it is not possible to post entries in the books after conversion if the pre money valuation of $16.5 million will be used (due to the lack of supporting documentation)”.

[59]The claimant replied that 10.39 (and this is the e-mail that she relies upon as containing at the alleged protected disclosures). She states “I need supporting documentation on how the $18M was arrived at before entries can be posted in the books if approved. The directors are not in a position to determine the value of their own company hence the reason for the third party valuation. David what would you like to do please?”

[60]At 1046 Mr Braat replied saying, “I understand your position for the valuation and understand you consider that only the $16M pre-money valuation is substantiated which leads to a post money valuation of $17.5M. Hence I suggest we include that in the explanation to the board. It is however important to inform the board of the discrepancy with the valuation included in the note ($16.5M/ $18M) and have them make a final confirmation on the valuation. Let me know if you want anything else included as well and I'll add that to the overview”. Mr Braat subsequently emailed the claimant with some variations to the proposed information to be provided to the board set out above. In 5 it included the phrase “From a legal perspective parties may decide to use the valuation included in the valuation report ($16M) or they may decide to use the valuation agreed between them in the note conversion ($16.5M); and 6 was altered to read “The issue at hand is mostly a financial matter/risk since the valuation used for this transaction may or will need to be supported in any future matters. One material item to consider is the fact that the inclusion of this transaction into the books, should be supported by irrefutable documentation supporting the valuation.” 7 now read “Using a valuation of $16M can be supported by the external valuation report, while using a valuation of 16.5 million can be supported by the agreed note only. Per the expert advice of Aderonke the latter should be considered as insufficient supporting documentation to include the $16.5M in Crystal’s books.”

[61]The respondent contends that viewed in context, the issue was not whether using the valuation of $16.5 million was or was not legal or illegal, since the respondent had received explicit legal advice that the valuation was a matter for the parties. However the board was being notified that if the parties chose to use the valuation of $16.5M that would not constitute sufficient supporting documentation to include the $16.5 million in Crystal’s books. Self-evidently neither the claimant nor Mr Braat were alleging that the use of the $16.5M figure was unlawful, or a breach of any legal obligation, let alone a criminal offence. If it were one or both would have explicitly advised the Board that the use of the $16.5M was unlawful/the breach of a legal obligation/commission of a criminal 25 of 33 offence and was not an option open to them. However, the claimant in particular, explicitly does not make any such allegation, but simply points out the potential difficulties consequent on the use of the figure of $16.5M in any future accounting purpose relating to the respondents accounts. She does not at any stage suggest that Mr Braat is wrong, or that she disagrees with him, in advising the Board that it is open to them to use the $16.5M figure, but that it may have the potential further consequences identified by the claimant.

[62]The Respondent submits that it is not possible to read the claimants e-mail, either on its own or in context, as asserting the disclosure of any information tending should show a breach or potential future breach of any legal obligation because the e-mail itself explicitly does not make any such claim - and explicitly leaves it to the board/parties to agree the final valuation. It is not possible for the claimant to contend she had any reasonable belief that any such disclosure was being made because if she had, she and/or Mr Braat would have said so. Specifically the disclosures the claimant alleges she was making at 19.1.2 and 19.1.8 above are factually incorrect. No such disclosure was made in either of the emails the claimant relies upon.

[63]Conclusions - In my judgement the respondent is factually correct that the first email is simply a request for information; and neither the second nor any other email in the chain explicitly suggests that the use of the $16.5 M valuation is itself unlawful. Indeed it appears to me at least implicit that if it is open to the Board/parties to use the $16.5M figure it must necessarily be lawful. In addition, in my judgement the respondent is factually correct in its submission that the disclosures the claimant now contends she was making are not in fact contained in either of the-mails.

[64]It follows that in my judgement there is no reasonable prospect of either of these being held to be or include protected disclosures for the basic factual reason that they do not contain the disclosures the claimant asserts she made. PID 2 – 11th July 2023 – On 11 July 2023, to the Second Respondent the Finance Director and Tax Compliance Director of Third Respondent, by email, the Claimant raised concerns about the sum $930,000 of income tax which was shown in the First Respondent’s 2022 accounts. She considered that it showed the company’s financial position to appear better than it was;

[65]This alleged disclosure relates to the posting of $930,370 in income tax liability to the first respondent.

