Mr N DeansClaimant(1) RBL Law Limited (2) Nicola Foulston (3) Ian Rosenblatt (4) Anthony Field OPEN PRELIMINARY HEARINGRespondent
Before
Employment Judge BrownMr C Rajgopaul for claimantMr R Lieper KC for respondentDate 2 September 2024
JUDGMENT
[1]The Claimant’s complaints are not struck out. Issues for Open Preliminary Hearing(1) This Open Preliminary Hearing had been listed to determine the following: (i) whether the Claimant’s case should be struck out; (ii) an amendment application by the Claimant; and (iii) appropriate case management as appropriate, including ordering an amendment to the Respondent’s Grounds of Resistance, if necessary. The Background(2) By a claim form presented on 28th February 2020, the Claimant brought complaints of: (a) unfair dismissal; (b) race discrimination; (c) that he was owed 1 of 11 notice pay; (d) that he is owed “other payments”; (e) another type of claim which the Employment Tribunal can deal with: (i) whistleblowing; (ii) victimisation; (iii) harassment; and (iv) failure to provide a safe place of work.(3) The Claimant had been employed by the First Respondent, a full service law firm, from 8 May 2017. At the point his employment ended, the Claimant contends that he was employed as a solicitor and Head of Employment. He says that his employment ended on 21st February 2020.(4) R2 is the CEO of RBL Law. R3 is the founder and Senior Partner of RBL Law. R4 is a Director and the Compliance Officer of RBL Law.(5) The Claimant relies on being black in his race discrimination claim.(6) The Respondents defended the claim by an ET3 dated 31 March 2020. They contended the Claimant was employed as a Partner in the Employment Team, and that they accepted his repudiatory breach of contract on 24th February 2022. They accepted the Claimant was an employee; They denied the Claimant was constructively dismissed and that he was subject to detriments or discrimination; They contended that the Claimant’s dismissal was fair for a reason that related to the capability of the Claimant.(7) The Claimant had made an application for interim relief against R1. This was heard on 22 April 2020. Judgment in favour of R1 was given on 21 May 2020.(8) On 4 June 2020 the Respondents filed Amended Grounds of Resistance and made a Request for Further and Better Particulars and R1 made an application for costs.(9) The Respondents admit in their Amended Grounds of Resistance that: (i) R2 used at a dinner (in front of the Claimant) the phrase “nigger in the woodpile” (§55(b)); and (ii) (following the Claimant alleging that he had suffered race discrimination in his resignation letter) R3 said to the Claimant that he was “just a fucking anti-Semite” and then raised a grievance against the Claimant because R3 thought that the Claimant’s “suggestion that he was racist was untrue” (§48 and 49).(10) On 9 June 2020 the Claimant responded to the costs application, setting out his position. R1 replied on 10 June 2020.(11) The case and the various applications progressed no further until 7 October 2022, when, following a change in representation, the Claimant’s newly instructed solicitors came on the record. The Claimant made an application for a case management hearing at the same time.(12) On 10 October 2022, the Tribunal notified the parties that a PH would take place on 28 October 2022.(13) On 20 and 21 October 2022, the Claimant provided the Rs with an Agenda, Bundle Index and draft List of Issues in advance of the PH. 2 of 11(14) On 26 October 2022 the Respondents’ solicitors then wrote to the tribunal applying to strike out the Claimant’s claim.(15) On 28 October the Claimant provided the Respondents with draft particulars of Amended Grounds of Claim, shortly before the hearing was to commence. There was no accompanying application to amend.(16) At the Preliminary Hearing on 28 October 2022 EJ Salter ordered that, by 11th November 2022 the Claimant, if so advised, should formally apply to amend his claim in line with draft amended particulars of claim provided on 28th October 2022.(17) EJ Salter also ordered that, by 11th November 2022 the claimant should provide to the Respondent and Tribunal full particulars of his claim: (a) concerning breach of the Health and Safety at Work Act 1974; (b) for aggravated damages; (c) for personal injury.(18) On 11 November 2022, the Claimant provided the Tribunal and Respondents with an Application to Amend, Further and Better Particulars and Schedule of Loss. Strike Out Application(19) The Respondents applied to strike out the Claimant’s claim because he had not actively pursued it, or that his conduct of it had been unreasonable. They relied on 2 witness statements of Anthony Field, the Fourth Respondent.(20) The Claimant also made provided a witness statement for this hearing.(21) Both parties made submissions. The parties agreed that the witnesses would not be cross examined. Strike Out - Claim not Actively Pursued - Law(22) The Respondents’ strike out application was brought under Rule 37(1)(d) and, in the alternative, Rule 37(1)(b) ET Rules 2013, which (so far as material) provide that: “(1) At any stage of the proceedings … a Tribunal may strike out all or part of a claim or response on any of the following grounds ... (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant … has been scandalous, unreasonable or vexatious… (d) that it has not been actively pursued.”(23) In Evans v Metropolitan Police Commissioner [1993] ICR 151 the Court of Appeal accepted that the principles set out in Birkett v James [1978] AC 297 applied to applications for strike out "for want of prosecution"(the wording of the rule at that time). At p156H LJ Steyn said that the Court could only make sense of the rule by treating, “the requirements of Birkett v. James as applicable mutatis mutandis to applications before industrial tribunals to strike out claims for want of prosecution.” 3 of 11(24) Those principles were set out by Lord Diplock in Birkett v James at p 318E-G, “The power should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, eg, disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (2) (a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party.”(25) In Evans v Metropolitan Police Commissioner [1993] ICR 151 the Court of Appeal said that one relevant factor in deciding whether to strike out a claim for failure actively to pursue a claim is that there is a public interest in having discrimination claims determined, p157 A - D, Steyn LJ.(26) In Rolls Royce plc v Riddle [2008] IRLR 875 at para [20] Lady Smith explained the Birkett v James principles: “These principles appear to have been identified because [of there being justifiable cause for concern about two problems of which a failure to actively pursue a claim may be indicative. The first is that it is quite wrong for a claimant, notwithstanding that he has, by instituting a claim, started a process which he should realise affects the employment tribunal and the use of its resources, and affects the respondent, to fail to take reasonable steps to progress his claim in a manner that shows he has disrespect or contempt for the tribunal and/or its procedures. In that event a question plainly arises as to whether, given such conduct, it is just to allow the claimant to continue to have access to the tribunal for his claim. That is a distinct and different matter from the second problem which is that if a claimant has failed to actively pursue his claim to an inordinate and inexcusable extent so as to give rise to a risk of real prejudice to the respondent if the claim were to carry on, then a question arises as to whether or not there can still be fair trial and if there is doubt about that whether the claim should then be prevented from going any further.” Discussion and Decision(27) I considered, first, whether the Claimant’s default had been intentional and contumelious default in this case, under the first limb in Birkett v James.(28) I noted that there had been a delay from June 2020 to October 2022 when the Claimant took no steps to advance his claim; a period of about 28 months. That is a very long time indeed.(29) I also noted that the delay occurred in the circumstances that there was a pandemic which began in March 2020 and which affected the functioning of the Tribunals.(30) It had been agreed that the witness statements for this hearing would stand as evidence and there would be no cross examination. 4 of 11(31) In his witness statement, the Claimant accepted that he had not proactively chased the Employment Tribunal during the 28 month hiatus. He said however, that he was very aware of delays in the Employment Tribunals because of the pandemic and that, “I appreciated that… I was like any other Claimant and no right to expect priority over other cases and that I had to trust that London Central would in due course get round to my case. I considered that I had to be patient, as there were thousands in a similar position.” … “I understand that once a claim has been filed by a Claimant, the normal course is to allow the Tribunal to perform its responsibility to case manage the claim to a final determination at a substantive hearing. I am not aware of any obligation on a Claimant to proactively chase Employment Tribunals, let alone in the exceptional and unprecedented circumstances mentioned above, regardless of their profession.”(32) The fact of delays and disruption in Employment Tribunals during the pandemic was reflected in Presidential Guidance at the time, which said that was that certain types of claim were being prioritised (none of which had been brought by C), that “parties may experience a significant delay in receiving replies to correspondence and telephone calls may not be answered” and that parties should avoid “unnecessary correspondence” and “only write to the tribunal if you want to make an application for a case management order or tell the tribunal something important that the tribunal needs to know about your case”.(33) The Tribunal did not list any hearings or make any orders during the 28 month period. The Claimant did not fail to comply with any orders. He was simply inactive. I considered that that inactivity was to be seen in the light of the pandemic, certainly during 2020 and for much of 2021.(34) It was difficult to see how inactivity in a period of national disruption which affected the Tribunals could be categorised as intentional and contumelious.(35) I did not agree with the Respondent that the Claimant’s explanation for delay should not be accepted and that, instead I should conclude that the Claimant had deliberately not pursued his claim because EJ Hodgson’s judgment in his interim relief application was critical of his case. The witness statement evidence was not challenged in cross examination.(36) However, the further delay in the Claimant pursuing his claim, during late 2021 and into 2022 was less understandable. The Tribunal has returned to conducting all types of hearing. Claims have been accepted promptly and given preliminary hearings reasonably promptly since at least late 2021.(37) Nevertheless, while the Claimant had failed to be proactive, I did not consider that there are additional elements to his conduct which showed that he had disrespect or contempt for the tribunal and/or its procedures as described in In Rolls Royce plc v Riddle [2008] IRLR 875.(38) The extreme length of the delay in pursuing his claim from late 2021 and until October 2022 on its own did, in my view, amount to inordinate and inexcusable delay under the second limb in Birkett v James. 5 of 11(39) I noted the Claimant’s evidence that he had been dealing with close family members’ illness in 2021 and 2022. However, he had been able to progress the claim in 2022 despite these unfortunate circumstances. His family circumstances did not excuse the delay.(40) I noted that the Respondents’ complaint to the SRA about the Claimant retaining documents was concluded in November 2020, so that did not explain the delay in 2021 and 2022.(41) The Claimant said that he was in the process of changing solicitors. He did not explain why that process had taken 2 years and therefore how it could excuse the delay.(42) I concluded that the Claimant had also acted unreasonably in the way he had conducted his claim, by delaying in this way.(43) However I did not accept that the delay was such as gave rise to a substantial risk that it was not possible to have a fair trial of the issues in the action, or was likely to cause or to have caused serious prejudice to the defendants.(44) I acknowledged Mr Field’s evidence that his memory of events has faded. I accepted that the fading of memories would be inevitable in the face of this delay and that that was a very substantial factor to be taken into account.(45) However, the Claimant had set out his claim very fully at the outset of the proceedings. The Respondents presented a detailed response to the claim, presumably having taken instructions from relevant witnesses in order to do so.(46) Further and unusually, there had been an interim relief hearing. The Respondents presented witness statements to it, dealing with each of the detriments and/or the matters relied on as constituting a fundamental breach of contract - and the Respondents’ reasons for them. The Respondents are therefore in an unusually good position in that that evidence was prepared at a very early stage. That provides a significant amelioration of the risk of memories having faded.(47) There was also disclosure of documents in relation to that interim hearing.(48) While the Respondents relied on the fact people have left the organisation, there was no evidence that these individuals would not be available as witnesses if genuinely required.(49) I did not accept that the Respondents were justified in concluding that the claim would not be proceeded with, when there had been no strike out and the Claimant had never given any positive indication that he was not pursing it. Correspondence between the Claimant and Respondents concerning costs demonstrated that the Respondents were aware that the Claimant intended there to be a full merits hearing. The SRA had also told the Respondents in November 2020 that the Claimant anticipated further ET hearings in his claim. 6 of 11(50) The Respondents’ failure to make financial provision for the hearing was the Respondents’ decision.(51) I did not find that the fact that individual Respondents would face proceedings persuasive towards striking out the claim. I considered that there was an equal, if not greater, public interest in having important discrimination and protected disclosure claims heard.(52) Ultimately this is a case where “orderly preparation” for trial can still be made in the usual manner. It would not be proportionate simply to strike it out. Claimant’s Amendment Application(53) The Claimant had presented very substantially amended Grounds of Complaint.(54) In deciding whether to allow an amendment the Employment Tribunal is guided by the principles set out in Selkent Bus Company v Moore [1996] IRLR 661. In deciding whether to grant an application to amend, the Tribunal must balance all the relevant factors, having regard to the interests of justice and to the relative hardship that would be caused to the parties by granting or refusing the amendment. Relevant factors include the nature of the amendment: applications to amend range, on the one hand, from correcting clerical and typing errors and the additional factual details to existing allegations and the additional substitution of other labels for facts already pleaded to and, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The Tribunal has to decide whether the amendment sought is one of the minor matters or a substantial alteration pleading a new cause of action.(55) Other factors include the applicability of time limits: if a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the Tribunal to consider whether that complaint is out of time and if so whether the time limit should be extended. Other factors to be considered include the timing and manner of the application: an application should not be refused solely because there has been a delay in making it, as amendments can be made at any stage of the proceedings. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made, for example the discovery of new facts or new information appearing from the documents disclosed on discovery.(56) Having heard argument from both sides, I decided as follows:(57) I did not permit the Claimant to amend his claim to add paragraphs [9] [12] of his amended particulars as allegations of race discrimination. They were presented after a very substantial delay after the claim was presented and since the events were alleged to have occurred. No good reason has been shown as to why they were not brought before – the Claimant is an employment solicitor and was represented when he presented his detailed claim in 2020. He must have known of the events when they occurred. There would be substantial hardship and injustice to the Respondents in responding to these complaints brought so long after the event. Their recollection of events would be bound to have been 7 of 11 significantly impaired by the passage of time. By contrast, there would be little prejudice to the Claimant if the amendment to the claim were not permitted. The Claimant would still be able to refer to the alleged matters by way of background. The Claimant has numerous other complaints of race discrimination which are proceeding to a final hearing.(58) I did not permit the Claimant to amend to add paragraphs [22] – [24] of the amended particulars. They pleaded an entirely new protected disclosure, which could give rise to a new free standing claim of protected disclosure detriment / dismissal. Again, there was no good reason why these particulars were not pleaded when the claim was originally brought and the delay in amending was inordinate and unjustifiable. The Respondents would be significantly prejudiced if the amendment were permitted. I had not struck out the original claim partly because the Respondents had prepared witness statements and disclosure for the interim relied hearing in relation to the protected disclosure claim as was originally pleaded. That did not apply to the amendment which the Claimant now sought to make. The Claimant, on the other hand, still had his original protected disclosure claim.(59) I did not permit the Claimant to add new paragraphs [14] – [16] by way of amendment. These made allegations about the Respondents’ treatment of different people, of different races, in different circumstances. The allegations would involve the Tribunal embarking on an side enquiry into facts about third parties which were likely to be of tangential relevance to the Claimant’s case. Again the amendment was made long after the case commenced and long after the relevant events. There would be prejudice to the Respondents which correspondingly little prejudice to the Claimant particularly when the allegations, even of proven, would have little bearing on the merits of his claim.(60) I allowed the Claimant to amend his claim to add the amendments to new paragraph [48]. I decided that the Claimant had pleaded, in his original paragraphs [6.4] and [6.5]. that the matters which led to his resignation were also allegations of race discrimination and harassment. His original paragraph [26], now [48], pleaded that the detriments in that paragraph had led to the Claimant’s resignation. On a true construction of his original complaint, original paragraphs [6.4] and [6.5] referred to original paragraph [26]; the amendment simply confirmed this and was a very minor clarificatory amendment. It brought no new claim or allegation and there was no prejudice to the Respondents in permitting it.(61) On the basis that the Claimant conceded that new paragraphs setting out additional background amounted to additional voluntary particulars - to which the Respondents would not be required to plead and no adverse inference could be drawn from such a failure to plead – I allowed the Claimant to amend to include additional background. It seemed to me that, if the Respondents were not required to put in a formal reply to such voluntary particulars, there would be little disadvantage to the Respondents in learning more of the Claimant’s evidence at an early stage. 8 of 11(62) I permitted the Claimant to add new paragraphs [40]-[43]; I agreed with the Claimant that these simply set out additional background;(63) I permitted the Claimant to add new paragraphs [8, 11, 29-34, 38, 45, 49-54, 56- 58, 61], as these amounted to the provision of additional detail in relation to factual allegations that were already pleaded within the original Grounds of Claim;(64) I permitted the Claimant to make the minor amendments to factual allegations already pleaded, contained in new paragraphs [11, 19, 21, 25-27, 36];(65) I permitted the Claimant to amend to add additional detail in relation to the matters relied upon by the Claimant in support of his alternative case that the treatment he was subjected to amounted to direct race discrimination and/or harassment related to race, set out in amended paragraphs [10] and [13], [17 - 18].(66) The Respondents asked, and the Claimant agreed, that clients’ names be removed from paragraphs [52] – [54], to preserve confidentiality. The parties will agreed a code for client names. Preparation for Final Hearing(67) I made orders for preparing for the Final Hearing. These are set out below. I raised the possibility of Judicial Mediation but there was no consensus that Judicial Mediation was appropriate. ORDERS Made pursuant to the Employment Tribunal Rules Final Hearing[1]The Final Hearing is listed for 14 days on 10 – 13, 16 – 20 and 23 – 27 October 2023 before a Full Tribunal, in person, to consider both liability and remedy. Updated Schedule of Loss[2]By 2 October 2023 the Claimant shall send to the Respondent an updated schedule of loss calculated to last day of the hearing, setting out the sums he claims, including financial loss and injury to feelings, and also setting out the sums he has received or earned since his dismissal. List of Issues[3]By 24 February 2023 the parties shall agree a comprehensive List of Legal and Factual Issues in the claim and response and shall send it to the Tribunal. 9 of 11 Amendment[4]The Claimant has permission to make the following amendments to his grounds of complaint: a. The amendments in new paragraph [48]; [40]-[43]; [8, 11, 29-34, 38, 45, 49-54, 56-58, 61], [11, 19, 21, 25-27, 36]; [10] and [13], [17 -18] and, as background only, [9] and [12].[5]Clients’ names shall be removed from paragraphs [52] – [54], to preserve confidentiality. The parties shall agreed a code for client names. Disclosure of Documents and Bundle[6]By 28 April 2023 the parties shall disclose to each other all the documents they have in their possession, relevant to all issues in the claim and response, and relevant to compensation, by providing a list and copies of those documents to each other.[7]The Respondents shall prepare the Bundle for the Final Hearing. They shall send a draft index to the Bundle to the Claimant by 12 May 2023.[8]By 26 May 2023 the Claimant shall tell the Respondents what additional documents need to be included in Final Hearing Bundle on his behalf.[9]By 9 June 2023 the parties shall agree the contents of the indexed, paginated Final Hearing Bundle, containing all relevant documents, and the Respondents shall prepare and send a electronic copy of the Bundle to the Claimant. The Respondent shall send any updated electronic copy of the Bundle to the Claimant for use at the Final Hearing.[10]The Respondents shall bring 5 copies of the Bundle to the Final Hearing. Witness Statements[11]The parties shall exchange witness statements for all witnesses, including a witness statement from the Claimant, for the Final Hearing by 28 July 2023.[12]The witness statements should be in numbered paragraphs, on numbered pages.[13]Each witness statement should set out all the evidence which that witness intends to put before the Tribunal on all the issues, including the issue of compensation.[14]If the witness refers to a document, the witness statement should refer to page/s in the agreed Bundle.[15]A failure to comply with this order may result in a witness not being permitted to give evidence because it has not been disclosed in a witness statement; or in an 10 of 11 adjournment of the hearing and an appropriate order for costs caused by such adjournment. Cast List and Chronology[16]The Claimant shall send a draft cast list and chronology to the Respondents by 2 October 2023. The parties shall attempt to agree a cast list and chronology for use at the final hearing. Other matters
REASONS
[1]This is a claim arising from the Claimant’s employment with the First Respondent and the circumstances leading up to his resignation on 14 February 2020. His employment ended on 24 February 2020.[2]The Claimant has brought his claim against the First Respondent and three individual Respondents. In this judgment, we refer to the First Respondent as R1 and to the three individual respondents by name. PROCEDURAL BACKGROUND[3]The full procedural background to the claim is set out in a record of an earlier preliminary hearing in January 2023. We note the following, as it was relevant to the issue of whether the complaints were in time.[4]The Claimant presented an employment tribunal claim on 28 February 2020. The claim form included a claim for interim relief pursuant to 128 of the Employment Rights Act 1996 and could therefore be made without Acas early conciliation taking place.[5]The claim form referred to the other complaints pursued at the hearing, namely unfair dismissal, race discrimination, wrongful dismissal, victimisation pursuant to section 27 Equality Act and a detriment claim pursuant to section 47B of the Employment Rights Act 1996. Only the claim for interim relief was accepted.[6]The Claimant initiated an early conciliation process against each of the Respondents on 10 March 2020 and an early conciliation certificate was issued in each case the following day, 11 March 2020. This was provided to the employment tribunal on 13 March 2020 and the other complaints were accepted as at that date.[7]The Claimant made an application to amend his claim on 20 January 2023. Some of the amendments sought were granted. These were largely amendments adding additional detail or making minor amendments to existing factual allegations. No fresh time issues therefore arose which we had to consider.
THE ISSUES
[8]Prior to the hearing, a list of issues had been prepared by the parties. Before hearing any evidence, we went through the list and ensured everyone understood the complaints which the Claimant was seeking to bring. Two matters arose as result of this enquiry.[9]The first concerned clarifying which complaints were said to be brought against which Respondent. The Claimant’s position was that, with the exception of the complaints of unfair and wrongful dismissal which he accepted could only be brought against R1, all other complaints were against all of the Respondents collectively. He did not clarify what legal mechanism he believed would allow us to hold any of the individual Respondents liable for the acts or omissions of each other, except to say that he believed that the Respondents had colluded in their treatment of him. The Respondents’ position was that while R1 would be vicariously liable for any successful complaints involving the individual Respondents, they could not be held to be liable for the acts or omissions of each other.[10]The second matter was the status of a complaint which the Respondents said had not been pleaded (see paragraph 21 of the list of issues). This was addressed in closing submissions. Having considered the submissions made by the parties, we decided to proceed to decide it as an issue. This is because although the pleading of the particular allegation could have been clearer, the behaviour was described in paragraph 29 of the Claimant’s original claim form (and repeated in paragraph 58 and 59 of the updated claim) and the Claimant had said there that he found it intimidating. We decided this was sufficient.[11]The list of issues is attached as an appendix.
