Mr M Ehsan v Markazi Jamiat Ahl E Hadith: 1808528/2018

EMPLOYMENT TRIBUNALS

Case No 1808528/2018

Between

Mr M EhsanClaimant

Markazi Jamiat Ahl E HadithRespondent

Before

Employment Judge JM Wade

In person for claimant

Mr A Green (instructed by solicitor) for respondent

Date 18 November 2021

JUDGMENT

[1]The claimant’s complaint of unlawful deductions from wages succeeds. The respondent shall pay to him the sum of £5800.

[2]The claimant’s unfair dismissal complaint is dismissed.

[1]The claimant’s complaint of unlawful deductions from wages succeeds. The respondent shall pay to him the sum of £5800.

[2]The claimant’s unfair dismissal complaint is dismissed.

REASONS

[1]The claimant was employed as a Minister of Religion (Imam) at the respondent mosque from July 2018 until his dismissal in 2018.

[2]The issues in the wages complaint are as follows: I have to make primary findings of fact as to whether, on the claimant’s case he was required to pay back, initially 50%, and then a lesser portion of his salary to the Secretary of the mosque, Mr Rehman, as a condition of continuing in his employment. His case is, that arrangement amounts to a deduction from wages in the sum of £5,800 and was imposed as a condition of the respondent sponsoring his visa application. The respondent’s case is that there was no such arrangement and the claimant is telling untruths about this matter.

[3]In the unfair dismissal complaint the issues are: did the claimant make four disclosures, three orally and one in writing to the respondent, his employer concerning alleged financial malpractice in the mosque’s affairs. If so, did those disclosures fall within Section 43C of the Employment Rights Act 1996 (“the 1996 Act”) and if so, was the making of the disclosures the principal reason for the claimant’s dismissal, as was his case. Evidence

[4]Yesterday I heard from Mr Ehsan, the claimant, and from the President of the mosque, Mr Ali. I heard from Mr Rehman today, the Secretary of the mosque. Mr Ali’s evidence was subject to interpretation by an interpreter, Mrs Mir, who was sworn in for that purpose yesterday. For the assistance of the Tribunal she was also able to assist in interpreting a section of a recording of a sermon delivered by the claimant, which was one of the matters on which the respondent relied as its principal reason for the claimant’s dismissal. That sermon was given in Urdu and the parties were in dispute about what had been said. The Tribunal requested that the relevant section be interpreted into English and there was no objection to that approach from the parties.

[5]The direction I have adopted to assist with fact finding in this case is:5.1 Is the account consistent with contemporaneous material, including increasingly, social media, smart phone and meta data based evidence?

5.2 Is the account consistent with subsequent investigations or witness statements given?

5.3 What was the Tribunal’s impression of the witnesses when questioned: was the impression that they were telling the truth?

5.4 What was the Tribunal’s assessment of the witnesses’ reliability on relevant matters: were they generally consistent with other material and good historians or were they mistaken in their recollections or beliefs?

5.5 What does the totality of the chronology or circumstances tell the Tribunal about the inherent likelihood of the accounts?

5.6 An initial impression or assessment of a witness has to be checked against all other factors;

5.7 Placing too much significance on demeanour can be unsafe: a confident witness is not necessarily a truthful witness and a nervous one is not necessarily lying;

5.8 A genuinely held belief which is wrong, or one untruth told, does not necessarily render other evidence from that witness unreliable;

5.9 People often deny unlawful acts (“well he would, wouldn’t he”);

5.10 Generally good historians still tell untruths; people do, on occasions, behave in unexpected ways, whatever the overarching likelihood;

5.11 Skilled cross examination can demolish an otherwise cogent case;

5.12 The Tribunal has a duty to put the parties on an equal footing during a hearing as part of the overriding objective;

5.13 The formal rules of evidence do not apply to the Tribunal;

5.14 Justice requires witnesses to have the opportunity to comment on disputed matters in, what is still, an adversarial process.

[6]This is a civil matter in which the burden of proof is ‘what is more likely than not’. In criminal proceedings the burden of proof is ‘beyond all reasonable doubt’, “are you certain so you are sure?”, the question asked of juries. I do not ask myself ‘am I certain’? About most of the matters in this case I cannot say I am certain, all I can say is that I consider my findings more likely than not. It is normally the case that what people say, in whatever form they say it, whether WhatsApp message, texts or emails at the time, or approximate time of important events, is more likely to give a reliable impression than what is said later on, when parties come to look at the events through the lens of history. I cannot say, in relation to any of the witnesses from whom I have heard in this case, that they are good historians or that their evidence is generally reliable. That is the general impression I have formed; it is not the case in relation to all the specific matters I have had to address. The claim, response and case management

[7]The claimant was summarily dismissed on 6 July 2018 by a short letter from Mr Rehman and Mr Ali having been employed on 4 September 2017 or thereabouts. These facts that are not in dispute. In view of the difficulties in resolving the factual cases in this hearing, the content of the pleadings and case management documentation is instructive.

