Mr A Kuznetsov v Manulife Asset Management (Europe) Ltd: 2200417/2017

EMPLOYMENT TRIBUNALS

Case No 2200417/2017

Between

Mr A KuznetsovClaimant

Manulife Asset Management (Europe) LtdRespondent

Before

Employment Judge Mr J Tayler

Members

Mrs J Cameron

Mrs S Plummer

Date 22 January 2019

REASONS

Conclusion

[1]By a Claim Form submitted to the Employment Tribunal on 3 March 20172 the Claimant brought complaints of automatic unfair dismissal for the reason, or principal reason, that the Claimant made protected disclosures, detriment done on the grounds of making protected disclosures and for holiday pay.

Issues

[2]The issues for determination were agreed between the parties in the form of a finalised List of Issues at Annex A, save that the Respondent suggested that disclosure 6 should be split into two disclosures, being those made to and in respect of Camden Council (6a) and those to the Rolton Group (6b). We have accepted that suggestion as it makes the analysis more logical. We have decided those issues necessary to determine the claims. Evidence The Claimant gave evidence on his own behalf.

[4]The Respondents called:4.1 Peter Sam Mennie, Chief Operating Officer

4.2 Alexandra Louise Cornforth, Head of Compliance at the material times

4.3 Christopher Paul Conkey, Chairman of the Respondent's board of directors

[5]We were provided with an agreed bundle of documents. References to page numbers in this Judgment are to the page number in the agreed bundle of documents. Procedural Matters

[6]In the afternoon of the second day of the hearing, after we had concluded our reading, the Claimant applied to amend the claim to add a further protected disclosure in relation to the alleged meeting at the end of September 2016: Claimant told Mrs Cornforth that she needed to process his FCA application as soon as possible as the FCA required those giving investment advice to be registered and non-registration could get the Respondent into trouble. The information in the Claimant belief tended to show a breach of a legal obligation to register him with 2 With a finalised version sent on 12 April 2017.

[7]In considering the application to amend we had regard to Selkent Bus Co v Moore

[1996] ICR 836

at 843F. Mummery J, as he then was, held that whenever the discretion to grant an amendment is invoked, the Tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. Mummery J noted a number of relevant factors; including, the nature of the amendment and the applicability of any time limits and the timing and manner of the application. Those are examples of factors that should be taken into account. Essentially, the approach in Selkent is at one with the overriding objective: the focus is on the balance of hardship in allowing or refusing the amendment, which is a key component of dealing with cases fairly and justly. This is also the approach set out in the Presidential Guidance.

[8]We consider that although the application was not to add a new type of claim, it was a new claim, in that a new protected disclosure was relied upon. We considered that application was made extremely late, being made at 1:55pm on the second day of the hearing, just before evidence was due to commence. The Claimant had had ample opportunities to raise the matter before; in the Claim Form, at either of the Preliminary Hearing or when he instructed Mrs Chan the end of January this year. Most significantly, we consider that the Respondent would suffer a significant prejudice were the application permitted as it would require investigation and possible provision of further documentation and witness evidence. We do not consider it would be fair to the Respondent adequate opportunity to properly consider it before evidence commences. A delay to the evidence would add yet further costs proceedings. The outweighed the prejudice to the Claimant of not being able to add yet another alleged disclosure. We refused the application.

[9]The Claimant also pursued 3 applications for specific disclosure. To order disclosure we must be persuaded the documents sought are relevant and that searching for them, and disclosing them, is necessary for the fair disposal of the proceedings. The Claimant stated that he wished to be provided with a list of names, desks and telephone numbers or staff in London and Boston, USA. We refused this application as we considered that the information requested was irrelevant.

[10]The Claimant sought all communications, including with staff in Boston, that related to his dismissal. The Claimant stated that he was seeking reassurance that proper disclosure had been given. The Respondent stated that all such documentation had been disclosed. The Claimant had no basis to contradict this assertion. The application was refused.

[11]The Claimant sought the CCTV recording of a person who visited him at the Respondent It was initially suggested that the person was unauthorised and had not signed in. The Respondent stated that CCTV recordings are overwritten periodically and that the relevant recording no longer exists. We accept that is the case and refused the application. Furthermore, even if the recording had been available, we do not consider that it would be relevant issues before the tribunal.

[12]The Claimant produced two lever arch files of documents in addition to the 12 in the agreed bundle. The Respondent did not object to them being provided to us and accepted that the order of Employment Judge Lewzey had made provision for the Claimant to provide such additional documentation. Accordingly, we accepted the documents.

[13]The Claimant sought to put before the tribunal extracts of regulatory materials. Initially, the documents were passed to the tribunal clerk without Mrs knowledge. Subsequently, on 27 February 2018, the Claimant made a written application for their introduction. The Respondent stated that they did not object to the documents being before us, although they did not accept that they were relevant. In the circumstances we agreed to accept the documents on the basis it would be for the Claimant to explain their relevance.

[14]The parties attended on 28 February 2018, at which time we were due to receive their written submissions and any brief oral submissions. Mrs Chan informed us that Claimant wished to rely on his own submissions rather than hers and that circumstances had arisen in which she was withdrawing as the Claimant , on his instructions. Accordingly, from then on the Claimant represented himself.

[15]We completed reading the written submissions at 12pm at which stage we had proposed that we would hear any brief oral submissions. The Claimant asked for additional time. To give him the fullest opportunity to properly put forward his case we agreed with his application that he should make his oral submissions at 2pm but stated that we would expect them to be concluded within one hour, as opposed to the one and a half hours he requested, in the light of the fact that he had produced very lengthy written submissions. In fact we did permit the Claimant to complete his submission even though they took longer than one and a half hours.

[16]During his submissions the Claimant produced a document with case summaries. The Respondent did not object to it being provided to us and we accepted it. The Law Qualifying disclosures

[17]Qualifying disclosures are defined by section 43B Employment Rights Act 1996 ERA ), so far as is relevant: information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following(a) that a criminal offence has been committed, is being committed or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject

[18]There must be a disclosure of information. There can be a disclosure of information even if the information is already known to the recipient. A distinction is to be drawn between the mere making of an allegation such as s of the Hospital have not been cleaned for the allegation: Cavendish Munro Professional Risk Management v Geduld

[2010] ICR 325

. An allegation without information cannot be a protected disclosure. However, an allegation with supporting information can.

[19]Other than in obvious cases, where a Claimant relies on having reasonably believed that a disclosure of information tended to show an actual or prospective breach of a legal obligation under section 43B(1)(b) ERA, he should identify the source of the legal obligation that he believed was being, or was likely to be, breached: Blackbay Ventures Ltd t/a Chemistree v Gahir

[2014] ICR 747

The Law

[20]The employee must have a reasonable belief that the information tends to show the relevant breach of legal obligation. The belief need not be correct, but it must be reasonable for the employee to hold it: Babula v Waltham Forrest College

[2007] IRLR 346

[21]The employee must also subjectively believe that the disclosure is in the public interest and that belief must be objectively reasonable: Chesterton Global Ltd (t/a Chestertons) v Nurmohamed

[2017] EWCA Civ 979

. Protected Disclosure

[22]A qualifying disclosure is protected provided it comes within, so far as is relevant to this case, Section 43C or 43F ERA: 43C Disclosure to employer or other responsible person. (1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure... (a) to his employer, or (b) where the worker reasonably believes that the relevant failure relates solely or mainly to (i) the conduct of a person other than his employer, or (ii) any other matter for which a person other than his employer has legal responsibility, to that other person. 43F Disclosure to prescribed person. (1)A qualifying disclosure is made in accordance with this section if the worker (a) makes the disclosure ... to a person prescribed by an order made by the Secretary of State for the purposes of this section, and (b) reasonably believes (i) that the relevant failure falls within any description of matters in respect of which that person is so prescribed, and (ii) that the information disclosed, and any allegation contained in it, are substantially true.

[23]The provisions make it clear that there may be a protected disclosure that is not made to, or about, the employer. The issue is whether the protected disclosure is causative of the treatment. If the information is not about the employer this is most likely to be the case where the employer has some interest in the matter about which the disclosure is made: e.g. it may be BP v Elstone and Petrotecnics Ltd.

[2008] IRLR 530

. Detriment

[24]An employer has a right not to be subject to detriment done on the ground that the employee has made protected disclosures.

[25]In Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] IRLR 285

it was held that a worker suffers a detriment if a reasonable worker would or might take the view that they have been disadvantaged in the circumstances in which they have to work thereafter.

[26]The Claimant must prove on the balance of probabilities that he made the protected disclosures and that there has been detrimental treatment. If he discharges that burden, the Respondent then has the burden of proving the reason for the treatment; section 48(2) ERA. If the Respondent does not prove the reason for the treatment, the Tribunal is entitled, but not obliged, to infer that the detriment was on the ground that the Claimant made the protected disclosures: Ibekwe v Sussex Partnership NHS Foundation Trust:

UKEAT/0072/14

[27]A person who subjects a whistleblower to detriment must personally be motivation cannot be who does not know about it: Malik v Cenkos Securities,

UKEAT/0100/17

, unreported, 17 January 2018, paras 86-93.

[28]There must be a causative link between the protected disclosure and the reason for the treatment, in the sense that the disclosure materially influenced Manchester v Fecitt & Ors

[2012] IRLR 64

. Dismissal

[29]Pursuant to Section 94 of the Employment Rights Act 1996 employee has the right not to be unfairly dismissed. Pursuant to Section 103A ERA a dismissal is automatically unfair if it is done for the reason or principal reason that the Claimant has made a protected disclosure.

[30]The Claimant was not employed for two years and so does have qualifying service to claim proving on the balance of probabilities that he made the alleged protected disclosures and that was the reason, or principal reason, for his dismissal: Ross v Eddie Stobart Ltd, EAT, unreported, 08 August 2013, applying Smith v Hayle Town Council

[1978] IRLR 413

[31]Determining the reason for dismissal requires an enquiry into what facts or beliefs caused the decision maker to dismiss: Abernethy v Mott

[1974] ICR 323

. The person taking the decision to dismiss must be aware of the protected disclosures Royal Mail Ltd v Jhuti

[2017] EWCA Civ 1632

[32]To succeed in a claim under section 103A ERA the protected disclosure must be the reason, or principal reason, for the dismissal.