THE HEARING
[12]The Claimant gave evidence. He also called two former employees of R1 to give evidence on his behalf.[13]Each of the individual Respondents gave evidence and, in addition, we also heard evidence from Jon Lovitt, a director of R1.[14]There was an agreed trial bundle of 1438 pages (when counted electronically) which included some additional documents which were admitted into evidence during the course of the hearing with the agreement of the parties. We read the evidence in the bundle to which we were referred.[15]We explained our reasons for various case management decisions carefully as we went along and also our commitment to ensure that the Claimant was not legally disadvantaged because he was doing his own advocacy. The Claimant referred to himself as a litigant in person and we acknowledged that he was, albeit one that had solicitors on record and was accompanied by a legally trained assistant throughout the hearing. We also note that the Claimant told us he had more than twenty years of professional legal experience first as a barrister and then working as a specialist employment solicitor. One of the challenges for litigants in person, whether or not they are legally qualified, can be a lack of objectivity and emotional distance from their case and we were alert to the need to take this into account (Equal Treatment Bench Book Chapter 1, paragraph 15).[16]Several housekeeping issues arose at the start of the hearing, but we refer here only to two matters of note.[17]The first of these was an application made by the Respondents under Rule 50 of the Employment Tribunal’s Rules of Procedure for anonymisation of the names of a limited number of individual and companies and an associated restricted reporting order. The basis of the application was that a duty of confidentiality was owed to the people and companies, which should be preserved given that their names were not relevant to the litigation.[18]The application was opposed by the Claimant and heard in private. As several members of the press were present, they were allowed to attend the private hearing and given the opportunity to make representations. The Tribunal decided to grant the Rule 50 orders. We gave detailed oral reasons for our decision.[19]Before issuing this reserved judgment, the Tribunal has reviewed the Rule 50 orders we made at the hearing, including consulting the parties on their ongoing application. We have decided that all should remain in place indefinitely except the one anonymising Bob Mackenize.[20]The second matter concerned a document said by the to be covered by legal privilege by Ms Foulston. We paused the hearing to enable a different judge to decide this matter and we abided by her decision.[21]Two matters arose during the hearing that we also feel it is necessary to record briefly. Both are in reference to the allegations of impropriety made by the Claimant.[22]The first concerns the position of Ms Wasserman who appeared as witness for the Claimant. The Claimant, on the first day of the hearing, when seeking permission to adduce her witness statement in evidence, said that he believed that Ms Wasserman “was leaned on in certain aspects of her witness statement.” He said he did not want to go into detail, but noted that the witness statement contained a signed statement of truth which he “was very concerned about” particularly as Ms Wasserman was a junior solicitor. When it later came to Ms Wasserman giving evidence, the Claimant withdrew this serious, yet unsubstantiated and unspecific allegation.[23]During the course of giving evidence, the Claimant also accused the Respondents of fabricating a document, namely a draft witness statement, for the purposes of the litigation and deliberately including it in the bundle. We found that this too was a serious, yet unsubstantiated allegation without merit.[24]We end this section by thanking the parties for their helpful written and oral submissions and also for the daily transcript provided to us and the parties by the stenographers paid for by R1. We note that the daily transcript was not formally checked before it was issued. The tribunal apologises to the parties for the length of time it has taken for this reserved judgment to reach them. We have explained the reasons for this in correspondence with the parties.
FINDINGS OF FACT
[25]Having considered all the evidence, we find the following facts.[26]The parties will note that not all the matters that they told us about are recorded in our findings of fact. That is because we have limited them to points that are relevant to the legal issues.[27]Our findings of fact are made on the basis of the evidence that was before us, where necessary on the balance of probabilities. The Respondents[28]R1 is a commercial city law firm. Unusually for law firms, it is a listed company. The parent company of R1 was listed on the London Stock Exchange AIM market on 8 May 2018 (the “IPO”). Prior to this, Rosenblatt Solicitors had been a traditional partnership with two equity partners employing a number of salaried partners, solicitors and other staff. The business and assets of Rosenblatt Solicitors were transferred to R1 and its holding company at the time of the IPO. Although no longer a partnership, the term partner continued to be used as a job title in R1.[29]Ian Rosenblatt was the founder of Rosenblatt’s solicitors and one of the two equity partners, the other being Tania McLeod. Following the IPO, Mr Rosenblatt ceased to have any direct involvement in the management of the firm, although remained an enormously influential and important figure. His role was essentially one of a rainmaker. It involved him identifying client/work prospects, winning work, developing and maintaining client relationships and provided strategic advice to key clients. He was extremely successful at this.[30]Prior to the IPO, from September 2016, the firm had engaged the services of Nicola Foulston to fulfil the role of its CEO. She continued in that role following the IPO, but left R1 in January 2023. Prior to being engaged by Rosenblatt’s solicitors Ms Foulston had not worked within a law firm. She had considerable management experience from other sectors however and had been a client of the firm for many years.[31]We make two brief findings of fact about R1’s parent company and its CFO and Chair as they are relevant to matters later in this judgment.[32]A chartered accountant called Patrick Firebrace was engaged at R1’s CFO three months before the IPO and he continued in the role until August 2018. The Claimant said in his evidence that he was replaced with a less qualified accountant because Mr Firebrace was not prepared to be creative with the group’s accounts. The Claimant admitted under cross examination he had no foundation for saying this and he presented no evidence to support it. We find that Mr Firebrace left R’1s parent company for personal reasons and that his replacement was not less qualified than him and had more experience as a CFO of a PLC.[33]The Chair of R1s parent company, Mr Brook Land left within only a few months of appointment. The Claimant said in his evidence before us that this was because Mr Land had serious concerns about being involved with R1’s group and left to protect his reputation. The Claimant admitted under cross examination he had no foundation for saying this and he presented no evidence to support it. We find that Mr Land left because of a poor working relationship with Mr Rosenblatt.[34]The board of directors of R1 at the relevant times for the purposes of the claim was made up of Ms Foulston, a Finance Director and two Executive Directors, Jon Lovitt and Anthony Field. Mr Lovitt and Mr Field were solicitors. They had been salaried partners in the firm prior to the IPO and both had fee earning roles, Mr Lovitt specialising as a corporate lawyer and Mr Field as a litigator specialising in civil litigation. Mr Field also combined fee earning with various administrative duties including being the firm’s Compliance Officer for Legal Practice (COLP), a role required by the Solicitors Regulation Authority (SRA).[35]Mr Field joined Rosenblatt’s solicitors as a trainee solicitor in 1999. He worked very closely with Mr Rosenblatt and was trusted by him and Ms MacLeod with confidential partnership information.[36]R1 was split into three departments: Corporate and Commercial, Dispute Resolution and Real Estate. Each department had a Department Head who was a lawyer who in addition to fee earning duties, had various administrative and people management responsibilities. The lawyers who held these roles were given reduced targets for fee earning time in recognition of these additional responsibilities, as was Mr Field[37]The three formal Department Heads were:• Tania Mcleod, Dispute Resolution• Jon Lovitt, Corporate and Commercial• John Aynsley, Real Estate[38]Sub-specialisms existed within the main departments and several partners called themselves Heads of Departments for marketing purposes even though they did not formally run departments. Two examples were David Sachs who described himself as Partner/Head of Banking and Adrian Harris who described himself as Partner/Head of Insolvency The Employment Department Prior to the Claimant’s Arrival[39]Prior to the Claimant joining Rosenblatt Solicitors, the firm had an Employment Department. We were told that it was not profitable largely because its main work was low value corporate support work. In February 2017, the Head of that Department left the firm and took her team of fee earners with her. This led to the need to recruit as there was ongoing work.[40]Ms Foulston had been engaged by the firm by that time and she took responsibility for the recruitment exercise. She decided that the firm should no longer have a stand-alone Employment Department. Her initial thinking was that the firm should seek to recruit an employment specialist, who probably did not need to be at partner level, who would sit within the Corporate and Commercial Team. However her thinking developed, in part as a result of learning more about the legal services market and high value contentious employment work and in part as a result of meeting the Claimant. The position she settled on was the Employment Department should sit within the Firm’s Dispute Resolution Team.[41]Ms Foulston told us it that would have been very expensive to reconfigure the Firm’s accounting software, however, and this is why it continued to show Employment as a separate entity. Although we were not provided with any evidence to corroborate Ms Foulston’s testimony, we find that the associated expense was the reason for not reconfiguring the Firm’s software as this explanation is inherently plausible and consistent with the other evidence presented to us. The Claimant’s Recruitment[42]The Claimant is black, of African/Caribbean heritage. He is a solicitor with more than twenty years post qualification experience specialising in employment law. In addition, prior to qualifying as a solicitor he was a barrister.[43]He was introduced to Ms Foulston by a recruitment agent who was keen to recruit him. She formed the impression that he was “confident, a natural selfpresenter and seller”. He presented her with a business plan that anticipated that within two to three years, his annual income would be between £650,000 and £750,000. She also felt that he would be supportive of her vision for the Firm.[44]Ms Foulston met the Claimant with Mr Lovitt, but because he was engaged on client work, Mr Lovitt was only able to attend for about 10 minutes. One of his corporate colleagues emailed Ms Foulston to express concern about the Claimant’s apparent lack experience of corporate support work and seniority. Ms Foulston replied robustly to say that she had decided to proceed with the recruitment.[45]Mr Rosenblatt also met the Claimant prior to him joining the firm. He emailed Ms Foulston saying: “Saw Noel Deans. He’s the man for us.” The Claimant’s Role[46]The Claimant was made a formal offer on 7 April 2017. His offer letter referred to his position as “Employment Partner (Salaried Partner)” and added that in the position he would report to the Senior Partner, Mr Rosenblatt. He was offered a salary of £165,00 per annum and a commission payment of 10% of direct billings for your department over £300,000 and 15% over £500,000.[47]The Claimant’s contract of employment recorded that his job title was “Partner in the Employment Department”and that he was to “take instructions from and be directly responsible to the Equity Partners and your Head of Department or such other Partner from time to time notified to you by the Equity Partners.”[48]On 23 April 2017, Ms Foulston sent an email with staff updates to the entire firm which said, “On the 8th May we will welcome a new Head of Employment, Noel Deans”.[49]The Claimant joined Rosenblatt Solicitors on 8 May 2017. He was the first black partner to join the Firm in its thirty year history. An offer for a position as a salaried partner had been made to another black solicitor shortly before the Claimant joined, but the person involved did not accept it.[50]We were not provided with detailed information about the racial mix of the Firm’s employees.[51]Mr Rosenblatt sent a number of emails to his clients offering to introduce them to the Claimant, whom he described as being in charge of the Employment Department. Ms Foulston also positioned the Claimant as the replacement to the previous Head of the Employment Department in an email she sent to a contact. We saw other examples from after the IPO where the Claimant was described by his colleagues as head of the employment team. An example was an email sent by Simon Walton on 31 May 2018.[52]The Claimant did not describe himself as the Head of the Employment Department, however. In introductory emails he sent to existing clients of the Firm he introduced himself as the new Employment Partner. His email signature also had the same job title.[53]The partners of Rosenblatt solicitors, including the Claimant, entered into new employment contracts with R1 which came into force at the time of the IPO. In addition, each partner was asked to sign a settlement agreement waiving claims. The Claimant assisted with the drafting of the documents and arranged for a friend of his, an employment solicitor, to act as the independent adviser for the partners who were asked to sign settlement agreements. The Claimant was issued with shares in R1’s holding company, along with other partners.[54]The language in the Claimant’s new contract of employment was very similar to that in his previous contract of employment. His job title was a “Partner in the Employment Team”. We note that the previous reference to Employment Department found in the previous contract had been changed. In addition, there was a slight change to his reporting requirements with the new clause saying that he would “take instructions from and be directly responsible to the Head of Department or CEO (as appropriate).”[55]The settlement agreement signed by the Claimant at the time of the IPO was required because the transaction involved the termination of the Claimant’s employment with Rosenblatt solicitors and his re-engagement with R1. In the agreement he entered into a waiver of all and any claims he may have arising as result of the transfer of his employment. He was not required to give a general waiver of all claims. He was, however, required to confirm by way of a warranty that he had none of the claims listed in Schedule 1 to the agreement which included any claims for race discrimination or race-related harassment. Mr Rosenblatt Greeting the Claimant[56]The Claimant alleges that, in May 2017, on or around his first day at work, Mr Rosenblatt visited him very briefly in his office and welcomed him with what the Claimant has described as a “fist punch” (we prefer the name fist bump) rather than a professional handshake. The Claimant says it was a very cursory welcome and Mr Rosenblatt did not speak more than a couple of words to him at the time.[57]The Claimant contrasted this with the way in which Mr Rosenblatt welcomed white colleagues, saying that he would stop and chat with them for longer when first meeting them. Although the Claimant named two people by way of comparator, one of whom, Ms Wasserman, appeared as a witness for him, did not cover this matter in her evidence. There was therefore no evidence before us to corroborate what the Claimant said.[58]Mr Rosenblatt told us that he had no memory of the occasion, but that he regularly fist bumps friends and colleagues when greeting them, regardless of their ethnicity and so accepted that it was entirely feasible that he had greeted the Claimant in this way. Mr Rosenblatt told us that if he did fist bump the Claimant this was likely a demonstration of how pleased he was that the Claimant had joined the firm.[59]Ms Foulston and Mr Field, confirmed that they had observed Mr Rosenblatt regularly fist bumping friends and colleagues as a form of greeting and that he had greeted both of them in this way. Although we were alert to the possibility that they might be making this up to support Mr Rosenblatt, we accept their evidence on the point, particularly that of Ms Foulston, whom we consider would have no reason to do this bearing in mind she now no longer works for the First Respondent.[60]We find that Mr Rosenblatt did greet the Claimant by way of a fist bump.[61]We note that by the time the Claimant had begun work, Mr Rosenblatt had met him on two occasions. The first of these was at interview and the second was at a drinks event held at the Firm’s office. The Claimant, together with other new hires, had been invited to the event. After the formal event was over, the Claimant stayed behind and chatted with Mr Rosenblatt and Ms Foulston for around 45 minutes. The Claimant’s Relationship with Ms Foulston[62]It was not in dispute that Ms Foulston and the Claimant developed a supportive business relationship and that this relationship was in place throughout 2017 and 2018. They met relatively regularly for coffee, lunch and or drinks to talk about work matters. She felt invested in his success because he was her first hire and she liked his positive attitude towards business development.[63]The relationship changed in 2019 as we detail below. However, before we turn to that, both of them told us about incidents that occurred during this period, which we need to comment upon.[64]The first incident was cited by the Claimant. He says that in the summer of 2017, Ms Foulston and Ms MacLeod threw a joint birthday party at which they both asked him, separately, about “[his] women”. He suggests the manner in which they asked him was in line with the racial stereotype of black men having lots of female partners and suggested that they must have been talking about his in these terms. Ms Foulston denied that she asked this question or that there had been any discussion with Ms MacLead. Ms Macleod was not present at the tribunal hearing to respond to it.[65]The evidence before us in relation to the incident was extremely unreliable bearing in mind the date when the comments were said to have been made, the obvious scope for misunderstanding and the context, a party outside work. We have not found it helpful to try and resolve the factual dispute. The alleged incident does not form one of the factual allegations that we have to decide and we consider deciding it one way or another would not help us with the other allegations.[66]The second incident was cited by Ms Foulston. She told us that she specifically wanted the Claimant to be present at an annual Awards dinner at which the First Respondent took a table because of his approach to business development. The dinner occurred in November each year. The bundle contained email evidence that confirmed that Ms Foulston preferred to have the Claimant attend rather than a member of the corporate law team.[67]Both the Claimant and Ms Foulston told us they attended the Awards event together in 2017 and 2018 and that Ms Foulston gave the Claimant a lift and invited him for drinks back at her hotel along with others.[68]Ms Foulston originally told us that in November 2017, as the Claimant was leaving after the drinks that he tried to kiss her. She later changed her evidence and said, following questioning by the Claimant, that she had got the year wrong and that the incident was in November 2018. The Claimant denies trying to kiss Ms Foulston.[69]As with the previous incident, the evidence before was extremely unreliable bearing in mind the date when the incident was said to have taken place, the obvious scope for misunderstanding and the context, late night drinks after an awards dinner. We have not found it helpful to try and resolve the factual dispute. As before, the alleged incident does not form one of the factual allegations that we have to decide and we consider deciding it one way or another would not help us with the other allegations. The Pre-IPO Dinner – April 2018[70]On 12 April 2018, Mr Rosenblatt hosted a dinner at his house for the Firm’s Partners in order to update them about progress with the IPO. Those present included the Claimant, all of the individual respondents and Jon Lovitt.[71]During the dinner, Mr Rosenblatt asked Ms Foulston to provide an update regarding the IPO which she did. There is a dispute between the parties as to precisely what Ms Foulston said and the context in which she said it.[72]Ms Foulston says she used the phrase “ like spotting a nigger in a woodpile” in reference to a tricky aspect of the IPO. The Claimant says she used the phrase “like spotting a nigger in a field” in reference to identifying future business opportunities.[73]We have not found it necessary to resolve the matter of precisely what was said because there is there is no dispute that the offensive term “nigger” was used. The Claimant does not allege that the term was directed at him personally.[74]We note that Ms Foulston apologised during the tribunal hearing for using the phrase she had used. She told us that it was not a term that she used commonly and she was unable to explain why she had said it.[75]There is a factual dispute between the parties regarding Mr Rosenblatt’s reaction to what Ms Foulston said. According to the Claimant, Mr Rosenblatt shook with laughter in response and told Ms Foulston that she could not say that, or used words to that effect. Mr Rosenblatt disputes that he laughed. He says he found the language used by Ms Foulston to be offensive and immediately interjected and told her she could not say what she had said.[76]Our finding is that he did not laugh, but was offended by what Ms Foulston had said and admonished her in response.[77]We make this finding for two reasons[78]First, we have taken into account the accounts of the other witnesses who were present.[79]Ms Foulston’s account of what happened next corroborated the account given by Mr Rosenblatt. She told us that he immediately interrupted her and admonished her. She recalled that she did not at first realise what she had said and thought she must have mistakenly revealed confidential details of the IPO. However she quickly realised what she had said and felt acute embarrassment. She told us that she could not really recall what occurred next, but she thought she had mumbled an apology and finished her speech very quickly.[80]The accounts of Mr Field and Mr Lovitt also corroborate that Mr Rosenblatt did not laugh, but instead that he admonished Ms Foulston.[81]Although Mr Lovitt and Mr Field might be said not to be entirely objective witnesses, given that they were still partners at R1 at the time of giving their evidence, Ms Foulston had ceased to be employed by R1 and was in dispute with R1. There was therefore no reason for her to be unduly loyal to Mr Rosenblatt.[82]Secondly, we are influenced by the Claimant’s subsequent reaction to the incident as explained below. He did not take the matter any further, suggesting that he was satisfied that Mr Rosenblatt had intervened and dealt with the incident. His subsequent reactions also suggest that he did not find the incident at the time as offensive as he wanted the tribunal to believe.[83]The Claimant left the event as soon as the dinner was over which does corroborate his version of events that he was uncomfortable and wanted to remove himself from the situation. Ms Foulston also, separately, left very quickly after the dinner was finished. She did not say anything to the Claimant before leaving.[84]No additional action was taken by anyone present at the dinner in connection with Ms Foulston’s comment. Mr Rosenblatt originally thought he had spoken to Ms Foulston about the comment the following day and suggested she attend equality and diversity training, but when giving evidence he conceded that the conversation may well have taken place at a different time.[85]The Claimant did not discuss the comment with Ms Foulston or anyone else. No-one spoke to the Claimant about the comment. Ms Foulston told that us she avoided saying anything to the Claimant out of sheer embarrassment and as he did not say anything to her and their relationship seemed unchanged, she assumed that it was not an issue between them. The evidence before us shows that they exchanged friendly emails about arranging to meet up for drinks in the week following the dinner.[86]In addition, as explained in the next section, the Claimant wrote to Ms Foulston on the very next day following the dinner, 13 April 2018, in strong terms, to complain about the behaviour of one of the other partners, Laura Clatworthy and asked her to arrange a meeting about it. Had he also been concerned about the comment and Mr Rosenblatt’s reaction to it, the previous evening, we consider he would have raised this in his complaint. April 2018 Issue between the Claimant and Laura Clatworthy[87]As mentioned above, on 13 April 2018, a dispute arose between the Claimant and one of R1’s partners, Laura Clatworthy. The dispute concerned a trainee, Sean Field-Walton.[88]Mr Field-Walton gave evidence at the hearing on behalf of the Claimant.[89]He had joined R1’s predecessor firm as a trainee solicitor in September 2016. In September 2017, he was entering his second year of his training contract and was assigned to work for both Employment and Dispute Resolution. However, between March and August 2018 he worked as a trainee solicitor exclusively for Employment. He then stayed with R1 on qualification working as an employment lawyer with the Claimant. He left in December 2018 after only three months to go to a different firm Mr FieldWalton stressed that this was not a reflection on his relationship with the Claimant but because he wanted to work in a firm with a larger employment[90]According to the lengthy email the Claimant sent to Ms Foulston on 13 April 2018 Ms Clatworthy had, that day, asked Mr Field-Walton to undertake some research and in doing so, had made disparaging remarks about the Claimant, including suggesting that the Claimant was not managing Mr Field-Walton properly and should be doing more fee earning work himself. The Claimant described himself as “appalled” by Ms Clatworthy’s behaviour. The Claimant asked Ms Foulston to arrange a meeting involving himself and Ms Clatworthy. He also requested the presence of Mr Lovitt. We find he did this because he assumed that Mr Lovitt, who was in a relationship with Ms Clatworthy, shared her views of the Claimant.[91]A meeting did take place but we did not hear any further details about it. No formal action resulted from the dispute. For our purposes, it is relevant to note that Ms Foulston invited Mr Field to attend the meeting. In their email exchange about the meeting, they described the Claimant and Ms Clatworthy as “children”. The Claimant was not pleased about the suggestion that Mr Field should attend, but Ms Foulston sought to reassure him by saying: “He is there to back you up and to reinforce resourcing issues with LC who apparently does this a lot!” June 2018 Issue between the Claimant and JN[92]The next relevant factual matter about which we heard evidence occurred in June 2018.[93]In the week commencing 11 June 2018, the Claimant was working on a matter for a client that involved him working with his colleague Philip Alfandary, a Partner specialising in Corporate Tax matters. The Claimant and Mr Alfandary discussed a piece of work for the client with JN, an employee who was junior to them, who had only recently joined R1 and who reported to Mr Lovitt. They asked JN to draft an agreement for their client.[94]On 15 June 2018, the Claimant (copying in Mr Alfandary) emailed JN about the agreement. Over the course of several emails he explained that the draft agreement, which he suggested should have been provided to the client the previous day, was now no longer required. He intimated that this was because it was late. JN replied (adding Mr Lovitt to the email chain) to defend her position.[95]The back and forth email exchanges became increasingly acrimonious. At 17:20, the Claimant emailed JN saying: “You protest too much! Ty to get over the fact that you let yourself down – I know [it] hurts but get over it!” JN responded with an email sent at 17:39, which began, “I think it is clear that….it is YOU that is protesting too much, and concluded, “Therefore please accept your mistake and let’s move on. Have a nice weekend.”[96]The Claimant’s reply to this was to email JN at 17:48 to ask, “Are you feeling well?”[97]JN did not reply but forwarded the email to Mr Lovitt at 17:57 saying “I’m speechless. This man really does have some issues and as an employment lawyer should know better than to bring up mental health issues. So unprofessional and weak.”[98]While the exchange was occurring, Mr Alfandary sent a lengthy email solely to Mr Lovitt and the Claimant. He said that he had refrained from joining in the email exchange, but wanted to ensure Mr Lovitt was aware of the issues as the exchange was making him nervous. He then set out some details that essentially explained that he felt that the problem lay with JN. Mr Lovitt replied at 17:39 saying, “I am not going to read this. Don’t drag me into it.” The Claimant replied saying “I think you should read this because Philip’s email sets out clearly what happened. I am also nervous about her behaviour towards two partners”.