[8]The claimant’s claim presented on 25 July, and within 3 weeks of his dismissal, asserts that he met Mr Ali on 12 July and was told that the reason for his dismissal was because he had spoken against certain people in Friday sermons, and that people disliked him, and that that was the reason to break off his contract. The claimant names other people who were present in that meeting on 12 July and notes the purported connection between the claimant’s dismissal and his sermon, or sermons. The claim goes on to make allegations about members of the mosque and discusses what the claimant has or has not included in his sermons. He then makes an allegation that the reason for his dismissal was whistleblowing, and he has also indicated in a box in the claim form, that other payments were due to him.

[9]The respondent’s response form, presented on or around the middle of August, was presented by Mr Rehman, having taken some lay advice as to its content. In that response he set out that a series of warnings had been given to the claimant, and that there had then been an incident or altercation, around Tuesday 26 June, between Mr Rehman, and the claimant. On or around Friday 29 June, the claimant had delivered an unacceptable or offensive sermon, he said. There had then been a hand delivered letter to the President from the claimant, and that letter too had caused offence and it was, along with these other matters, part of the reason for the claimant’s dismissal. This is Mr Rehman’s response.

[10]On 18 August, in a document prepared for the case management hearing, the claimant said “I have been dismissed unfairly” and he mentioned fighting against the ‘Axis of Evil’. He did not mention in his preparation for that prehearing review any complaint about having to pay back monies (or indeed having made the protected disclosures that he now relies upon). During the case management hearing on 18 August before Employment Judge Lancaster, his complaint about being owed “other payments” was clarified as an allegation that he had been made to pay back some of his salary. The claimant was ordered to provide details of the alleged disclosures on which he relied.

[11]On 8 October the claimant provided some documents to support his case and asserted for the first time that there had been oral disclosures made to the President in September 2017, and again on 22 June 2018. He then relied on an email of 30 June, said to have been sent to Mr Rehman’s business email account. That email says: “I drew to your attention time and time again the financial malpractices in the mosque, pecuniary affairs being topsy turvy and so on, 3 years ago you told folks that the project would be completed within 18-24 weeks and the mosque had sufficient resource to carry it out”. On the claimant’s case that email was also printed by him and put within an envelope and hand delivered to the President, Mr Ali. This statement was said to contain the disclosures.

[12]Also on 8 October, the claimant provided a number of other documents said to be relevant to his case. On 9 December 2018, the claimant provided further documents in support of his case, which included a letter allegedly sent by the President and Secretary in December 2014 (“the 2014 letter”) which is said to be evidence of the mosque remitting funds to Kashmiri fighters. If the contents were authentic and true, it would so suggest. The claimant relied on this document, in reality, to establish the sincerity of his alleged disclosures and their likelihood, as well as being under the impression that the Tribunal had jurisdiction to condemn or rule on such matters. I indicated to him that such matters ought properly to be reported to the police (that is allegations of the funding of terrorism) and that the Tribunal’s jurisdiction was confined to the issues and matters above. His reliance on the 2014 letter took matters way beyond the alleged June email, in that a disclosure concerning financial malpractice had become an allegation of funding of terrorism. Findings concerning the allegation of unlawful deductions

[13]The documentary evidence in relation to this matter included the bank account statements of the claimant and of the respondent charity, and also a large number of receipts from the cash receipt books of Mr Rehman, recording cash donations to the mosque. Mr Rehman was subject to cross examination by the claimant on these matters and the claimant was subject to cross examination on the matters in his bank statement by Mr Green.

[14]I accept that the claimant asked to be paid electronically to his bank account at the outset of his employment. There was no doubt that his contract of employment provided for him to be paid a gross annual salary of £20,000. I will come on to the way in which other members of the mosque’s support team or staff were remunerated. From the documents, many of which are not in dispute, I can conclude that from the commencement of his employment, once his net monthly salary of £1407.16 was paid into his account, the claimant regularly withdrew large sums in cash, soon after each occasion on which he was paid.

[15]The exception in this monthly pattern was one occasion where he evidenced a bank transfer of £700 to his wife’s account, and in that respect his oral evidence was that he made a bank transfer to his wife, and then his wife gave the £700 or so to him in cash, to give back to the mosque. I accept his evidence and explanation. Mr Green made much of the transfer to wife (the claimant having asserted he drew out cash each month), but it was one departure from 8 or 9 episodes of the claimant drawing cash out himself personally.

[16]In the mosque’s accounts, in the space of this hearing, it is not possible to reconcile or have any real sense of the extent to which the extensive receipts of Mr Rehman tally with the cash sums donated to mosque. One would not expect them to entirely reconcile, given that many of the mosque’s donations are as a result of normal cash collections arising at regular worship, to be expected in any place of worship, on a weekly basis and not subject to receipts. On the other hand, there are large payments in cash both in and out of the mosque’s account. One or two such payments in coincide very closely in time and amount with the sums that Mr Ehsan said he was paying back on each occasion, and other larger payments in are sufficient to be inclusive of such sums, without it being apparent from whom that money was received. At the time of the claimant’s allegations in 2018 the respondent’s treasurer was also abroad and Mr Rehman was having to do far more cash handling.