[33]It is rare for there to be direct evidence that a dismissal was because of making protected disclosures so it will often be necessary for the Employment Tribunal to draw inferences from primary facts: Kuzel v Roche Products Ltd

[2008] IRLR 530

. However, there may be other circumstances in which the Employment Tribunal is fully persuaded by the evidence what the reason for the dismissal was, and that it was unrelated to the making of any disclosure. Other reason for treatment

Conclusion

[34]It is generally prudent for the Employment Tribunal to decide the reason for detrimental treatment or dismissal even if it decides that the making of protected disclosures was not the reason, and so, the determination is not strictly necessary to decide the claim: see Malik paras 79-80.

[35]It is important to note that it is not possible to infer that the reason for treatment was the making a protected disclosure merely from the fact that an employer has acted unreasonably: see by analogy in the context of discrimination claims Glasgow City Council v Zafar

[1998] ICR 120

. However, unexplained unfair treatment might found the drawing of an inference. Findings of fact

[36]While it is generally appropriate to deal separately with findings of fact and the application of the law to those findings of fact, in this case dealing with the matter in that way would involve excessive repetition as it would be necessary to set out the facts in respect of each disclosure, then set them out again when analysing whether they amounted to protected disclosures. Accordingly, we considered the totality of the evidence and, having reached our findings of fact, we considered the disclosures and decided whether the statutory requirements were met so that they were protected disclosures. We have set out those determinations chronologically along with the findings of fact. We have also considered whether the alleged detriments occurred and the factual reason for those that did, and for the Claimant , on analysis of the totality of the evidence.

[37]The Respondent is a subsidiary of the Manufacturers Life Insurance Company ("Manulife") which has its headquarters in Canada. The Manulife group of companies provides insurance, life assurance and investment/pension plans. The Respondent is the European asset management arm of Manulife.

[38]In 2015, a decision was taken to recruit two analysts to be based in London to cover emerging markets in Europe. Mr Mennie interviewed the Claimant on 24 June 2015 for one of the roles. He agreed to the Claimant The role reported locally to Mr Mennie, in his capacity as the Respondent's Chief Operating Officer in London.

[39]On 17 November 2015 the Claimant was sent the Employee Information Handbook [B1, 82].

[40]On 27 November 2015, the Respondent sent the Claimant his employment contract by email [B1, 118-129].

[41]On 30 November 2015, the Claimant commenced employment with the Respondent as Director, Senior Investment Analyst.

[42]On 3 December 2015 the Claimant signed his employment contract [B1,127].

[43]Clause 2.3 of the contract of employment included the following provisions: Clause 14 of the contract of employment provided: Clause 17 included the following provision:

[46]Clause 19 made the following provision as to termination of the contract by default:

[47]On 21 December 2015 the Claimant underwent compliance induction training and signed a statement confirming receipt of the Manulife Asset Management (Europe) Limited Compliance Manual (including the Code of Business Conduct and Ethics) [B1, 148].

[48]The Claimant states that although he signed a receipt he was not provided with a copy of the Compliance Manual. We find, on balance of probabilities, that the Claimant was provided with a copy of the Compliance Manual. We find it implausible that he would have signed a receipt stating that he had received the Compliance Manual if he had not. Furthermore, if he had not received the Compliance Manual he would have asked for a copy as soon as he realised he did not have one.

[49]A FCA application form for the Claimant was partially completed on 5 January 2015 [B2, 518-542]. We accept the Respondent the Claimant asked to complete the form. We accept that the Respondent understood that there was no need for the Claimant to be registered with the FCA at the time as he was not providing advice direct to clients, although as the Respondent recruited local sales staff the chance of him being involved in direct client facing advice would increase which would mean that he would need to register at some stage in the future. The Claimant stated that there are missing sheets in which he declared his directorships of Athena Global Limited and Axel Brown Limited. We do not accept his evidence. Mrs Cornforth kept the form safely in her office and there is no reason for any sheets to have been lost.

[50]On 11 January 2016, the Claimant signed a statement confirming that he received the Manulife Asset Management Code of Ethics and confirmed he had listed all reportable securities [B1, 343].

[51]The Claimant did not declare his interest in Athena Global Limited. In his evidence he stated this was because he did not know how many shares he held. We do not accept that evidence. He could have declared that he held some shares and subsequently provide the number. There is no evidence to suggest that he ever sought to do this.

[52]The Claimant accepted that, irrespective of the documentation he received, he knew that he should declare directorships and that he should not represent himself as acting for the Respondent if he was not so doing.

[53]In the early part of 2016, Camden Council were seeking to compulsorily purchase the Claimant as part of plans to demolish the buildings and redevelop the estate. The Claimant was extremely upset by this, particularly as he believed that Camden Council were trying to purchase his property at a substantial undervalue.

[54]On 20 March 2016, the Claimant sent Camden Council an email about the possible purchase of the Bacton Estate [B2, 569]. He suggested that the purchase would be funded by a friend in the United States who could offer a 7% premium over valuation of the property. The evidence does not show whether the email was sent from the Claimant account.

[55]On 26 May 2016, the Claimant sent emails from his work email account to Sir Keir Starmer MP and Greg Clarke MP to request meetings about housing and regeneration policies . The signature block of the email gave the Claimant role as a "Director" of the Respondent without reference to his division, Emerging Markets [B2, 445], [B2, 446] and [B2, 447]. This made it appear that the Claimant was a statutory director of the Respondent, rather than having the job title of director within one specific division.

[56]On 15 June 2016, the Claimant sent an email to Mike Cook at Camden Council in the following terms [B2 453]:

[57]We consider that this email is the most important document in this case and requires careful reading. It is important to note:57.1 The email was sent from the Claimant s work email account

57.2 The signature block described the Claimant as a Director of Manulife )

57.3 The Respondent and group companies knew nothing about and had no interest whatsoever in the Bacton estate.

57.4 The Claimant was not involved in property transactions in his work for the Respondent.

[58]The email of 15 June 2016 was not discovered by the Respondent until 10 November 2016.

[59]On 29 June 2016, the Claimant sent an email from his work email account to Sir Keir Starmer MP to ask for assistance regarding the compulsory purchase of his house. He used a personal signature [B2, 462-466]. This demonstrates that the Claimant could use a personal signature when sending from an email from his work account.

[60]On 4 July 2016, Camden Council sent an email to the Claimant refusing to meet with him in terms that suggested that they understood he was suggesting a purchase of the Bacton Estate by a friend. The letter did not refer to the email of 15 June 2016 [B5, 1462].

[61]On 9 August 2016, Mrs Cornforth sent an email to the Respondent's employees, including the Claimant, about the introduction of the Personal Trading Control Center (PTCC) to record personally owned securities and trading activity [B2, 543].

[62]On 17 August 2016, The Claimant logged onto the PTCC and recorded that he had no outside business interests and that he had read and understood the Global Code of Ethics [B2, 544]. The PTCC form had a link to the Outside Business Activity Guidelines [B2, 545-552].

[63]On 27 September 2016, Mrs Cornforth sent an email to the Claimant asking about his directorship of Blake Clayton Limited as it was referred to in the employment section of the FCA application form, but had not been disclosed as an outside business interest on PTCC [B2, 580].

[64]On 28 September 2016, the UK Compliance team asked the Claimant to disclose any other directorships [B2, 583].

[65]At the end of September 2016 the Claimant alleges that, after the Respondent had moved offices, he spoke Mrs Cornforth and s insurance certificate was not displayed in the office as is legally required and that there were very substantial fines for failing to do so (in the Claim Form he suggests that this was in early October 2016). This is alleged to be Protected Disclosure no 1. In his oral evidence the Claimant stated that there was a formal meeting in an office or meeting room, principally to discuss his FCA registration, possibly on 22 or 26 September 2016. The Claimant alleges that he stated to Mrs Cornforth that there was a fine of £2,500 per day for not having a certificate displayed. In her statement Mrs Cornforth stated that she could not recall a discussion about displaying the insurance certificate at the end of September 2016. However, having hea oral evidence that there was a formal meeting, she was adamant that there was no such formal meeting. We accept her evidence. We do not accept that disclosure 1 was made. Further, e knew nothing about any issue about the display of an insurance certificate.

[66]On 17 October 2016, the Claimant sent an email from his work account to the Rolton Group [B3, 1035-1036]:

[67]On 18 October 2016, the Claimant sent emails from his work email account to Fergus Freeney, Mike Cooke, Ed Watson and the Planning Department at Camden Council objecting to the planning application for the Becton Estate [B3, 849-891], [B3, 892-938], [B3, 939-984] and [B3, 985-1030]. The Claimant used a personal signature. These form part of a series of complaints about the way in which Camden Council were dealing with the potential compulsory purchase of the Claimant property.

[68]On 19 October 2016, Mrs Cornforth received a complaint from Allan Rose of Rolton Group Ltd regarding the email sent by the Claimant [B3, 1035]:

[69]On 19 October 2016, Mrs Cornforth forwarded the email she had received from Rolton Group to Alan Seghezzi, who instructed the Respondent's Investigative Services department to investigate [B4, 1103a-1103ee].

[70]On 20 October 2016, Mr Rose sent Mrs Cornforth further emails Rolton Group Ltd had received from Claimant with a signature block in which he was referred to as a Director of the Respondent [B4, 1049-1065]. The emails that Mr Rose sent Mrs Cornforth, including the email of 17 October 2016 in which the Claimant alleged that there were incorrect and misstated information and that there were misstatements and distortions in both input data and conclusions in a Basement Impact Assessment produced by the Rolton Group, This is alleged to be disclosure number 6b (1058-1062). The Claimant did not specify the alleged misstatements etc despite being asked to. In the circumstances we do not consider that he can have had a reasonable belief that there was a breach of a legal obligation. The Claimant sent the emails as part of his dispute in relation to the Bacton Estate. It was sent purely to further his own interest and we do not consider that he had a reasonable belief that he was acting in the public interest. Disclosure 6a is not made out.

[71]On 21 October 2016, An anonymous report was submitted on the Respondent system, EthicsPoint, alleging that an unidentified individual was conducting personal business in the Respondent s office during working hours, was making extensive use of the Respondent r his personal interests and had received a non-business related guest [B4, 1104-1105]. A review of CCTV images suggested that the individual was the Claimant.

[72]On 21 October 2016, Mr Mennie sent an email to the Claimant and requested that he stop using work email for personal activities [B4, 1107].

[73]On 31 October 2016, Mrs Cornforth asked the Respondent's Investigative Services department to perform a review of the Claimant's email account from 20 October 2016 onwards to check that he had complied with Mr Mennie's request [B4, 1327-1328].

[74]On 31 October 2016 a meeting was held between the Claimant, Mr Mennie, Mrs Cornforth and Mr Spavin. The Claimant was asked about his outside business interests, his visitor and the emails to the Rolton Group [B4, 1108- 1110]. After the meeting, the Claimant sent Mr Mennie an email with some details of his outside business interests [B4, 1111].