[66]The e-mail is again part of an e-mail chain at which begins with an e-mail sent by the claimant on 6 July 2023 at 2:45 PM saying, “I was going through Crystal's 2022 financial statement when I spotted the sum of $930,370 posted against taxes. Can you provide the backup for this transaction and the reason for posting group taxes in Crystal books." In his reply on 7th July 2023 Gvantsa Nadareishvili Head of Financial Reporting, stated that, “This is according to group tax calculation (FY22) allocation for Crystal BV, this is to tie back overall audited numbers to recently audited figures. In coming days while finalising June 2023 numbers we will recheck if this entry needs to stay as per audited accounts. If 26 of 33 calculation needed for the below amount we will ask Stijn to share”. On 10th July 2023 the claimant replied stating “I don't see how the income tax for Crystal will be $930K dollars for a year. Can you share your calculations and supporting document as I need to provide numbers to the Board".. Following a reply from Stijn Ehren, on 10th July Mr Nadareishvili stated “To keep it simple we can remove this entry in xls since Crystal had made a loss therefore they will not be liable for tax and this entry is only allocation of a group tax number to Crystal”, to which Mr Ehren agreed on 11th July 2023 at 4:51 AM." On the 11th July at 9.27 a.m. Mr Nadareishvili stated “That entry is not incorrect. It is based on group allocation. And it is not an income tax expense for Crystal. These are common in Group companies. But as it might look confusing for investors we will move the entry in consolidation sub and it won't appear in Crystal”. On 11th July 2023 at 9:36 a.m. the claimant e-mailed stating “… you mentioned that the entry is group tax allocation, and I don't believe there is any of such that will make Crystal liable for $930K dollars taxes in any way. I have asked that the entry is reversed. Please obtain my approval before posting any group entries in Crystal books”. On the same day at 10.23 a.m. Mr Manish Argawal emailed supporting the position taken by Mr Nadareishvili. At 11.10 a.m. the claimant replied stating “Since Crystal is not liable to any income tax I will prefer you reversing the entry from NetSuite in crystal GL books this morning so that I can get a clear picture of what is in the books. NetSuite is the source system for all my reporting adjusting the entry in excel is not an efficient way to solve this problem”.

[67]At 11:33 11th July 2023 the claimant replied saying “I don't agree with the group allocation entry and will like to see the supporting document to know the exact nature of the tax entries that is being allocated before concluding that is not incorrect. Please communicate and obtain approval for all group entry that you're proposing to post into Crystal books regardless of materiality.” Although there are a number of emails of the 11th July 2023 this appears to be the one relied upon by the claimant (see 19.2.1 above).

[68]Once again the respondent submits this needs to be seen in the context of the email chain. The dispute is as to whether a group tax liability should be posted in the first respondents accounts. The claimant disputed whether this was appropriate and sought supporting documentation. By the time of the disclosure alleged to be the protected disclosure in the e-mail of 11.33, it had already been agreed that the entry would be removed from the excel spreadsheet of the first respondents accounts. It is not possible therefore that this e-mail could have been disclosing a breach or potential breach of any legal obligation since the time she wrote it, the claimant knew that the entry had been removed (this is also true of the earlier email of 9.36 a.m. if it were relied on). Put simply, the claimant’s queries as to the appropriateness of posting group income tax to Crystal could not have been disclosures tending to show any breach of any legal obligation, as at the time she made them it was agreed that the entry would be removed, whether correctly or incorrectly allocated in the first place. Secondly, seen in context this was a discussion between senior financial employees of the respondent as to the appropriateness of posting group tax liabilities in the first respondent’s accounts. There was a disagreement as to this, but disagreement between senior professionals is not unusual, and the fact that the claimant asserted one position and the others another demonstrates this this was simply 27 of 33 an exchange of professional opinion, not a disclosure of information, in respect of which, in the end the claimant’s position was accepted and the posting removed. In addition, the claimant’s actual complaint (see 19.2. 8 above) is not that either of these constituted protected disclosures, but that the first respondent was attempting to discredit the claimant by including the entry and then to blame her for it incorrectly appearing in Crystal’s accounts.