[99]On Monday 19 June 2019, Mr Lovitt forwarded the email exchange to Ms Foulston, who had just returned from a holiday, with an email saying, “Welcome Back!!! Please see below email spat between [JN] and [the Claimant] from Friday At best his comments are inappropriate, and at worst bullying…….. “[100]At month end, the Claimant gave instructions to accounts to write all of JN’s time off and not bill it. This needed approval so Mr Lovitt emailed Ms Foulston about it explaining to her that it was the matter that the Claimant and JN had “their little spat on.” Mr Lovitt’s view was that JN’s work should be billed to the client as she did the work she had been asked to do. Ms Foulston replied saying that she would authorise the write off, because “[the Claimant] says [JN] went beyond”. She added, “I am not involving the client in this spat.” She maintained this position even though Mr Lovitt subsequently defended JN[101]We observe that Mr Alfandary’s account supports the Claimant’s contention that JN was late in delivery her work and that he was right not to bill it to the client. However, we find that the exchange of emails between the Claimant and JN was extremely unprofessional, on both sides and that it was not inaccurate for Mr Lovitt to describe the Claimant’s behaviour as he did. July 2018 – Bob Mackenzie[102]Mr Rosenblatt had been instructed by a client called Bob Mackenzie in August 2017. Mr Mackenzie later issued proceedings for negligence against R1 and its predecessor firm. The judgment of Mr Justice Fancourt was included in the bundle and we were invited to read it.[103]The judgment describes the circumstances behind the instruction and what occurred in detail. Mr Rosenblatt had asked Mr Walton, a partner in the Dispute Resolution Team, to take day to day conduct of the case. Mr Rosenblatt remained involved, however, from a client relationship point of view and to provide strategic advice.[104]For our purposes, it is relevant to note that the claim concerned the advice given to Mr Mackenize regarding high court proceedings by Mr Rosenblatt rather than any employment law work done by the Claimant. The negligence claim succeeded in part, although Fancourt LJ decided that no loss resulted.[105]On Thursday 5 July 2018, Mr Rosenblatt and Mr Walton met with Mr FieldWalton to brief him on the case and to ask him to provide some specialist employment law advice in writing for the client by the following Monday, 9 July 2018. The Claimant had been unable to attend the meeting. Mr Rosenblatt expected Mr Field-Walton to brief the Claimant about the work.[106]Although Mr Field-Walton initially agreed to do the work by the Monday, he later informed Mr Walton that he was too busy. Mr Walton asked the Claimant to do it instead, who said he would get it to him by Wednesday 11 July 2018. Mr Walton’s assistant checked in with the Claimant by email at 17:00 on Tuesday 10 July 2018 to see if he was on track to provide the advice. The Claimant replied to say that he hoped to get the advice to them the following day, but he had a defence to do and so it might be Thursday. Mr Walton then emailed the Claimant to stress to him that the advice was needed ASAP as the client had been waiting a week for it. The Claimant did not reply.[107]Later that same night (Tuesday 10 July 2018) at 23:37, Mr Walton responded to an email from Mr Rosenblatt asking if the work had been received as yet. Mr Walton replied to Mr Rosenblatt saying: “Nope [the Claimant] promised it me tomorrow When liz chased him today he said he had a defence to file tomorrow but woud look at it and it might slip into Thursday. I told him I wanted it tomorrow, no excuses. I went down to 3rd at just after 7pm and of course he wasn’t there…so can’t be that busy with his “defence” Dealing with amateurs.[108]This prompted Mr Rosenblatt to email the Claimant at 04:24 the following morning, copying in Ms Foulston. He said the following in the email: “Last Thursday I met Sean with Simon to brief him and to ask for specific work to be done urgently in this case You couldn’t be there Sean said he would brief you I asked for a note on disability discrimination by Monday He appeared reluctant Later that day he told Simon he couldn’t do the note by Monday because he was too busy For a guy who thinks he’s Freshfield material I am astonished that 5 days was insufficient time Simon raised it with you and you said you would do it It’s now Wednesday and no note has appeared and I gather you are still too busy to do it The [Client A] case is about the biggest employment case in town I have resisted getting u involved thus far because frankly it’s too much like hard work trying to get things done by u and Sean I’ve no choice but to involve u now because I’m at the limit of my knowledge However just ignoring this job and pretending to be too busy is a joke For Sean to say that to me is disrespectful as well as untrue Fir u to say it is just in my view pathetic I have a job to do a client to fight for and no back up I really don’t know who you think you are I will get authority to brief an external Firm and by this email I ask NF to confirm permission to do so We will incur the cost and pass on to the client”[109]Ms Foulston responded at 12:36 later that day to say that the Claimant had been released from all internal meetings so that he could prioritise the advice note.[110]Mr Rosenblatt replied saying “He’s a disgrace and should be given a written warning”. Ms Foulston responded saying “I agree, but need to do this properly.” She added that the Claimant had also ‘screwed up’ another client matter. This was in reference to a piece of work that a client was refusing to pay for where no costs estimate had been provided by the Claimant.[111]The Claimant provided the advice note on Wednesday 11 July 2018 and we note that it is briefly referred to in paragraph 109 of Fancourt LJ’s judgment. The Claimant did not respond to Mr Rosenblatt’s 04:24 email or complain about it. No formal action was taken against the Claimant.[112]In the preparation for their litigation against R1 and its predecessor firm Mr Mackenzie’s son and lawyer emailed the Claimant. They indicated that they were aware he was also in dispute with R1 and asked to speak to him. Both said Mr Mackenzie had been happy with the Claimant’s work for him, but did not go into any detail. The emails did not address the timeliness of the Claimant’s advice on disability which was the concern that Mr Rosenblatt addressed with the Claimant. Mr Rosenblatt’s Communication Style[113]It was not uncommon for Mr Rosenblatt to write emails to his colleagues in such a loose style as the one above. His emails also contained sarcastic criticism of them. We were provided with an example he sent to another partner, Mr Sachs, demanding he apologise to a client even though, objectively it appeared he had done nothing wrong (in April 2018) and another sent to all the partners in the Dispute Resolution Team in September 2019 concerning an Investigation Seminar. He also sent positive emails such as one he sent to the Claimant on 14 January 2019 in connection with Client D saying simply, “Great job.” Email Access – July 2018[114]On or around 16 July 2018, at a time when the Claimant was away on holiday, Mr Field-Walton asked if he could have access to the Claimant’s inbox. When giving evidence to us at the hearing, Mr Field-Walton could not recall, over five years later, if the Claimant had asked him to do this or if he made the request because he thought it would be helpful. Access was refused on the basis that the Claimant’s mailbox was likely to contain confidential emails between partners. We have not found it necessary to make any further factual findings about this as we do not consider it to be of any material relevance. Client B – July 2018[115]Another matter arose in July 2018 that involved another of Mr Rosenblatt’s contacts. The client was new to the firm and Mr Rosenblatt wanted to ensure that the firm impressed him. Mr Field was the lead partner working on the matter.[116]The Claimant joined a conference call with the client, Mr Rosenblatt and Mr Field even though he, the Claimant, was absent from work on holiday at the time. Following the call, the client told Mr Rosenblatt that he had not been very impressed with the Claimant. Mr Rosenblatt emailed Mr Field on 2 August 2018 saying “Any letter [the Claimant] does must be approved by me or you or both before going to client [Client B] not impressed with him nor me so can u make that clear to him please”[117]The Claimant invited us to find that in this contemporaneous email written shortly after the call, Mr Rosenblatt made the part about Client B not being impressed with the Claimant up and that it was not true.[118]He told us that later, in September 2018, the same client had specifically requested the Claimant accompany him to an important meeting. This was not disputed by the Respondents who told us that it was a meeting where employment law expertise was required.[119]We do not consider that the fact that Client B later asked the Claimant to accompany to an important meeting prevents him from having been unimpressed with the Claimant during the earlier call. We find that Mr Rosenblatt accurately recorded the client’s opinion of the Claimant in his email exchange with Mr Field and did not make anything up. We also consider it reasonable that Mr Rosenblatt would want to see any letters that the Claimant may write to the client in advance given the concerns raised. August 2018 – Corporate Request for Advice[120]On 10 August 2018, at 16:28 a junior lawyer in the corporate team emailed both the Claimant and Mr Field-Walton about a matter that required input from an employment lawyer. The Claimant was not in the office, although nether he nor Mr Field-Walton could recall the reason for his absence. Mr Field-Walton, who was still a trainee solicitor, provided some general advice to the best of his ability. Unfortunately, the advice was too broad to be helpful and Mr Lovitt was understandably frustrated by this. His email to the junior lawyer in his team and his reply to Mr Field-Walton and the Claimant expressing this were not rude or unprofessional in tone or content however. September 2018[121]Several things happened in September 2018 that are relevant for us to note.[122]First Ms Foulston’s former personal assistant, SP, who had resigned from her role, notified Ms Foulston in September 2018 that she intended to pursue an employment tribunal claim against R1. Although Mr Rosenblatt suggested to Ms Foulston that they should instruct an external firm of solicitors to act for them, in order to ensure it remained confidential from employees within R1, Ms Foulston decided to ask the Claimant to act. The board of R1 decided that Mr Field would act as its representative when giving instructions to the Claimant.[123]Second, the Claimant and Ms Clatworthy had another altercation about a trainee solicitor. On this occasion the dispute between them arose because of the need to establish an ethical wall in relation to a transaction they were working on.[124]On 18 September 2018, Ms Clatworthy sent the Claimant an email (copying in the relevant trainee) to explain to them both that because the trainee had done some work relevant to one side of the wall, she would need to remain on that side of the wall and avoid doing work for the Claimant who was on the other side of the wall. The email was perfectly polite and we find it represented Ms Clatworthy’s genuine view of how the ethical wall should operate. It is not relevant for us to decide whether or not this view was correct.[125]The Claimant’s response, sent a couple of hours later, and copying in the trainee and one other partner, challenged Ms Clatworthy’s approach to the ethical wall. He finished his email with the words, “I understand you have mentioned to [the trainee solicitor] that she will be working with you and not me. You are wrong.” We find this to be extremely rude and abrupt and without justification.[126]Unsurprisingly, Ms Clatworthy reacted. She replied (to all) saying, “Please do not use that tone with me…It is unwarranted and inappropriate”. We find this reply was warranted, but should not have been copied to the other recipients.[127]There then followed an increasingly fraught and unprofessional exchange of emails between the Claimant and Ms Clatworthy in which they insulted each other and Ms Clatworthy accused the Claimant of inappropriate behaviour to her as a woman in the workplace. The other partner remained in copy, but at least the Claimant stopped copying the trainee solicitor in. After several emails, the Claimant escalated the matter to Ms Foulston saying he wanted to raise a grievance against Ms Clatworthy and demanded an unequivocal apology from her. The emails continued in the same vein thereafter with Ms Foulston in copy until she replied saying: “Seriously?! I am not happy with this and expect you both as partners to resolve this without the need for any escalation to me.”[128]In response, the Claimant replied to say he wanted the matter to be dealt with formally. Ms Clatworthy messaged Ms Foulston privately to say that she had not escalated the matter and wouldn’t have done so, and that she considered the Claimant’s decision to do so was intended to bully her when all she had done was send him an email on a case about an ethical wall issue.[129]Ms Foulston forwarded the email chain to Mr Rosenblatt with the comment “Fucking children!!!” and sought his advice about how to proceed.[130]Mr Rosenblatt emailed the Claimant and Ms Clatworthy at some length in which he observed that he could not see that either of them had a legitimate grievance about anything and that their email exchange read as read like a tit for tat load of rubbish between two people who should know better. We agree with this assessment. This view was shared by Ms Foulston.[131]The dispute was later resolved a few days later as a result of informal mediation conducted by Adrian Harris on the basis that Ms Clatworty withdraw her allegations against the Claimant and he withdraw his grievance against her. We find that no preferential treatment was given to either the Claimant or Ms Clatworthy and both were treated the same in connection with the incident. October 2018 – Client Complaint[132]On 30 October 2018, a client of R1 made a formal complaint against the Claimant. The complaint was investigated by Mr Field. He did not find that the service provided by the Claimant was inadequate, but he noted that he had failed to provide a costs estimate to the client and that there had been a breach of the code of conduct and solicitors accounting rules in relation to the handling of a bill on the file. Mr Field recommend that the client be reimbursed in full and that the breaches be reported to the SRA. November and December 2018[133]Several things happened in November and early December 2018 that are relevant for us to note and comment on.[134]On 1 November 2018, the Claimant emailed Anthony Vaughan, one of the partners in the Corporate Department, to tell him that he and other members of the employment team would not accept any further work referred to them because they had limited resources and the work was not profitable for them. Mr Vaughan expressed surprise at this and suggested that as partners, they should work together and not be having such an exchange. The Claimant declined to add anything further. When the matter was escalated to Ms Foulston she informed the Claimant that he could not simply refuse to undertake work for another department.[135]On 28 November 2018, Martin Montgomery emailed the Claimant and Mr Field-Walton to ask if the Claimant could join him on a call the next day. Mr Field-Walton replied that night at 23:24 to say that the Claimant did not usually get to the office until around 10:30 am, sometimes later. He added that he thought the Claimant would not see the email until he arrived and on that basis suggested the best time for the call would be around noon to give the Claimant time to prepare.[136]Mr Montgomery forwarded the email at 23:40 to Mr Lovitt commenting “I have no words”. Mr Lovitt replied at 23:53 saying, “I have words. I don’t know what you asked him to do but for you not to have an answer before noon because the partner doesn’t come in until then and doesn’t read his emails when he is out of the office is a frigging Joke.”[137]A few days later, on 3 December 2019, Mr Montgomery contacted the Claimant by email to ask him if he could join him in speaking to a client for around 15 minutes the following day about some potential new work. The Claimant replied thanking Mr Montgomery for the introduction. The Claimant suggested that Mr Montgomery introduce him to the client on email and that he would then call him at some point the following day. Mr Montgomery replied saying he preferred them to speak to the client together and that he could do this from anytime from 10:30 onwards. The Claimant was reluctant to agree to this as he did not know when he would be available to call and usually did his calls before 10:30. In the end the Claimant suggested Mr Montgomery speak to the client alone. Mr Montgomery forwarded the email exchange to Mr Lovitt saying, “We need a new employment guy…see below emails and bear in mind [Mr Field-Walton’s] email last week saying he doesn’t get in until 10:30.” He replied saying: “Bonkers. Send the email stream to [Ms Foulston]. She needs to know how unhelpful this guy is.” SP Tribunal Claim – February 2019[138]The defence to the SP tribunal claim needed to be sent to the employment tribunal by 18 February 2019. The Claimant was responsible for preparing it. At about 17:00 on that day, which we note is right at the end of a working day, the Claimant sent a draft to Ms Foulston and Mr Field to check.[139]Ms Foulston was away on holiday at the time in a place which was four hours ahead of GMT. This meant it was 21:00 when she received the defence. Her reply demonstrates that she had not been informed of the deadline previously and she was understandably unhappy about the timing. Notwithstanding that she was having dinner with her children on holiday at the time of receipt, she reviewed the document and it was able to be submitted on time, before midnight.[140]On Wednesday 20 September 2019, at around 17:00 Mr Field asked the Claimant to prepare an advice note for the board about the case. He requested it for the following Monday. The Claimant asked for a little more time, until Wednesday which Mr Field agreed. When he had still not delivered his advice note to Mr Field by midday on Thursday, Mr Field was forced to chase for it.[141]In the email exchange, Mr Field also explained that he was worried about meeting the deadline for disclosure and asked if there were any searches he, as the client, needed to conduct for documents. The Claimant reassured him that he did not need to be concerned with this and he would take care of it. Blair Wasserman[142]Blair Wassman joined R1 as an Associate in the Employment Department in March 2019. She told us that she believed that the Employment Department was a distinct department in its own right and that the Claimant was the Head of the Department. He had introduced himself to her as the Head of Employment when interviewing her.[143]Ms Wassman had moved to the UK from South Africa a few years earlier. She worked as a qualified solicitor in South Africa for 3 years. Her qualification was not recognised in England and Wales and so she had to re-qualify when she moved. She worked for a trade union for over two years while she did this. This meant that although at the time of joining R1 she was only a newly qualified solicitor in England and Wales, in reality she had significantly more experience than a newly qualified solicitor.[144]The Claimant had interviewed Ms Wassman. Although he liked her, he did not want to make her an offer of employment. This was because he was concerned that work levels did not justify recruiting an Associate at that time. Ms Foulston overruled the Claimant. April 2019 – Issue with a Trainee[145]On 1 April 2019, a trainee solicitor that had been assigned to the Employment Team, but was moving into Dispute Resolution Team that day emailed Ms MacLeod to say that she was attending a meeting the following morning and would not be in the office until midday. One of the firm’s clients had asked if the trainee could be available to take notes in redundancy consultation meetings it was undertaking which were due to last for a fortnight.[146]Ms Macleod contacted the Claimant by email saying that she did not think the trainee would be able to assist as she was needed in the Dispute Resolution team. Rather than speak to Ms MacLeod about the issue directly, the Claimant sent her an email in reply. In our judgment, the email was unnecessarily abrupt and defensive in our judgment. It began with the sentence, “I am not monopolising her” even though he had not been accused of this. April 2019 - SP Tribunal Claim[147]The SP tribunal was due to have a final hearing at the end of April 2019. This meant that witness statements needed to be exchanged on 16 April 2019. The witnesses due to be called included R1’s HR Manager, Kathryn Milward.[148]The Claimant emailed Mr Field on 12 April 2019 to provide him with an update. This included telling Mr Field that SP’s solicitor had applied to adjourn the hearing, but that he had resisted the application and it had been rejected by the employment tribunal. He sought Mr Field’s instructions in relation to making an offer of settlement. Mr Field replied asking to see a copies of the witness statements, which were duly sent to him.[149]On 15 April 2019, Mr Field emailed the Claimant, copying in Ms Foulston. He attached the statements with some marked up track changes and comments. In the body of his email, he said: “I attach my comments on [the] draft statements. In my view there is quite a bit of work to do on [Ms Milward’s]. I am a bit concerned that we are due to exchange witness statements tomorrow and I was not sent the drafts sooner or updated that SP had applied to adjourn. I need to be treated like the client here and I need to know everything that is happening so I can give instructions on behalf of the board. This is a £50k claim and one which we must not lose!”[150]The Claimant replied to the comment on Ms Milward’s witness statement saying, “I have considered your comments and some are cosmetic and others distort the facts. I do not believe any further work needs to be done on [the] statement.” He defended himself against the allegation that he had not kept Mr Field updated.[151]During our tribunal hearing, it was suggested to the Claimant in cross examination that Mr Field’s comments on the statement did not seek to distort any facts and were in fact helpful in terms of pointing out typos and seeking to clarify her evidence. The Claimant was taken through the comments and accepted this. In response, he asserted that the version of the document in the bundle was not the version he had seen at the time and accused the Respondents of creating a fabricated version of the statement to include in the bundle.[152]We find, as a matter of fact, that the Respondents did not create a fabricated version of the witness statement for the purpose of this hearing. The real reason that the Claimant reacted as he did was that he was unhappy that Mr Field was criticising his work. In our judgment, the Claimant’s reaction was consistent with other conflict situations with colleagues. The Claimant regularly defended his position by attacking the other person, often making unfounded or exaggerated accusations in the process. We find that his allegation that the Respondents created a fabricated version of the witness statement is another example of this. Rather than show insight into his behaviour and acknowledge it when it was highlighted in cross examination, the Claimant’s response was to attack the Respondents without any foundation.[153]On 16 April 2019, SP’s solicitor sent SP’s statement to the Claimant with a letter making a request for specific disclosure of emails sent or copied to her on her non-working days, holidays or at weekends. The Claimant spoke to Ms Foulston and advised her verbally that there was no need to respond to it as it had been made too late. He was then on leave until 24 April 2019.[154]After the Claimant returned from leave he attended a conference with the barrister instructed to represent the R1 and Ms Foulston at the hearing. He sent a note following the conference to Mr Field in which he confirmed that the barrister had agreed with his advice that the specific disclosure request had been made too late in the day. He wrote to tell SP’s solicitor this on 25 April 2019.[155]At the first day of the final hearing, the judge with conduct of the hearing took a different view. She postponed the hearing and relisted it to take place in November 2019 over three days which meant additional cost for R1 as it had occurred a brief fee for the hearing and would now need to incur another. In addition, an order was made for specific disclosure of the emails sought by SP. The Judge involved was also critical of the failure to disclose the documents initially. SP Tribunal Claim - Disclosure Issue (May and June 2019)[156]IT assistance was sought from Neil Rowden to locate the emails that needed to be disclosed. Before the search for them began, Mr Field, Ms Foulston, and Abi Morgan, the Claimant’s assistant working on the case with him, addressed their minds to the question of the need to redact irrelevant confidential information in the emails before they were disclosed. The relevance of the emails were the dates and times at which they were sent to SP rather than the contents. It was envisaged that Mr Field would be responsible for the redactions, but that the Claimant and counsel would be provided with unredacted versions of the emails in the first instance.[157]In the process of reviewing the emails that were potentially relevant, Ms Foulston identified that they contained confidential information belonging to the equity partners of R1’s predecessor firm, Mr Rosenblatt and Ms McLeod. Without discussing it with them, she decided that these should not be shared with the Claimant in an unredacted form. She decided instead that Mr Field, who was aware of the confidential information already, due to the position he had had in the firm, should have the relevant emails and make the necessary redactions and then provide them to the Claimant.[158]Ms Foulston did not alert the Claimant to the change in plan and he found out about it from a combination of a call with Mr Rowden and a conversation with Mr Field on Wednesday 5 June 2019. On learning of it, the Claimant immediately emailed Ms Foulston and requested an urgent meeting with her and Mr Field. Ms Foulston was unable to meet him straight away. Unaware of the conversations that had taken place she asked why the meeting was urgent. The Claimant replied that it was concerned with the SP tribunal and involved disclosure. This email was as in the early evening on 5 June 2019.[159]Ms Foulston replied to the Claimant at 20:37 that same evening saying: “The situation is v clear to me. We agreed to disclose. These docs do not belong to us ([R1]). Disclosure is on the basis information of a confidential nature to the Rosenblatt Partnership and irrelevant to the proceedings will remain confidential to [Mr Roseblatt] and [Ms MacLeod]. [Mr Field] as your client, a lawyer and the head of our compliance team has redacted for me in order that we comply with the instructions of the Partnership who own the documentation. He can provide you and the other side with assurances regarding the information redacted. What will never happen is that you or anyone else will be given access to the redacted information. It is confidential and will remain so.”[160]This was a very robust response, as acknowledged by Ms Foulston in her witness testimony. She explained that she wrote the email in this way deliberately after normal office hours, as she wanted to shut the matter down. We accept that this is what she was trying to do, although as it transpired, this was not an effective tactic.[161]The Claimant replied to Ms Foulston, copying in Mr Field at 22:35 saying the following: “SP, [Mr Rowden], and [two others] have had access to the information. When such a situation develops between a client and their lawyer it raises the issue of trust. If the client does not trust the lawyer will respect their duty of confidentiality, the client should not use the lawyer. As I have not seen the un-redacted documents and will not be permitted to do so I cannot comply with my professional duty to the court and will not be able to confidently defend the company’s position should questions or concerns be raised about the company’s compliance with the order. I hear what you say about [Mr Field] giving the tribunal any assurances required. You must appreciate that this is tantamount to a respondent inhouse lawyer (maybe a general counsel) providing such an assurance. Besides the individual and their lawyer know that [Mr Field] is our client / that we are taking instructions from him. As you know I want to help and hope I have done so thus far. However, I am being asked to do what [Mr Field] admitted today he would not do for a client and that he would be making the same requests as me and understood why one should not rely on client assurances when it comes to disclosure. I therefore think that in the above circumstances, it would be in the company’s interest (as well as my professional duty) if someone else takes over the conduct of this case. I am happy to assist with a handover and will be rooting for a successful outcome for the company. I do not take this decision lightly but as [Mr Field] today confirmed that he would have difficulty acting for a client if he was not able to review the un - redacted documents, that is the situation I find myself in.”[162]Mr Field replied the following morning, Thursday 6 June 2022 at 10:46 saying: “[R1] is essentially acting in person in the matter. We are both “in-house”. The fact that I, as a solicitor, have reviewed the disclosure in accordance with my duties as a solicitor is good enough. Your concerns would be good one if you were an external solicitor and the client refused to let you undertake the disclosure. Please send me the files. I will take over conduct of the case with [Ms Morgan].”