Mr A Dobbie v P Felton T/a Felton Solicitors and others: 2301370/2016

EMPLOYMENT TRIBUNALS

Case No 2301370/2016

Between

Mr A DobbieClaimant

1) Paula Felton t/a Felton Solicitors 2) Felton Solicitors 3) Ms C DuncanRespondent

Before

Employment Judge Elliott

Adam Ohringer (instructed by counsel) for claimant

Susan Chan (instructed by counsel) for respondent

Ms S Chan (instructed by counsel) for respondent

Date 13 June 2023

JUDGMENT

The complaints of unfair dismissal, breach of contract and unlawful deductions from wages are dismissed against the 3rd Respondent following a withdrawal by the claimant. The claimant’s remaining claims will proceed to hearing. Employment Judge Elliott Date 15 March 2017 Case Number: 2301370/2016 EMPLOYMENT TRIBUNALS Claimant Respondent Mr A Dobbie v Paula Felton t/a Feltons Solicitors Heard at London Central On: 28 June 2019 Before: Employment Judge Gordon Mr J Walsh Mr S Godecharle Appearances For the Claimant: Adam Ohringer (counsel) For the Respondent: Susan Chan (counsel) JUDGMENT

[1]The complaint by the Claimant that he was subjected to one or more detriments in contravention of section 47B of the Employment Rights Act 1996 (on the ground that he made one or more protected disclosures) fails, and his claim in that respect is dismissed.

[2]Under Rule 76 of the Employment Tribunals Rules of Procedure the Respondent is ordered to pay the sum of £1,125 to the Claimant for costs (such costs arising from the Claimant’s photocopying expenses).

[3]The Claimant’s claim for unauthorised deduction of wages shall be listed for hearing on a date to be notified to the parties. Note: Reasons for the decision having been given orally at the hearing, written reasons will not be provided unless a written request is received from either party within 14 days of the sending of this record of the decision. _____________________________ Employment Judge Gordon Date: 28 June 19

REASONS

[1]This is the last part of the determination of a claim which was originally presented in the London South Employment Tribunal on 21 July 2016. It came before me for case management in 2017. The claim was for automatically unfair dismissal for whistleblowing and whistleblowing detriment plus unlawful deductions from wages.

[2]The whistleblowing claim was heard by Employment Judge Gordon, Mr J Walsh and Mr S Godecharle in June 2019. The case has a very long procedural history going back four and a half years. The background is not recited here but is set out in the case management orders and decisions which precede it.

[3]The claimant is a solicitor and is called to the bar and is a non-practising barrister. The respondent operates as a firm of solicitors. Case no. 2301370/2016 ph judgment + cm Nov 2014 wip version 2 Remote hearing

[4]The hearing was a remote public hearing, conducted using the cloud video platform (CVP) under Rule 46. The tribunal considered it as just and equitable to conduct the hearing in this way particularly because the claimant was at the time in Austria with childcare responsibilities. The respondent initially agreed to a remote hearing although on 24 November 2020 suggested that it should be postponed. After 4.5 years of litigation I considered that it was in the interests of justice for this case to be concluded and not further postponed and I refused this application. There was a further application during the hearing which is dealt with below.

[5]In accordance with Rule 46, the tribunal ensured that members of the public could attended and observe the hearing. This was done via a notice published on Courtserve.net. No members of the public attended.

[6]The parties were able to hear what the tribunal heard. As with most CVP hearings there were some technical difficulties, most of which were solved by the relevant participant logging off and logging back on again or by asking the person speaking to repeat what they had said.

[7]The participants were told that is was an offence to record the proceedings.

[8]The tribunal ensured that each of the witnesses, who were all in different locations, had access to the relevant materials. I was satisfied that none of the witnesses was being coached or assisted by any unseen third party while giving their evidence.

The issues

[9]The issue for this hearing for the claim for unlawful deductions from wages were identified in case management before Employment

Judge Gordon on 28 June 2019 as follows:

[10]In relation to client A, whether it was agreed between the parties on 19 January 2016 in Richmond that the claimant would be paid £10,000 per month for January and February 2016 for his work for this client instead of £5,000 per month.

[11]Also for this client, whether the claimant is entitled to payment under his consultancy agreement in respect of the interim bills paid by client A in 2016 or whether the respondent is entitled to refuse or reduce the amount paid to the claimant on the basis that the claimant did no or little work of value in January or February 2016 and if so whether it is true that the claimant did no or little work of value in January or February 2016.

The issues

[12]In relation to client WK, the claims were for £4,000 and £2,000 and whether the claimant has been paid this amount by the respondent. During the hearing the claimant said that only the sum of £4,000 was pursued. Case no. 2301370/2016 ph judgment + cm Nov 2014 wip version 3

[13]In relation to client M, whether this was partially paid by a payment of £556.75 by the respondent and whether the remainder is due (the respondent saying that there are no fees owing because the claimant did not do all the work on this file).