[69]Conclusions – This is, in my judgement more finely balanced. Disputes relating to the appropriateness of accounting practices almost inevitably involve assertions by one party that that if the disputed entry is included in the accounts, they will not be a true reflection of the company’s position which would, at least arguably be a breach of financial regulatory requirements. If this case proceeds to hearing in respect of this disclosure there will clearly be a factual dispute as to whether the claimant could have had any reasonable belief that the use of the $930,000 figure would involve the breach of any legal obligation / criminal offence in the light of the dispute between her and Mr Nadareishvili as to this point. Since this would require evidence it is potentially arguable that this disclosure is not suitable for strike out/deposit order.

[70]However, this does appear to be simply a discussion between colleagues as to the inter-relationship between group tax liability and the individual company’s tax liability with each individual expressing their own point of view from their own expertise, which is what they are employed to do. To elevate a difference of opinion in such a discussion into a public interest disclosure, is on the face of it counter intuitive.

[71]More significantly, in my view given that any breach of any legal obligation/ criminal offence could only be committed if the disputed figure appeared in the final accounts; once the claimant knew that it would not, any further disclosure could by definition not be a disclosure tending in the reasonable belief of the claimant to show any breach, since on any analysis she knew at that point that one was not going to occur, and it had simply become a professional/academic dispute between colleagues as whether what had previously been proposed would have been lawful had it been put into effect. .

[72]On that basis it does appear to me that here is no reasonable prospect of it being held that the alleged disclosures relied on by the claimant were in fact protected disclosures, in that at the point she made them even on her own case she was aware that no such breach would occur.

[73]PID 4 On 18 July 2023, the Claimant made a further disclosure by email to the First Respondent’s legal counsel, Mr Braat, about a vendor’s invoice because the business had an Israeli address. Potential money laundering and/or tax reporting issues arose;

[74]The background to this is that in June/July 2023 the first respondent was in contractual negotiations with at a company Hypernative Inc based in the USA. On 17th July Jordan Alexander of the first respondent raised a query about invoicing, stating that the agreement was with Hypernative’s Israeli legal entity, whereas the invoices were being issued from the US entity, and asking for the 28 of 33 invoices and the contractual relationship to be aligned. Hypernative replied saying that the order form is from Hypernative Inc which is the US based company, the Israeli company being a wholly owned subsidiary called Hypernative Labs Ltd, and the invoice is also from Hypernative Inc so that the contractual relationship and the invoices match, but that the address in the order form is Israel as Hypernative Inc does not have a physical presence at in the USA, which was fine for their legal counsel. Mr Alexander was happy with the clarification.

[75]On the same day the claimant, Mr Braat and others were asked whether the first respondent could proceed on this basis. The claimant replied on the 18th July stating that the: “address and the location of the entity must match. The order form is not in line with expectation. Can you update the order form using the subsidiary company name (as long as the subsidiary is in the same business and they can offer the service we are looking to purchase) and address as applicable. Invoice can then be issued with the subsidiary name and address". Mr Braat replied querying at the claimants the interpretation saying “What is the need for the location to match the address? Do note that companies can have addresses all around the world (think of registered addresses, branch offices or rep offices) and the US (Delaware) has no requirement to have a registered address for companies. Hypernative Inc is a Delaware company. As you know from our own Delaware company you don't need an actual address. Delaware companies have a registered agent address requirement at incorporation but that's it… We didn't have an actual address for months after incorporation. Then we decided to register our company at Spaces SF only because Milke lives there. We could just as easily have registered in London or Amsterdam. Can I suggest we don't go down the path of updating the order form and contract/invoice the subsidiary. The company is validly incorporated in Delaware, it has registered agent and has an actual address in Israel. That's all in line with the legal requirements and pretty much mirrors our own setup of our US entity" The claimant replied saying “For tax reporting purposes your location and address must match".

[76]The respondent submits that on her own analysis (see 19.4 above) the claimant was simply querying the appropriateness of the invoicing and contractual arrangements with the Group Legal Counsel who confirmed that this was appropriate. Neither of the claimants emails of the 18th of July 2023 make any suggestion that doing so involves any breach of any legal obligation and even on the claimants analysis all this has happened was that her query had been raised and answered by the group legal counsel.