[163]Mr Field later, at 12:47, sent an email to Ms Watson, the employment trainee and Mr Rowden, copying in Ms Foulston to tell them that the Claimant was not going to be working on the SP tribunal claim and he would be handling it going forward. He did not copy the Claimant into this email.[164]The Claimant replied to Mr Field’s earlier 10:46 email at 13:24. He copied Ms Foulston into this reply which said the following: [R1] wanted an ethical wall / a clear demarcation between client and adviser. [Ms Foulston] made it clear several times that [R1] was the client and because of her conflict of interest she appointed you to provide us (the legal advisers) with instructions from [R1]. It was made clear by [Ms Fouslton] that my role was akin to that of an external solicitor and in all our dealings you confirmed that I had conduct of this matter. In a meeting with [Mr Rowden], [Ms Morgan], you and I on Tuesday 14 May we discussed with [Mr Rowden] the search he had conducted to date and the spreadsheet he had prepared. In this meeting we agreed that you would read the documents first and indicate where redactions were required. This was to ensure that [Ms Morgan] did not see anything which was confidential (though see below). It was further agreed that [Mr Rowden] would keep a master copy of all the documents so that I could see the un-redacted versions of any redacted documents to discharge my duties to the other side, as officer of the court and in compliance with the Employment Judge’s Order of 29 April. [Ms Morgan] has confirmed this was her understanding of what we agreed at the meeting. [My trainee] and I met with [Mr Rowden] yesterday and he confirmed that he had the master copies of the specific disclosure documents. We discussed how the documents were structured and how the un-redacted versions of the redacted documents could be identified to make my task easier. I mentioned that I would read the files today/tomorrow and asked [Mr Rowden] to provide them to me personally today. He said this would fine but wanted to confirm with [Ms Foulston]. Before lunch yesterday he informed me by phone that [Ms Foulston] had asked him to discuss this with you, he had done so and that you confirmed I could not see the documents. I was concerned by this because(a) this was not what was agreed,(b) you had read the papers, made a decision and not discussed this with me until I raised this with you yesterday afternoon and(c) [Ms Morgan] and [Mr Rowden] have seen confidential documents but the person with conduct/responsibility for the conduct of this case is not permitted see any such documents. In the above circumstances, there is only one reasonable inference, which is, my concerns about compliance with the Judge’s Order are not unreasonable, as there has been a sudden and unexplained departure from the approach you and I agreed. This is reinforced by the fact that: 1. only last week you mentioned to [Ms Morgan] and I that you had started reading the files and there was no indication that we were off track; and 2. [My trainee’s] note of our meeting with Neil yesterday morning states as follows: “[the Claimant] is going to highlight any documents which he comes across that he thinks are key documents to disclose, again we will check they are in the file and if they are not, he will speak to [Mr Rowden] and suggest to him that the document should be included.” I will send you the files. May I leave it with you to discuss next steps with Ms Morgan. I will inform [SP’s solicitors] and the Employment Tribunal that you now have conduct of this matter and will provide them with your contact details.”[165]Mr Field and Ms Foulston replied separately to this email, copying in the other at almost the same time. This created a split email chain, but was one which all of the three people involved had sight.[166]On one side of the split email chain, Mr Field replied to the Claimant’s long email, copying in Ms Foulston at 13:46. He told the tribunal that he had taken great offence at the contents of the Claimant’s email and discussed the position with Ms MacLeod who had confirmed to him that she did not want the Claimant to have access to her confidential information. Mr Field’s reply said the following: “Do you really think that I am burying evidence because that is the only conclusion which comes from your “reasonable inference”? As I told you yesterday, I have no problem in you seeing any of the unredacted documents other than the ones which relate to [Mr Rosenblatt] and [Ms MacLeod] the contents of which are wholly irrelevant to the purpose of disclosure namely that [Ms Foulston] was requiring SP to work at weekends. It is not within in my gift to breach [Mr Rosenblatt] and Ms MacLeod’s confidentiality. It is only [Mr Rowden] who has seen those unredacted emails; not [Ms Morgan] Do not write to the Tribunal or the other side. I will deal with the matter going forward. Do not waste anymore of your time sending me another long email. You can get back to concentrating on fee generating work.”[167]The Claimant replied to him, copying in Ms Foulston (at 14:17) saying “I have raised my concerns and you have suggested that I am being unreasonable. I have set out the facts and you are clearly annoyed by this. The correspondence in this matter has not been of my making, I had requested a meeting with you and Nicky which was declined.”[168]Ms Foulston then replied (at 14:32) explaining that the only reason she had declined the meeting was because she had been busy at the time. The Claimant replied (at 14:38) acknowledging this and added, “As I am no longer involved in this matter we can now conclude these discussions.”[169]In the meantime, Ms Foulston had also replied to the Claimant’s long email. In her reply sent at 13:40, she explained that the decision not to share the unredacted emails with the Claimant was her decision and that she had made it because the emails contained information about the personal financial affairs of Mr Rosenblatt and Ms MacLeod. She added that Mr Field had also been party to that information previously. She confirmed that she agreed that he should take over conduct of the case with Ms Morgan’s assistance.[170]In his reply to Ms Foulston, sent at 14:01, the Claimant challenged the factual contents of Ms Foulston’s email saying she had said something different to Mr Rowden. She replied saying that she was impressed that the Claimant knew what she had said when he had not been present. The Claimant’s reply (sent at 15:18) was: “The facts keep changing. What can I say?” Ms Foulston’s reply (sent at 17:40) said: “Are you calling me a liar now? This is surreal.”[171]The Claimant did not reply to Ms Foulston’s email until 11:17 the following morning, Friday 7 June 2019. In his reply, also copied to Mr Field, he said: “This appears to be a dare and I find this threatening and would like this to stop, as all I have done is try and support the company by raising a legitimate issue with the Compliance Officer and CEO.”[172]Before either replied, Ms Foulston and Mr Field discussed a joint response.. Ms Foulston replied on 7 June 2019 at 15:13 saying: “This was not a dare. I asked you a simple question whether you were accusing me of lying in response to your email “The facts keep changing. What can I say?”. My email was not threatening in any way and you cannot have taken it as such given it took you from 17.40 yesterday until 11.17 today (over 18 hours) to raise your apparent concern. I note in any event that you do not say how you felt threatened. I too would like this correspondence to stop, as I mentioned in my email yesterday I have a business to run, but instead of letting this rest you insist on adding further fuel to the fire. You have already inferred in your email sent at 13.24 yesterday to [Mr Field] that he intends to flout the Company’s disclosure obligations. That is a deeply offensive and unfounded insinuation that he, a director of this company, a solicitor and the Compliance Officer of the law firm, is burying evidence. I note that you ignored [Mr Field] when he asked in his email to you yesterday (at 13.46) if that is what you were accusing him of. You subsequently in your email sent at 15.18 yesterday insinuated that I was lying, again an accusation to which you have failed to respond when I asked you. In circumstances where you have insinuated that two directors of your employer are acting dishonestly, I invite you to unequivocally confirm that you are not accusing either [Mr Field] or me of dishonest or improper conduct or inferring the same. If you give this confirmation that can be the end of the matter.”[173]Ms Foulston told us when giving evidence to the tribunal that she felt that she and Mr Field had to address the comments in the Claimant’s emails because of the seriousness of them. She was not sure at the time of sending the email, what action they would take if he did not withdraw his comments, but she assumed that there would need to be some sort of investigation.[174]When the Claimant had not replied to the email by close of play on the following Monday (10 June 2019) Ms Foulston asked him to meet with her and Mr Field on the morning of 11 June 2019. No notes were taken of the meeting.[175]The Claimant’s evidence was that the meeting was intimidating and he went to it thinking he would lose his job. We do not accept this evidence and prefer the evidence given by Mr Field and Ms Foulston. They told us that the meeting was relatively short. Of key relevance to us, we find that Ms Foulston politely asked the Claimant how they could move on and suggested that he withdraw his insinuations. No threats were made or inferred. The Claimant agreed and later that day in a short email sent at 13:09, he sent an email saying, “Further to our meeting today, I write to confirm that I did not make the insinuations referred to [in the earlier emails].” Ms Foulston replied saying, simply, “Noel – much appreciated.”[176]Following the meeting, but before sending his email, the Claimant sent Ms Foulston an email to thank her for some information she had provided to him about his ability to take out a loan against his share capital. The Claimant had first asked Ms Foulston about cashing in some of his shares in May 2019. She had suggested to him that he might be able to get a loan against the shares rather than sell them and agreed to look into this for him. She had responded to him on 4 June 2019 explaining that the figures did not add up. The Claimant emailed Ms Foulston on Monday 10 June 2019, between the Friday 7 June 2019 email and the meeting on 11 June 2019 to thank her for her assistance.[177]Ms Foulston forwarded this email to Mr Field. She noted that although the Claimant had sent her this email, he had not replied to the email of 7 June 2019. Mr Field commented in response that the Claimant did not come across from the email as appearing to be threatened by Ms Foulston, to which she replied, “So something to use. If need be!”[178]The Claimant invited us to find that the email included a threat about using the Claimant’s shares as a means to manipulate him. This is not our interpretation of the email. We find that Ms Foulston and Mr Field were envisaging only they could use the email to demonstrate that the Claimant was not actually feeling threatened by Ms Foulston contrary to what he had said on 7 June 2019.[179]The Claimant followed up on the reply Ms Foulston had sent him about his shares and the equity loan on 11 June 2019, at 12:40. He said he would like to sell 150,000 shares. During the course of the day they agreed a sale price. The Claimant confirmed the following morning, that he wanted to sell an additional 14,000 shares as well. This was a large proportion of his shares, but not all of them. This was a courteous exchange of emails between them in which there is no hint of any dispute or conflict.[180]The Claimant did not get involved in the SP litigation again. The claim was later withdrawn following settlement.[181]The Claimant did not take any of the further action that someone might take when they believed that disclosure obligations were being flouted by a solicitor such as alerting SP’s solicitor or reporting the matter to the Solicitors Regulation Authority, which he could have done anonymously.[182]Ms Foulston later decided that she would engage an external firm of solicitors to act on employment matters for R1 going forwards. She did not rush to do this, however, and it was not until 27 November 2019 that a retainer arrangement was agreed with an external firm. Ms Foulston continued to seek the Claimant’s advice from time to time. Room Move /July 2019[183]On 27 June 2019, the Claimant emailed R1’s HR Manager Julia Miller, and Office Manager Anthony Bedasee to ask if he could move into a new office that had recently been vacated. Ms Miller forwarded the request to Ms MacLeod to approve this. The Claimant was not copied in to this email. Ms MacLeod’s reply that same day was to agree.[184]On 2 July 2019, however, Ms MacLeod left the Claimant a voice mail message which she followed up with an email to tell him that unfortunately he could not move into the room he wanted by himself because there was insufficient space due to some new joiners and a trainee qualifying. In addition, this meant he may need to share his existing room or move to a different smaller room. She made a couple of alternative suggestions.[185]Ms MacLeod acted after having been told by Mr Field that there were broader plans about room allocation being drawn up.[186]The Claimant was not happy with the suggestions and replied at length to Ms MacLeod the following day setting out why he considered the move he wanted was feasible in light of the number of new starters due to join. He copied Ms Foulston into his message. She replied saying that as CEO she was not involved in room allocations and asked Mr Field, in his capacity as Administration Director, to deal with the request. The Claimant replied that all he wanted was for Ms Foulston to confirm his understanding was correct and there was nothing that Mr Field needed to address.[187]Mr Field emailed the Claimant to explain that there were more new starters than the Claimant thought and to explain what decision making had taken place about where they would go. We note that the proposals included requiring another partner, a white woman, to share her office.[188]He subsequently spoke to the Claimant in person later that day and made a file note of the conversation which he shared with Ms Foulston. The Claimant made it clear that he wanted to be in an office on his own and not the one suggested by Mr Field as he considered it had insufficient light. Ultimately the Claimant was permitted to remain in his room on his own.[189]We note that one of the arguments that the Claimant used in his email correspondence with Ms MacLoed was that other heads of department, whom he named as her, Mr Levitt and Mr Aynsely had their own rooms. His self identification as a Head of Department on a par with the others was not rebutted. We do not find that this was because his position was accepted, however. Instead Mr Field focused on finding a solution that avoided further conflict and there were other good reasons for the Claimant to have room to himself, including the need to have confidential conversations with HR. Sale of Rest of Shares[190]As well as emailing Ms MacLeod about rooms on 3 July 2019, the Claimant also emailed Ms Foulston to say that he now wanted to sell a further 16,000 shares. This was all the shares that he had left.[191]Ms Foulston became suspicious that the Claimant intended to leave and went to speak to the Claimant to ask him if this was the case. He told her that he had no intention of leaving and that he wanted the money to build a new terrace at his home. She considered this was implausible and so emailed Mr Rosenblatt, Mr Field, Mr Lovitt, Ms MacLeod to say that she thought the Claimant was leaving and she would begin the process of assessing the market for a replacement. She sent a second email the following day to just Mr Rosenblatt, Mr Field and Ms MacLeod in which she provided more detail of the conversation. She said in it that the Claimant was shocked at her question and said he loved working at R1, although less so with Mr Field. This was consistent with the Claimant’s memory of the conversation.[192]Ms Foulston subsequently emailed the Claimant to say that she felt they were long overdue for a catch-up drink and she would ask her PA to find a slot. The catch-up drinks were arranged for a date in August 2019 and turned into a dinner with a third party.[193]Ms Foulston told the Claimant, before the third party arrived, that the board had decided to see whether there were any other employment partners available in the market. The Claimant says that when doing so she assured him that he would be given copies of their CVs. Ms Foulston denies saying this last part. On a balance of probabilities we prefer the evidence of Ms Foulston.[194]The reason for this decision is because Ms Foulston would have been aware that the recruitment of another partner might be seen as potentially threatening by the Claimant. Her instinct was therefore to minimise the conversation about that topic and say as little as possible about it.[195]The Claimant emailed Ms Foulston shortly after the conversation to say thank you to her for the drinks and dinner. His email made no mention of the conversation about looking for another employment partner. This demonstrates to us that Ms Foulston achieved her objective of avoiding upsetting the Claimant. We consider that the Claimant would have put any concerns in writing or sought to capture the agreed process of having access to CVs if the discussion had been more than very brief.[196]Although Ms Foulston did contact recruitment agents about the potential recruitment of an employment partner, nothing was progressed until later in the year. Client F – late September 2019[197]In late September, R1 was instructed to investigate a potential fraud at one of its clients, Client F. The investigation that was being handled by Manraj Somal, a partner specialising in fraud and investigations. Mr Somal drafted a short suspension letter for the employee under investigation which he asked Ms Wasserman to review it rather than the Claimant. The Claimant suggested that this was because Mr Somal had been directed to avoid asking the Claimant to do the work, but was not able to support this with any corroborating evidence.[198]We consider that there is nothing suspicious about Mr Somal approaching a member of the Claimant’s team directly with work instructions. In a busy commercial law firm, this is a common practice, particularly where the work is straightforward. Indeed, it is common to encourage junior solicitors to actively develop their internal and external networks as part of their approach to business development. The expectation would be that the team member would keep their supervising partner informed as required.[199]By this time, Ms Wasserman had been at R1 for six months and so the letter would have been well within her capability. Michelle Chance[200]Ms Foulston received an email from a recruitment agent about a potential employment partner Michelle Chance, on 25 November 2019. She considered she might be a good fit for the firm and wrote to Ms MacLeod, Mr Field, Mr Lovitt and Ms Rosenblatt to inform them and ask Ms MacLeod, Mr Field and Mr Lovitt to meet with her.[201]In her email, sent on 26 November 2019 she said: “The Board are looking to expand the employment team by fining a suitable Partner level candidate with some work of their own to cover for [the Claimant] should he be ill or otherwise unavailable. We have been looking for some months but nothing suitable has come through until now. The Board would like [Ms MacLeod], [Mr Field] and [Mr Lovitt] to meet her to see whether she is a suitable, a possible head of department and whether her practise is predominantly contentious or non contentious. If you think she is a suitable candidate [the Claimant] will need to meet her and [Mr Rosenblatt]/myself.”[202]The Claimant was not informed of this development.[203]A meeting between Ms MacLeod, Mr Field and Ms Chance took place on 18 December 2019. It was arranged by Ms Miller, the HR manager. In the meantime, however, several other events occurred in December 2019 which it is relevant for us to note and comment on. December 2019[204]Ms Foulston cancelled a catch-up drink that she had arranged to have with the Claimant at 17:00 on 3 December 2019. She offered to meet him later that same evening and left her PA to make the arrangements. She asked her PA to arrange other appointments she had too. We find that the reason for her cancelling the drinks was because of other commitments. A lunch meeting was arranged instead for 9 December 2019.[205]On 4 December 2019, Ms MacLeod emailed the Claimant at around 18:30 to ask him to assist with drafting an indemnity provision for the following day. He replied to say that he could not able to do this as he had Ms Wasserman were busy with other urgent matters that had the same deadline. Ms MacLeod photographed the email and sent it by WhatsApp message to Mr Field with the message, “I knew this would be his response he is such a twat”. Mr Field replied commenting that the Claimant was “lazy and unhelpful.” Another colleague offered to assist instead.[206]On 5 December 2019, Ms MacLeod discovered that the Employment Department was having its Christmas lunch that day, meaning they would all be out of the office for the entire afternoon. In addition, Mr Field observed him arrive at 11 am and informed Ms MacLeod of this by WhatsApp. She replied, “I am spitting 11 am and then a lunch he is a total dick well Michelle may join us so!” Client C[207]In September 2019, the Claimant had received an email from a lawyer said to be acting for a former employee of one of the R1’s clients, Client C. The communication intimated that the employee may seek to pursue legal action against R1’s client. Having looked into the matter, the Claimant emailed Mr Rosenblatt, Mr Field and other colleagues with the advice he suggested be given to the client. This was essentially that the ex-employee was in a very weak position and it was envisaged that it was unlikely she would be foolhardy enough to pursue any kind of claims in the circumstances. Everyone agreed[208]Over two months later, on 21 November 2019, the Claimant received two letters from the ex-employee’s solicitors. The first was a detailed letter before action threatening High Court action and seeking pre-action disclosure under the relevant protocol. The second threatened an employment tribunal claim and made a request for pre-action disclosure. The Claimant did nothing with the letters. He confirmed in his evidence before our hearing that this was an oversight on his part.[209]During the course of a meeting about another matter involving Client C on 4 December 2019, Ms Wasserman mentioned that the Claimant had received the letters. The letters therefore came to the attention of Mr Field by this means on 5 December 2019. He was very unhappy that the letters had been received some two weeks earlier and no-one had informed Client C.[210]On 6 December 2019, Ms MacLeod spoke to the Claimant about the letters, having been alerted to the issue by Mr Field. She suggested to the Claimant he apologise to Mr Field. The Claimant spoke to Mr Field by phone that day, but did not apologise. He told Mr Field that not dealing with the letters was an “oversight” on his part. Mr Field recorded this in a contemporaneous email sent to Mr Walton that day.[211]The Claimant prepared a draft response which he circulated to his colleagues that same day, on 6 December 2019. The circulation list included three dispute resolution partners plus an associate from that team and Ms Wasserman. Mr Field emailed the same group saying the Claimant should not send the letter until he had reverted.[212]Mr Field then made substantial amendments to the Claimant’s draft dealing with the Civil Procedural Rules. The Claimant had not covered these at all.[213]Mr Field circulated it to the same email group saying he intended to send it at 17:15 (twenty minutes later) unless anyone had any further comments. The dispute resolution partners replied praising the redrafted letter, one privately and one to the same group. The Claimant replied to all asking that the letter be held back until he could review it, which he was not able to do in the time frame as he was with clients. He noted that the lawyer acting for Client C’s ex-employee was on annual leave.[214]Mr Field did not comply with the Claimant’s request and sent the letter out. He replied to the Claimant (and the rest of the group) to explain that he was not prepared to allow the letter to go unanswered for any longer as the twoweek delay made Client C’s position appear weak and the firm look inefficient. He added that the amendments he made were to address the points made about the Civil Procedural Rules. These were not amendments that the Claimant would have needed or been able to review. There was no direct criticism of the Claimant in Mr Field’s email.[215]Mr Field planned to make a formal complaint about the Claimant the following week. He told Ms MacLeod and Ms Foulston this. In an exchange of WhatsApp messages between Ms Foulston and Mr Field, Ms Foulston mentioned that she was due to see the Claimant for lunch, but thought she should cancel because Ms MacLeod was dealing with him and she didn’t want to get stuck in the middle. Mr Field agreed.[216]The lunch between Ms Foulston and the Claimant was cancelled. On this occasion we find that it was not because of Ms Foulston’s other diary commitments, but because she wanted to avoid getting embroiled in the latest issue involving the Claimant.[217]At 11:20 on 9 December 2019 Mr Field emailed Ms Foulston and Ms Miller making a complaint against the Claimant that he had not made him or Mr Rosenblatt aware of a letter in which legal action was being threatened on an important client matter. He concluded his email saying that he was unaware of the procedure for dealing with a formal complaint of this nature and asked that Ms Miller and Ms Foulston progress it. In fact, the complaint was never formally progressed and the Claimant was not made aware of it. Subsequent events in December 2019[218]On 17 December 2019, the Claimant sent Ms Miller a short email headed private. In it he said, “As I mentioned this morning, I wanted to speak with you about the treatment I have received from various individuals in the firm following my protected disclosure made in the summer.”[219]Ms Miller did not share the email with anyone. We do not find this surprising given that the Claimant had headed it private. The Claimant did not follow it up either by trying to speak to Ms Miller.[220]In the meantime, unbeknown to the Claimant, as noted above, on the following day, 18 December 2019, Ms MacLeod and Mr Field met with Ms Chance to interview her. Mr Field emailed Ms Miller and Ms Foulston copying in Mr Rosenblatt and Ms MacLeod the following day. He opened his email saying, “What a breath of fresh air”! then added “She gets it and will bring energy to the employment department.” He asked Ms Miller to arrange for the Claimant and Ms Clatworthy (together) to meet Ms Chance in the New Year and Ms Foulston and Mr Rosenblatt.[221]He also emailed Mr Rosenblatt privately and told him, “You will like her. She has sechel!” Mr Rosenblatt replied, “At last! “Is [the Claimant] going to try and kill it?” Mr Field responded saying, “That’s why I’m getting [Ms Clatworthy] to interview with her so he doesn’t!” January 2020[222]On 2 January 2020, Ms Foulston’s PA emailed the Claimant to arrange a catch-up meeting between Ms Foulston and the Claimant. Although the PA offered the Claimant a date, she later had to cancel it after she had spoken to Ms Foulston because Ms Foulston was not going to be available. We find that this was a genuine cancellation.[223]On 9 January 2020, Ms Miller emailed the Claimant to ask him for his availability to meet Ms Chance with Ms Clatworthy. The meeting was arranged for 29 January 2020. It was also arranged that Mr Rosenblatt would meet her separately on 21 January 2020. There was no particular reason why the meetings were arranged in this order. Client I[224]In the meantime, on 16 January 2020 Mr Rosenblatt received feedback from one of his important clients who was not happy with the work the firm had done on a recent transaction. Mr Rosenblatt sent the Claimant an email, copying in Mr Lovitt and Ms Foulston summarising the feedback.[225]The negative feedback included criticisms of the employment team, Mr Alfandary and Mr Lovitt. Mr Rosenblatt recorded in the email that Client I had told him, “the employment team just didn’t show up”.[226]Mr Rosenblatt concluded the email with the following paragraph, “I’m laying this out as neutrally as I can because, as you can imagine, I am actually extremely upset. A great deal of my time and energy goes into cultivating important people. Its not just about doing a good job, it about making sure when he’s talking around and about he only says excellent things about us. To avoid any risk of a defensive slanging match I would like a calm and honest post mortem with you and [Mr Lovitt] so that we can understand what went wrong and why and make sure it doesn’t happen again.”[227]The Claimant has invited us to find that Mr Rosenblatt fabricated the complaint. There is no evidence to support this and we find that it was genuine and that Mr Rosenblatt did not make anything in the email up.[228]Although Mr Lovitt suggested to the Claimant that he should not respond in an email, because doing so would make Mr Rosenblatt even angrier, the Claimant ignored this advice. He sent Mr Rosenblatt an email defending his position.[229]A meeting took place as requested by Mr Rosenblatt the following day. At the meeting, Mr Rosenblatt reiterated his unhappiness with the position. His unhappiness was directed at both the Claimant and Mr Lovitt equally. Mr Rosenblatt was not particularly interested in what either of them had to say in their defence. His focus was on what could be done to regain the client’s confidence.[230]Ms Foulston’s private response to the email to Mr Rosenblatt said, “Jesus I will keep out but this helps the appt of [Ms Chance] to employment and we must get other corporate partners in.”