[75]The Claimant alleges as detriment 19 that Mrs Cornforth was abusive and aggressive towards him in this meeting (although the Claimant gave the date as 30 October 2016 in his list of detriments). This allegation was not put to Mrs Cornforth. We do not accept that she was abusive or aggressive. We do not accept the detriment 19 is made out.

[76]On 2 November 2016, Mr Spavin sent an email in which he asked the Claimant about his outside business interests. The Claimant responded but Mr Spavin replied that he needed more detail. He attached a copy of the Compliance Manual [B4, 1117].

[77]On 3 November 2016, The Claimant sent further information concerning his outside business interests. He stated that he did not need to disclose anything about Tomsk Energy, a company shares in which were owned by two companies that he held shares in, and was sole director of. The Claimant alleged that he had not received the Compliance Manual when he joined the Respondent and was not aware of PTCC until September 2016 [B4, 1222- 1223]. Mrs Cornforth replied stating that disclosure about Tomsk Energy was required. Mrs Cornforth contended that the Claimant had received the Compliance Manual and was sent an email about the change to PTCC in August 2016 and had logged on to the system on 17 August 2016 [B4, 1266- 1267].

[78]The Claimant contended to contain protected disclosure number 2, alleging a failure by the Respondent to have in place a Compliance Manual and to provide him with a copy of the Compliance Manual when he joined the Respondent, or thereafter. The Claimant relies on these specific extracts from emails:

[79]We do not accept that there was any allegation that the Respondent did not have a compliance manual in place when the Claimant joined the Respondent. The Claimant could not have had a reasonable belief that there was no compliance manual, or that one was not provided to him, as he was provided with it early in his employment. The Claimant could not have reasonably believed there was a breach of any legal obligation. We do not accept that disclosure 2 is made out.

[80]The emails are also alleged to contain protected disclosure number 3 alleging that the Respondent's EU Compliance Team was either unfamiliar with, or not able to interpret the Respondent's Compliance Manual, and therefore lacked professional competence in breach of FCA obligations. The Claimant relies on these specific extracts:

[81]While we accept that the Claimant was putting forward an alternative analysis of whether a beneficial interest existed and should be disclosed, we do not consider that he was making a disclosure suggesting that the Respondent's EU Compliance Team was either unfamiliar with, or not able to interpret, the Respondent's Compliance Manual, and therefore lacked professional competence in breach of FCA obligations. Furthermore, we do not consider the Claimant had a reasonable belief that the compliance team lacked professional competence and were breaching FCA regulations. In writing the email the Claimant was trying to justify his own position and had no reasonable belief that he was acting in the public interest. We do not accept that disclosure 3 is made out.

[82]On 4 November 2016, Mrs Cornforth informed the Claimant that he needed to disclose information about Tomsk Energy [B4, 1277-1278]. The Claimant replies are contended to include protected disclosure number 4, alleging that the PTCC system was inadequate. The Claimant relies on these specific extracts:

[83]While the Claimant argued that it was difficult to disclose his interest in Tomsk Energy in the PTCC system, it did prove possible to do so with assistance. We do not consider that the Claimant had a reasonable belief that there was any breach of a legal obligation in respect of the operation of PTCC. What is more, in arguing that it was difficult to disclose his interest in Tomsk Energy the Claimant was seeking only to justify the fact that he had not declared his interest previously, and did not have a reasonable belief that he was acting in the public interest. We consider that protected disclosure number 4 is not made out.

[84]The emails are also alleged to contain protected disclosure number 5 alleging that the Claimant had not been informed of the PTCC system upon joining the Respondent or at any other point until September 2016, which is allegedly in breach of FCA rules. The Claimant relies on these specific extracts:

[85]We consider this allegation is not made out factually. The PTCC system was brought into use in the London office in August 2016. The Claimant was informed about the introduction by email at the same time as other employees. The Claimant had no reasonable belief that there was a breach of any legal obligation in relation to being provided with information about the PTCC or its operation that could result in a failure to comply with FCA rules. What is more in raising issues about the PTCC system the Claimant was trying to justify why he had not disclosed his interest in Tomsk Energy, and had no reasonable belief that he was acting in the public interest.

[86]On 4 November 2016, the Claimant entered further information into PTCC [B4, 1285-1287].

[87]On 10 November 2016, Joseph Jay Wayshak sent an email to the Claimant attaching formal letter of reprimand for breach of the Global Code of Ethics [B4, 1356-1357]:

[88]The Claimant did not appeal the decision.

[89]The Claimant alleges as detriment 1 that he was unable to buy certain shares at a price he had been considering because of the length of time the compliance team took to approve the share purchases while the investigation into his share ownership and directorships was ongoing. While there may have been some delay in dealing with the Claimant because his shareholdings and business interests were being investigated, this had nothing to do with any of the disclosures that the Claimant had made.

[90]On 10 November 2016, the Respondent's Investigative Services department replied to Mrs Cornforth's request for an analysis of the Claimant's work email address with copies of a number emails, including email chains involving email in which the Claimant raised issues about his dispute with Camden Council [B4, 1325-1347]. This was when the email of 15 June 2016 came to the Respondent the search date parameters.

[91]The email attached a series of emails in which the Claimant alleged that Camden had acted improperly in respect of the proposed compulsory purchase. The email correspondence with Camden from the Claimant was in furtherance of his personal dispute with them in respect of the compulsory purchase of his property. We do not consider that he had a reasonable belief that he was acting in the public interest. None of the detail of the email correspondence was put to the Respondent . It was simply put that they thought that the Claimant was a troublemaker as a result of seeing his disputatious correspondence with Camden. We accept that their focus was almost entirely on the email of 15 June 2016 and that insofar as they were aware of the Claimant tial compulsory purchase of his property, they were sympathetic to him, and did not hold it against him. We do not consider that the allegations that the Claimant made in respect of Camden led to any of the alleged detriments or to his dismissal.

[92]On 15 November 2016 the Claimant was called to a meeting [B4/1367]:

[93]The Claimant alleges as detriment 8 that he was unable to effectively prepare for the 15 November meeting. While we accept that the Claimant was not given advance notice of the purpose of the meeting and so did not have a full opportunity to prepare we do not consider that this was because of any of the disclosures he made.

[94]On 15 November 2016 the meeting was held between Mr Mennie, the Claimant and Mrs Cornforth, as a note taker. At the meeting the Claimant was questioned about the 15 June 2016 email. The Claimant was suspended during the meeting [B5, 1368-1374]. The Claimant did not allege that he was suspended because he had made any protected disclosures. The Claimant alleges as detriment 2 that he did not know the grounds of his suspension or subsequent dismissal. We do not accept that this is factually accurate. It was made clear in the meeting that the main concern was the email of 15 June 2016. Furthermore, we do not consider that the Claimant anything to do with the disclosures that he had made.

[95]The Claimant alleges that he was not informed that he had a right to be accompanied the meeting. While this is correct, it had nothing to do with the disclosures he had made.

[96]The Claimant alleges as detriment 3 that the decision to suspend him was made before the 15 November meeting. We do not accept that the decision to suspend the Claimant had been taken prior to the meeting, although it was likely that he would be suspended. If the Claimant had admitted that he had made a serious error in sending the email of 15 June 2016 the position might have been different. Furthermore, we do not consider that the decision to suspend the Claimant had anything to do with the disclosures he had made.

[97]During the meeting the Claimant stated that he did not have his work telephone with him. After the meeting the Claimant was escorted to his desk. Mrs Cornforth noticed there was a phone on the desk and said words to the effect thought your wor Claimant The Claimant alleges as detriment 4 that Respondent drew unwarranted attention to the Claimant's suspension and created the impression that he intended to steal the Respondent's property. He alleges that this caused reputational and stigma damage. The Claimant alleges as detriment 9 that Mrs Cornforth gave the Claimant's colleagues the impression he had stolen the Respondent's property. We do not consider that this had anything to do with the disclosures the Claimant had made. Mrs Cornforth genuinely thought that the telephone on the Claimant work telephone which is why she asked him about it.

[98]Mrs Cornforth asked the Claimant to return his notebook. The Claimant alleges as detriment 12 that as a result he was unable to rely on his notes of the 15 November meeting. The Claimant was asked to return his notebook as it was company property and thought likely to include company information. This had nothing to do with the disclosures made by the Claimant.

[99]On 16 November 2016, Mr Mennie dismissed the Claimant by letter attached to an email [B5, 1414-1416].

[100]The key issue in this claim is the reason for the Claimant consider that the principal reason for the Claimant he had sent the email of 15 June 2016. The dismissal letter also referred to the email to the Rolton Group and the Claimant outside business interests and shareholdings. However, when the Respondent first knew about those issues they decided to warn the Claimant rather than dismiss him. This underlines the fact that the principal reason for the dismissal was the sending of the email of 15 June 2016.

[101]We accept that the Respondent genuinely believed that in sending the email of 15 June 2016 the Claimant deliberately made it look as if he was acting on behalf of Manulife. We accept that that was the genuine belief formed by Mr Mennie. While Camden may not have been taken in, that did not prevent Mr Mennie genuinely concluding it He had good grounds for forming that belief. The Claimant had doctored his signature block by removing the words Europe) Limited which made it appear that he was acting for a US entity, the property portfolio of which he described in detail in the email. Although in the first paragraph the Claimant referred to his friend potentially being interested in purchasing the property Mr Mennie reasonably concluded that the email was deliberately ambiguous and suggested that the Claimant was acting on behalf of Manulife and that it might be interested in purchasing the Bacton estate. Mr Mennie genuinely and understandably ding. Mr Mennie concluded that the Claimant was seeking to portray himself as acting on behalf of Manulife when he was not. This was contrary to the Respondent s policies and was, as the Claimant conceded in his evidence, improper. It was the principal reason for the Claimant to do with any of the disclosures. Furthermore, to the extent that the Rolton Group email and the Claimant failure to fully disclose outside business interests and shareholdings were taken into account, that had nothing to do with the disclosures.

[102]Mr Mennie genuinely and rationally argument that he merely wished to flag a possible opportunity to the Manulife property team in case Camden wished to sell, but his friend was not interested in pursuing the opportunity. If that were the case the Claimant would have contacted the Manulife property team before sending the email to Camden. In any event, it is close to farcical for the Claimant to suggest that there was any likelihood of Manulife wishing to purchase a Camden council estate where he happened to own a property. It is implausible that the Claimant expected the estate to be sold. It is much more likely that he wished to have documentation that suggested that Camden had refused to consider offers to purchase the estate for use in his dispute about the compulsory purchase of his property.