[77]Conclusions – In my judgement the claimant’s assertion that “For tax reporting purposes your location and address must match”, is clearly the disclosure of information, and by implication that if they do not the first respondent would be in breach of its tax reporting obligations which is at least arguably a legal requirement. In my judgment there is a live issue as to whether the claimant could have had a reasonable belief in this assertion factually give Mr Braat’s stated position that she is wrong, but in my judgment there is sufficient that this alleged disclosure is not susceptible either to a strike out, or a deposit order; and whether it does or does not amount to a protected disclosure will be determined at the final hearing if it remains in issue. 29 of 33

[78]PID 5 - 1.1.1.5 Between the 12-18 July, the Claimant made representations about the First Respondent’s decision not to use Bitgo, a regulated wallet custodian which would have protected the First Respondent’s assets. She was informed that another company was to have been engaged, which was neither regulated nor a custodian. Their engagement was considered to have been likely to lead to an increase in sales. The Claimant raised concerns about the situation the Sales Director in a Microsoft Teams chat and in an email and to the Second Respondent verbally, all between 12 and 18 July.

[79]It is not at all clear from the documentation what communication the claimant asserts is a protected disclosure. The conversations begin on 11th July 2023 with Sviatoslav Dubovskyi asking the claimant if she has time see a “Fireblocks” demo. The claimant suggests that the respondent has already decided to sign with Bitgo; and queries the use of Fireblock, asking what about customers who want to use Bitgo. Mr Dubovskyi states that he wants to use Fireblocks “ so those who didn’t choose Crystal because of lack of integration can switch to us”. From the conversations have the claimant seems to prefer using Bitgo, and Mr Dubovskyi Fireblock. I cannot see any communication from the claimant which suggests that not using Bitgo and/or using Fireblock could be a breach of a legal obligation or criminal offence.

[80]In respect of this alleged disclosure in my judgement there is no reasonable prospect of the claimant succeeding in any argument that there had been any disclosure of information which in her reasonable belief tended to show any breach of a legal obligation / criminal offence. This is simply a discussion between colleagues as to which supplier to use.

[81]Overall Conclusions – It follows that in my judgement there is no reasonable prospect of success in relation to four of the five protected disclosures relied on, but the same is not true in respect of PID 4 which is in my judgement arguable at this stage. Whether it is held in the final analysis to be a protected disclosure will be determined by the tribunal which hears the claim. It follows that the claim of automatic unfair dismissal will proceed in relation to that single alleged disclosure, as there is no basis for either striking it out or ordering a deposit in relation to it. Listing –

[82]The case remains listed for final hearing as set out in the CMO of 17th September 2024: After all the matters set out below had been discussed, the claim was listed for a final hearing for four days, and it was agreed that it would be completed within that allocation. It has been listed for hearing before an Employment Judge sitting with members Southampton Employment Tribunal, West Hampshire Magistrate’s Court, 100 The Avenue, Southampton, Hampshire SO17 1EY on 4th / 5th / 6th / 7th August 2025. 30 of 33 Directions

[83]Directions for the originally listed final hearing were given by EJ Livesey in his earlier CMO. In the event that, and to the extent that, they have not been complied they remain as ordered save that time for compliance is varied as set out below:

[84]Schedule of Loss - EJ Livesey CMO para13 – 28th March 2025;

[85]Disclosure – EJ Livesey CMO para 17 – 10th May 2025;

[86]Agreement as to the bundle/Sending the bundle - EJ Livesey CMO paras 22/23 - 14th June 2025 / 21st June 2025

[87]Exchange of witness statements - EJ Livesey CMO para 33 - 7th July 2025

[88]Witness giving evidence from abroad – As set out in the previous CMO the respondent has indicated that it wishes to call Ms Khaustova to give evidence but that she is unlikely (because of visa restrictions) to be able to give evidence in person and they have sought permission for her to give evidence via video from abroad. The rules / Presidential guidance in relation to this have very recently changed and he following directions now apply:

[1]If any witness is to give evidence remotely from abroad the parties’ attention is drawn to the Presidential Guidance on the Taking of Evidence by Video or Telephone from Persons Located Abroad dated 27 January 2025: Presidential Guidance - Taking oral evidence by video or telephone from persons located abroad

[2]A party wishing to call such evidence must be able to demonstrate that there is no legal or diplomatic barrier to the party or witness giving evidence from abroad. The manner in which they should satisfy themselves is set out in detail in the Presidential Guidance.