[231]Ms Foulston forwarded the email to Barry Roche who had recently joined R1 in the role of COO in order to enable Ms Foulston to spend more time on strategic matters rather than day to day operations. He commented that the feedback was disappointing and asked if the firm had a key client procedure or team. Ms Foulston replied saying it did not and added, “All yours to sort efficiently. [The Claimant] is an issue.”[232]Following the post mortem meeting, Mr Lovitt agreed a significant reduction to the bill for Client I. Michelle Chance[233]Mr Rosenblatt’s meeting with Ms Chance proceeded as planned on 21 January 2020. He emailed Mr Field, Ms MacLeod and Ms Foulston after meeting her saying, “Michelle Chance is a must have. Loved her. Noel won’t”.[234]Shortly after the meeting, also on 21 January 2020, Ms Chance referred some work to the Claimant in an email copied to Mr Rosenblatt. Mr Rosenblatt emailed Mr Field to ask if the Claimant was aware that they were talking to her. Mr Field confirmed the Claimant was aware.[235]On 29 January 2020 the pre-arranged meeting between the Claimant, Ms Clatworthy and Ms Chance took place. Following the meeting, the Claimant sent a lengthy email to Ms Foulston with a number of points in opposition to the appointment of Ms Chance. His first point was that he thought it was odd that he was one of the last to meet Ms Chance instead of the first and this was at odds with what Ms Foulston had said to him about seeing CVs first.[236]He concluded his email saying, “In short, I think we should have a conversation before any decision is made in view of my above concerns as head of the employment department and the needs for development of the employment team including (but not limited to) the junior members.”[237]Ms Foulston replied that she was off sick and so would respond in more detail later, but explained that the board had already decided the matter and an offer was being issued. She commented as follows about the Claimant’s reference to him being the head of the employment department, “One point needs correction now. You are not head of dept. Your contract and offer letter are clear on this point. For some reason the website was approved by HR (not Julia I hasten to add) to include you as head of department which I didn’t notice for sometime. This was one of the things I wanted to discuss with you when we met which I know has got delayed. Your head of department remains [Ms] MacLeod as the employment team is too small to warrant its own department.”[238]Ms Foulston also rebutted the Claimant’s point about sharing CVs with the him saying, “I did say you would meet the potential employment partners and that the objective was to drive revenues not meet existing employment requirements from existing clients of the firm. I did not say I would share cvs with you as this partner would not work for you but with you.”[239]Ms Foulston had emailed Mr Field on 24 January 2020 under the subject heading “Problem” In her email she said, “[The Claimant] is down as head of employment on the website even though he isn’t! I can’t therefore offer [Ms Chance] that position….not yet sure how to resolve.”[240]Mr Field replied: “Maybe then we should just offer her a role as an Employment partner and then promote a discussion with them both later in the year as to management of the department. I don’t think [Ms Chance] expects to come in as Head. We don’t need [the Claimant] raising a grievance that he is being unilaterally demoted!”[241]On 30 January 2020, Ms Chance was sent an offer of employment as a “Partner within the Employment Department …. reporting to Ms MacLeod, Partner and Head of Dispute Resolution”.[242]The Claimant responded to Ms Foulston’s email of 30 January 2020 saying: “You and I agreed that I was appointed as head of the employment department, this was communicated internally and externally, everyone including you have introduced me to third parties as such.”[243]Ms Foulston forwarded the email to Mr Roche, who replied, “Will discuss with [the Claimant] and adjust attitude.” Ms Foulston wished him good luck in reply with a laughing emoji. She also forwarded Mr Roche’s email to Ms MacLeod, Mr Rosenblatt and Mr Field saying, “This should be interesting. If nothing else [Mr Roche] makes me look more palatable in this people pleasing business of ours” with another laughing emoji.[244]We consider the emails exchange between Mr Field and Ms Foulston and her unguarded emails with and about Mr Roche to be very revealing. In our judgment, they tell us that she was not envisaging that Ms Chance would replace the Claimant or that he would leave. Instead they suggest she was anticipating that they would work alongside each other while Ms Chance settled in. She also envisaged that if Ms Chance was a success, there would be an opportunity in the future to discuss which of her or the Claimant was best place to lead the growing employment team. This was forward thinking. In addition, we interpret her emails about Mr Roche as recognising that the Claimant could be difficult to deal with. They do not suggest that R1 wanted to get rid of the Claimant, however. Instead, there is a suggestion that Ms Foulston had resigned herself to this, but was interested in finding out if Mr Roche’s management of the Claimant would have a positive impact on his behaviour.[245]Ms Foulston’s PA contacted the Claimant on 30 January 2020 (at Ms Foulston’s request) to arrange a time for the Claimant to meet her to discuss the issues in his email. The Claimant was due to be absent on annual leave on the proposed date. He was absent on annual leave until 10 February 2020 so it was not possible to meet until after that. Ms Chance’s Job Title[246]Ms Chance joined R1 on 4 May 2020. This was after the Claimant’s resignation and presentation of his employment tribunal claim.[247]On 1 May 2020, an email discussion took place between Mr Roche, Ms Foulston and Mr Field about the wording of an announcements about her. Mr Field’s position was: “We can announce her joining. Just don’t announce at the moment that she is Head of Employment because that will be inconsistent with the position we have taken in the ET that [the Claimant] was not Head of Department.” Ms Foulston forwarded the email to Ms Chance saying, “FYI can we hold off your title as its to do with our defence below as we state there is no head of employment department as it sits within DR….”[248]The announcement that was made a few days later described Ms Chance as joining the Employment Team within the Dispute Resolution Dept as a Partner.[249]We do not consider this email exchange contradicts the Respondents’ position that there was no Employment Department while the Claimant was employed. The Respondents were able, if they wished, to make her the head of a separate Employment department after the Claimant had left. It is understandable that they would not want to make this change public while the litigation was ongoing. Client G[250]Returning to the events of early 2020, while the Claimant was off on annual leave, Client G contacted Mr Rosenblatt about a disciplinary process that she was involved in. She was a trader working for a large investment bank accused of trading misfeasance. Mr Rosenblatt and Mr Field assisted the client and did not contact either the Claimant or Ms Wasserman about it.[251]The explanation they gave for this is that the help the client needed was not in relation to employment law matters, but was in demonstrating that there had not been any regulatory impropriety. We accept this explanation. The work required was entirely within their knowledge and experience and so they did not need to call on expertise from elsewhere. February 2020[252]The Claimant returned from annual leave on 11 February 2020. On 13 February 2020, Mr Rosenblatt forwarded him an email complaining about Ms Wasserman (11:21)[253]Mr Rosenblatt had referred what he believed to be a very straightforward piece of work to Ms Wasserman on 30 January 2020. She had not completed it by 13 February 2020 because she was busy. As a result, he emailed her expressing unhappiness at her lack of communication with him about this. It was this email that he forwarded to the Claimant, Ms Foulston and Mr Roche. He expressed concern that making the client wait was not the Rosenblatt way and queried whether more resource was needed or she needed help managing her time.[254]Ms Wasserman very quickly replied to Mr Rosenblatt’s email apologising (11:36) and sent the client a draft a few minutes later (11:48).[255]Unaware of this, Mr Roche agreed with Ms Foulston that he would pick the issue up. He spoke to both the Claimant and Ms Wasserman and reported back that the issue was being resolved, but he would try and discover why it had arisen once it had been. He told Ms Foulston that the Claimant was “very defensive.”[256]Later that same day Mr Deans sent an email to Mr Rosenblatt defending Ms Wasserman (18:13). Mr Rosenblatt sent a lengthy email in reply which he then copied to Mr Roche and Ms Foulston. Mr Rosenblatt’s reply explained that had Ms Wasserman told him that the client had said that there was no rush when he had asked her about the work, he would not be complaining. However, his concern was that’s he had simply responded saying she was busy which he felt was not satisfactory. With regard to the Claimant’s response, he added: “I copied you [into the email to Ms Wasserman] as you are her superior not because you were involved or aware so your personal lack of responsibility is accepted but it is right that I draw things like this to your attention assuming as I do that you and she communicate with each other Some people might think that an appropriate response to me would be 1. I’m glad [Ms Wasserman] has sorted this out with you 2. let me know if there’s anything I can do to ensure this is delivered smoothly to the client Instead you say 1. Nothing to do with me 2. You, Ian ,knew wasn’t in a rush ( which I didn’t) This is tiring I hope I don’t have to have any more issues with [Ms Wasserman] whom I like a great deal and respect but if I do I won’t bother telling you again.”[257]Mr Roche offered to speak further with the Claimant, but Mr Rosenblatt told him that there was no need as the point had been made. Ms Foulston replied simply, “FFS”.[258]At the end of the week, on 14 February 2020 (17:24) Mr Roche sent Ms Foulston an email summarising the events of the week and his thoughts on them. He mentioned this incident saying as follows: “I wasn’t impressed with [the Claimant’s] attitude in regard to the [Ms Wasserman] incident and his name seems to be attached to a lot of negative feeling. I have not discussed this with him yet as I wanted to discuss with you on your preferred way forward. I thought [Mr Rosenblatt] was quite measured given the Claimant’s response.”[259]In the same email, Mr Roche commented on the new HR manager that had recently arrived at R1. Of her, he said: “Marcia seems to be settling in well, I think she will need to adapt to a more “Entrepreneurial” business environment than she has experienced in her previous roles. She seems to be well received and there are no alarm bells yet.”[260]The Claimant invited us to find that this comment about alarm bells and Marcia was very odd and, given that she is a black woman, was evidence of racial bias from Mr Roche. We do not think the comment is odd at all in the context that Marcia was a new hire in an important role and in her probationary period. The email also says positive things about Marcia too and what she had done that week. Resignation[261]On Friday 14 February 2020, at 19:53 the Claimant sent Ms Foulston a lengthy emailing resigning from his employment. In his email he said that he considered his employment had become untenable for three reasons, namely: “1. Race discrimination 2. Retaliation for making a protected disclosure 3. Demotion without cause.” He then expanded on each of these.[262]Under the heading Race Discrimination, the Claimant cited the following examples:• The fist bump incident (referred to in his letter as a fist touch)• The pre IPO dinner incident• The fact that Ms Foulston had told the Claimant that Mr Rosenblatt did not like him• A complaint that Mr Rosenblatt had attempted to avoid or prevent the Claimant becoming involved in numerous work matters including by passing him and asking junior team members to do the work instead. The Claimant gave the Client F matter as an example.• Mr Rosenblatt’s unjustified criticism of the employment team in relation to the transaction involving Client I[263]Under the heading Reprisal for Protected Disclosure, the Claimant explained that there had been an escalation of conduct against him following his withdrawal from the SP tribunal. He cited the following examples:• The room move issue• The decision to recruit a new employment partner• A complaint that Mr Field, like Mr Rosenblatt, had been bypassing the Claimant when it came to work matters• The Client C issue• The email sent to him by Ms Foulston that told the Claimant he was not the Head of the Employment Department[264]Under the heading Constructive Dismissal, the Claimant said that he believed the examples he had cited, which he added were not an exhaustive list, “show that the implied term of trust and confidence has been repudiated by the company.”[265]The Claimant then said: “Although I wish to terminate my employment with immediate effect and make an urgent application to the employment tribunal for an interim order for my salary and benefits to be paid until my claims have been determined following a full hearing, I do not want to leave innocent third parties in the lurch because of the company’s repudiatory conduct and my actions in response (unless absolutely necessary). I have a strong relationship with the client whose two cases are coming up for a preliminary and full hearing and my professional integrity prevents me from leaving them unsupported during a critical stage in its litigation. With this in mind, I would be willing to delay my immediate resignation until the last of the two hearings which will end on 8 April.”[266]Ms Foulston shared the email with Mr Rosenblatt and others. On 15 February 2020, Mr Rosenblatt emailed the Claimant and sent him a text message requesting he provide him with personal contact details and indicating that he intended to pursue defamation proceedings against him personally. Both messages were carefully crafted using professional lawyerly language. The Claimant did not respond.[267]On 16 February 2020, at 12:32, Ms Foulston emailed the Claimant acknowledging his email. She noted that he had raised several very serious complaints which would need to be investigated before she could provide a substantive response. She also dealt with the Claimant’s proposed termination date saying that he should continue to work as normal and she would get back to him about the proposed termination date of 8 April 2020 once she had a better understanding of the client’s needs. 17 February Incident[268]On 17 February 2020, at 08:07, Mr Rosenblatt sent Ms Foulston a formal grievance complaining about the Claimant’s resignation letter. He copied the Claimant into the email. In it, he noted that the Claimant had targeted only Mr Field and himself who were both Jewish. He added that the Claimant had previously made a comment to him which he had taken to be an antisemitic remark, but about which he had decided not to take action at the time.[269]Later that same day, at around 11:30, Mr Rosenblatt visited the Claimant in his office. This led to an altercation between them. Precisely what occurred and was said is disputed and we are required to make findings of fact about it.[270]The Claimant and Mr Rosenblatt both covered the altercation in their witness evidence. They both made contemporaneous notes of the event. Mr Rosenblatt typed his version of events up in an email sent to Ms Foulston, Mr Field, Mr Roche at 12:14. The Claimant had made a handwritten note of his version of events later that day. His handwritten, signed, note is dated 17 February and shows the time of 16:42. He also sent an email to Ms Foulston, Mr Rosenblatt and Mr Field at 20:15. Mr Rosenblatt replied to the email rebutting the contents at 22:06. Despite Ms Foulston asking that there be no further email exchanges about the matter, the Claimant sent a further email the next day at 13:54.[271]We have treated the notes with some caution as both men were angry and agitated as a result of the incident which may have impacted on their ability to recall it precisely. In addition, we approached interpreting them knowing that both may have been motivated to bolster their own positions when writing the notes.[272]There were two other witnesses to parts of the altercation. Mr Roche was called to intervene. He made a record later in the day at 16:59. His note recorded that he had been called into a meeting taking place between the Claimant and Mr Rosenblatt. When he arrived, he found Mr Rosenblatt was seated and the Claimant was standing. According to him, the Claimant left to get Ms Wasserman and then returned with her and said that he had been called an anti-Semite by Mr Rosenblatt and he wanted her to witness it. He said Mr Rosenblatt did not comment but dialled his phone and then left. Mr Roche was not present at the tribunal hearing.[273]Ms Wasserman, a witness at our tribunal hearing, was also the second witness to the some of the interaction. She did not make a contemporaneous note. She confirmed in her evidence to the tribunal that she had heard shouting coming from the Claimant’s room, but only entered the room when Claimant in an agitated state came to her room and asked her to accompany him back to his office. She could only therefore say what happened at the tail end of the altercation.[274]We find that Mr Rosenblatt shouted at the Claimant during the incident. He also referred to the Claimant as an antisemite at least twice and most probably more than this. He said this to the Claimant directly and then repeated it in front of Mr Roche and Ms Wasserman. Mr Rosenblatt admitted in his subsequent contemporaneous correspondence that he had “lost my cool” and called him a “fucking antisemite.”[275]We do not find that Mr Rosenblatt told the Claimant he was going to “destroy” or “finish” him, or that he said he would “financially ruin” or “bankrupt” the Claimant and that he “didn’t know who he was fucking with”.[276]Had he said these things, we are confident that Mr Rosenblatt would have self-reported that some of these things as part of his contemporaneous report in the same way he reported losing his cool and swearing at the Claimant. In addition, given Mr Rosenblatt’s style of communication by email, we felt sure that some of these comments would have made their way into the email exchange that took place with the Claimant after the incident. They did not. For example he quite happily referred to the Claimant as deranged in this correspondence. Had it been in Mr Rosenblatt’s mind that his threat to take legal action against the Claimant would result in his financial ruin, we consider he would have said this expressly.[277]Instead, Mr Rosenblatt’s account is that the Claimant’s reaction to Mr Rosenblatt telling him he intended to pursue legal proceedings against him was that it was the Claimant who said he was going to bury Mr Rosenblatt. We think this is consistent with some of the points both men mention in their contemporaneous notes. We are thinking of the fact that the Claimant mentioned a time when Mr Rosenblatt made a rude and dismissive comment about a client in front of others and that the Claimant accused him of bugging offices. In our judgment, these are the kinds of detail that a person might mention to someone in the context of telling them they would bury them in any future litigation rather than the other way around. End of Employment[278]The Claimant continued in work after the incident, but on 19 February 2020 at 16:42 he emailed Ms Foulston to say that he had sleepless nights since the incident on Monday and felt unwell. He said that he did not feel safe and had therefore decided to work from home until his hearing on the Friday. He added that his employment would end at that point.[279]The Claimant treats 21 February 2020 as his last date of employment.[280]On 24 February 2020, Herbert Smith Freehills wrote to the Claimant on behalf of R1. In the letter, it was stated that R1 denied that it had acted in repudiatory breach of the Claimant’s contract of employment. It was asserted, on behalf of R1, that the Claimant by purporting to resign with immediate effect on 21 February 2020 without providing the requisite notice under his contract of employment was himself in repudiatory breach. As such, R1 confirmed that it was accepting that breach and that the Claimant’s employment would terminate from that date with immediate effect.[281]The termination date of 24 February 2020 was also confirmed to the Claimant in a letter directly from R1. THE LAW Protected Disclosures
THE LAW
[282]According to section 43A of the Employment Rights Act 1996 (ERA), a “protected disclosure” means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H ERA.[283]Section 43B(1) ERA says a “qualifying disclosure” means any disclosure of 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,(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,(d) that the health or safety of any individual has been, is being or is likely to be endangered,(e) that the environment has been, is being or is likely to be damaged, or(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed. Disclosure of Information[284]There must be a disclosure of information. In Cavendish Munro Professional Risks Management Ltd v Geduld [2010] IRLR 38, the EAT held that to be protected a disclosure must involve information, and not simply voice a concern or raise an allegation.[285]The Court of Appeal has subsequently cautioned tribunals against treating the categories of "information" and "allegation" as mutually exclusive in the case of Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436. At paragraphs 30 -31, Sales LJ says: “I agree with the fundamental point …….. that the concept of “information” as used in section 43B(1) is capable of covering statements which might also be characterised as allegations. …….Section 43B(1) should not be glossed to introduce into it a rigid dichotomy between “information” on the one hand and “allegations” on the other. …… On the other hand, although sometimes a statement which can be characterised as an allegation will also constitute “information” and amount to a qualifying disclosure within section 43B(1), not every statement involving an allegation will do so. Whether a particular allegation amounts to a qualifying disclosure under section 43B(1) will depend on whether it falls within the language used in that provision.”[286]He goes on to say at paragraph 35: “In order for a statement or disclosure to be a qualifying disclosure according to this language, it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection [43B](1).”[287]A disclosure may concern new information, in the sense that it involves telling a person something of which they were previously unaware, or it can involve drawing a person's attention to a matter of which they are already aware (section 43L(3), ERA 1996).[288]It is important that we take into account what was said as a whole, rather than take a fragmented view of individual communications (Norbrook Laboratories (GB) Ltd v Shaw 2014 ICR 540, EAT). Public Interest Test[289]The leading case dealing with when the public interest test is met is Chesterton Global Ltd & Anor v Nurmohamed & Anor [2017] EWCA Civ 979. The Court of Appeal confirmed that where a disclosure relates to a breach of a Claimant’s own contract of employment, or some other matter under where the interest in question is personal in character, there may nevertheless be features of the case that make it reasonable to regard the disclosure as being in the public interest as well as in the personal interest of the worker. Each case will depend on its own facts and context.[290]Factors that may be helpful to consider include:(a) The numbers of people whose interests may be impacted by the disclosure;(b) The nature and extent of the interests involved and the impact(c) The nature of the wrongdoing disclosed(d) The identity of the alleged wrongdoer Reasonable Belief[291]The requirement for reasonable belief requires the tribunal to identify what the Claimant genuinely believed and to consider whether it was objectively reasonable for the Claimant to hold that belief. We must consider this question in light of the particular circumstances including the Claimant’s level of knowledge. (Korashi v Abertawe Bro Morgannwg University Local Health Board [2012] IRLR 4, EAT).[292]The tests are whether the Claimant reasonably believes the information disclosed shows a relevant failure has occurred, is occurring or is likely to occur and his or her disclosure is made in the public interest. Whether or not it is true that a relevant failure has occurred, is occurring or is likely to occur or that a disclosure is genuinely in the public interest is not essential. The matters are not entirely irrelevant, however, and should be taken into account when considering the objective reasonableness of the Claimant’s belief (Darnton v University of Surrey 2003 [ICR] 615, EAT; Babula v Waltham Forest College [2007] ICR 1026, CA).[293]The assessment should be made of the beliefs the Claimant had at the time of when making the disclosure and not with the benefit of hindsight (Jesudason v Alder Hey Children’s NHS trust [2020] ICR 1226). To whom must a qualifying disclosure be made in order to be protected?[294]Section 43C(1)(a) ERA 1996 confirms that a qualifying disclosure made to an employee’s employer attracts protection. Detriments[295]Section 103A ERA provides that “An employee who is dismissed shall be regarded for the purposes of this part as unfairly dismissed if the reason (or if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure”.[296]Section 47B will be infringed if the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer’s treatment of the whistleblower, whereas section 103A requires the protected disclosure to be “the principal reason” for the dismissal. In both cases, an enquiry into what facts or beliefs caused the decision-maker to act is necessary. Claims Based on Protected Disclosures under the Employment Rights Act[297]Section 47B ERA 1996 gives an employee the right not to be subjected to a detriment on the ground that he has made a protected disclosure. Further information about the legal test as to what constitutes a protected disclosure is set out below.[298]Section 47B in full says the following: (1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. (1A) A worker (“W”) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done— (a) by another worker of W's employer in the course of that other worker's employment, or (b) by an agent of W's employer with the employer's authority, on the ground that W has made a protected disclosure. (1B) Where a worker is subjected to detriment by anything done as mentioned in subsection (1A), that thing is treated as also done by the worker's employer. (1C) For the purposes of subsection (1B), it is immaterial whether the thing is done with the knowledge or approval of the worker's employer. (1D) In proceedings against W's employer in respect of anything alleged to have been done as mentioned in subsection (1A)(a), it is a defence for the employer to show that the employer took all reasonable steps to prevent the other worker— (a) from doing that thing, or (b) from doing anything of that description. (1E) A worker ….. is not liable by reason of subsection (1A) for doing something that subjects W to detriment if— (a) the worker or agent does that thing in reliance on a statement by the employer that doing it does not contravene this Act, and (b) it is reasonable for the worker or agent to rely on the statement. But this does not prevent the employer from being liable by reason of subsection (1B).[299]Section 47B ERA 1996 gives a Claimant the right not to be subjected to a detriment on the ground that he has made a protected disclosure. The term "detriment" is not defined in ERA 1996 and tribunals have therefore looked to the meaning of detriment established by discrimination case law. 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 had to work.[300]Where an employee is bringing a claim for a detriment against his employer, this is pursued under section 47B. However, where the detriment complained of is dismissal, the employee must pursue the complaint against his employer as one of automatic unfair dismissal by virtue of section 47B(2).[301]An automatic unfair dismissal claim pursued by an employee against their employer based on the making of a protected disclosure must therefore be pursued under Section 103A ERA. It provides that “An employee who is dismissed shall be regarded for the purposes of this part as unfairly dismissed if the reason (or if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure”.[302]Claims based on the making of a protected disclosure can also be brought by employees against their work colleagues by virtue of section 47(1A) Employment Rights Act 1996. Section 47(1B) tell us that an employer is also vicariously liable for the detriment meted out by any of its employees, subject to the provisions of sub-sections 47(1C) to (1E).[303]The additional sub-sections potentially give the employer and separately the work colleague a defence to being held liable. For the employer, the defence arises where it can show it took all reasonable steps to stop the work colleague from acting as they did. For the work colleague, the defence relies on them being able to say they were following their employer’s instructions and it was reasonable for them to do so.[304]In a detriment case under section 47B(1) or (1A), the test is whether the employee’s protected disclosure materially influenced the treatment of the employee, whether this the treatment by the employer or work colleague. The burden of proof is on the Claimant.[305]Where the claim is one of dismissal under section 103A, the test is whether the protected disclosure was the principal reason for the employer’s decision to dismiss the claimant. This is a more onerous test. Again, the burden of proof is on the Claimant.