[103]While not informing the Claimant of the purpose of the meeting of 15 November 2016, not giving him advance notice of the charges against him and failing to separate out the investigation from a disciplinary hearing did not been likely to result in a finding of procedural unfairness had the Claimant had qualifying s dismissal, we accept that Mr Mennie took and acted on HR and other advice in determining the format of the meeting. We do not consider that the procedure adopted gives us any reason to infer that the reason for the Claiman disclosures. We are entirely satisfied that the principal reason for the

[104]On 16 November 2016, the Claimant sent Paolo Valle and William Corson emails setting out his grievance about the suspension [B5, 1396, 1405-1412b]. The emails are said to contain protected disclosure number 7, alleging unfair treatment and prejudice to employees by the Respondent ement team in London. As Mr Mennie was not aware of the emails prior to the decision to dismiss they cannot have been taken into account. Furthermore, in the emails Claimant contends that he had done nothing wrong in sending the email of 15 June 2016 to Camden and therefore it was inappropriate for the Respondent to suspend him. We consider that the Claimant must have been well aware that the email was deliberately designed to make it appear that he was acting on behalf of Manulife and he cannot have had a reasonable belief that there was any breach of a legal obligation on the part of the Respondent in suspending him for that misconduct. In challenging his suspension the Claimant was purely trying to protect his own position and cannot have had a reasonable belief that he was acting in the public interest. We do not accept that disclosure 7 is made out.

[105]The Claimant alleges as detriment 6 that he was unable to pick up his personal belongings from the Respondent's offices. It is correct that the Claimant was escorted from the Respondent without being able to collect all his belongings. This had nothing to do with any disclosures he had made.

[106]The Claimant alleges as detriment 7 Respondent undertook an unlawful search of his personal belongings and his personal email in breach of his right to privacy under the Human Rights Act 1998. While the Claimant belongings were collected together by the Respondent we do not accept that they were searched. The Respondent was entitled to investigate what emails had been sent from the Claimant il account. In any event, none of the treatment in this regard resulted from the disclosures made by the Claimant.

[107]The Claimant alleges a series of detriments that relate to, or result from, his dismissal. The Claimant alleges as detriment 10 damage to his professional reputation as a result of his dismissal. The Claimant alleges as detriment 11 that he did not receive notice pay or bonus. The Claimant alleges as detriment 13 that he has suffered loss of ability to: serve as a director, provide regulated services, be registered with the FCA and obtain alternative professional employment and that this has led to loss of his professional career. The Claimant alleges as detriment 14 loss of past and future earnings for malicious and negligent detriment. The Claimant alleges as detriment 15 ongoing headaches, anxiety and distress. The Claimant alleges as detriment 16 hair discolouration (turning grey). The Claimant alleges as detriment 17 loss of consciousness on two occasions. The Claimant alleges as detriment 18 speech problems and possible stroke. The Claimant s dismissal did not result from the disclosures he made and so the consequences of dismissal also are unrelated to any disclosure he made.

[108]The Claimant alleges as detriment 5 a general detriment of belittlement, harassment, bullying and intimidation by the Respondent and injury to his feelings. We do not accept that there was any general belittlement harassment bullying or intimidation of the Claimant anything to do with the disclosures he made.

[109]On 18 November 2016, Mr Mennie sent the Claimant a copy of the notes taken at the 15 November meeting [B5, 1537-1544]. On 21 November 2016, the Claimant provided his comments on the 15 November meeting note [B5, 1545- 1561]. He did not allege that he had been dismissed for making protected disclosures.

[110]On 28 November 2016, the Claimant appealed his dismissal [B5, 1595-1683]. The Claimant did not allege that he had been dismissed for making protected disclosures.

[111]On 7 December 2016, the Appeal Hearing took place before Christopher Conkey. The Claimant did not allege at the appeal hearing that he had been dismissed for making protected disclosures.

[112]On 20 December 2016, Sarah Bintinger sent the Claimant by email a copy of the appeal hearing notes [B7, 2135-2142]. On 4 January 2017, the Claimant provided his comments on the appeal hearing notes [B7, 2144-2152]. The Claimant did not suggest that he had been dismissed for making protected disclosures.

[113]On 4 January 2017, Christopher Conkey sent the Claimant his appeal decision, confirming Peter Mennie's decision to dismiss [B7, 2153-2156]. Mr Conkey considered that the sending of the email of 15 June 2016 was sufficient to justify the dismissal and did not think it was necessary to consider the other allegations in detail.

Conclusion

[114]Despite the enormous quantity of witness and documentary evidence the key issue in this case was very simple; why was the Claimant dismissed? We consider it is absolutely clear that the principal reason for the Claimant dismissal was the sending of the email of 15 June 2016. The Respondent genuinely and reasonably believed that the Claimant was seeking to portray himself as acting on behalf of Manulife and deliberately sought to create the impression that Manulife might be interested in purchasing the Bacton estate. He doctored his email signature block to make it look as though he was acting for the US entity and that he was a statutory director. His misconduct fully justified the decision to dismiss him. The dismissal and alleged detriments had nothing whatsoever to do with the disclosures he made.

[115]Furthermore, we have concluded that disclosure 1 did not occur and that disclosures to 2 to 7 were not protected. That is also fatal to the Claima claims.

[116]Nothing was put to any of the Respondent pay claim. We do not accept the suggestion in the Claimant submission that he had a right for paid holiday to attend the public enquiry into compulsory purchase of the Bacton Estate. In his closing submissions, the Claimant suggested that when he no longer needed certain days of holiday to attend the public enquiry the Respondent failed to give him back the days that he had booked although he worked on them. The documentary evidence shows clearly that the days holiday were given back. This was put to the Claimant in cross-examination and he accepted that it appeared to be the case. The claim for holiday pay fails. Employment

Issues

Judge Tayler 2 March 2018 Annex 1 The Claimant brings the following claims against the Respondent:

[1]Automatic Unfair Dismissal for making a protected disclosure (s.103A Employment Rights Act 1996 ("ERA"));

[2]Detriment for making a protected disclosure (s.47B ERA 1996); and

Evidence

[3]Claim in relation to holiday pay [Claimant has not set out appropriate statutory basis for this claim]. 1. Automatic Unfair Dismissal for making a protected disclosure (s.103A ERA) Issues(a) Did the Claimant this respect, the Claimant relies upon: i. Alleged Disclosure 1: Did the Claimant make a disclosure of information regarding an alleged failure by the Respondent to display its employer's liability insurance certificate (AGoC, para 7)? If so, when, how and to whom? ii. Alleged Disclosure 2: Did the Claimant make a disclosure of information regarding an alleged failure by the Respondent to have in place a Compliance Manual and to provide him with a copy of the Compliance Manual when he joined the Respondent or thereafter (AGoC, para 18)? If so, when, how and to whom? iii. Alleged Disclosure 3: Did the Claimant make a disclosure of information alleging that the Respondent's EU Compliance Team was either unfamiliar with, or was not able to interpret the Respondent's Compliance Manual, and therefore lacked professional competence in breach of FCA obligations (AGoC, para 22)? If so, when, how and to whom? iv. Alleged Disclosure 4: Did the Claimant make a disclosure of information alleging that the Respondent's Personal Interest Reporting System (i.e. the Personal Trading Control Center ("PTCC") system) was inadequate (AGoC, para 26)? If so, when, how and to whom? v. Alleged Disclosure 5: Did the Claimant make a disclosure of information alleging that he had not been informed of the PTCC system (which the Claimant incorrectly refers to in his particulars of claim as the "PTT" system) system upon joining the Respondent or at any other point until September 2016, which is allegedly in breach of FCA rules (AGoC, para 31)? If so, when, how and to whom? vi. Alleged Disclosure 6: Did the Claimant make a disclosure of information to Camden Council (AGoC, para 33), the Planning Inspectorate (AGoC, para 33), the Secretary of State for Communities and Local Government (AGoC, para 33), the Rolton Group (AGoC, para 41), the Respondent (AGoC, para 73-75) and/or other third parties regarding alleged malpractice, wrongdoing and failure to comply with legal obligations relating to the proposed redevelopment of the Bacton Estate? If so, when, how and to whom? vii. Alleged Disclosure 7: Did the Claimant make a disclosure of information alleging unfair treatment and prejudice to employees by the Respondent management team in London (AGoC, para 73, 76)? If so, when, how and to whom?

(b) within the meaning of s.43B(1) ERA, namely did the Claimant reasonably believe that the information disclosed tended to show one of the statutory categories of i. Did the Claimant believe the information to relate: 1. in relation to Alleged Disclosure 1, to one (or more) of the categories of failure in s.43B(1)(a), (b) or (c) ERA; and/or 2. in relation to Alleged Disclosure 6, to one (or more) of the categories of failure in s.43B(1)(a), (b) or (c) ERA; and/or 3. in relation to Alleged Disclosures 2, 3, 4, 5 and 7, to the category of failure set out in s.43B(1)(b) ERA? ii. Was the Claimant iii. Did the Claimant believe the disclosure to be in the public interest? iv. Was the Claimant

(c) If so, did any of within the meaning of s.43A ERA, namely were any of the alleged disclosures made in accordance with any of sections 43C and 43F ERA? i. In respect of Alleged Disclosures 1, 2, 3, 4, 5, 6 (to the extent that the Claimant alleges that this Alleged Disclosure was made to his employer) and 7, did the Claimant make the alleged disclosure to his employer in accordance with s.43C(1)(a) ERA? ii. In respect of Alleged Disclosure 6, did the Claimant make the alleged disclosures in accordance with s.43C(1)(b) ERA, namely did he make the alleged disclosures to Camden Council, the Planning Inspectorate, the Secretary of State for Communities and Local Government, the Rolton Group and/or any person other than hi Other Person believed the relevant failure related solely or mainly to: 1. the conduct of that Other Person (s.43C(1)(b)(i) ERA), or 2. any other matter for which that Other Person has legal responsibility (s.43C(1)(b)(ii) ERA), and 3. was the Claimant's belief in that respect reasonably held? iii. In respect of Alleged Disclosure 6, did the Claimant make the alleged disclosures in accordance with s.43F ERA?

Issues

[1]Are Camden Council, the Planning Inspectorate, the Secretary of State for Communities and Local Government and/or any person other than his employer to which the Claimant made the alleged disclosures a person prescribed by the Public Interest Disclosure (Prescribed Persons) Order 2014, SI 2014/2418 (as amended)?

[2]If so, which description of matters in respect of which that person is so prescribed did the Claimant believe the relevant failure fell within?

[3]Was the Claimant's belief in that respect reasonably held?