[14]In relation to client U, the claim for £300, whether client U paid this amount to the respondent. And in the first and second claims for £800 whether work on this file in relation to this fee was done by the claimant?

[15]In relation to client FE, in the claim for £250 whether the claimant has been paid this amount by the respondent.

[16]If the tribunal makes an award for unauthorised deductions from wages, whether the tribunal should also award an amount under section 24(2) of the Employment Rights Act 1996 as compensation for financial loss. Witnesses and documents

[17]The tribunal heard from three witnesses: the claimant Mr Dobbie, a former client of the respondent firm (from client U) Mr Rupert Wertheimer who was called by the claimant and from the respondent Ms Felton. The pages numbers in the witness statements did not tally with the bundles prepared for this hearing and the respondent had used exhibits rather than paginating and giving an index. This made it hard to navigate the documents.

[18]There was a pleadings bundle of 197 pages from the claimant. There were two further bundles from the respondent. A statement with “appendices” or exhibits running to 156 pages and another bundle of 140 pages which appeared to be pages 492 to 630 of an earlier hearing bundle. Regrettably there was no jointly agreed concise bundle prepared for this hearing. Other bundles were sent after the time limit imposed by the tribunal of midday on 1 December 2020. It made navigation of documents difficult as there were a number of separate bundles with duplication. It was regrettable that the parties, who are solicitors, with knowledge of what is required for a hearing, could not cooperate to put together a workable bundle. The tribunal was greatly assisted by counsel who were able to take the tribunal to the relevant documents.

[19]There was a helpful six page opening note prepared by counsel for the respondent which counsel for the claimant agreed would assist the tribunal.

[20]Where page numbers are referred to below the reference is to the electronic page in the bundle for this hearing. There were a number of separate electronic bundles. Some pages had up to three page numbers written on them, due to being included in separate bundles for different hearings over the course of this litigation.

[21]I had written submissions from both counsel which are not replicated here to which counsel spoke. The submissions were fully considered even if not expressly referred to below. Case no. 2301370/2016 ph judgment + cm Nov 2014 wip version 4 The respondent’s postponement application

[22]The respondent sought a postponement of this hearing firstly on the basis of the technical problems experienced at the tribunal’s end with the Judge initially only being able to access one screen and also due to the claimant submitting more documents after midday on 1 December. The respondent suggested that she would be disadvantaged by being cross examined “at length” on these multiple documents. Ms Felton has made numerous postponement requests during the course of these proceedings and most recently on 24 November 2020 had asked for a postponement of this hearing which was refused.

[23]Mr Ohringer for the claimant confirmed that he did not intend to cross examine “at length” and both parties agreed that there was not a great number of documents that the tribunal needed to be taken to. Both counsel initially thought that the case might be completed in 1 day rather than 2 days. After 4.5 years of litigation in this case I considered it unlikely that there were documents that the parties had not seen before. This was not the disclosure exercise but the compilation of the bundle. The respondent wanted a postponement so that there could be an in person hearing with a slimmed down bundle.

[24]Mr Ohringher made the submission, with which I agreed, that the preparation of this case was not going to improve with time. I saw the comments of the previous tribunal in relation to the hearing in June 2019 (Reasons paragraphs 7 and 8) as to the disarray concerning the documents. I urged the respondent to consider the advantage of concluding this hearing without taking this litigation into another year and with it remaining over the parties’ heads and the inevitable stress that this caused. I gave a further break for instructions to be taken. The respondent pursued the application for a postponement.

[25]I considered that both parties were represented by experienced counsel who cooperated well together and that I could be taken to the right documents at the right time. These documents were unlikely to be new to the respondent but if they were, she could have a break to consider any document and instruct her counsel. The issues for this hearing had been clear since June 2019. The parties have had a year and a half to prepare. There was not going to be lengthy cross examination and I agreed with Mr Ohringer, based on the history of the case, that the preparation of this case was not going to improve with more time.

[26]For the above reasons the respondent’s postponement application was refused.

Findings of fact

[27]Where findings of fact have been made by the tribunal which heard the whistleblowing claim in June 2019 impact upon the issue of unlawful deductions from wages, I considered this tribunal to be bound by those findings. This was a ten day hearing before a three person tribunal.