[17]In determining this allegation and the facts that underpin it, I also take into account that the claimant asked to be paid into a bank account, which is typically a transparent and easy way to track funds. He did so knowing that others within the mosque were being paid by cash: the other minister or Imam was paid £175 a week, which is an approximate salary of about £9,000 per annum; he was paid those amounts in cash, along with other staff; I cannot make any findings about the extent to which he or they were subject to tax or national insurance deductions or accounting. I was told by Mr Rehman that these matters are addressed by the mosque’s accountant. I do take into account that the claimant was paid a salary in respect of duties which it appears were not that much more onerous than that of the other Imam, but the claimant’s salary was considerably greater (more than twice as great in gross terms).

[18]I also take into account that the mosque has been, in Mr Rehman’s words, ‘careless’ in its observance of the charity commission’s requirement for accounts to be filed annually, and for detailed books or accounts to be kept and maintained, and understood. Any objective observer would understand the mosque’s position to be far worse than careless given that the default had gone on for so long (several years).

[19]I consider it likely in circumstances in which large amounts of cash are exchanging hands through a charity’s bank account, which has defaulted on the required public submissions and scrutiny, that the claimant was being paid a salary electronically as support his visa application, but in reality he was paid much less: his actual earnings were more akin to those of the other Imam’s much lower salary paid in cash. I accept the claimant’s evidence that he was required to give back a total sum of £5800 over the relevant period (a greater some in the first few months which he then sought to reduce). Those sums were evidenced by the cash withdrawals he made, and a sum he obtained via his wife, and were then paid back into the mosque’s accounts. I do not consider that those cash withdrawals were used by him to pay his rent, or other living costs, as was put to him by Mr Green. I consider on the basis of the bank account evidence before me that, contrary to the claimant’s case, the sums were not being pocketed by Mr Rehman personally, the sums were going back into the mosque’s bank account.

[20]There is, as Mr Green submitted, some difficulty in the relationship between the claimant’s wages case and his protected disclosure case: the claimant said that he was the ‘whistle blower’ of financial malpractice at the mosque, while at the same time being a participant (in the sense of returning cash sums which were, on his case, at risk of being deployed to support terrorism). I asked him that question and his answer (which differed slightly from his submission today) was, in simple terms, that educational and other provision for his autistic son in Pakistan was considerably worse, and for that reason he wishes to remain in England, notwithstanding that there is family wealth and support in Pakistan. His son’s disability means that remaining here is paramount. I accepted that evidence.

[21]In all the circumstances I have to decide whether the sums paid to the claimant on any occasion were less than the sums properly payable to him (the question posed by Section 13(3) of the Employment Rights Act 1996). I have to decide whether the respondent has made a deduction from the wages of the claimant, which is prohibited in Section 13(1). There was nothing in a written contract of employment which identified that the claimant would give back a proportion of his wages in cash to the mosque; nor did he sign any separate agreement to that effect. Clearly, the respondent mosque paid the claimant’s contracted wages every month electronically and appeared to process PAYE tax and national insurance in respect of those sums. The respondent’s case was not that the claimant made private and voluntary donations to the mosque of his own accord and free will. It was that he had not made such donations. In view of the mosque’s inability to establish its factual case, and my finding to the contrary, I am also clear that the claimant’s paying back was not the exercise of his free, and charitable, will. It was an arrangement imposed on him, in my judgment, as a condition of his employment, and as a quid pro quo for the higher salary, necessary to support his visa, which in turn was necessary to secure his son’s position, as he saw it. In these circumstances I consider such an arrangement is properly to be identified as a deduction, akin to where some employers issue payslips to identify sums having been paid, but in fact make payments of lesser amounts in cash. For these reasons this complaint succeeds. The respondent must repay the claimant the sum of £5800. Unfair dismissal findings and conclusions

[22]I have indicated the history of the parties’ accounts of the dismissal and it is apparent (and in this respect I accept Mr Green’s submission) that the claimant did not say anything about the protected disclosure part of his unfair dismissal case in his claim form. His witness statement contained allegations of three conversations on 8 September 2017, 22 June and 3 July 2018 which he said contained protected disclosures. To that he added an allegation that he had provided the 30 June email, the day after he had taken part in a sermon which had produced some reaction, I was told. The suggestion of such disclosure first arose at the case management discussion.

[23]In these circumstances, that is where the claimant has less than two years’ service, he has to prove the principal reason for his dismissal. I have therefore determined that principal reason first, based on the parties’ cases in their original pleadings and subsequent amended cases.

[24]As to the sermon I make these findings: the sermon was delivered in Urdu; it was around 40 minutes long; around 20 minutes into the sermon, the claimant’s tone becomes far more robust and impassioned in its mode of delivery; the subjects being discussed were historic stories from religious texts, including those referring to the severing of the heads of Jewish people and the rendering of their women as slaves, and indeed, that Jewish people cannot be trusted, or words to that effect, and that they are always looking for opportunities.

[25]The claimant’s evidence about his delivery of this sermon was that he did not necessarily give contextual advocacy: he was not clear to the congregation that these were historic tales which needed to be sharply distinguished from today’s values and beliefs. Nor did the claimant give any reason for speaking to the congregation about this particular subject matter at that particular time.

[26]Having heard the tone and now understood the contents of this part of the sermon I am clear that complaints were likely.