[4]Did the Claimant believe the alleged disclosure, and any allegation contained in it, were substantially true?

[5]Was the Claimant's belief in that respect reasonably held? (d) Was the reason, or principal reason, for the Claimant protected disclosure/s he made (s.103A ERA)? 2. Detriment for making a protected disclosure (s.47B ERA) Jurisdiction To the extent that the Claimant seeks to rely on any alleged act giving rise to a detriment where the act pre-dated 4 October 20163:(a) Did the alleged act form part of a series of similar acts and if so, did the last of them occur on or after 4 October 2016 (s.48(3)(a) ERA); and/or

(b) For those acts which allegedly occurred prior to 4 October and which did not form part of a series of similar acts, was it reasonably practicable for the complaint to have been presented within three months of the alleged act having occurred (s.48(3)(b) ERA)?

(c) If not, was the complaint presented within such further period as the Tribunal considers reasonable (s.48(3)(b) ERA)? Issues For those alleged acts upon which the Tribunal has jurisdiction to rule (d) Did any of the Claimant disclosure (see above); (e) If so, was the Claimant subjected to any of the alleged detriments set out in Appendix 1 on the ground that he made the protected disclosure (in the sense that the protected disclosure materially influenced the detrimental treatment)? 3. Holiday pay claim Jurisdiction The Claimant has not identified the appropriate statutory basis under which he brings this claim. However, pursuant to paragraph 4 of the Order of EJ Lewzey, dated 22/06/17: Issues for those matters upon which the Tribunal has jurisdiction to rule 3 Calculated based on the early conciliation regime under s.207B(4) ERA: Day A was 3 January 2017; therefore the earliest date within three months of Day A was 4 October 2016. (a) Does the Claimant have any entitlement to holiday pay? (b) If so, in what amount? List of Alleged Detriments Number Paragraph Alleged detriment Alleged act giving rise Alleged date of reference in to detriment act giving rise to AGoC detriment

Background

[1]Para 12, para Claimant alleges he Length of time 67, para 84 was unable to buy the compliance team took to shares at the price he approve the share had been considering. purchases. If he had been able to, he would have doubled his investment.

[2]Para 61, para Claimant alleges he Claimant alleges Peter 15 November 2016 77, para 102, does not know the Mennie refused to give (and subsequent para 180 grounds of his reasons at the meeting dates). suspension or or in response to subsequent dismissal. subsequent requests from the Claimant.

[3]Para 63 Decision to suspend Claimant was made before the 15 November meeting.

[4]Para 64, para Respondent drew In front of Claimant's 15 November 2016. 65, para 80, unwarranted attention colleagues, Alexandra para 96 to the Claimant's Cornforth demanded suspension and return of the Claimant's created the impression notebook and said "Here that he intended to is the phone, you told us steal the Respondent's you don't have the property. This caused corporate phone with reputational and stigma you." damage. Management accompanied Claimant as he exited the Respondent's offices.

[5]Para 66, para Belittlement, 198 harassment, bullying and intimidation by the Respondent and injuries to the Claimant's feelings.

[6]Para 79, para Claimant was unable to Respondent was refused 100 pick up his personal access to the belongings from the Respondent's offices. Respondent's offices.

[7]Para 80, para Breach of right to Claimant alleges 98 privacy under Human Respondent undertook Rights Act 1998 an unlawful search of his personal belongings and his personal email.

[8]Para 89 Claimant was unable to Respondent failed to 15 November 2016. effectively prepare for advise the Claimant of the 15 November the reason for the meeting. meeting in advance, despite the Claimant's request. Respondent failed to advise the Claimant that he could be accompanied to the meeting. The Respondent failed to give the Claimant notice of the meeting in advance.

[9]Para 89 Humiliation by the Alexandra Cornforth 15 November 2016. Respondent. gave the Claimant's colleagues the impression he had stolen the Respondent's property.

[10]Para 90 Damage to Dismissal. 16 November 2016. professional reputation after 16 November 2016.

[11]Para 92 Claimant did not Dismissal. 16 November 2016. receive notice pay or bonus.

[12]Para 95 Claimant is unable to Alexandra Cornforth 15 November 2016. rely on his notes of the requested the Claimant 15 November meeting. return his notebook.

[13]Para 171 Loss of ability to: serve Alleging gross 16 November 2016. as a director, provide misconduct. regulated services, be registered with the FCA and obtain alternative professional employment. Loss of professional career. 14 para 194 Loss of past and future earnings for malicious and negligent detriment. Para 198 Ongoing headaches, anxiety and distress. Para 198 Hair discolouration (turning grey). Para 198 Loss of consciousness on two occasions. Para 198 Speech problems and possible stroke.

[19]Para 17, para Abusive and Conduct of Alexandra 30 October 2016. 77 aggressive behaviour Cornforth at the 30 towards the Claimant. October meeting.

[20]If the claim had no reasonable prospect of success the threshold has been crossed allowing a costs order to be made. However, the Employment Tribunal still has a discretion as to whether the order should be made.

[21]Cost orders are at the exception rather than the rule. That was emphasised in Gee v Shell UK Ltd

[2003] IRLR 82

at paras 22, 35 and McPherson v BNP Paribas (London Branch)

[2004] EWCA Civ 569

[2004] ICR 1398

[22]A significant feature in costs applications is the position of litigants in person. In Gee, Lord Justice Sedley, stated at para 35: “It is nevertheless a very important feature of the employment jurisdiction that it is designed to be accessible to people without the need of lawyers, and that – in sharp distinction from ordinary litigation in the United Kingdom – losing does not ordinarily mean paying the other side’s costs. … the governing structure remains that of a cost-free user friendly jurisdiction in which the power to award costs is not so much an exception to as a means of protecting its essential character.”

[23]The Claimant has for significant periods of time been a litigant in person although he has taken advantage of the ELIPS program for some assistance in the preliminary hearings in the Employment Tribunal and ELAAS scheme in the Employment Appeal Tribunal and had a direct access barrister for the majority of the hearing and would have had to opportunity to obtain advice on the merits of the claims when Mrs Chan was instructed in January of 2018.

[24]The significance of the position litigants in person was set out by His Honour Judge Richardson in AQ Ltd v Holden

[2012] IRLR 648

, EAT at para 32: “A tribunal cannot and should not judge a litigant in person by the standards of a professional representative. Lay people are entitled to represent themselves in tribunals; and, since legal aid is not available and they will not usually recover costs if they are successful, it is inevitable that many lay people will represent themselves. Justice requires that tribunals do not apply professional standards to lay people, who may be involved in legal proceedings for the only time in their life. As Mr Davies submitted, lay people are likely to lack the objectivity and knowledge of law and practice brought by a professional legal adviser. Tribunals must bear this in mind when assessing the threshold tests in rule 40(3). Further, even if the threshold tests for an order for costs are met, the Tribunal has discretion whether to make an order. This discretion will be exercised having regard to all the circumstances. It is not irrelevant that a lay person may have brought proceedings with little or no access to specialist help and advice.”

[25]We also consider it is important to bear in mind that public interest disclosure claims, as has often been said of discrimination claims, are claims of particular public importance. They are claims of great significance and their fair determination is a very important aspect of the tribunal's jurisdiction.

[26]The fact that a party lied about a material issue in the claim will not necessarily be sufficient to found an order for costs: In Arrowsmith v Nottingham Trent University,

[2012] ICR 159

, at para 32-33 “In the recent decision of the Employment Appeal Tribunal in HCA International Ltd v May-Bheemul (unreported) 23 March 2011, Cox J, who delivered the judgment of the appeal tribunal, made the same point. She said:39. Thus, a lie on its own will not necessarily be sufficient to found an award of costs. It will always be necessary for the tribunal to examine the context and to look at the nature, gravity and elect of the lie in determining the unreasonableness of the alleged conduct.

40. As this last case makes abundantly clear, no point of principle of general application is established in any of the cases being relied upon by Mr Beyzade [and they included the Daleside case]. In our judgment the employment tribunals reasoning in the present case, at para 12 of their judgment, is unimpeachable. Where, in some cases, a central allegation is found to be a lie, that may support an application for costs, but it does not mean that, on every occasion that a Claimant fails to establish a central plank of the claim, an award of costs must follow.

[33]I would respectfully endorse that approach. The question for an employment tribunal when considering whether or not the making of an order for costs is justified will always be whether, on the particular facts of the case, any of the circumstances referred to in rule 40(3) of the 2004 Rules have occurred. It will therefore be a fact-sensitive exercise and a decision in another case, in what might superficially appear to be circumstances similar to those of the instant case, will not dictate the decision in it.” 27. The fact that a Respondent has given a costs warning is a factor that can be taken into account in deciding whether the discretion should be exercised to make a costs order, but is not a prerequisite of such an order being made. 28. The fact that a Respondent did not apply for strike out or a deposit order or that there has been no cost warning by the Employment Tribunal or the Respondent does not necessarily preclude an order for costs being made: Vaughan v London Borough of Lewisham

[2013] IRLR 713

: “17 We start with the fact that the Respondents never applied for a deposit order and that neither they nor the tribunal ever warned the appellant that in their view the claim was misconceived or gave a costs warning. We have already considered those facts from the point of view of what, if any, implication can be drawn from them about the arguability of the case; but the question here is whether the absence of any such warning made it unjust for the tribunal to exercise its discretion to award costs. (Theoretically it could also go to the quantum of the costs, but in practice this is an 'all or nothing' point.) 18 We do not believe that as a matter of law an award of costs can only be made where the party in question has been put on notice, by the making of a deposit order or otherwise, that he or she is at risk as to costs. Nor, however, do we believe that the absence of such notice, or warning, is necessarily irrelevant: indeed it was expressly relied on in a recent decision of Mr Recorder Luba QC as one of the reasons for not exercising a discretion to award costs under the cognate jurisdiction in this tribunal – see Rogers v Dorothy Barley School

[2012] All ER (D) 238

(Mar), at paragraph 9. What, if any, weight it should be given in any particular case must be judged in the circumstances of that case; and it is, as we have already observed, regrettable that the tribunal does not expressly address the question. 19 In our view the fact that the appellant had not been put on notice was not in the present case a sufficient reason for withholding an order for costs which was otherwise justified. In the first place, we do not believe that it would be just to deprive the Respondents of an award of costs because they had not sought a deposit order: there may, as discussed above, be good reasons why a party may prefer not to take that course. If there is any criticism, it could only be that they did not write to her at an early stage setting out the weaknesses in her claims and warning that a costs order would be sought if they failed. But what is significant is that the appellant at no stage in her submissions to the tribunal or before us asserts that if she had been given such a warning she would have discontinued her claim; and nor in any event does it seem to us that any such assertion would have been credible. She was, as the tribunal emphasises, convinced, albeit without any rational or evidential basis, that she was the victim of a conspiracy and of a serious injustice, and it seems to us highly unlikely that a letter from the Respondents, however well-crafted, would have caused the scales to fall from her eyes.” 29. Rule 78 makes provision as to the amount of any costs order: 78.—(1) A costs order may—(a) order the paying party to pay the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party;