[306]Where the detriment complained of against an individual respondent is dismissal, this continues as a detriment claim under section 47B(1B). The causation test that is applied is the less onerous test of material influence. This means the employer will be liable, for dismissal if the case is made out on the less onerous test of causation and there is no defence under section 47B(1D). Good Faith[307]In a successful claim brought under the protected disclosure provisions, a tribunal has the power to reduce a claimant’s compensation, by up to 25%, where it finds that the protected disclosure was not made in good faith. This is dealt with in sections 49(6A) and 123(6A) ERA.[308]The leading case on what is meant by making a protected interest disclosure in good faith is Street v Derbyshire [2005] ICR 97 (CA). Although sections 49(6A) and 123(6A) ERA did not exist at the time the case was decided we consider the guidance given in the case remains relevant to the new sections.[309]That guidance was that the tribunal can consider not only whether a protected disclosure was made honestly, in the sense that the claimant genuinely believed it, but also their motive for making it. Time Limits – Protected Disclosure Cases[310]In a detriment case, the relevant time limit is found in section is found in section 48(3) of the Employment Rights Act 1996, which says: An employment tribunal shall not consider a complaint under this section unless it is presented—(a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.[311]The normal three month time limit is adjusted for the Acas early conciliation process.[312]Section 48(4) adds that for the purposes of subsection 48(3):(a) where an act extends over a period, the “date of the act” means the last day of that period, and(b) a deliberate failure to act shall be treated as done when it was decided on; and, in the absence of evidence establishing the contrary, an employer …..shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done.[313]When read together, the operation of sections 48(3)(a) and 48(4) mean that the position is similar for where there is a series of detriments, allegedly done on the ground of a protected act, to a continuing act for discrimination purposes. Provided the tribunal is satisfied that there has been a series of detriments that are sufficiently similar, we are able to consider the time point based on the date of the last detriment.[314]In addition, the section contains an extension of time test. This is a very strict two stage test. It arises where:(a) the Claimant can show that it was not reasonably practicable for him to present the claim within the normal time limit, as adjusted for Acas early conciliation; and(b) the claim has been presented within a reasonable time after the normal time limit.[315]The factors that can be taken into account, when considering this will vary from case to case (Marks & Spencer plc v Williams-Ryan [2005] EWCA Civ 470). Direct Race Discrimination[316]Race is one of the protected characteristics identified in section 4 of the Equality Act 2010. Section 9(1) of the Equality Act 2010 says race as includes colour, nationality and ethnic or national origins.[317]Section 39(2) of the Equality Act 2010 prohibits an employer discriminating against one of its employees by dismissing him or by subjecting the employee to a detriment. The forms of discrimination prohibited by section 39 include direct discrimination because of a protected characteristic as defined in section 13.[318]Section 13 of the Equality Act 2010 provides that ‘A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others’.[319]Under section 23(1), where a comparison is made, there must be no material difference between the circumstances relating to each case. It is possible to compare with an actual or hypothetical comparator.[320]In order for the tribunal to find discrimination has occurred, there must be some evidential basis on which we can infer that the Claimant’s protected characteristic is the cause of any less favourable treatment. We can take into account a number of factors including an examination of circumstantial evidence.[321]We must consider whether the fact that the claimant had the relevant protected characteristic had a significant (or more than trivial) influence on the mind of the decision maker. The influence can be conscious or unconscious. It need not be the main or sole reason, but must have a significant (i.e. not trivial) influence and so amount to an effective reason for the cause of the treatment.[322]In many direct discrimination cases, it is appropriate for a tribunal to consider, first, whether the claimant received less favourable treatment than the appropriate comparator and then, secondly, whether the less favourable treatment was because of race. However, in some cases, for example where there is only a hypothetical comparator, these questions cannot be answered without first considering the ‘reason why’ the claimant was treated as she was.[323]Section 136 of the Equality Act sets out the relevant burden of proof that must be applied. A two-stage process is followed. Initially it is for the claimant to prove, on the balance of probabilities, primary facts from which we could conclude, in the absence of an adequate explanation from the respondent, that the respondent committed an act of unlawful discrimination.[324]At the second stage, discrimination is presumed to have occurred, unless the respondent can show otherwise. The standard of proof is again on the balance of probabilities. In order to discharge that burden of proof, the respondent must adduce cogent evidence that the treatment was in no sense whatsoever because of the claimant’s race. The respondent does not have to show that its conduct was reasonable or sensible for this purpose, merely that its explanation for acting the way that it did was nondiscriminatory.[325]Guidelines on the burden of proof were set out by the Court of Appeal in Igen Ltd v Wong [2005] EWCA Civ 142; [2005] IRLR 258 and we have followed those as well as the direction of the court of appeal in the Madarassy case. The decision of the Court of Appeal in Efobi v Royal Mail Group Ltd [2019] ICR 750 confirms the guidance in these cases applies under the Equality Act 2010.[326]The Court of Appeal in Madarassy, states: ‘The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that on the balance of probabilities, the respondent had committed an unlawful act of discrimination.’ (56)[327]It may be appropriate on occasion, for the tribunal to take into account the respondent’s explanation for the alleged discrimination in determining whether the claimant has established a prima facie case so as to shift the burden of proof. (Laing v Manchester City Council and others [2006] IRLR 748; Madarassy v Nomura International plc [2007] IRLR 246, CA.) It may also be appropriate for the tribunal to go straight to the second stage, where for example the respondent assert that it has a non-discriminatory explanation for the alleged discrimination. A claimant is not prejudiced by such an approach since it effectively assumes in his favour that the burden at the first stage has been discharged (Efobi v Royal Mail Group Ltd [2019] ICR 750, para 13).[328]In addition, there may be times, as noted in the cases of Hewage v GHB [2012] ICR 1054 and Martin v Devonshires Solicitors [2011] ICR 352, where we are in a position to make positive findings on the evidence one way or the other and the burden of proof provisions are not particularly helpful. When we adopt such an approach, it is important that we remind ourselves not to fall into the error of looking only for the principal reason for the treatment, but instead ensure we properly analyse whether discrimination was to any extent an effective cause of the reason for the treatment.[329]Allegations of discrimination should be looked at as a whole and not simply on the basis of a fragmented approach Qureshi v London Borough of Newham [1991] IRLR 264, EAT. We must “see both the wood and the trees”: Fraser v University of Leicester UKEAT/0155/13 at paragraph 79.[330]Our focus “must at all times be the question whether or not they can properly and fairly infer… discrimination.”: Laing v Manchester City Council, EAT at paragraph 75. Race Related Harassment[331]Section 40(1)(a) of the Equality Act 2010 provides that an employer must not, in relation to employment by it, harass a person who is one of its employees. The definition of harassment is contained in section 26 of the Act and says: “A person(a) (A) harasses another(b) (B) if (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.”[332]A similar causation test applies to claims under section 26 as described above to claims under section 13. The unwanted conduct must be shown “to be related” to the relevant protected characteristic.[333]The shifting burden of proof rules set out in section 136 of the Act can be helpful in considering this question. The burden is on the claimant to establish, on the balance of probabilities, facts that in the absence of an adequate explanation from the respondent, show he has been subjected to unwanted conduct related to the relevant characteristic. If he succeeds, the burden transfers to the respondent to show prove otherwise.[334]Harassment does not have to be deliberate to be unlawful. If A's unwanted conduct (related to the relevant protected characteristic) was deliberate and is shown to have had the purpose of violating B's dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for B, the definition of harassment is made out. There is no need to consider the effect of the unwanted conduct.[335]If the conduct was not deliberate, it may still constitute unlawful harassment. In deciding whether conduct has the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for B, we must consider the factors set out in section 26 (4), namely:(a) the perception of B;(b) the other circumstances of the case;(c) whether it is reasonable for the conduct to have that effect.[336]The shifting burden of proof rules can also be helpful in considering the question as to whether unwanted conduct was deliberate. The Relationship Between Detriment and Harassment[337]In the definitions section of the Equality Act (section 212(1)) we are told that a detriment does not include conduct that amounts to harassment. The conduct complained of by the Claimant, if proven to have taken place, cannot therefore constitute both a detriment arising from direct race discrimination and race related harassment. Victimisation[338]Section 39(4)(d) of the Equality Act 2010 provides that an employer must not victimise its employees. The definition of victimisation is contained in section 27 of the Act and says: ‘A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.’[339]The definition of a protected act is found in section 27(2) and includes:(a) bringing proceedings under the Equality Act 2010;(b) giving evidence or information in connection with proceedings under the Equality Act 2010;(c) doing any other thing for the purposes of or in connection with the Equality Act 2010; and(d) making an allegation (whether or not express) that an employer or another person has contravened the Equality Act 2010[340]Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith (section 27(3)).[341]The meaning of bad faith for the purposes of this section was considered by the EAT in the case of Saad v Southampton University Hospitals NHS Trust [2018]. There it was held that the primary consideration was whether the person giving the false evidence or information or making a false allegation nevertheless did so honestly, in that they subjectively believed it at the time. The EAT decision held that this was more important that any ulterior motive, but did not rule out that an ulterior motive might be taken into account as well.[342]If the tribunal is satisfied that the Claimant has done a protected act, the Claimant must show any detriments occurred because he had done a protected act. It is only if the necessary link between the detriment suffered and the protected act can be established, the claim of victimisation will succeed. The protected act need only be one of the reasons. It need not be the only reason (EHRC Employment Code paragraph 9.10). The shifting burden of proof found in section 136 of the Equality Act 2010 applies. Time limits – Discrimination, Harassment and Victimisation claims[343]The relevant time-limit is at section 123 Equality Act 2010. According to section 123(1)(a) the tribunal has jurisdiction where a claim is presented within three months of the act to which the complaint relates.[344]The normal three-month time limit needs to be adjusted to take into account the early conciliation process and any extensions provided for in section 140B Equality Act.[345]By subsection 123(3)(b), a failure to do something is treated as occurring when the person in question decided on it. In the absence of evidence to the contrary. A person is taken to decide on a failure to do something when that person does an act which is inconsistent with doing it or, in the absence of such an inconsistent act, on the expiry of the period on which that person might reasonably have been expected to do it.[346]By subsection 123(3)(a), conduct extending over a period is to be treated as done at the end of the period.[347]In Hendricks v Metropolitan Police Commissioner [2002] EWCA Civ 1686, the Court of Appeal stated that the test to determine whether a complaint was part of an act extending over a period was whether there was an ongoing situation or a continuing state of affairs in which the Claimant was treated less favourably. An example is found in the case of Hale v Brighton and Sussex University Hospitals NHS Trust UKEAT/0342/17 where it was determined that the Respondent’s decision to instigate disciplinary proceedings against the Claimant created a state of affairs that continued until the conclusion of the disciplinary process.[348]Alternatively, the tribunal may still have jurisdiction if the claim was brought within such other period as the employment tribunal thinks just and equitable as provided for in section 123(1)(b).[349]The tribunal has a wide discretion to extend time on a just and equitable basis. As confirmed by the Court of Appeal in Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23, the best approach is for the tribunal to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time. This will include the length of and reasons for the delay, but might, depending on the circumstances, include some or all of the suggested list from the case of British Coal Corporation v Keeble [1997] IRLR 36.[350]It is for the Claimant to show that it would be just and equitable to extend time. The exercise of discretion should be the exception, not the rule (Bexley Community Centre (t/a Leisure Link) v Robertson [2003] EWCA Civ 576). Constructive Unfair Dismissal[351]Section 95(1)(c) of the Employment Rights Act 1996 provides that an employee is taken to be dismissed by his employer if “the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct”.[352]It is established law that(i) conduct giving rise to a constructive dismissal must involve a fundamental breach of contract by the employer;(ii) the breach must be an effective cause of the employee’s resignation; and (ii) the employee must not, by his or her conduct, have affirmed the contract before resigning (Western Excavating v Sharp [1978] Q.B. 761)[353]The burden of proof lies with the Claimant to establish that, on the balance of probabilities, there has been a fundamental breach of contract.[354]In this case the Claimant claims there was a breach of what is known as the implied term of trust and confidence. A breach of this implied term is necessarily a repudiatory breach of contract (Morrow v Safeway Stores 2002 IRLR 9).[355]The implied term of trust and confidence in full, as owed by the employer to an employer, is articulated as follows: “The employer shall not without reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between employer and employee”[356]It is relevant to note that there are two limbs to it. When deciding whether or not it has been breached, we need to consider not simply whether there was conduct by the employer which destroyed trust and confidence, but also employer had reasonable and proper cause to act as it did.[357]It is the impact of the employer’s behaviour, assessed objectively, on the employee that is significant - not the intention of the employer (Malik v BCCI [1997] IRLR 462). It is irrelevant that the employer does not intend to damage the relationship, if the impact of the employer’s conduct, judged sensibly and reasonably, is such that the employee cannot be expected to put up with it (Woods – v- Car Services (Peterborough) Limited) [1981] ICR 666.[358]Discriminatory conduct on the part of the employer will usually breach the term of mutual trust and confidence, but this is by no means certain (Ahmed v Amnesty International 2009 ICR 1450). The position is similar where an employer subjects an employee to a detriment because of a protected act. The tribunal must make an objective and context specific assessment of the employer’s behaviour. The subjective view of the Claimant, while relevant, is not determinative.[359]Usually, in order to succeed in a claim of constructive unfair dismissal, an employee must act promptly in response to the employer’s conduct said to amount to a breach and resign within a reasonable period. If this is not done, the employee is treated as having waived the breach and affirmed the contact of employment.[360]The breach of the implied obligation of trust and confidence can consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so. In such circumstances, known as “last straw” cases, the position in relation to affirmation of the contract is modified.[361]In Kaur v Leeds Teaching Hospitals NHS Trust 2018 EWCA Civ 978 the Court of Appeal listed 5 questions that should be asked in order to determine whether an employee has been constructively dismissed in a “last straw” case:(a) What was the most recent act (or omission) on the part of the employer which the employee says cause, or triggered, his or her resignation? We note that in Omilaju v Waltham Forest LBC [2005] ICR the Court of Appeal said that the last act may be relatively insignificant, but must not be utterly trivial.(b) Has he or she affirmed the contract since that act?(c) If not, was that act (or omission) by itself a repudiatory breach of contract?(d) If not, was it nevertheless a part of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the implied term of trust and confidence? (If it was, there is no need for any separate consideration of a possible previous affirmation)(e) Did the employee resign in response (or partly in response) to that breach? (Nottinghamshire County Council v Meikle [2004] EWCA Civ 859).[362]Where a tribunal finds that there is a dismissal within the terms of section 95(1)(c) we must consider whether that dismissal was fair or unfair within the terms of section 98 of the ERA. In these circumstances it is for the employer to show what was the reason for the dismissal and whether that reason was a potentially fair reason for dismissal falling within section 98(1).[363]It is somewhat artificial to require an employer who denies having dismissed an employee to show a reason for the dismissal. The Court of Appeal addressed this problem in Berriman –v- Delabole Slate Limited 1985 ICR 546 where the Court said that, in the case of a constructive dismissal, the reason for the dismissal is the reason for the employer’s breach of contract that caused the employee to resign. This is determined by analysis of the employer’s reasons for so acting, not the employee’s perception (Wyeth v Salisbury NHS Foundation Trust UK EAT/061/15).[364]However, even where there is a potentially fair reason for dismissal, the question is whether in the circumstances the employer acted reasonably or unreasonably in treating that reason as a sufficient reason for dismissing the employee. In practice, what this means in a constructive dismissal case is that we should ask ourselves whether the employer’s reason for committing the fundamental breach of contract was, in the circumstances, sufficient to justify that breach.[365]A claim of wrong dismissal is simply a claim made on the basis that the Claimant’s contract of employment has not been terminated in line with its contractual termination provisions. ANALYSIS AND CONCLUSIONS[366]As can be seen from the list of issues, there was a degree of overlap in the Claimant’s claim, with many of the same incidents being argued as complaints of direct race discrimination, race related harassment, victimisation and detriments because of protected disclosures. The Claimant also argued that many of the same incidents amounted to breaches of the duty of trust and confidence. To assist readers in navigating our decision we have included relevant extracts from the lists of issues in italics. Early Complaints – Race Related Harassment and Direct Race Discrimination[367]We began by considering the very early complaints, dating back to when the Claimant joined the Respondent’s predecessor in May 2017 and the preIPO dinner in April 2018. The Claimant argued that these incidents were either race related harassment or direct race discrimination. He understood they could not be both because of the operation of section 212 of the Equality Act 2010. We first considered if they were race related harassment. The Third Respondent, shortly after the commencement of the Claimant’s employment in May 2017, greeting the Claimant with a fist punch [the Tribunal prefers the phrase fist bump] rather than a professional handshake.[368]Our finding of fact was that Mr Rosenblatt did greet the Claimant with a fist bump rather than a professional handshake shortly after the Claimant commenced work.[369]We first considered whether this conduct constituted race related harassment. We decided it did not.[370]In reaching this conclusion we observe that many types of greeting gesture are associated with particular racial groups. In our judgment, the fist bump is such a gesture. It has a strong association as a greeting between black men and often as part of the greeting known as the Dap. Although used more widely and by different racial groups by 2017 when the incident happened, that original association remains.[371]In addition, and of particular relevance to this case, is that the fist bump is associated with being a greeting gesture used in an informal setting. By contrast, in a formal situation, a handshake would be the expectation.[372]We have accepted the evidence provided by Mr Rosenblatt and his white colleagues that Mr Rosenblatt often used a fist bump as an informal welcoming gesture with them. He did not consider his use of the gesture to have any underlying racial association. All of the people who told us Mr Rosenblatt fist bumped them, however, had known him for a long time.[373]At the time the fist bump occurred, Mr Rosenblatt had met the Claimant at interview and then at the subsequent drinks party. We find Mr Rosenblatt used the gesture because he felt enthusiastic about welcoming the Claimant to his firm. It was an extension of the enthusiasm with which he had confirmed by email “He’s the man for us” and that he did not intend to cause any offence to the Claimant at the time. Intention to cause offence is not a necessary component of harassment, however.[374]The question we have asked ourselves is whether the conduct had the effect of violating the Claimant’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for him taking into account the Claimant’s perception, the other circumstances and whether it is reasonable for the conduct to have that effect.[375]The Claimant did not react negatively to the fist bump and participated in it willingly. We nevertheless consider it is entirely understandable that he felt uncomfortable at Mr Rosenblatt’s choice of greeting, given that he would normally have expected a handshake in the context. Although they had met previously, Mr Rosenblatt and the Claimant did not know each other very well at all at the time the fist bump occurred.[376]Although a misjudgement on Mr Rosenblatt’s behalf and insensitive, we do not find the conduct met the threshold for constituting unlawful race -related harassment. This is because it was a one off gesture, which by itself did not violate the Claimant’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for him. Had it been repeated and had Mr Rosenblatt singled the Claimant out for this type of greeting, we would have found the threshold had been crossed. In reaching this decision we are aware that one off gestures are often sufficient to constitute harassment, but we do not think that was the case here.[377]Having found that the conduct did not constitute race related harassment, we considered whether it was direct race discrimination. We were satisfied that it was not.[378]Although we had observed that the gesture of fist bumping had an original strong association with race, we considered that that association was not of the type to mean that use of the gesture should be treated as inherently discriminatory. We were satisfised that Mr Rosenblatt used the fist bump as a greeting gesture regardless of race and therefore when using it with the Claimant it did not constitute less favourable treatment of him when compared with the comparators he identified. The Second Respondent, at a pre-IPO partner dinner in April 2018 at the Third Respondent’s house, stating, during the course of a speech, “it’s like trying to spot a nigger in the field/woodpile” in the presence of the Claimant. The Third Respondent, on the same occasion, laughing uncontrollably at what the Second Respondent had said, before telling her that “[she could] not say that”.[379]Ms Foulston admitted using a phrase which contained the word nigger. We found that Mr Rosenblatt did not laugh uncontrollably when she did this, but immediately admonished her and therefore the second allegation that arises out of the same incident fails on its facts.[380]Using the phrase containing the word nigger was, without question, unwanted conducted related to race. We do not find that which of the two possible phrases that contained this word were said, made any difference to our decision. Both derive from African slavery.[381]We were satisfied that Ms Foulston did not use the phrase with the purpose of violating the Claimant’s dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for him. Our decision, however, is that using the word had the effect of creating a offensive environment for the Claimant, albeit that this was fleeting in duration.[382]We add that this effect was not unique to the Claimant. Mr Rosenblatt and others in attendance at the dinner also found the word offensive. However, given the Claimant’s race and heritage, he had a unique personal connection to the phrase used because of its origins from the times of slavery.[383]In reaching this conclusion we note that the Claimant maintained a friendly relationship with Ms Foulston afterwards and did not complain to her or anyone else about the use of the phrase. We do not find that this was because he was not offended, but occurred because he deliberately chose not to address his offence with her.[384]Having found that the conduct constituted harassment, we have not considered whether it was direct race discrimination. Time Issue[385]The Claimant’s complaint of race related harassment dating back to April 2018 is in our judgment, out of time and therefore fails on that basis. Time began to run from the date of the incident (12 April 2018) as it did not form part of a continuing act with any later unlawful incidents.[386]We do not grant the Claimant an extension of time to bring this complaint late on a just and equitable basis. He was fully aware that he could pursue the compliant if he wished to do so, but chose in the full knowledge of all his employment rights, not to take the matter any further, either internally or externally. In our judgment, he has only sought to revive it in order to cause maximum embarrassment to the Respondents.[387]We add that had we found that the Claimant’s first complaint of race related harassment / direct race discrimination was well founded, we would also have held it was out of time and not granted an extension of time for the same reasons. Purported Protected Interest Disclosure[388]We next considered the Claimant’s purported protected disclosures. Did the Claimant within emails to the Second and Fourth Respondents on 5th and 6th June 2019 assert that he was unable to comply with his professional duty (to the Tribunal) in relation to disclosure in ongoing Tribunal proceedings against the First Respondent as he was not being permitted by them to review unredacted copies of documents that were to be disclosed?[389]The Claimant did assert that he was unable to comply with his professional duty to the tribunal in relation to the order to disclose certain emails in the SP litigation. He specifically said this in his email dated 5 June 2029 sent at 22:35 using the words: “As I have not seen the un-redacted documents and will not be permitted to do so I cannot comply with my professional duty to the court and will not be able to confidently defend [R1’s] position should questions or concerns be raised about [R1’s] compliance with the order.” Did it amount to a disclosure of information? (2.1)[390]By itself, the above sentence does not amount to a disclosure of information which tends to show that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject. The sentence simply says that the Claimant believed he would be unable to comply with his professional duty to the court. It does not suggest any legal breach by R1 has taken place or that one is taking or is likely to take place. Instead, the Claimant’s position is that he is uncomfortable because if asked by the tribunal to reassure it that R1 had complied with its legal duty, he could not be able to do so with confidence.[391]When taken together with his lengthy email of 6 June 2019 sent at 13:24, however, we consider there is a disclosure of information. In the later email, the Claimant sets out how the agreed process of reviewing the potentially disclosable emails was to have taken place and how it has changed. He then goes on to say, but in clumsier language than we have used, that it is not unreasonable to infer, based on that information, that the tribunal order for disclosure is not going to be complied with.