[27]The chain of events that had evolved that week was that the claimant and Mr Rehman had had a disagreement in the mosque on Tuesday which had resulted in a minor falling out over a spiritual issue; the claimant had come to deliver his sermon on the Friday and after it there had been comment and complaint from some attendees to the effect that he should not say such things.

[28]I accept Mr Ali’s evidence that he then received a handwritten envelope at his home address containing a handwritten letter from the claimant in Urdu. He did not receive the printed, 30 June email, in that envelope: I accept his oral evidence about that. The claimant’s case is that the copy of the letter in the Tribunal’s bundle had been concocted by the respondent, in an effort to defend this claim. I reject that evidence because in translation, the letter relays very faithfully and comparably the claimant’s position, and the undisputed position between the parties about their disagreement, which had evolved at that stage. The claimant’s ‘beef’ or “complaint”, was, in effect, that Mr Rehman, a lay person was seeking to pull rank, or have his way, in relation to a spiritual issue, when the claimant was the minister of religion and employed as such. The letter is expressed in terms and in language, which even in translation appeared to me to be of the colourful, elegant and sometimes laboured kind that the claimant has demonstrated in these proceedings, not least in his claim form. I cannot be certain but in my judgment, it is more likely than not that the claimant wrote that letter in Urdu and delivered it.

[29]The letter included the following (in English translation) “I am a black belt in Karate and had I wanted I could have dealt with him in such a way that the rest of his life he would not have been able show his face to anyone”. In making that comment he was referring, of course, to Mr Rehman, albeit the letter was addressed to Mr Ali. Again, it is entirely likely having written such a letter than Mr Ali and Mr Rehman would be unhappy with the claimant’s employment.

[30]I find that there was a disagreement with Mr Rehman on the Tuesday, as a result of which the claimant wrote in colourful terms to Mr Ali. As to the respondent’s alleged warnings (which appeared in the Tribunal’s bundle and were allegedly given to the claimant), on this matter I do not accept Mr Rehman’s evidence. I consider it unlikely, frankly, that the respondent would not have kept a signed copy of any conduct warnings, had these matters been addressed at the time. Mr Rehman’s explanation was that he could have easily signed these afterwards and presented them as such, if he had wanted to mislead the Tribunal. That is a matter which I consider, but on balance it seems to me that even if these warnings were given to the claimant, and I am wrong, the subject matter is unrelated to giving a sermon in the terms that were given, or including the problematic words in the letter to the President. The warnings were general and about time keeping and the like and they add very little to the respondent’s case.

[31]I consider both Mr Rehman and the claimant in this case are prepared to create documents for their own advantage and to some extent, there is a sense of tit for tat in that respect. My task has been to try identify the genuine.

[32]Whether or not the claimant sent the email on 30 June to Mr Rehman’s business email address, as the claimant asserted, or had the conversations he alleged in 2017 and 2018, the principal reason for his dismissal was the sermon which produced complaints, and the contents of the letter to the President, both of which had caused offence. Had the claimant had two years’ service there would perhaps have been some kind of disciplinary hearing. Instead the mosque held a meeting and the respondent’s Mr Ali and Mr Rehman took the view that the claimant’s employment was to be terminated without delay on 6 July and summarily and they wrote in those terms to him. Their principal reason for doing so was, as I have indicated the content of the claimant’s letter and the sermon, in the context of the falling out with Mr Rehman.

[33]Having identified the principal reason for dismissal, the claimant’s case must fail. The hearing encompassed many other matters and I would simply comment on those for completeness as follows.

[34]As to the email allegedly sent to Mr Rehman, this is not the right forum to determine matters of criminality or indeed to make findings that might be prejudicial to that kind of determination. It seems to me that the technology is such that when matters are allegedly so serious, as they are in this case, the parties and the Tribunal would be assisted by expert evidence, such as forensic document examination, which I have not had in relation to any of the relevant challenged documents. That might have been commissioned, had it been proportionate. Nor have I had, in relation to the allegations of non disclosure or fraud in electronic communications, which all parties have put to each other, the best available evidence from a technology expert. I have therefore had to do my best to determine the facts necessary to decide this case.

[35]What I can draw from the screen shots with which I have been provided, of the business email inbox of Mr Rehman, is simply this: they do not help me very much, one being an “archive”, and the other being an “inbox”, from two separate dates. They do not conclusively establish that Mr Rehman’s account was not the recipient of the email sent by the claimant. Equally, as to the claimant’s evidence of a printed “gmail” sent at 00:00, I am similarly not persuaded that that is conclusive evidence that the email was sent. In the event it is unnecessary for me to make a finding as to whether that email was sent, for this reason: if it was sent to Mr Rehman, albeit it was addressed to Mr Ali, the claimant had visited Mr Ali’s home with an envelope which I have found to contain a personal and handwritten letter and which, together with his sermon, was causative of the claimant’s dismissal. An email to the business email address of Mr Rehman in the following terms, “I drew to your attention time and time again the financial malpractices in the mosque, pecuniary affairs being topsy turvy and so on, 3 years ago you told folks that the project would be completed within 18-24 weeks and the mosque had sufficient resource to carry it out” is not, in my view, disclosing information to the employer, which in the reasonable belief of the claimant tended to show the respondent had been in breach of a legal obligation, much less could the claimant demonstrate that he reasonably believed he was making that disclosure in the public interest rather than as part of his personal and spiritual dispute with Mr Rehman. It was not the reason for his dismissal.