(b) order the paying party to pay the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined, in England and Wales, by way of detailed assessment carried out either by a county court in accordance with the Civil Procedure Rules 1998, or by an Employment Judge applying the same principles; or, in Scotland, by way of taxation carried out either by the auditor of court in accordance with the Act of Sederunt (Fees of Solicitors in the Sheriff Court)(Amendment and Further Provisions) 1993(a), or by an Employment Judge applying the same principles; 30. Pursuant to rule 84 in deciding whether to make costs order and, if so, in what amount, the tribunal may have regard to the paying party's means. As set out above the Claimant did not comply with the unless order and provide any evidence of his means and did not at the hearing suggest that he lacked the means to pay the sum sought by the Claimant. Conclusion 31. The threshold for costs being awarded is set high. No means no in the term “no reasonable prospect of success”. However, it must be established that the claim had “no reasonable” prospect of success rather than “no” prospect of success. A claim that is merely fanciful will be treated as having no reasonable prospect of success and may properly result in an award of costs. 32. At heart this case was very straightforward. The principle reason for the dismissal of the Claimant was fact he sent the email of 15 June 2016. 33. We had the opportunity at the final hearing, unlike the judges dealing with the matter on the initial sift and preliminary hearings, to consider the email in great detail and to consider the Claimant’s explanation of it. When we did so a number of points became apparent. Firstly, the Claimant doctored his email sign off to make it appear that he was a statutory director of Manulife Asset Management rather than an employee with the title of Director of Manulife Asset Management (Europe) Limited. In doing so the Claimant was acting dishonestly. He designed that email to make it look as if Manulife Asset Management might be interested in purchasing the Becton estate. He knew full well that they had no such interest. In making that representation he was acting dishonestly. The Claimant sent the email from work email account. The Claimant was not involved in property transaction himself and we held it was close to farcical to suggest that there was any possibility of the Respondent being interested in purchasing the estate. In such circumstances, we consider that the Claimant must have realised that there was no reasonable prospect of him succeeding in the allegation that the principal reason for his dismissal was the making of protected disclosures. He knew full well that his own dishonest conduct had led to his dismissal and fully justified it. Thereafter, he searched for some disclosures that could support a claim that he was unfairly dismissed and subject to detriment leading up to his dismissal because of having made protected disclosures. There was no reasonable prospect of him establishing that his conduct was used as an excuse and that the principal reason for his dismissal was the making of the disclosures. We concluded that disclosure 1 did not occur and that disclosures to 2 to 7 were not protected, generally on the basis that the Claimant could not have had a reasonable belief that the disclosure of information tended to show a breach of a legal obligation or was made in the public interest. That was also fatal to the Claimant’s claims. Overall this was a claim with no more than fanciful prospects of success.

[34]We consider that it is clear that this is a claim that had no reasonable prospects of success. The threshold is passed so that the tribunal has the power to make an award of costs.

[35]The Claimant throughout these proceedings has inundated the tribunal with huge amounts of material in an attempt to obscure the basic and simple truth at the centre of the case. His submissions at this hearing were very lengthy, involving him reading out lengthy sections of documentation relating to the original liability hearing, rather than addressing the fundamental point at issue as to whether the principal claim of dismissal for making protected disclosures was one that had a reasonable prospect of success. We consider that it did not. We next went on to consider whether we should exercise our discretion to award costs.

[36]We accept the Claimant's submission that costs are very much the exception rather than the rule. We also accept that in considering an application for costs we must have regard to the position of litigants in person. The Claimant has been for much of the proceedings a litigant in person.

[37]We note the importance of the Employment Tribunal being open to those who do not have access to lawyers. We note, Lord justice Sedley's statement in Gee that the governing structure remains a cost free, user-friendly jurisdiction, in which the power to award costs is not so much an exception to the rule as a means of protecting its essential character. We also bear in mind that public interest disclosure claims are of particular public importance and their determination is important in our society.

[38]We also accept that even where there is dishonest conduct that does not necessarily lead to an award of costs.

[39]We take account of the fact that on the initial sift by the Regional Employment Judge and at Preliminary Hearings the claim was not struck out, or subject to a deposit order. There was no application to strike out for a deposit order from the Respondents. Those are factors to be taken into account, but as was held in Vaughan v London Borough of Lewisham, there may be reasons why on an initial consideration of the papers the position that will be reached at the end of the hearing is not apparent and why it may be thought that it is not sufficiently likely that a deposit order or strike out will be granted to make the application worthwhile. The fact that an application is not made does not preclude an award of costs being made.

[40]We consider this is so exceptional a case as to merit an award of costs. We consider it is just that we should exercise jurisdiction to award such costs. While public interest disclosure claims are particularly important we consider that the protection of the essential character of Employment Tribunal proceedings requires that the tribunal should not sit idly by where a person is guilty of dishonest conduct as the Claimant was in sending his email of 15 June 2016 and then seeks to establish protected disclosures, detriment and alleged dismissal for protected disclosure as a smokescreen to cover his own gross misconduct. We consider that is conduct that should result in an award of costs.

[41]When the dust settled in this case what becomes clear is that when the Claimant sent the email of 15 June 2016 he knew that he had doctored the email sign off and that the email was designed to make of the recipient believe that he was acting on behalf of the Respondent's American parent and to falsely suggest that they might be interested in purchasing the Becton estate. While that might not been clear to others at the interlocutory stages the Claimant knew what he had done and deliberately set out to establish protected disclosures and alleged detriments and to obscure the fact that he had been dismissed for his gross misconduct. Even, if it was not obvious to the Claimant’s counsel prior to the hearing as the Claimant suggests, the Claimant knew what he had done. He did not need to be advised that his conduct was dishonest, that it clearly justified dismissal and there was nothing of substance to suggest that it was used as an excuse to dismiss him for making his alleged protected disclosures. Once the email of 15 June 2016 was properly analysed and the Claimant given an opportunity to explain himself it was obvious that the claim had no reasonable prospect of success.

[42]The Respondent's solicitors have provided a cost schedule showing that they have incurred fees in the region of £270,000 in defending this claim. The schedule is not subject of a detailed breakdown. However, is perfectly clear that the Respondents in instructing solicitors and counsel have incurred vastly in excess of the £20,000 they seek, that being the maximum amount that the Employment Tribunal can award without the award being sent for taxation. The fees of counsel alone show legitimate expenditure well in excess of £20,000.

[43]While we accept that the touchstone is to consider the lowest amount of costs that could reasonably be incurred in defending the claim. This claim could not possibly have been properly defended by solicitors and counsel without the expenditure of well over the sum claimed by the Respondent.

[44]We consider that the Respondent, understandably, formed the view that until there was a detailed analysis of the material there was not sufficient chance of deposit order or strike out to make such an application. Even if they had done so they would have likely have incurred in excess of £20,000 of legitimate costs.

[45]The Respondents instructed reputable solicitors. We do not accept there is anything in the suggestion that they were required to provide the Claimant with a practising certificate for each solicitor engaged in the matter. The case of Ramsey & ors v Bowercross Construction Ltd

UKEAT/0534/07/DA

dealt with the situation of a solicitor who did not hold a practicing certificate. We do not consider there is anything to suggest that the solicitors involved in this matter do not hold practicing certificates. Even if they did not, as pointed out above, Counsel’s legitimate costs were in excess of £20,000.

[46]We do not consider there is anything in the Claimant's contention that costs should not be awarded because there was a failure by the Respondent to engage in alternative dispute resolution through ACAS or through judicial mediation. The tribunal places great emphasis on alternative dispute resolution, and in an appropriate case might refuse to order costs, or limit costs awarded, on the basis that alternative dispute resolution should have been attempted and could have brought the proceedings to an end. The Claimant's conduct in this matter, including today, where he continues to argue that there was nothing wrong in the email that he sent on 15 June 2016, indicates that there was no realistic prospect of alternative dispute resolution leading to a settlement of these proceedings.

[47]Once the litigation commences it was extremely hard fought. There are aspects of the Respondent’s conduct that may have resulted in some unnecessary cost. However, the discount of any unnecessary costs would still leave the costs vastly over the £20,000 claimed by the Respondent. We do not accept that the Claimant has put forward convincing evidence to support his contention that Mr Purnell acted improperly.

[48]We do not consider there is any question of these proceedings being used to impede at the right of the claimants to have access to the court to litigate their claims of public interest disclosure dismissal or detriment. To the extent that the Respondent has referred to other litigation that the Claimant has threatened, that is a matter that we have not taken into account in deciding whether to award costs. The award of costs is based on the Claimant’s conduct of these proceedings.

[49]In all the circumstances we consider it is appropriate to make an award of costs to the Respondent in the sum of £20,000.

[1]By a claim form presented on 3 March 2017, the Claimant brought complaints of automatic unfair dismissal for making protected disclosures, protected disclosure detriment, and holiday pay, against Manulife Asset Management (Europe) Limited under case number 2200417/2017.

[2]By a decision promulgated on 2 March 2018, the Tribunal dismissed the claim.

[3]The Claimant appealed the ET liability decision. An EAT Rule 3(10) hearing took place on 9 January 2019 and the transcript of the proceedings was promulgated on 22 February 2019. The EAT (HHJ Richardson) refused permission to appeal.

[4]The Claimant appealed to the Court of Appeal. That application was dismissed by order of Underhill LJ promulgated on 12 November 2019.

[5]By an order promulgated on 22 January 2020, the Court of Appeal also refused the Claimant’s later application for permission to appeal HHJ Richardson’s refusal to review his r.3(10) decision. On this occasion, Underhill LJ observed that: 5.1. HHJ Richardson had been “unarguably right to hold that the proposed appeal was hopeless” para [1]. 5.2. But for the fact that the Claimant’s application had pre-dated the Court of Appeal’s order of 12 November 2019 by a few days, Underhill LJ would have been minded to have certified the Claimant’s application as being totally without merit and to have made a civil restraint order against the Claimant, para [8].

[6]In a Costs Judgment promulgated on 24 January 2019, the Tribunal held that the Claimant’s claims had had no reasonable prospect of success. It exercised its discretion to make a costs order against the Claimant in the sum of £20,000.