[392]We consider this is him saying, based on his understanding of what had occurred, that R1 is likely to fail with a legal obligation to which it is subject, that obligation being comply with the tribunal’s order for disclosure. It is also, in our judgment, clear that he was suggesting that there was a likelihood that relevant evidence would be deliberate withheld. This is also how both Ms Foulston and Mr Field interpreted what he said at the time. If so, did the Claimant reasonably believe that the information disclosed tended to show that the First Respondent was likely to fail to comply with a legal obligation to which it was subject?[393]The Claimant asserted before us that he genuinely believed, on 5 and 6 June 2019, that it was likely that R1 was going to deliberately withhold evidence. He also told us that he continued to believe this even though he sent an email on 11 June 2019 saying he had not made any such insinuation. He also asserted that it was objectively reasonable for him to hold this belief.[394]In support of his position The Claimant relied on a number of different points, each of which we have considered.[395]The Claimant’s primary position was the change in the approach adopted by the Respondents to disclosure, that change being that originally the Claimant was to see all of the unredacted documents whereas he was now bring told that he would not see a limited category of documents in their unredacted form. The Claimant considered it was not unreasonable for him to think that the reason for the change was because the Respondents had discovered some evidence that they did not want him or the tribunal to see.[396]The Claimant also commented that the way this change of process was communicated to him, without any attempt to allay his concerns or persuade him to remain involved in the litigation also influenced his thinking and made him recall the comments made by Mr Field in an email that the case was one which they had to win.[397]We do not find the Claimant’s reliance on the comments in Mr Field’s email to be persuasive. The Claimant was aware that Mr Field was a commercial litigation solicitor with experience of disclosure and himself owed a duty to the tribunal. Although it is not unheard of for solicitors to breach their professional duties, there was no basis for the Claimant to infer that Mr Field meant ‘win at any cost’.[398]The difficulty we have with the Claimant’s position is that the change in the disclosure process came about for a perfectly valid reason. That reason was the fact that Ms Foulston discovered that some of the emails that were caught by the specific disclosure order contained private financial information belonging to Mr Rosenblatt and Ms MacLeod. She had not appreciated this when the process was first being discussed because the emails pre-dated the IPO. Once she discovered they were to be included in the searches, she decided that the Claimant should not be able to see their contents, but was happy to allow Mr Field to do so because he was already aware of the relevant information.[399]The reason for the change in process was explained to the Claimant, albeit it in rather robust language. Given that it was explained to him and the explanation made perfect sense in the circumstances, we conclude that any reasonable person in the Claimant’s position would have accepted it rather than jump to the conclusion that the explanation had been invented to enable evidence to be supressed.[400]In our judgment, it was entirely unreasonable for the Claimant to believe R1 would fail to disclose all relevant emails in the SP tribunal litigation.[401]We further find that the Claimant did not himself genuinely believe that the Respondents were going to bury evidence.[402]It was put to the Claimant that he did not really believe that the Respondents were likely to breach the disclosure obligation to the tribunal but that what was really upsetting him was that he was not trusted enough to be permitted to see all of the unredacted emails, but Mr Field was. He denied this, but in our judgment, this is exactly what was motivating the Claimant.[403]We find that the true position was that the Claimant was annoyed about not getting to see the emails, but rather than admit this directly, he tried to manipulate Ms Foulston and Mr Field into changing their position through arguing that his professional duty to the tribunal would be compromised and taking the dramatic step of withdrawing from acting. He anticipated that they would change their position, and try and persuade him to remain involved in the case, but when they did not, he had backed himself into a position from which he could not back down.[404]This was entirely consistent with the behaviour he had exhibited when getting into disputes with Laura Clatworthy in April and September 2018 and with Mr Field in April 2019 regarding the SP tribunal witness statements. On each of those occasions, the Claimant took a position and rather than concede that position escalated matters unreasonably until he backed himself into a corner.[405]This interpretation of what was in his mind, also explains why the Claimant did not use clear robust language in his emails when making his allegations. Instead, we find the language used was mealy mouthed and based on insinuation. His answers to questions put to him about what he genuinely believed in cross-examination were similarly mealy mouthed. In our judgment, this interpretation also explains why the Claimant so readily confirmed that he had never intended to make the insinuations. We find that he did not do this under duress because he was fearful he would lose his job, but because he knew he had gone too far.[406]The Claimant sought to bolster his argument that he both genuinely believed and it was reasonable for him to believe in his protected disclosures by saying that at the time he also had in mind the circumstances of Mr Firebrace and Mr Lord’s departures from R1. If anything in our judgment this weakened his position given that he admitted in his evidence to the tribunal that he knew nothing about the circumstances of the departures. Did the Claimant reasonably believe that the disclosure was made in the public interest (the Claimant relying upon an obligation to ensure that all disclosable documents were disclosed to the opposing party in legal proceedings and made available to the Employment Tribunal?[407]We do not find that the Claimant reasonably believed, at the time of making it, that it was made in the public interest. We find that he made the disclosure in his own self interest.[408]The reason we reached this conclusion was based on answers given by the Claimant in cross examination. He said that his first concern when writing his first email to Ms Foulston and Mr Field was his practising certificate. This, in our judgment, was an admission by him that he had his own interests at the forefront of his mind.[409]Our view was reinforced when he was asked whether he took any further steps in connection with the disclosure after he had ceased to have conduct of the case. His answer was no, although he accepted that he was under an individual duty to bring as a solicitor to report any breaches of the solicitors’ code of conduct to the SRA and could have done this anonymously. He said that he thought that the likelihood of the Respondent not complying with the disclosure was high, but took no further action because he was no longer involved in the case. This was despite the fact that his assistant solicitor continued to be involved. Was the disclosure made in good faith (and if not, should any reduction be made to any award made to the Claimant, pursuant to ERA s 49(6A) or s 123(6a))?[410]Having found that the Claimant’s disclosure of information was not a protected disclosure within the meaning of section 43B ERA, we did not had to consider this question. Treatment by the Respondent / Direct Race Discrimination[411]We now turn to consider the later alleged treatment of the Claimant by the Respondent from the period from July 2019 leading to his resignation. The Claimant has identified fourteen allegations (set out in the list of issues at paragraphs 4.1 to 4.14) which he said were:• detriments (applying section 39(2)(d) of the Equality Act 2010) which constituted less favourable treatment of him than others (hypothetical comparators) because of his colour (i.e. they were made as complaints of direct race discrimination under section 13 of the Equality Act 2010)• detriments done on the ground that he made a protected disclosure (section 47B ERA); and/or• conduct, which, when taken either individually or cumulatively, amounted to a breach of the implied term of trust and confidence.[412]As we found that the Claimant did not make a protected disclosure we did not consider whether any of the treatment constituted detriments done on the ground that he had made a protected disclosure.[413]With regard to the race discrimination and constructive unfair dismissal complaints, we have set out in this section our findings as to whether the allegations were made out on the facts. We then considered whether any that were made out on the facts constituted direct race discrimination. We then separately and in a subsequent section, considered the question of constructive unfair dismissal.[414]We note here that when considering the allegations 4.1 to 4.14 there was an additional allegation (issue 4.15) which was said by the Claimant to be an allegation of race-related harassment (or in the alternative direct race discrimination), a detriment done on the ground that the Claimant made a protected disclosure and/or an allegation of victimisation. As it occurred post resignation, it cannot have contributed to the Claimant’s decision to resign. We have dealt with this separately, but in doing so, mindful of the need not to treat allegations of discrimination in a too fragmented way, we reminded ourselves, to reflect back on this section to see if our conclusions in respect of 4.15 changed any of our reasoning here. It did not.[415]In addition, mindful of the need not to treat allegations of discrimination in a too fragmented way, we first considered whether there were any general background findings in relation to the context which we should take into account when thinking about our approach to the burden of proof.[416]The Claimant told us the environment within R1 was tainted with racism. Specially, in his witness statement he said: “The racism in [R1] was systematic and came from the top. It was a constant from before I joined up to until I resigned and thereafter.”[417]The Claimant provided some examples to support his assertion. The first of these was that he was the only black partner in R1. We have found that he was, but by itself this does not lead us to make a finding that he has established a fact that leads to the shifting of the burden of proof. Although the Claimant was the only partner at R1, R1 did employ other black people, some of whom had been there a considerable length of time. The Claimant referenced a black Associate about whom some general negative comments had once been made, but the evidence before us was that the unnamed young man was still employed by R1 where he was doing well and considered to be successful.[418]The Claimant placed particular reliance on a comment made about the new black HR manager, but having understood the context in which the comment was made, we found nothing wrong with it and not one made with even the subtlest racist overtones.[419]The Claimant also referred to early comments allegedly made by Ms Foulston and Ms MacLoed. We found the alleged comments were made so long ago and without any corroboration that there was no evidential value of to us to make findings of fact in relation to them.[420]We did find that Ms Foulston used an extremely racist word as set out above, and that Mr Rosenblatt was misjudged in the way he greeted the Claimant, but we do not consider these incidents to be sufficient by themselves to shift the burden of proof of disproving the later allegations of race discrimination onto the respondent.[421]Finally we considered the way in which the Claimant was viewed generally by his colleagues. There was clear evidence before us that the Claimant’s colleagues had on occasion accused him, behind his back, of being lazy, a possible racist stereotype applied to black men. There were also derogatory comments about him. Ms MacLeod called him a “dickhead” in one WhatsApp message for example, and others criticised him for not coming in to the office until late. In our judgment, none of the criticisms were unfounded at the time they were made. The Claimant was regularly late into the office by choice and was not as responsive to emails and work requests as others expected.[422]The Claimant focused particular attention on Mr Rosenblatt’s attitude towards him. He highlighted email communications in which Mr Rosenblatt had robustly criticised him. We found however that this type of robust criticism was not reserved for the Claimant and was meted out by Mr Rosenblatt to others, regardless of seniority or race.[423]Finally we have considered whether the Claimant’s history of getting into internal disputes with others might have arisen because of the fact that his behaviour was viewed through a different lens by colleagues because of his race. We considered there was no evidence of this. In our judgment, the reactions the Claimant elicited from his interactions with Ms Clatworthy, JN, Ms Foulston, Mr Field and Ms MacLeod were warranted in the context in each case.[424]Having considered the general context, we decided that there was nothing about it which shifted the burden of proof onto the respondent to disprove direct discrimination or from which we could fairly infer a context of systematic racism.[425]We next went though each of the individual allegations. In each case we considered if we were in a position to make positive findings on the evidence. Where we decided we were not, we considered whether the burden of proof shifted to the Respondents and, if so, was it discharged. On 2nd July 2019, being informed in an email by Tania MacLeod (the First Respondent’s then Head of Dispute Resolution), on the instruction of Mr Field without any prior discussion or explanation, that he would either have to share his room or move to a small single room (which had little natural light and had previously been used for storage) (4.1)[426]In July 2019, the Claimant was in an office that could accommodate two people.[427]On 2 July 2019 the Claimant was told by Ms Macleod that he would need to share his room or move to a small single room, which he perceived had little natural light. This was following discussions between Ms MacLeod and Mr Field, who was ultimately responsible for decision making about office allocation.[428]This allegation is therefore made out on the facts, although we note that the Claimant was in fact, not required to move rooms, but was instead ultimately permitted to remain in his room.[429]We have noted that a few days before 2 July 2019, on 27 June 2019, the Claimant had asked about a room change, which Ms MacLeod had confirmed to HR and R1’s office manager would be fine. The Claimant has invited us to find that this demonstrates:(a) that Ms MacLeod was content not only for the Claimant to remain in an office on his own, but also to move to a different one he preferred, until Mr Field became involved; and(b) that Mr Field was deliberately targeting the Claimant.[430]We do not agree. We find that there was a genuine reason why there was an apparent change in position between 27 June and 2 July 2019 which was that when signalling her agreement on the early date, Ms MacLeod had simply not taken into account the planning that was being done by Mr Field to accommodate a number of new starters. It was only when she was made aware of that planning that her position changed.[431]In addition, we find that Mr Field did not target the Claimant, either because of his race or at all. The Claimant was in a room that would normally hold two people and so it made sense to ask him to share in light of the influx of staff. He was not the only partner whom Mr Field was suggesting should share an office. The other partner involved was white.[432]We consider that this is a complaint where we are able to make a positive finding without reference to the burden of proof that there was no direct race discrimination against the Claimant. This is because the reason why Mr Field acted as he did clearly did not have anything to do with the Claimant’s race. If we are wrong about this however, and the change in position leads the burden to shift, we are satisfied that the respondent has provided cogent evidence to discharge that burden.[433]In addition, and in any event, we find that there was no detriment to the Claimant because he was ultimately allowed to stay in his original room in single occupancy. Although it was suggested that he move which created some uncertainty for him, this was for a very short period of time. We do not consider a reasonable worker would have taken the view that they had been disadvantaged as a result. On 16th August 2019, being informed by Ms Foulston that the First Respondent’s Board had decided to recruit a senior employment partner without any prior consultation with the Claimant, notwithstanding that he was head of the First Respondent’s employment department (4.2)[434]The Claimant was informed on 16 August 2019 by Ms Foulston that R1’s board had decided to explore the market to find another employment partner. He had not been consulted in advance of this decision. Part of the factual allegation is therefore correct.[435]We have found as a matter of fact that there was not a separate Employment Department within R1 that had a formal Head of Department. The official and strictly correct position was that the employment fee earners were part of the Dispute Resolution department, the formal head of which was Ms MacLeod. The Claimant’s formal job title was Partner in the Employment[436]However, the Claimant was the only Partner who specialised in Employment law and he was treated as the de facto head of that specialist team providing employment law advice and services. His colleagues regularly referred to there being a separate employment team and talked about him as the Head of that team. He also supervised the work of the junior members of the team.[437]Our starting point when determining this complaint was to consider whether someone in the Claimant’s position, the de facto Head of the Employment team, would expect to be consulted about the recruitment of another partner and was therefore subjected to a detriment when he was not. We consider this to be very finely balanced.[438]At this stage, the Claimant was simply being informed that R1’s Board wanted to explore the market to see who was out there and might be available. He did not react badly to this or object. Had the Claimant felt the news was to his detriment, or even worrying, we have no doubt he would have raised the issue with Ms Foulston after their informal drinks and dinner. He had demonstrated previously that he would do this when matters concerned him. We therefore find that he was not concerned about the news at this stage. In addition, we do not think that a reasonable employee, in his position would think anything different. In our judgment, there was no detriment.[439]In any event, we find that the reason for the decision and lack of prior consultation was because Ms Foulston had concerns that the Claimant was planning to leave R1 because he had sold all his shares. The Board of R1 were taking steps to protect their employment law offering, but not behind the Claimant’s back. He was informed of what was happening.[440]We consider that this is a complaint where we are able to make a positive finding without reference to the burden of proof that there was no direct race discrimination against the Claimant. From around September 2019 onwards, Ms Foulston ceasing to have regular meetings with the Claimant and/or ceasing to refer almost all internal HR matters to him (4.3)[441]This allegation is in two parts. The first part concerns the regular meetings between Ms Foulston and the Claimant.[442]Ms Foulston and the Claimant had met regularly in informal settings for catch up meetings from the start of his employment. There was no set pattern to this, however, and the meetings were not set at monthly intervals. They had met for drinks and dinner in August 2019, but then there was a lull in the Autumn. Ms Folston told us that she was particular busy during this time and that the Claimant was aware of this. There was no evidence before us to suggest this was not true. We note that in early 2020, Mr Roche was engaged because Ms Foulston needed an operational manager to help free her to focus on more strategic matters.[443]The Claimant did not provide evidence that he was trying to meet with Ms Foulston, but that she rejected his requests.[444]A meeting was arranged for 3 December 2019, but had to be rearranged because Ms Foulston had other commitments. Ms Foulston had proposed only a slightly later meeting that same day, but this did not work for the Claimant. This leads us to find that her need to change the meeting due to other commitments was genuine.[445]Ms Foulston did cancel one meeting with the Claimant, that was due to take place on 10 December 2019. The reason for this cancellation was because she did not want to become embroiled in a dispute that had arisen between the Claimant and Mr Field while Ms Macleod was dealing with it. Although Ms Foulston deliberately avoided this one meeting, she was trying to make arrangements to meet the Claimant in January 2020.[446]Our factual finding is that there was a reduction in meetings between the Ms Foulston and the Claimant, but this was not a result of a deliberate decision by her. We consider we are in a position to make a positive factual finding, without needing to refer to the burden of proof, that the reason for the reduction in meetings was logistical and nothing to do with the Claimant’s race.[447]Turning to the second part of this allegation, Ms Foulston did stop instructing the Claimant on internal employment matters. As we have noted she arranged for R1 to enter into a retainer with an external firm to provide employment law advice from November 2019 onwards. She explained her reasons for this, which we accepted, without needing to have reference to the burden of proof. In the case of this part of the allegation, we do not consider the burden of proof shifted to the Respondents, but if we are wrong about this, cogent evidence that the reason was nothing to do with the Claimant’s race was provided.[448]Ms Foulston’s primary and main reason was the Claimant’s conduct of the SP tribunal case. She had been unimpressed by the fact that the Claimant sent her the defence to the claim at the very last minute, while she was away on holiday. She was also unhappy that the April hearing had been postponed with extra cost to the Respondent and that R1 had been criticised by the tribunal for failing to comply with its disclosure obligation. In addition, the problems that arose over disclosure issue had brought to light some of the pit falls of relying on in-house advice in connection with confidential matters.[449]Ms Foulston was also concerned that using the Claimant to provide in-house advice was taking his focus and time away from fee earning work and business development. This was a secondary reason in our judgment, but a legitimate reason nevertheless. Mr Rosenblatt and Mr Field ceasing to seek the Claimant’s advice on any new employment-related matters and instead taking such matters directly to junior members of the employment team (4.4) Mr Rosenblatt and Mr Field ceasing to have any direct conversations with the Claimant initially unless requested to do so by Blair Wassman (one of the Claimant’s subordinates in the employment team) and latterly at all (4.5)[450]We do not consider these allegations, which are linked, are proven on their facts. There was evidence in the bundle that lawyers within R1 had sought advice from one of the Claimant team members directly without consulting him. This included a range of different lawyers from different teams. Mr Field-Walton was approached by members of the Corporate Team and Dispute Resolution teams for assistance as was Ms Wasserman. There was no evidence in the bundle that this was orchestrated by Mr Rosenblatt and Mr Field, either in conjunction or separately.[451]As we have noted in our fact finding section, it is not at all uncommon with commercial law firms to find team members being approached to do work by others without prior reference to the supervising partner. In many firms it is actively encouraged. The reasons why work referrals may be made to junior team members without prior reference to the supervising partner may be purely circumstantial because of who is available at the time the advice is needed. We know that the Claimant’s availability was limited at times due to his working style and the amount of work he was involved with.[452]Sometimes junior team members are approached because the person referring the work knows the junior better. Other times, there is a cost concern around not wanting to charge a client partner rates for something straightforward.[453]The examples provided by the Claimant involve Clients C, F, G and J. This was a very small selection of work and we do not consider it can be treated as indicative of the overall situation.[454]The work for clients F, J was sent directly to Ms Wasserman. For Client F the referral was not made by either Mr Field or Mr Rosenblatt, but by a different lawyer. The work for Client J was sent to Ms Wasserman by Mr Rosenblatt. Both were simple straight forward pieces of work. In the case of Client G, no employment input was felt to be required and was therefore sought from neither the Claimant or Ms Wasserman.[455]The situation with Client C was different. This was a much a larger client, with repeat work requirements. Both the Claimant and Ms Wasserman appear to have been asked to do various pieces of work for this client. It made sense that once one of them was involved in a particular project, that person would remain the main contact and this is what appears to have occurred.[456]The Claimant’s claims in relation to these allegations therefore fail on their facts. Mr Field, on 21st November 2019, making amendments to a draft response to a pre-action protocol letter and sending out the amended letter without giving the Claimant the opportunity to consider the proposed amendments (4.6) Mr Field knowingly choosing not to take others off the correspondence referred to above, including the Claimant’s associate, thereby calling into question the Claimant’s professional competence and undermining his authority (4.7) On or before 9th December 2019 Mr Field making a complaint that he (and the Third Respondent) had been put in a difficult position by not being made aware of the threat of particular legal proceedings by the Claimant notwithstanding that he had expressly been made aware of the same since September 2019 (4.8) On or around 9th December 2019 being forced to apologise to the Mr Field in relation to the matter above (4.9)[457]It is factually correct that Mr Field made amendments to a letter that had been drafted by the Claimant. The date he did this was 6 December 2019 and not 21 November 2019. The letter was a response to a letter dated 21 November 2019 which had been received by the Claimant, but which he had not reacted to for two weeks. Two weeks later on 6 December 2019, the Claimant drafted a response to the letter.[458]The Claimant had sent the letter for comment to a group of recipients. Mr Field sent the revised letter to a group of recipients by email asking for any comments and indicating a time for sending the letter. The group of recipients included the Claimant, but as a result of meetings, the Claimant asked Mr Field to wait for him to be able to comment before he could respond. Mr Field did not wait.[459]Mr Field explained why he chose not to wait in an email to the Claimant. The email with this explanation was part of the ongoing email exchange and so the same group of recipients received it.[460]Mr Field’s explanation did not expressly criticise the Claimant. It pointed out that the changes he had made were in relation to civil litigation matters. All of the email recipients were aware that this was Mr Field’s area of expertise and not that of the Claimant. We therefore find, as a matter of fact, that anyone reading the email would not have inferred criticism of the Claimant for not including such matters in the letter himself.[461]Mr Field also referred in the email to the fact that there had been a delay in sending a response out to the letter which he indicated he felt had created a negative impression of the firm and the client. When mentioning this he did not expressly mention that the delay was the fault of the Claimant. Instead he simply set out there had been one and the impact.[462]We find that there was not a deliberate attempt by Mr Field to question the Claimant’s competence or undermine his authority. The recipients of the email may have inferred criticism of the Claimant, but if they did so, this was because they were already aware of his role regarding the delay and so would have understood that any criticism was justified.[463]Mr Field submitted a formal complaint about the Claimant’s conduct on 9 December 2019. Prior to this, on 6 December 2019, it had been suggested to the Claimant by Ms MacLeod that the Claimant should apologise to Mr Field. He was not forced to apologise and in fact did not apologise when he spoke to Mr Field that day. His lack of apology included Mr Field’s decision to make a formal complaint.[464]Mr Field made the complaint because he was angry about the Claimant’s delay in reacting to the letter. The Claimant admitted at the hearing that he had not dealt with it for around two weeks. He sought to argue that the threat of litigation had been known since September 2019. We find that although this is correct, as at September 2019, the threat of litigation was only being mooted as a possibility. In the November 2019 letter, that threat crystallised and it was something that needed to be taken seriously and acted upon.