[36]Similarly it is not necessary for me to determine whether the claimant made the comments he alleges in September 2017 (to the effect that it was unlawful for Mr Ali to ask him to seek donations to the mosque to fund an extension project, when in fact the monies were intended for fighters in Kashmir); or 22 June 2018 (alleging financial impropriety in the accounting of donations); or 3 July 2018 (resisting fundraising and alleging financial impropriety in seeking donations some of which would be pocketed and some of which would be sent to “Jihadis”).

[37]The background about which I heard was of a building project for which the claimant was asked to seek donations, and had been so asked during his employment, by Mr Rehman and Mr Ali. The fact of a building project at the mosque over some years was not in dispute. The fact that large sums were to be seen in and out of the mosque account was not in dispute. The fact that the project was delayed and incomplete was not in dispute. The conclusions the claimant wished me to draw, without the sort of evidence to which I have referred, included that in these circumstances it was likely he raised the funding of terrorism in conversation (such that he could report them word for word some months or more than a year later).

[38]I consider it unlikely that he did so; his alleged email is so much less inflammatory; if he genuinely held these beliefs and sought to disclose them in the public interest he would have reported matters to the police and the charity commission. The oral disclosures were unlikely to have been made and the email disclosure did not amount to a protected disclosure for the reasons I have explained.

[39]I am very clear for the reasons that I have announced that the principal reason for the dismissal cannot be the making of disclosures and that the complaint therefore has to be dismissed.

[1]The complaint made by the claimant under section 15 of the Employment Rights Act 1996 is dismissed upon withdrawal by the claimant.

[2]The respondent’s application for a costs order succeeds and the claimant is ordered to pay the respondent costs in the sum of £3,710.

[1]The claimant’s complaint was that his employer had received a payment of £5,800 from him during his employment in contravention of section 15 of the Employment Rights Act 1996.

[2]The claimant had been employed by Markaze Jamait Ahle-Hadith (“the Mosque”) as a Minister of Religion (Iman) from 4 September 2017 until his summary dismissal for gross misconduct on 6 July 2018.

[3]The Mosque had sponsored the claimant (a Pakistani national) to work under a Tier 2 Migrant Visa. The application was granted by the Home Office based on the information provided by the claimant and the Mosque which confirmed the claimant’s annual salary was £20,000.

[4]There was no dispute that the claimant was paid the correct monthly salary (£1,407.16 net) by the respondent during his employment. The facts asserted by the claimant were that ‘under duress’ he paid £5,800 to the Mr. H Rehman, the Secretary of the Mosque. The claimant alleges he was blackmailed into making those cash payments to Mr. Rehman under threat that “his employment contract would be revoked” (see paragraph 8 Claimant’s witness statement). He alleges that he withdrew cash from his bank account to make 3 monthly payments of £720 (October-December 2017) and then in January 2018 he informed Mr. Reman he could no longer afford to pay that amount. He said a reduced figure of £520 was agreed. For the remaining 7 months of employment the claimant withdrew £520 in cash to pay Mr. Rehman.

[5]This case was remitted from the Employment Appeal Tribunal. The witness statements and bundle used at this hearing were the same documents used at the first liability hearing. Only the Section 15 complaint was remitted for a rehearing before a different Judge, following the decision of an Employment Appeal Tribunal.

[6]I had not seen the earlier Employment Tribunal decision or the Employment Appeal Tribunal decision and was tasked with deciding the section 15 complaint. Helpfully the issues had been identified to them by Employment Judge Davies at a preliminary hearing on 21 June 2021. The parties had agreed the only additional evidence that would be added to the original hearing bundle were the bank statements of Mr. S Ali, the President of the Mosque. I was not referred to those statements at this hearing.

[7]Before I heard any evidence and based upon my preliminary reading, I asked the claimant to confirm some agreed facts. He confirmed he had been paid the correct wage by his employer. His case was that he made payments of £5,800 personally to Mr. Rehman, not to the employer. He confirmed his case was that Mr. Rehman obtained payments from the claimant for his own personal benefit. In his witness statement the claimant accused Mr. Rehman of blackmail and harassment referring specifically to section 21 of the Theft Act 1968 and Section 4A of the Public Order Act 1986. I explained to the claimant that section 15 of the Employment Rights Act 1996 is about the right of an employee (or worker) not to make payments to an employer except in the permitted limited circumstances permitted which were not applicable to his complaint. The claimant was not alleging any payments had been made to his employer, the Mosque. He alleged the payments were made to Mr. Rehman who benefitted personally. Although those were the agreed facts the claimant wanted to continue with his section 15 complaint.

[8]During cross examination under oath the claimant agreed that although very serious allegations of theft and blackmail were made in his claim those allegations were never reported to the Trustees of the Mosque, the Police or to the Home Office. He did not accept he had any obligation to inform the Home Office, if the circumstances under which his application for a visa had been granted, were not true. He knew of the alleged deception on 6 September 2017 (see paragraph 12 Claimant’s witness statement).