[7]The Claimant issued a further claim, number 2205144/2019 against the same Respondent, in the same terms as the first claim.

[8]On 14 July 2021 Lord Justice Warby made an Extended Civil Restraint Order against the Claimant, ordering that he be restrained from issuing claims or making applications in any court, concerning any matter related to these proceedings, without first obtaining the permission of Choudhury J, or Johnson J (or a Judge nominated by them). The order made clear that the Claimant was prohibited from doing any of the following things without such prior permission: “(1) issuing any claim in any court which relates to or arises from the fact or circumstances or alleged circumstances of your dismissal in 2016, or the reasons or alleged reasons for that dismissal, and (2) making any application in any proceedings in any court (whatever the nature or subject-matter of the proceedings) which concerns, involves, relates to, touches upon or arises from the fact or circumstances or alleged circumstances of your dismissal, or the reasons or alleged reasons for, your dismissal.”

[9]The Claimant had made an application for costs dated 18 February 2019 and received by the Tribunal on 21 February 2019 in claim number 2200417/2017. The application predated the civil restraint order.

[10]The Claimant’s costs application had not been determined for a number of reasons set out in more detail below. The judge who had had conduct of the case, EJ Taylor, was elevated to the EAT. Subsequently the case was allocated to me, EJ Brown. The covid pandemic meant that the Central London Tribunal building was closed for long periods of time and the application was not able to progress. In addition, as stated above, the Claimant had issued a further claim, number 2205144/2019, in materially identical terms, against the same Respondent. It was the subject of a number of hearings at the Employment Tribunal during 2021 which the Claimant failed to attend. I eventually struck out that claim on 23 July 2021.

[11]The Claimant’s costs application is the only outstanding matter to be resolved between the parties. I decided that it needed to be determined, despite the civil restraint order, because it predated the civil restraint order. The Claimant’s Costs Application

[12]In his application, the Claimant sought costs from the Respondent on the following grounds: 12.1. Under r76(3) ET Rules of Procedure 2013 as the result of a postponement. The Claimant said that the liability hearing had been postponed and that, as a result “the trial has taken place immediately before the annual performance bonuses and promotions being announced which resulted in the potential witnesses who were still Respondent’s employees, being reluctant to attend the trial. This has a major impact on the outcome of the hearing. Similarly, despite being warned to preserve CCTV records, the Respondent alleged the CCTV records were erased by the time of the trial in February/March 2018. This, along with the reluctance of Respondent’s employees to act in a witness capacity, had a decisive impact for the outcome of the trial.” The Claimant said, regarding r76(3), “As shown in… the Claim Form [ET1], interparty correspondence and the Agenda for the preliminary hearing, the claimant has expressed a wish to be reinstated or re-engaged which has been communicated to the respondent not less than 7 days before the hearing. Thus, requirement of rule 76(3) ETRP has been satisfied. The request for reinstatement has also been raised in the interparty correspondence. Having requested an adjournment of the final hearing from September 2017 to February/March 2018, the Respondent’s counsel failed to provide any compelling reason. In any event, no evidence as to the availability of the job from which the claimant was dismissed or of comparable or suitable employment has been adduced. In the circumstances of the case, rule 76(3) ETRP applies.” 12.2. “The Respondent’s vexatious, abusive and unreasonable conduct”. The Claimant said that the Respondent had unreasonably refused to engage in ACAS conciliation and Judicial Mediation. He said that the original hearing date had been postponed on the application of the Respondent and that the Respondent had refused to disclose information and documents and had included irrelevant material in the bundle. He said that the Respondent had failed to cooperate with him in preparing for the hearing. He said that the Respondent had misled EJ Lewzey. He also alleged that the Respondent’s Counsel had, on the day of a Preliminary Hearing, entered a room where the Claimant was taking preliminary advice from a legal professional and “had deprived the claimant.. from effectively exercising his right of access to the tribunal by ensuring that the claimant is not assisted by an ELIPS representative.” The Claimant said that the Respondent had provided untrue reasons for the Claimant’s dismissal.

[13]On 26 February 2020 the Respondent objected to the Claimant’s costs application.

[14]It said that it would not respond substantively to the points raised in the Claimant's Costs Application, principally because judgment was promulgated in writing to the parties in person on 2 March 2018 and the date by which any costs application should have been filed was 30 March 2018. The Claimant's Costs Application was therefore presented over 10 months out of time and the Tribunal had no jurisdiction to determine it. However, the Respondent observed that:(a) Many of the grounds raised in the Claimant's Costs Application had already been dismissed as not arguable in the context of an appeal by the Claimant against case management orders made by EJ Lewzey on 21 June 2017. The Claimant's appeal against EJ Lewzey's orders was dismissed: (i) by HHJ Eady QC at the sift stage in accordance with r.3(7) EAT Rules 1993 on 22 August 2017; and (ii) by Kerr J at a r.3(10) hearing (by order dated 20 December 2017). In addition, certain of the grounds relied upon by the Claimant in the Claimant's Costs Application were also considered and rejected (iii) by Underhill LJ in dismissing the Claimant's application for a stay of case number 2200417/2017 (by order dated 7 February 2018); and (iv) by Kitchin LJ on a reconsideration of Underhill LJ's decision (by order dated 15 February 2018:

(b) The Claimant's claims had been heard by the Employment Tribunal over 7 days between 19 and 28 February 2018. Judgment was promulgated in writing to the parties in person on 2 March 2018. The Tribunal emphatically rejected the Claimant's claims, holding, inter alia, that the reason for the Claimant's dismissal was gross misconduct, and that his dismissal was fully justified. The Tribunal also made a series of findings of dishonesty against the Claimant.

(c) The Claimant’s appeal had been rejected as disclosing no arguable grounds for appeal by HHJ Richardson following a r.3(10) hearing, by order dated 22 January 2019.

(d) The Respondent had been awarded its costs by the Tribunal which heard the claim In its judgment, promulgated on 24 January 2019 the Tribunal repeated its determinations that the Claimant had acted dishonestly (paragraph 33); that he had been guilty of gross misconduct (paragraphs 40-41); and that it was "clear" that his claim had no reasonable prospects of success (paragraph 34). It also observed that "the Claimant throughout these proceedings has inundated the tribunal with huge amounts of material in an attempt to obscure the basic and simple truth at the centre of the case" (paragraph 35).

(e) The Claimant had presented a separate complaint to the Bar Standards Board on 13 June 2018 regarding the alleged conduct of the Respondent's counsel, Mr Sebastian Purnell, set out in the Claimant's Costs Application. The Bar Standards Board had summarily dismissed that complaint on 7 August 2018, determining that "the complaint does not disclose any evidence of professional misconduct and does not warrant further investigation by the Bar Standards Board."

[15]On 21 February 2020 EJ Tayler ordered that, within 14 days, the Claimant should provide submissions in support of the contention that the costs application was made in time and/or that it should not be struck out as being an abuse of the process; and, if he wished the matter to be considered at a hearing, make an application for a hearing.

[16]The Claimant responded on 5 March 2020,questioning the process and referring at length to quoting at length from the European Convention of Human Rights and ECJ caselaw.

The Law

[17]On 20 June 2019 EJ Taylor wrote again to the parties, inviting their comments on whether, Pursuant to rule 77 of Employment Tribunal Rules 2013 (“the ET Rules”) the “judgment finally determining the proceedings” was the Judgement on liability Respondent’s application for costs sent to the parties on 24 January 2019. He said that, if the Claimant’s costs application had been presented in time, EJ Taylor might go on to consider, of his own motion, pursuant to rule 37 ET Rules, whether the application for costs should be struck out on the basis that it was scandalous, unreasonable or vexatious, as the Claimant could and should have made any application for his costs so that it could have been considered at the hearing to determine the Respondent’s application for costs held on 14 December 2018.

[18]On 3 July 2019 the Respondent replied, saying that the Claimant was seeking to recover costs that he allegedly incurred in pursuing his claim to establish liability on the part of the Respondent. Accordingly, the relevant judgment, from which time ran for making a costs application, was the liability judgment.

[19]The Respondent also said that the Claimant could and should have made any application for costs as a counter-claim to the Respondent's application for costs, so that both applications could be considered at the same time. Waiting until the Respondent had successfully obtained its costs judgment against him before making his own application was contrary to the Overriding Objective. If the Application were allowed to proceed, it would result in a completely avoidable waste of the Tribunal's and the Respondent's resources.

[20]The Respondent also contended that the Tribunal should strike out the Application on the basis that it had no reasonable prospect of success. Given the determinations already made by the Tribunal in the Liability Judgment and the Costs Judgment, the Claimant had no prospect of making out any of the grounds in Rule 76 for awarding costs in his favour. The Respondent contended that: 20.1. The Respondent's defence in the liability hearing and its application for costs had reasonable prospects of success because, as a matter of record, both had succeeded. 20.2. There was no evidence that the Respondent had acted vexatiously, abusively, disruptively or otherwise unreasonably during the course of the proceedings. Instead, the Tribunal repeatedly favoured the Respondent's evidence over assertions made by the Claimant in the Liability Judgment (for example, see paragraphs 48, 49, 51, 55, 65, 70, 81, 75, 79, 81, 83, 85, 91, 94, 101, 102, 104, 106, 108 and 114) 20.3. The Application was the most recent example of the Claimant's vexatious approach to the proceedings. He had repeatedly sought to prolong the resolution of the matter by bringing numerous failed interim applications and appeals. The Claimant appeared to be unable or unwilling to accept the decisions of the Tribunal.

[21]On 21 February 2020, EJ Taylor again ordered the Claimant to provide any submissions in support of the contention that the costs application was made in time and/or that it should not be struck out as being an abuse of the process; and, if he wishes the matter to be considered at a hearing, make an application for a hearing.

[22]On 5 and 6 March 2020 the Claimant replied, saying that he had made the application in time, within 28 days of the costs judgment on the Respondent’s costs application. He requested a hearing. He said that he was being denied a fair hearing. He also requested a stay of the proceedings to allow the Claimant to seek a view from the Institute of Arbitration in Stockholm. The Claimant explained his failure to make his costs application earlier, relying on a number of matters: he said that it would not have been possible to consider the Claimant’s own costs application at the same hearing as the Respondent’s application because the Respondent’s application was listed for a whole day. He said that the Respondent had failed to deliver the documents in support of its own application, and failed to provide the Claimant with a bundle for the Respondent’s costs hearing until the day of the hearing. The Claimant said that he had heart condition which had required an urgent operation in January (2019) and that he had needed, as a litigant in person, to seek legal advice.