[3]The consequence of a party’s failure to demonstrate the absence of a barrier to a tribunal has been made clear in paragraph 20 of the Guidance; “the tribunal should not take that evidence.”

[4]Parties “must plan ahead and be organised” if their case potentially involves the giving of evidence from abroad (paragraph 26.1 of the Guidance). Delays can result in a tribunal refusing to hear that evidence and/or in other sanctions (26.2).

[5]In any event, parties will require permission from a Judge to call evidence via video link or telephone. List of Issues 31 of 33 89. The issues to be determined will be as set out in EJ Livesey’s CMO (as varied in the light of the conclusions above) and set out below: Protected disclosure (‘whistle blowing’)1.1 Did the Claimant make one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996? The Tribunal will decide:1.1.1 What did the Claimant say or write? When? To whom? The Claimant says she made disclosures on these occasions: 1.1.1.4 On 18 July 2023, the Claimant made a further disclosure by email to the First Respondent’s legal counsel, Mr Bratt, about a vendor’s invoice because the business had an Israeli address. Potential money laundering and/or tax reporting issues arose;

1.1.2 Were the discloses of ‘information’?

1.1.3 Did she believe the disclosure of information was made in the public interest?

1.1.4 Was that belief reasonable?

1.1.5 Did she believe it tended to show that:1.1.5.1 A criminal offence had been, was being or was likely to be, committed. She alleges that the overstatement of a company’s financial position was a criminal act under the Companies Act;

1.1.5.3 Information tending to show any of these things had been, was being or was likely to be deliberately concealed.

1.1.6 Was that belief reasonable?

1.2 If the Claimant made a qualifying disclosure, was it a protected disclosure because it was made to the Claimant’s employer under s.43C insofar as they were said to have been made to the First and Second Respondent. 2. Dismissal (Employment Rights Act s. 103A)

2.1 Was the making of any proven protected disclosure the reason or principal reason for the Claimant’s dismissal? 32 of 33

2.2 The Claimant did not have at least two years’ continuous employment and the burden is therefore on her to show jurisdiction and therefore to prove that the reason or, if more than one, the principal reason for the dismissal was the protected disclosures. 3. Direct sex and/or race discrimination (Equality Act 2010 section 13)

3.1 The Claimant describes herself as a black woman of African origin.

3.2 Did the First Respondent do the following things: 3.2.1 Dismiss her.

3.3 Was that less favourable treatment? The Tribunal will have to decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and those of the Claimant. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether she was treated worse than someone else would have been treated. The Claimant says she was treated worse than two white, male members of the Sales leadership team (Mr Sanz and Mr Bijesse) who had failed to meet sales targets but were not dismissed.

3.4 If so, was it because of sex and/or race?

3.5 Is the Respondent able to prove a reason for the treatment occurred for a nondiscriminatory reason not connected to sex and/or race EMPLOYMENT TRIBUNALS Claimant: Mrs A Amos- Osebeyo Respondent: Crystal Blockchain UK Ltd (R1) Ms K Khaustova (R2) Bitfury Group Ltd (R3) Before: Employment Judge P Cadney Representation: Claimant: Written Submissions Respondent: Reconsideration Judgment The judgment of the tribunal is that- i) The claimant’s application to revoke or vary the Judgment is dismissed.

[1]I heard a Preliminary Hearing on 12th November 2024. The claimant now seeks a reconsideration of a number of the decisions set out in the reserved judgment. . Reconsideration

[2]General Power - Rule 70 of the ET Rules gives the tribunal a general power on reconsideration to confirm, vary or revoke the original decision where it is in the interests of justice to do so. However that does not give the tribunal a completely freestanding discretion to reconsider or vary/set aside any judgment In Outasight VB Ltd v Brown 2015 ICR D11, EAT, HHJ Eady QC accepted that the wording ‘necessary in the interests of justice’ allows employment tribunals a broad discretion to determine whether reconsideration of a judgment is appropriate in the circumstances. However, this discretion must be exercised 1 of 4 judicially, ‘which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation’. Application

[3]The application is in respect of a number of the decisions which I will deal with individually

[4]Amendment Application – The reasons for the refusal of the amendment application are set out in paras 9 – 20 of the original PH judgment. The application does not set out any specific basis for reconsideration. However, the claimant asserts that her ET1 did contain reference to public interest disclosure dismissal and detriment; and as I understand the application, that to the extent that her Further and Better Particulars set out claims for public interest disclosure detriment she either did not need permission to amend and/or that it should have been granted given that it was referred to, at least in general terms in the claim form.