[9]The Claimant could not explain why he had not taken any of those steps or why his bank statements did not show any of the cash withdrawals he relies upon to support his complaint (see paragraphs 13 and 15). The only evidence the Claimant’s had provided to support his assertion were handwritten notes he had made on his bank statement where he had written £720 or £520 next to dates when he said he made cash withdrawals to pay Mr. Rehman. The actual amounts withdrawn in cash did not support the claimant’s account. His bank statements had also been redacted so as not to show the actual balances on the account on the dates cash withdrawals were made.

[10]In contrast Mr. Rehman had fully disclosed his personal and business statements without any redaction. In cross examination the claimant could not explain the discrepancy and said he was ‘unfamiliar’ with the financial transactions on his personal bank statements. The claimant has greater knowledge than he lets on having a degree in Finance from the University of Durham. He had also had sight of the unredacted bank accounts for the Mosque early on in these proceedings so was familiar with their content which was not disputed.

[11]In October 2017, the first salary payment was made by bank transfer. The claimant had the Mosque’s bank details and his assertion that he did not know was untrue (see paragraph 10 Claimant’s witness statement).

[12]During the claimant’s cross examination, he referred to a ‘cash in hand second job’ he had been doing while working for the respondent to explain why he did not need to withdraw cash when he made the first alleged payment to Mr. Rehman on 11 October 2017. The asserted facts were the claimant ‘already had cash to pay him” (paragraph 13 claimant’s witness statement). Mr. Smith asked some follow up questions about the second employer and how much the claimant was earning in that employment. The claimant refused to answer any questions about his ‘second’ job. He also said he was ‘not bothered about money because he had plenty of money’.

[13]Mr. Smith agreed that the claimant had presented as someone who had ‘plenty of money’ to support a tourist visa application made by his parents. The application refers to the claimant’s means (pages 269) and states that the claimant can “easily afford” to financially support the application because of his job and his savings and refers to the claimant’s family printing business in Pakistan to emphasis their financial wealth. The claimant is currently living in Pakistan with his family.

[14]After cross examination, the claimant withdrew his claim explaining that in giving evidence he had been “careless in choosing his words”. Respondent’s costs application.

[15]Mr. Smith made a costs application on behalf of the respondent relying on 2 grounds under Rule 76 of the Employment Tribunals Procedure. The ‘unreasonable conduct’ of these proceedings by the claimant and that the complaint never had any reasonable prospects of success. The parties agreed the costs application should be dealt with in the hearing time remaining in 3 stages: firstly the grounds the respondent relied upon for a costs order: secondly the amount of costs sought and then finally any information the claimant wanted me to have regard to about his ability to pay. I had hoped to be able to give the parties my decision on the application at the end of the hearing, but the claimant could not stay beyond 4pm. It was therefore agreed that a reserved written judgment with reasons would be provided in due course.

[16]In the respondent’s amended response of 29 October 2018, the respondent alerted the claimant that the claim was unmeritorious based on the facts relied upon and the claimant was warned as to costs. The response notes that the claimant had made no mention of these allegations in his original claim and alerts the claimant to its position that the claimant had “fabricated these allegations and that he is attempting to intentionally mislead the Tribunal” (paragraphs 7 and 14 amended grounds of resistance).

[17]While Mr. Smith acknowledges the claimant now relies on section 15 not section 13 of the ‘Employment Rights Act 1996’ he relies upon the same ‘fabricated’ facts to support that complaint. The first ground the respondent relies upon is that the complaint under section 15 had no reasonable prospects of success, because the claimant does not assert any facts or adduce any evidence to show his employer the respondent had received payments from the claimant. Section 15 is clear it refers to payments made to the ‘employer’ the legal entity that employed the claimant. That was the Mosque a registered charity not Mr. Rehman an individual. Section 15 does not create a claim where an individual who is not the employer can be liable. Only the employer is liable if there is a breach of the statutory provision. The claimant has not pleaded any facts to assert how he can bring this claim through any other route. The claimant case is that Mr. Rehman received the payments for his personal benefit. Mr. Rehman vehemently denies that allegation as is made clear in his witness statement. On the undisputed facts the claimant has brought and continued to pursue a claim which had no reasonable prospects of success.