[23]The Claimant also made submissions on EJ Taylor recusing himself. That matter is no longer relevant.

[24]On 13 March 2020 the Respondent wrote further to the Tribunal, challenging the Claimant’s contentions.

[25]EJ Taylor was elevated to the EAT and the file was passed to me, EJ Brown.

[26]On 17 September 2020 I wrote to the parties asking them to set out their proposed directions regarding how the Claimant’s costs application should now be determined, including:a. Whether it could be determined on the papers by EJ Brown;

b. Whether strike out is available for costs applications;

c. The procedure which should be adopted. I said that, in the absence of EJ Taylor, it was fair to allow the parties to comment on these matters.

[27]On 1 October 2020 the Respondent responded, saying that the Tribunal had jurisdiction under r.37 to strike out (or, under r.27, to dismiss) the Costs Application. However, it should instead list a one day final hearing via CVP for the determination of the Claimant’s Costs Application, to avoid further delay.

[28]The Respondent said that Rule 1(1) of the ET Rules provides that a “Claim” means any proceedings before an ET making a complaint and that a “Complaint” means anything that is referred to as a claim, complaint, reference, application or appeal in any enactment which confers jurisdiction on the Tribunal. Rule 1(3) provides relevantly that a “judgment” is a decision, made at any stage of the proceedings (but not including a decision under r.13 or 19) which finally determines, inter alia, a claim, or part of a claim, as regards liability, remedy or costs, r.1(3)(b)(i). Rule 27 provides that if an Employment Judge considers either that the Tribunal has no jurisdiction to consider the “claim”, or that the “claim” has no reasonable prospect of success, the Tribunal shall send a notice to the parties –(a) setting out the Judge’s view and the reasons for it; and

(b) ordering that the claim shall be dismissed on such date as is specified in the notice unless, before that date, the claimant presents written representations to the Tribunal explaining why the claim should not be dismissed. Under r.27(3), if such representations are received within the specified time period, they shall be considered by an Employment Judge, who shall either permit the claim to proceed, or fix a hearing for the purpose of deciding whether it should be permitted to proceed. R.37(1) provides that a tribunal, at any stage of the proceedings, either on its own initiative or on the application of a party, may strike out all or part of a “claim” on grounds which include: (a) that it is scandalous or vexatious or has no reasonable prospect of success. A claim may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing, or if requested by the party, at a hearing (r.37(2)).

[29]The Respondent contended that, properly construed, it is clear from the ET Rules:a. An application for costs falls within the wide definitions of “claim” and “complaint” set out in r.1(1).

b. The Tribunal is entitled under r.27 to dismiss the “claim” (i.e. the Costs Application) if it considers either that the Tribunal has no jurisdiction to consider it (i.e. because it was filed 10 months out of time), or that it has no reasonable prospect of success, as the Respondent averred.

c. However, there was in practice no useful purpose in the Tribunal dismissing the Costs Application under r.27 because, were it to do so, r.27(3) would nevertheless entitle the Claimant to provide representations within a specified period as to why the Costs Application should not be dismissed, which – given the procedural history of this matter – he would invariably provide, with the consequence that the Tribunal would then, upon consideration of those representations, be obliged by the Rules either to permit the application to proceed to a hearing or fix a preliminary hearing for the purpose of deciding whether it should be permitted to proceed.

[30]On 1 October 2020 the Claimant wrote to the Tribunal saying that the Claimant’s Costs Application should be listed for a hearing because, inter alia, he is a litigant in person and not a native speaker. He asked that a hearing take place in person.

[31]Also on 1 October 2020 the Claimant presented a lengthy and detailed document setting out the reasons why he contended that his costs application was meritorious.

[32]He relied on ET Rules of Procedure 2013 r76(3), “(3) Where in proceedings for unfair dismissal a final hearing is postponed or adjourned, the Tribunal shall order the respondent to pay the costs incurred as a result of the postponement or adjournment if— (a)the claimant has expressed a wish to be reinstated or reengaged which has been communicated to the respondent not less than 7 days before the hearing; and (b)the postponement or adjournment of that hearing has been caused by the respondent’s failure, without a special reason, to adduce reasonable evidence as to the availability of the job from which the claimant was dismissed or of comparable or suitable employment.”

[33]He said that the rules provided that a costs order “shall be made” in these circumstances.

[34]The Claimant also said that the Respondent’s contentions on strike out lacked merit. Discussion and Decision

[35]Notwithstanding that both parties had, in 2020, asked that the Claimant’s costs application be determined at a hearing, I decided that I would determine it on the papers. I informed the parties of my decision on this by letter on 6 September 2021. I asked the parties to compile a bundle of all the relevant documents. The Respondent sent this bundle to me in accordance with my direction.

Findings of fact

[36]During 2021 I had listed 3 hearings to consider whether to strike out the Claimant’s linked second claim, number 2205144/2019. The Claimant had not attended any of the hearings, purportedly on medical grounds. I had specified the contents of medical reports required to establish whether the Claimant was unfit to attend and when he would be fit to attend. The Claimant had nevertheless provided medical reports which I considered to be highly unsatisfactory.

[37]Eventually, at the third hearing in case number 2205144/2019, on 16 May 2021, I decided that I would determine whether to strike out case number 2205144/2019 on the papers. I had concluded that there was no reliable evidence that the Claimant would be fit to attend an “in person” hearing at any date in the future. At that point, I had already postponed the hearing on 2 previous occasions, to dates after the Claimant’s symptoms were due to have resolved. I decided that it was not in accordance with the overriding objective to postpone the hearing to yet another date. The Respondent had prepared for, and attended 3 hearings, no doubt at considerable expense. The Tribunal had already allocated 3 days’ hearing time to the issue of strike out. Further postponements would result in further delay and further expense. I said that the Claimant had provided lengthy written submissions on the issue in any event, so it was fair to proceed on the papers.

[38]For the same reasons, I decided that I would determine this costs application on the papers. I have no confidence in the reliability of medical reports which the Claimant has produced in those linked, duplicate proceedings. I consider that it is highly unlikely that the Claimant will attend any hearing which is listed.

[39]Most importantly, however, having considered the extremely lengthy course of this costs application and all the Claimant’s correspondence, I decided that the Claimant had had ample opportunity to set out all his arguments in favour of his application for costs, in writing. A further hearing was not necessary to ensure that the application was determined fairly.

[40]I noted that, pursuant to r77 Employment Tribunal Rules 2013, an application for costs must be made “at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was sent to the parties”.

[41]The Claimant’s application for costs was made on 21 February 2019. The liability decision, in respect of which the costs application was made, had been promulgated on 2 March 2018. I agreed with the Respondent that this was “the judgment finally determining the proceedings” under r77. I did not agree that the costs judgment against the Claimant was the relevant judgment. The Claimant was not seeking his costs arising out of that costs hearing. His application was based on the conduct of the liability proceedings. The costs application was therefore made out of time.

[42]I would not extend time for it. Applying the overriding objective, the Claimant’s application for costs should have been considered at the same time as the Respondent’s costs application against the Claimant. The Claimant was making competing contentions regarding costs which should properly have been considered as part of the whole factual and procedural matrix relevant to the costs of the proceedings. It would duplicate proceedings and waste time and costs to have separate hearings on the Respondent’s and Claimant’s costs applications. I did not accept that the Claimant had been prevented from bringing his costs application earlier than he did. He produced no medical evidence which explained the delay between 2 March 2018 and 21 February 2019. I did not accept that such a lengthy delay could be explained by the Claimant’s need to seek legal assistance.

[43]If I was wrong about the time limits, I considered the costs application on the merits. I considered that it was wholly without merit.

[44]I looked at the preliminary hearing summaries and case management orders in the case.

[45]I noted that EJ Glennie had vacated the original hearing listed for 4 September 2017 at a Preliminary Hearing on 4 May 2017. At paragraph 5 of his case management summary dated 5 May 2017, he explained his reasons for doing so, “Although the Claimant wished to retain the trial date in September, I concluded that it was unlikely that this would be met given the dispute about the issues and the need to resolve this before the case can be properly prepared for hearing. I also took into account the effect on the Tribunal's listing of other cases if a 12-day hearing is kept in the list but ultimately not used.” At paragraphs 1 and 2 of the same summary, EJ Glennie had said that the parties had been unable to agree the issues in the automatic unfair dismissal and protected disclosure detriment claims. The case management summary did not mention any issues regarding reinstatement or reengagement; it did not mention remedy at all.

[46]I decided that the Claimant’s contentions regarding costs under r 76(3) ET Rules of Procedure 2013 were completely misconceived. The original hearing had not been postponed because the claimant had expressed a wish to be reinstated or re-engaged and the respondent had failed to adduce reasonable evidence as to the availability of his previous job or of suitable alternative employment. The hearing was postponed because the parties had not agreed the issues in the substantive claims and the case could therefore not be prepared for the liability hearing. The Tribunal had never reached the remedy stage of considering whether the Claimant should be reinstated or reengaged. His claim for unfair dismissal was dismissed and so the remedy of reinstatement or reengagement was never contemplated by the Tribunal. R 76(3) was irrelevant.

[47]I rejected the Claimant’s lengthy description in his costs application of the Respondent’s alleged vexatious, abusive and unreasonable conduct. The Respondent was entirely reasonable not to seek to settle a claim which it eventually won and in which the Tribunal made findings of dishonesty against the Claimant.

[48]The Respondent's defence in the liability hearing and its application for costs had reasonable prospects of success because, as a matter of record, both had succeeded.

[49]There was no evidence that the Respondent had acted vexatiously, abusively, disruptively or otherwise unreasonably during the course of the proceedings. On the contrary, the Tribunal repeatedly favoured the Respondent's evidence over assertions made by the Claimant in the Liability Judgment (paragraphs 48, 49, 51, 55, 65, 70, 81, 75, 79, 81, 83, 85, 91, 94, 101, 102, 104, 106, 108 and 114). The Claimants numerous appeals have all been dismissed.

[50]I accepted the Respondent’s written submission that the Claimant had presented a separate complaint to the Bar Standards Board on 13 June 2018 regarding the alleged conduct of the Respondent's counsel, set out in the Claimant's Costs Application. The Bar Standards Board had summarily dismissed that complaint on 7 August 2018, determining that "the complaint does not disclose any evidence of professional misconduct and does not warrant further investigation by the Bar Standards Board." The Claimant had produced nothing to contradict the Respondent’s account of this. I was satisfied that there was no unreasonable conduct on the part of the Respondent’s representatives.

[51]There were no grounds for awarding costs against the Respondent. The Claimant’s application for costs is dismissed.