[465]The complaint was not progressed and the Claimant was not made aware of it.[466]In our judgment, none of the above matters amount to a detriment. Mr Field was right to be aggrieved by the Claimant’s conduct, and acted appropriately in the circumstances, including not expressly criticising the Claimant in front of colleagues, but reserving that criticism for a confidential formal complaint. Given that the complaint was not progressed and the Claimant did not learn of it, he had very little to be aggrieved about at the time. All that happened was that Mr Field amended his draft letter to add information appropriate to his areas of expertise and sent it before the Claimant could review it.[467]If we are wrong about this, we make a positive finding of fact that none of the matters occurred because of the Claimant’s race. The Claimant made a mistake and Mr Field took appropriate steps to deal with it. Mr Rosenblatt in an email dated 16th January 2020, deliberately undermining the Claimant by asserting that a client, in relation to a particular corporate transaction, had asserted that the First Respondent’s “employment team just did not show up” (4.10)[468]We find that the email referred to in this allegation accurately captured what the client told Mr Rosenblatt that he felt the employment team did not show up and this was the reason Mr Rosenblatt said this in the letter. Mr Rosenblatt did not falsify this in a deliberate attempt to undermine the Claimant. This allegation fails on the facts. Prior to 29th January 2020, the First Respondent reaching a decision to hire a particular candidate for the role of employment partner before any of Ms Foulston, Mr Rosenblatt and Mr Field had even advised the Claimant that there was a candidate under consideration (4.11) Prior to 29th January 2020, the Second Respondent failing to provide the Claimant with the CVs of candidates for the role of employment partner (4.12)[469]The facts as presented in the allegations are not fully accurate.[470]There was no failure to provide the Claimant with CVs of candidates for the role of employment partner. After Ms Foulston had asked R1’s recruitment agent to see who was in the market, only one candidate that might potentially be suitable was brought to her attention, Ms Chance.[471]It is also not correct to say that a decision was taken about the appointment of Ms Chance before the Claimant had even been told that a candidate was under consideration. He was informed that a search was to be undertaken. The decision, when a suitable candidate was located, that Mr Field and Ms MacLeod should meet Ms Chance was taken without consulting the Claimant, however. When that interview went well, the next step was to arrange two further meetings for Ms Chance, one with Mr Rosenblatt and one with Claimant and Ms Clatworthy. These meetings did not take place in any particular order.[472]The Claimant was asked about his availability for such a meeting at the beginning of January 2020. He therefore knew at that point that Ms Chance was being considered.[473]An offer was not formally made to Ms Chance until 30 January 2020. This was after the Claimant had met with her and provided his feedback. Prior to this date, however, the Respondents had effectively made up their minds that an offer should be made. This is clear from the communications that took place about what the offer should be. The Respondent did take some of the Claimant’s objections to Ms Chance’s appointment, contained in his email of 30 January 2020, into account, but only barely. For example, Ms Foulston said that if there were performance concerns these would be picked up as part of the probationary process. Although the Claimant asked for a meeting to discuss further before the appointment was made, this request was refused.[474]It is therefore factually correct to say that some steps were taken without the Claimant’s knowledge and his view point was effectively and somewhat hastily disregarded.[475]We do not consider the first part of this, that some steps were taken without the Claimant’s knowledge to constitute a detriment. In our judgment, it is not a matter about which a reasonable employee would or might take the view that they have been disadvantaged in the circumstances in which they had to work, because he was involved later.[476]We do, however, consider the Claimant was entitled to be aggrieved that his view point was disregarded without a further conversation. He had been treated as the de facto head of the employment department and would be required to work closely with the new partner, although ultimately it was not his decision to make. The decision was that of the board, because the Claimant was not an actual head of department.[477]In relation to this allegation, we did consider the shifting burden of proof was engaged. We felt that, looked at objectively, it was odd for the Respondents to be so reticent about involving the Claimant in the recruitment process and dismissing his concerns so comprehensively and hastily, albeit that ultimately the appointment was not his decision to make. We considered this was sufficient to shift the burden of proof onto the Respondents to prove their actions were not because of race. We were satisfied that they did this, however.[478]The Respondents’ collective explanation for the approach they adopted was because they accurately predicted that the Claimant would be extremely sensitive about the appointment of a second employment partner. The Claimant had a history of making allegations when he felt threatened. He also had a history of reluctance when it came to new hires, as evidenced by his approach to the appointment of Ms Wasserman. The Respondents wanted the chance to see if Ms Chance was a good candidate before telling the Claimant about her. This was to avoid causing him to react needlessly. The Claimant’s previous reactions also explains why Ms Foulston responded to his 30 January 2020 email so robustly, albeit she did add that she wanted to meet with him to have a fuller discussion.[479]Part of the Respondents’ explanation was that they continued to believe that the Claimant did not intended to remain with R1 and so they wanted to protect the employment offering by appointing someone who could pick up his work if required. This meant that even though the Claimant might have some objections, if the decision makers felt Ms Chance was a good hire it was sensible not to miss the opportunity.[480]We found that these explanations were genuine and satisfied us that the Claimant’s race was not a factor in the decision making. On 30th January 2020, the Second Respondent in an email effectively demoted the Claimant by stating that he was not (and never had been) head of the First Respondent’s employment department and that the information to this effect on the First Respondent’s website was in error (4.13)[481]As noted elsewhere, we found that the Claimant was not the official head of a separate employment department. However, he was the de facto head of the employment team and widely referred to as such internally and in external facing material. The website was just one example of this.[482]The contents of Ms Foulston’s email to the Claimant’s on 30 January 2020 pointed out the correct official position to him. This was in response to him asserting that he was the head of department and effectively asserting that no decision should be made about Ms Chance until he agreed it. What Ms Foulston was effectively telling the Claimant was that the appointment was not his decision to make.[483]The email did not constitute a demotion of the Claimant. We note that the Respondents had been very careful to ensure that the appointment of Ms Chance did not demote the Claimant. When discussing her job title on email, Mr Field and Ms Foulston specifically agreed that Ms Chance should not be offered the job title head of Employment Department so as not to upset the Claimant. In reaching this decision they effectively observed that although the Claimant did not have the job title officially, he could claim to be the de facto head of department.[484]Given that the communication by Ms Foulston, simply set out the accurate factual position and did not demote the Claimant saying this to him cannot have been a detriment. Also the reason behind it was not the Claimant’s race. The email was sent in response to the Claimant inaccurately claiming he was the head of the employment department. On or around 5th February 2020 Mr Rosenblatt and Mr Field accepting an instruction on employment disciplinary proceedings without seeking any input from the Claimant or the wider employment department (4.14)[485]This allegation is correct on its facts. Given that it would be unusual for what seems to be an employment matter not to need input from a member of the employment team, this does appear to constitute a detriment to the Claimant.[486]But in our minds this fact does not lead us to find that this is an allegation where the burden of proof has shifted to the Respondents. This is because it is difficult to see that the decision not to seek any employment advice, including from Ms Wasserman (who is white) is less favourable treatment of the Claimant because of his race. This appears to contradict the earlier allegation which we understood to be that Mr Rosenblatt and Mr Field preferred dealing with Ms Wasserman because she was white.[487]Even if we are wrong about this and the burden of proof has shifted to the Respondents, we find that burden is met. Mr Rosenblatt and Mr Field provided cogent evdience as to why they did not think they needed employment advice on this occasion. That they did not seek advice from Ms Wasserman corroborates this. Constructive Unfair Dismissal[488]Having found that none of the alleged conduct cited at 4.1 – 4.14 constituted direct race discrimination of the Claimant, we next consider whether that same conduct whether considered individually or cumulatively amounted to a breach by R1 of the implied term to maintain mutual trust and confidence.[489]We found it helpful to note that we did not uphold the following allegations on their facts as set out in the list of issues: 4.3 (in part) 4.4, 4.5 & 4.6, 4.6 to 4.9 (in part), 4.10, 4.11 & 4.12 (in part), 4.13 (in part) and 4.14. Although requiring a different legal test, we also noted that we found that there were only two allegations, 4.11 and 4.14 where we considered there was any detriment at all to the Claimant.[490]Whether or not conduct that amounts to a detriment also constitutes a breach of the implied term of mutual trust and confidence will depend on the facts. In our judgment, it will be rare that something that is not a detriment will amount to a breach. Both involve an objective assessment of the conduct. In this case, we are satisfied that none of the allegations that we held occurred, but did not amount to detriments constituted breaches of the implied term, including when considered cumulatively. We rely on our earlier reasoning in reaching this conclusion.[491]The detriment in 4.11 was the approach to keeping the Claimant’s involvement in the recruitment of Ms Chance to a minimum and proceeding with it despite his objections. We considered this was a rather odd way to behave towards the person that was the de facto head of the employment team. However we also found that the respondent had good reason for proceeding in this way and ultimately was entitled to appoint Ms Chance as a partner in the employment team without the Claimant’s agreement. Had she been offered the role of Head of the Department, our thinking would have been different, but this was not what she was offered.[492]Turning to allegation 4.14 failing to seek the Claimant’s advice in connection with Client F, while there may be some detriment to him, this did not constitute a fundamental breach of trust and confidence.[493]We therefore conclude that R1 did not commit a fundamental / repudiatory breach of the Claimant’s contract and his claim of constructive unfair dismissal therefore fails.[494]Although the Claimant initially gave a period of notice, he subsequently withdrew it and refused to work. This led to R1 issuing a letter to the Claimant saying it was treating him as being in repudiatory breach of his contract. It added that it accepted the breach and treated his employment as ending on 24 February 2020.[495]In light of our finding that there was no repudiatory breach by R1, the Claimant was not entitled to treat himself as not bound by the notice provisions in his contract of employment. He was required to give the Respondent notice when he resigned and to work during the notice period, unless R1 agreed otherwise. When he refused to work, the Claimant was in repudiatory breach of his contract and therefore it was R1’s act of accepting that breach that brought the contract to an end.[496]The Claimant’s claim for wrongful dismissal therefore fails. Protected Act Did the Claimant do a protected act within the meaning of section 27(2) EqA by asserting in his resignation email of 14th February 2020 that he had been subjected to race discrimination by the Respondents and/or that he was proposing to bring a claim against them? Did the Claimant make the allegations of race discrimination contained within his resignation email in bad faith?[497]We turn finally to the matters that occurred after the Claimant resigned. He has argued that these amount to further race related harassment/direct race discrimination and detriments on the grounds of protected disclosures. Obviously this latter complaint fails because we found that the Claimant did not make a protected disclosure. The Claimant has in addition, argued victimisation which means that before considering the allegations, it was necessary to consider if the Claimant had done a protected act as defined section 27 Equality Act 2010.[498]The Claimant relies on his resignation letter. This contains express allegations of race discrimination and so on the face of it appears to be a protected act. The Respondents, however, invited us to find that it was made in bad faith and so did not constitute a protected act.[499]In order to be ruled out of being a protected act under section 27(3), the evidence, information or allegation involved has to meet two criteria. It has to be false and it has to be given or made in bad faith.[500]Here we have held that the Claimant’s allegations about his early treatment were not false. The allegation about the fist bump was true on its facts and was related to race. We did not find it constituted race related harassment on a very finely balanced basis and so it would not be fair, in our judgment, to treat it as a false allegation. The allegation about the comment made at the IPO dinner was accurate and did constitute race related harassment, albeit it did not succeed because it was out of time. Although, based on our findings, other allegations were false, the inclusion of the true allegations means that the resignation letter was a protected act.[501]We have not therefore considered whether the allegations were made in bad faith. The Post Resignation Treatment Between 15th and 17th February 2020, sending the Claimant text messages and emails of threatening and abusive nature[502]We do not consider this allegation is proven on the facts. Mr Rosenblatt did send the Claimant a text and an email telling him that he intended to pursue legal proceedings against him. This was not an unfounded threat, but arose because Mr Rosenblatt genuinely believed that he was entitled to take legal action against the Claimant. The text and emails were not written in abusive language but lawyerly professional language which was familiar to the Claimant. Mr Rosenblatt on 17th February 2020, subjecting the Claimant to serious verbal abuse in front of his colleagues, by:• referring repeatedly to the Claimant as an antisemite;• telling him that he was “going to destroy” and would “finish” him;• telling him that he would “financially ruin” and “bankrupt” him;• telling him that he “didn’t know who [he] was fucking with”.[503]Our factual finding was that only the first of these allegations occurred. We found that Mr Rosenblatt did repeatedly accuse the Claimant of being an antisemite. The manner in which he did, calling him an antisemite, was abusive.[504]We find that although Mr Rosenblatt was prompted by the resignation letter to accuse the Claimant of being an antisemite, the reason he did so was because he genuinely believed it to be true. His belief was based on two matters. The first of these was a comment the Claimant made and the second was because he felt that the Claimant had unfairly singled out him and Mr Field, two Jewish men, in his resignation letter. This latter point was not entirely true, because Ms Foulston was also the subject of allegations, but the ones made against her were not as clearly expressed.[505]We therefore make a positive finding of fact that the reason for Mr Rosenblatt’s actions was not because of the Claimant’s race or related to the Claimant’s race. In addition, Mr Rosenblatt did not act in retaliation against the Claimant because he did a protected act but because he thought the Claimant was being antisemitic.[506]We further reject this allegation because, ultimately what Mr Rosenblatt did was a protected act in itself. In our judgment, it would quite simply be wrong to hold that expressing a genuine concern about someone being racist towards you should be considered to be a detriment. Employees are entitled to make such allegations about their colleagues, hence the protections in the Equality Act 2010 exist. Employment Judge E Burns 2 September 2024 For the Tribunals Office Appendix – List of Issues Qualifying/Protected Disclosures
THE LAW
[1]Did the Claimant within emails to the Second and Fourth Respondents on 5th and 6th June 2019 assert that he was unable to comply with his professional duty (to the Tribunal) in relation to disclosure in ongoing Tribunal proceedings against the First Respondent as he was not being permitted by them to review unredacted copies of documents that were to be disclosed?[2]If so, did this amount to a qualifying disclosure within the meaning of section 43B ERA. Specifically:2.1 did it amount to a disclosure of information?2.2 if so, did the Claimant reasonably believe that the information disclosed tended to show that the First Respondent was likely to fail to comply with a legal obligation to which it was subject?2.3 did the Claimant reasonably believe that the disclosure was made in the public interest (the Claimant relying upon an obligation to ensure that all disclosable documents were disclosed to the opposing party in legal proceedings and made available to the Employment Tribunal?[3]If so, was the disclosure made in good faith (and if not, should any reduction be made to any award made to the Claimant, pursuant to ERA s 49(6A) or s 123(6a))?[4]Was the Claimant subjected to the following treatment:4.1 on 2nd July 2019, being informed in an email by Tania MacLeod (the First Respondent’s then Head of Dispute Resolution), on the instruction of the Fourth Respondent, without any prior discussion or explanation, that he would either have to share his room or move to a small single room (which had little natural light and had previously been used for storage).4.2 on 16th August 2019, being informed by the Second Respondent that the First Respondent’s Board had decided to recruit a senior employment partner without any prior consultation with the Claimant, notwithstanding that he was head of the First Respondent’s employment department.4.3 from around September 2019 onwards, the Second Respondent ceasing to have regular meetings with the Claimant and/or ceasing to refer almost all internal HR matters to him.4.4 the Third and Fourth Respondent ceasing to seek the Claimant’s advice on any new employment-related matters and instead taking such matters directly to junior members of the employment team.4.5 the Third and Fourth Respondent ceasing to have any direct conversations with the Claimant initially unless requested to do so by Blair Wassman (one of the Claimant’s subordinates in the employment team) and latterly at all.4.6 the Fourth Respondent, on 21st November 2019, making amendments to a draft response to a pre-action protocol letter and sending out the amended letter without giving the Claimant the opportunity to consider the proposed amendments.4.7 the Fourth Respondent knowingly choosing not to take others off the correspondence referred to at 4.6 above, including the Claimant’s associate, thereby calling into question the Claimant’s professional competence and undermining his authority.4.8 on or before 9th December 2019 the Fourth Respondent making a complaint that he (and the Third Respondent) had been put in a difficult position by not being made aware of the threat of particular legal proceedings by the Claimant notwithstanding that he had expressly been made aware of the same since September 2019.4.9 on or around 9th December 2019 being forced to apologise to the Fourth Respondent in relation to the matter at 4.8 above.4.10 the Third Respondent, in an email dated 16th January 2020, deliberately undermining the Claimant by asserting that a client, in relation to a particular corporate transaction, had asserted that the First Respondent’s “employment team just did not show up”.4.11 prior to 29th January 2020, the First Respondent reaching a decision to hire a particular candidate for the role of employment partner before any of the Second, Third or Fourth Respondents had even advised the Claimant that there was a candidate under consideration.4.12 prior to 29th January 2020, the Second Respondent failing to provide the Claimant with the CVs of candidates for the role of employment partner.4.13 on 30th January 2020, the Second Respondent in an email effectively demoted the Claimant by stating that he was not (and never had been) head of the First Respondent’s employment department and that the information to this effect on the First Respondent’s website was in error.4.14 on or around 5th February 2020 the Third and Fourth Respondents accepting an instruction on employment disciplinary proceedings without seeking any input from the Claimant or the wider employment4.15 the Third Respondent, on 17th February 2020, subjecting the Claimant to serious verbal abuse in front of his colleagues, by:4.15.1 referring repeatedly to the Claimant as an anti-Semite;4.15.2 telling him that he was “going to destroy” and would “finish” him;4.15.3 telling him that he would “financially ruin” and “bankrupt” him;4.15.4 telling him that he “didn’t know who [he] was fucking with”.[5]In relation to any treatment that the Claimant is able to establish, did the said treatment amount to a detriment?[6]If so, was the said treatment materially (more than trivially) influenced by the fact that the Claimant had made the alleged protected disclosure. Jurisdiction[7]In relation to any detriment which occurred before 29 November 2019, is the Claimant able to establish that the same formed part of a course of conduct extending over a period which ended on or after 29 November 2019, such as to bring that complaint within time for the purposes of section 48(4)(a) ERA?[8]If not, does the Tribunal think that it was not reasonably practicable for the Claimant to have presented his claim before that time and that it was presented within a further reasonable time, to enable it to consider the same? Direct Race Discrimination For the avoidance of doubt, for the purposes of his race discrimination complaints, the Claimant relies upon his colour.[9]Was the Claimant subjected to the following treatment?9.1 The Third Respondent, shortly after the commencement of the Claimant’s employment in May 2017, greeting the Claimant with a fist punch rather than a professional handshake9.2 The Second Respondent, at a pre-IPO partner dinner in April 2018 at the Third Respondent’s house, stating, during the course of a speech, “it’s like trying to spot a nigger in the field/woodpile” in the presence of the Claimant.9.3 The Third Respondent, on the same occasion, laughing uncontrollably at what the Second Respondent had said, before telling her that “[she could] not say that”.9.4 The treatment relied upon under issue 4.1 – 4.14.9.5 Being constructively dismissed (as to which, see below).[10]In relation to any treatment that the Claimant is able to establish, was the Claimant treated less favourably than an actual or hypothetical comparator? For the purposes of the allegation at 10.1 above, the Claimant relies upon actual comparators, namely white new starters with the First Respondent. For the purposes of his remaining allegations, the Claimant relies upon a hypothetical white comparator.[11]If so, was this because of the Claimant’s race? Harassment Related to Race[12]Was the Claimant subjected to unwanted conduct by:12.1 the Third Respondent, shortly after the commencement of the Claimant’s employment in May 2017, greeting the Claimant with a fist punch rather than a professional handshake.12.2 the Second Respondent, at a pre-IPO partner dinner in April 2018 at the Third Respondent’s house, stating, during the course of a speech, “it’s like trying to spot a nigger in the field/woodpile” in the presence of the Claimant.12.3 the Third Respondent, on the same occasion, laughing uncontrollably at what the Second Respondent had said, before telling her that “[she could] not say that”.12.4 the Third Respondent, on 17th February 2020, subjecting the Claimant to verbal abuse in front of his colleagues, including:12.4.1 referring repeatedly to the Claimant as an anti-Semite;12.4.2 telling him that he was “going to destroy” and would “finish” him;12.4.3 telling him that he would “financially ruin” and “bankrupt” him;12.4.4 telling him that he “didn’t know who [he] was fucking with”.[13]If so, was the unwanted conduct in question related to the Claimant’s race?[14]If so, did the conduct have the purpose of violating the Claimant’s dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment for him?[15]Alternatively, did the conduct have the effect of violating the Claimant’s dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment for him, having regard to:15.1 the perception of the Claimant;15.2 the other circumstances of the case; and15.3 whether it was reasonable for the conduct to have that effect? Jurisdiction The Claimant’s discrimination complaints were accepted by the Tribunal on 13th March 2020. In respect of each of the Respondents there was a period of early conciliation which began on 10th March 2020 and concluded on 11th March 2020 in respect of those complaints. It is accordingly accepted by the Claimant that any act or omission which occurred before 13th December 2019 would be out of time.[16]In relation to any complaint of discrimination or harassment which occurred before 13th December 2019, is the Claimant able to establish that the same formed part of a course of conduct extending over a period which ended on or after 13th December 2019, such as to bring that complaint within time for the purposes of section 123(1)(a) EqA?[17]If not, does the Tribunal think that it would be just and equitable to extend time in respect of such complaint in order to enable it to consider the same? Victimisation[18]Did the Claimant do a protected act within the meaning of section 27(2) EqA by asserting in his resignation email of 14th February 2020 that he had been subjected to race discrimination by the Respondents and/or that he was proposing to bring a claim against them?[19]Did the Claimant make the allegations of race discrimination contained within his resignation email in bad faith?[20]Was the Claimant subjected to the following detriments by the Third Respondent: 20.1 on 17th February 2020, subjecting the Claimant to serious verbal abuse in front of his colleagues, including:20.1.1 referring repeatedly to the Claimant as an anti-Semite;20.1.2 telling him that he was “going to destroy” and would “finish” him;20.1.3 telling him that he would “financially ruin” and “bankrupt” him;20.1.4 telling him that he “didn’t know who [he] was fucking with”.[21]Has the Claimant pleaded the matter below by the Third Respondent as a detriment and, if so, was he subjected to such detriment by the Third Respondent: 21.1 between 15th and 17th February 2020, sending the Claimant text messages and emails of threatening and abusive nature.[22]If the Claimant was subjected to the above detriments (or any of them) by the Third Respondent, did the Third Respondent do so:22.1 because the Claimant had done a protected act, or22.2 because he believed that the Claimant had done, or may do, a protected act. Constructive Dismissal[23]Did the Claimant resign from his employment in circumstances in which he was entitled to terminate his contract of employment without notice by reason of the First Respondent’s conduct, such that he is properly regarded as having been dismissed by the First Respondent within the meaning of section 95(1)(c) ERA? As to this:23.1 Did the First Respondent breach the implied term of trust and confidence that it would not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee?23.2 The Claimant relies upon the matters set out under issue 4.1 – 4.14 as amounting (individually and/or cumulatively) to a breach of the implied term.23.3 (For the avoidance of doubt, the Claimant relies upon the Second Respondent telling him that he was not and never had been the head of the First Respondent’s employment department as amounting to the last straw which precipitated his resignation.)23.4 If so, did the Claimant resign in response to the said breach and not for some other unconnected reason?23.5 Did the Claimant delay for too long before resigning in response to any breach that he might establish, such that he ought properly to be deemed to have waived the breach and/or to have affirmed the contract? Unfair Dismissal/Automatic Unfair Dismissal[24]If the Claimant was dismissed, was the reason or principal reason for that dismissal that he had made one or both of the alleged protected disclosures? (section 103A ERA)[25]If not, was his dismissal otherwise fair or unfair within the meaning of section 98(4) ERA?[26]If the Claimant was dismissed, has he received the full notice pay to which he was contractually entitled? If not, what sum remains owing to him?