[18]The second ground relied the respondent relies upon is the claimant’s unreasonable conducted in these proceedings by continuing with spurious allegation and giving untruthful evidence under oath. Mr. Smith contends the claimant has made wild and wholly unsubstantiated false allegations against 2 individuals who are upstanding members of the community. His whole case is based on evidence that has been fabricated. Mr. Rehman has been accused of blackmail and extortion which are serious accusations to make. If the claimant was telling the truth and was being blackmailed to keep his job, when he lost that job, why did he not tell anyone at the Mosque or the Police? He did not even mention it in his claim brought in July 2018 the final month when he was allegedly blackmailed. He had no good reason to keep it to himself (if his allegations were true). The lack of transparency in the claimant’s evidence, the contradictions, his steadfast refusal to answer questions, his evasiveness. Mr. Smith contends it is no wonder he has admitted to being ‘careless’ with the words. The reason he was careless was because he was giving a fabricated and untruthful account which supports the case pleaded in the response. The claimant has a doctorate in philosophy he has a finance degree from Durham university but has taken no steps to investigate the merits of his claim by reference to the statutory provisions he relies upon. The relevant provisions had been clearly identified to the claimant by EJ Davies in June 2021. He knew the evidence that would be relied upon at this hearing. He had seen the bank statements of the Mosque and Mr. Rehman. In contrast to the claimant lack of transparency, the respondent had made no attempt to hide any details. The claimant is an intelligent man and could have done his own research or sought advice from the Citizens Advice Bureau before continuing to pursue such a hopeless case to a final hearing. His unreasonable conduct has resulted in the respondent having to incur costs unnecessarily, in defending a false and unmeritorious claim since June 2021.

[19]The claimant’s submissions were brief. Several times, he repeated the words that “Allah knows I have given the money to Mr. Rehman”. He denied unreasonable conduct because he has withdrawn his claim. He has been the victim of a ‘double sword’ by paying £5,800 and then being put at risk of costs. He has family responsibilities and helps his wife look after his son after work. His son has autism. He works full time so does not have the time to do any research. He is a litigant in person and did not understand the law or how section 15 applied to his case. He never consulted Citizens Advice Bureau. He had no reason to believe his claim would fail.

[20]We had a break before I heard representations as to the amount of costs. I agreed to give the claimant the time he requested to consider the respondent’s Schedule of Costs. It provides a detailed breakdown of the work done by way of attendances/correspondence/ telephone calls/attendance at the hearing in June 2021 (£220) work done on the bundle (£220) and in preparing for the case management hearing (£220). A total of £2,420 was claimed in solicitors fee for a Grade A solicitor at an hourly rate of £220. Additionally, disbursements for counsel’s fees of £2,250 plus VAT of £934 are claimed. Mr. Smith confirmed the Mosque is a registered charity and cannot reclaim VAT.

[21]The claimant’s response to the schedule of costs was that the hourly rate of £220 was excessive. It should be reduced to the National Minimum Wage of £8.91 per hour. As to his means the only information the volunteered was a credit card debt of £9,000. When questioned about his means he told me he has a salary of £1,870 he lives with family and pays a contribution of £300 towards the home and he pays £400 a month for his car. He said he had £1,000 in savings.

[22]Mr. Smith asked the claimant how that information fit with his statement that “money was not a problem he had plenty of money”. The claimant denied saying that. He suggested that what he had actually said was that he had ‘enough money’. I checked my note of his evidence and confirmed he had used the words “money is no problem I have plenty of money”.

[23]Mr. Smith suggested the claimant was being untruthful about his means and was not disclosing his true finances to avoid a costs order being made. As to the solicitor rate Mr. Smith confirmed having checked this that Band A rates for solicitors in Bradford was £220 and was correct. It has recently changed to £255. The Schedule of Costs has a statement completed by the respondent’s solicitor which confirms the costs claimed in the schedule are the costs the respondent is liable to pay.

[24]I asked Mr. Smith what (if any) credit was given by the respondent for the withdrawal of the claim at this hearing. Mr. Smith referred to the fact that costs are not sought to punish the claimant but to compensate the respondent. It was the respondent’s position the claimant had fabricated the allegation and he ought to have known that his claim was bound to fail. The claimant should never have brought a complaint based on fabricated allegations. On his own case no payments were ever made by him to his employer. Mr. Smith reminds me the costs claimed are limited to those incurred from June 2021 to this hearing and are the costs unnecessarily incurred by the respondent no extra amounts have been claimed for any work done previously. They are reasonable and proportionate. The respondent should be compensated for the costs it will have to pay as a result of that unreasonable conduct. Employment Tribunals Rules of Procedure Regulation 2013

[25]Rule 71 provides that a party may apply for a costs order and that ‘no such order may be, made unless the paying party has had a reasonable opportunity to make representations at a hearing or in writing’.

[26]Rule 76(1) provides that a Tribunal ‘may make a costs order and shall consider whether to do so where it considers that (a) a party has acted vexatiously, abusively, disruptively, or otherwise unreasonably, in either the bringing of proceedings or part or the way that the proceedings (or part) have been conducted or(b) any claim or response had no reasonable prospects of success”

[27]Where a Tribunal exercises it discretion to make a costs order then the amount awarded should normally reflect the Tribunal’s assessment of what is both reasonable and proportionate, with any doubt to be resolved in the favour of the paying party. This is the standard and usual basis of assessment. In Yerraklava-v- Barnsley Metropolitan Borough Council

2012 ICR420

[29]Rule 84 provides that in deciding whether to make a costs order and in deciding the amount the Tribunal may have regard to the paying party’s ability to pay.

[30]In assessing means, account must be taken of information (if it is provided) of capital as well as income and expenditure. In Shields Automotive Ltd -v- Grieg the EAT stated that “assessing a person’s ability to pay involves considering their whole means. Capital is highly relevant aspect of anyone’s means. To look only at income where a person has capital is to ignore a relevant factor’.