[5]This assertion is dealt with at Para16 i) ii) and iii); 17 i), ii) and iii) and 18/19 of the original decision. In the light of the fact that the claimant had specifically confirmed to EJ Livesey that she was only bringing a claim of public interest disclosure automatic unfair dismissal, as reflected in his case management order in my view it was not open to her subsequently to advance, an in any event vastly expanded, list of detriments without permission to amend. On any analysis, in my view, the case the claimant sought to advance in her Further and Better Particulars, bore no relation to her original claim, and required permission to amend which was refused for the reasons given in the judgment.

[6]In the circumstances I cannot see any basis for reconsidering the decision.

[7]The Dismissal of the Second Respondent as a Respondent to the Proceedings – The claimant contends that the withdrawal of the claims against the Second Respondent was based on a misunderstanding of EJ Livesey’s comments; and that she should be permitted to pursue all claims against the second respondent. However, the basis of the withdrawal is set out at paras 22-24 of the judgment. It is apparently based on the claimant’s, wholly correct, understanding of R1’s position that it was not pursuing the statutory defence and accepted liability for any discrimination allegation upheld against R2. On the face of it the claimant had made an unequivocal decision to withdraw against R2 based on a completely correct understanding of R1’s position; and there does not appear to be any basis for concluding that it arose as a result of any mistaken understanding, or for reconsidering the decision.

[8]The Dismissal of the Third Respondent as a Respondent to the Proceedings - The decision in respect of the Third Respondent is set out at paras 32 -37. The basis of the reconsideration application is that it is evidentially necessary for the evidence of Mr Krutov of the Third respondent to be placed before the tribunal, and that unless the third respondent is retained as a respondent to the claim 2 of 4 she will be evidentially prejudiced. It does not contain any submissions as to the basis of the decision itself.

[9]In my judgment this is not a proper basis for retaining a party as a party to a claim. If there is not, as in my judgment there is not in this case, any reasonably arguable claim which could result in a finding of liability against it, there is no basis for retaining that party as a party to the litigation. It follows that in my judgement there is no basis for reconsidering this decision.

[10]Protected Disclosures – In the original decision I permitted one of the alleged disclosures to proceed to the final hearing on the basis that it was arguable that it constituted a protected disclosure (1.1.1.4). Whether it did or not, will be determined at the final hearing. The claimant seeks reconsideration of the dismissal of two of the disclosures,1.1.1.1 /

1.1.1.2 (although no specific application is made my original decision linked 1.1.1.1 and

1.1.1.3 and I will assume that the latter is also included in the reconsideration application). 11. 1.1.1.1 – My detailed reasoning in respect of this alleged disclosure is set out at paras 53-64 of the original decision. The reconsideration application asserts that the claimant’s disclosure necessarily involved the allegation of a breach of a legal obligation as she raised it with legal counsel, and reasonably believed that it involved a breach of the Companies Act, even if there was no assertion that in accepting and using the higher valuation the directors were acting illegally.

[12]The difficulty for the claimant remains in my judgement that at no point did she disclose any information or make any assertion that to use the higher valuation was itself unlawful, but simply that it could create accounting difficulties at a later date. Her concerns were conveyed to the Board as part of a lengthy advice which included specific legal advice that the choice of valuation was a matter for them and did not involve any breach of any legal obligation. In the circumstances I remain of the view expressed in the original decision, and can see no basis for reconsidering this decision. 13. 1.1.1.2 – The application for reconsideration is based on the fact, as expressed in the decision, that I viewed the decision as more finely balanced than that in relation to 1.1.1.1. and contends that as the decision was not “clearcut” that this alleged disclosure should be permitted to proceed to the final hearing. Whilst it is true that I considered this issue more finely balanced, for the reasons set out in the decision in the final analysis I concluded that it had no reasonable prospect of success. There is nothing in the application which causes me to alter that view.

[14]It does not appear to me therefore, that there is any basis for varying or revoking any of my earlier decisions, and the applications are dismissed. 3 of 4