[31]A Tribunal is not required to limit the costs that the paying party can afford to pay - Arrowsmith -v- Nottingham Trent University

2012 ICR 159

CA. There is “no reason why affordability has to be decided once and for all by reference to a party’s means as to the moment the order falls to be made”.

[32]If a costs order is made, it would have to be enforced through the county court, which would itself take into account the individual’s means from time to time in deciding payment methods and amounts. Vaughan-v- London Borough of Lewisham and Others

2013 IRLR 713

[33]The regulations do not mean that “poor litigants may behave without impunity and without fear, that a significant costs order will be made against them, whereas wealthy ones must behave themselves otherwise a costs order will be made” Kovacs -v- Queen Mary and Westfield College

(2002) IRLR 414

Conclusion

[34]Unfortunately, for the claimant, I agree with the submissions made by Mr Smith. The claimant only withdrew the claim when he realised the impact of his ‘careless’ words on his claim. His untruthful account had been exposed during cross examination. I agree with Mr Smith’s submission that “The lack of transparency in the claimant’s evidence the contradictions his steadfast refusal to answer questions and his admission that he was ‘careless’ with the words he used point to a fabricated and untruthful account which was the respondent’s position from the outset of these proceedings. The claimant has a doctorate in philosophy he has a finance degree from Durham university but has taken no steps to investigate the claim he brought by reference to the statutory provisions clearly identified to him by EJ Davies in June 2021. He knew the evidence that would be relied upon the bank statements of the Mosque and Mr. Rehman which he has had for a long time. The respondent’s evidence was transparent there was no attempt by them to hide any details. The claimant is an intelligent man and could have done his own research before continuing to pursue such a hopeless case to a final hearing causing the respondent to incur costs unnecessarily in having to defend this unmeritorious and false claim since June 2021”.

[35]I agree that both grounds have been shown by the respondent that the claimant has unreasonably conducted these proceedings and the claim had no reasonable prospects of success.

[36]I considered the information the claimant provided about his ability to pay. I was equally skeptical about the information he provided to me as the claimant was in my view deliberately selective about the information he volunteered, to present himself as a poor litigant to defend the costs application. His reluctance to voluntarily and truthfully give full disclosure of his means, his general lack of transparency and his attempts to mislead (‘plenty of money’ to ‘enough money’) do not go to his credit or his credibility. He is working in permanent employment and earning a good salary. I was satisfied that the true position is that he does have the ability to pay a costs order. I am supported in that view by his closing comments to me that he would prefer to pay by instalments.

[37]I considered whether, having been satisfied the grounds for awarding costs and having considered the claimant’s ability to pay, I should exercise my discretion to make a costs order understanding that Employment Tribunals are not a costs regime in that costs are not awarded just because a party fails to prove his/her case. I considered all the representations made including the timing of the withdrawal (after the claimant realised the impact his answers would have on his credibility),the fact that the claimant was aware of all of the relevant information well in advance of this hearing and that knew or ought to have known what he was required to prove for his claim to succeed. The respondent had made its position clear in the response- the claimant had fabricated the allegations and was attempting to deliberately mislead the Tribunal. That is in and of itself very serious misconduct by any party. The respondent is a registered charity which has had to defend itself against serious unsubstantiated allegations which the claimant chose to continue to pursue to a final hearing knowing they were false. His claim had no reasonable prospects of success. The claimant is an intelligent man and demonstrated his ability to conduct his own research when he wants referring to the Theft Act/Public Order Act. His unreasonable conduct has resulted the respondent unnecessarily incurring costs in defending the claim up to and including at the final hearing. In these circumstances I am persuaded that I should exercise my discretion and make a costs order.

[38]As to the amount of costs the amount awarded should normally reflect the Tribunal’s assessment of what is both reasonable and proportionate, with any doubt to be resolved in the favour of the paying party. This is the standard and usual basis of assessment. In Yerraklava-v- Barnsley Metropolitan Borough Council

2012 ICR420

, the Court of Appeal provided guidance that costs should be limited to those ‘reasonably and necessary incurred’ as a consequence of the unreasonable conduct. The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and in doing so, to identify the conduct, what was unreasonable about it and what effects it had. The respondent has provided a detailed schedule of costs which was not challenged by the claimant other than to suggest a substantially reduced hourly rate should be applied for all the work. The hourly rate claimed by the respondent’s solicitor a band A solicitor is correct. The claimant’s assertion that the respondent’s solicitor should be paid at the national minimum wage rate is absurd.

[39]As to what is reasonable and proportionate I consider it is appropriate to discount £220 for the respondent’s solicitors attendance at the case management hearing, £220 for preparation for that hearing which was a consequence of remission of the case from the Employment Appeal Tribunal not the claimant’s unreasonable conduct. Similarly, the work on the bundle of £220 should be discounted because it was the original hearing bundle (with a few additional) and that work had been done before the case was remitted. I have also discounted the VAT. I assess a reasonable and proportionate amount of costs is £1760 (£2420 less £660). To that I add £1950 for disbursements of Counsels fee giving total costs of £3,710 which is a reasonable and proportionate sum of costs the claimant is ordered to pay to the respondent. Date: 18 November 2021 Date: 19 November 2021