[28]The consultancy agreement between the parties dated 6 March 2014 set out the following terms as to payment (respondent’s bundle page 26): Case no. 2301370/2016 ph judgment + cm Nov 2014 wip version 5 “3. Remuneration The Consultant shall be paid a consultancy fee of 40% of the fees billed which have been paid and received by the Practice net of VAT and disbursements on receipt of an appropriate invoice which shall be rendered at the end of each month by the Consultant. Where the Consultant has introduced the client to Feltons the consultancy fee shall be 50%. The Practice will pay the Consultant within 30 days of receipt payment from the Client… 4. Expenses The Company shall repay to the Consultant out of pocket expenses pre authorized by the Practice and reasonably and necessarily incurred by the Consultant in the performance of the consultant’s duties upon suitable evidence of such expenditure being provided to the Practice…”

[29]Clause 5 dealt with the performance of duties and said that the consultant should perform his duties in a good, efficient and proper manner consistent with the standards expected of a professional person. For client A

[30]Client A was a major client of the respondent firm and I relied on and adopt the findings of the tribunal chaired by Employment Judge Gordon at paragraph 22 on this point. There was a separate arrangement for the claimant in relation to his work for this client. It was not in dispute that it was initially agreed that the claimant would be paid for working on this client’s case at the rate of £5,000 per month, on the basis that he was doing at least 50 hours a month for that client. The respondent says that this was on the “understanding” that a costs draftsman would look at work billed to the client at the conclusion of the case and if the work done did not justify the hours billed, and adjustment would be made. I saw no such agreement between the claimant and respondent to this effect.

[31]I was taken to an email of 9 September 2015 from the respondent to client A. It appeared to have been copied to the claimant although he could not recall it. It discussed the billing arrangements for client A. In this email the respondent said: “I will also need to discuss our costs on account arrangement with file costing at the end of the matter and balancing off…as you know, the payments on account are being and will be billed and transferred and of course if there is any overpayment then this will be returned but given the intensity of my time and the work ahead this may be unlikely”. The respondent’s case is that this was what was agreed with the client and the claimant knew about it.

[32]I find on a balance of probabilities that as the 9 September 2015 email purports on the face of it, to have been copied to the claimant, he received it, even though he does not recall it. This is an email setting out an agreement between the respondent and client A. It is not a contractual agreement between the respondent and the claimant and I have seen no evidence to support the contention that there was an agreement that the fees due to the claimant were subject to assessment, balancing off or reduction at the completion of the case for client A. On my finding there was no such agreement between the claimant and the respondent. There was also no other contractual agreement between the claimant and respondent, whether in the 6 March 2014 agreement or otherwise, for clawback of fees payable to him, in any circumstances. Case no. 2301370/2016 ph judgment + cm Nov 2014 wip version 6

[33]The respondent was unhappy with the standard of the claimant’s work for client A. For example is not in dispute between the parties that errors were made by the claimant in issuing proceedings in the High Court. The proceedings had to be reissued and reserved.

[34]The respondent instructed a costs draftsman from a firm called Alternative Costs. This was not at the conclusion of the case for client A. The respondent confirmed in evidence and I find that the litigation for client A ended in October 2016. The costs draftsman was instructed and did the work on a precedent H in September 2016. This was before the end of the case. I find that the costs draftsman was instructed to prepare the precedent H in connection with that litigation before it had concluded. I saw no instructions otherwise to the costs draftsman.

[35]The costs draftsman took the view that the work done by the claimant was no more than 320 hours. The respondent calculated that she had paid him under the fixed fee arrangement for this client for 860 hours. The claimant was not given any opportunity to comment on this. The respondent chose not to ask him because he had left the firm, although she could have done. The respondent’s position was that the claimant had been overpaid. In the respondent’s view, the claimant had done nothing to progress the case, he duplicated work and she received complaints from the client. Her oral evidence to the tribunal was that the claimant “did the work, but it was not of any value”.

[36]I find that the respondent had performance issues with the claimant’s work. He did the work but it was not to the standard required by the respondent and that these issues were not dealt with in any supervision by the respondent. I find based on the respondent’s oral evidence that he did the work on the matter but not to the standard the respondent required. The respondent spent a great deal of time working on the client A matter herself as a result.

[37]It was also an issue as to whether it was agreed between the parties on the evening of 19 January 2016 at the Regus offices in Richmond, that the claimant would be paid £10,000 per month for January and February 2016 for his work for client A instead of £5,000 per month as initially agreed.

[38]The respondent accepted that on 21 December 2015 the claimant emailed her (her bundle page 83) saying that his work for this client was increasing and he wanted to review the “workload we are billing for in terms of my time”. On 12 January 2016 he emailed the respondent to ask if she was ok with him suggesting a “higher monthly block” to this client and asked for her views (her bundle page 67).

[39]The respondent accepted in her statement, paragraph 21, that the claimant was “pressing her to show more hours and double his fee on account to £10,000 per month” but she was adamant that she did not agree to this.

[40]I find on a balance of probabilities that there was no such agreement between the parties to double the claimant’s monthly fee for client A for the following reasons:(a) the respondent was dissatisfied with the standard of the claimant’s work including the problem with the issue of the High Court proceedings for that client;

(b) there is no written record of any such agreement - clause 14 of the Consultancy Case no. 2301370/2016 ph judgment + cm Nov 2014 wip version 7 Agreement of 6 March 2014 states that the agreement “shall only be capable of being varied by a supplemental agreement in writing signed by or on behalf of the parties hereto”. The claimant is a solicitor and understands the importance of a written record of an agreement, particularly one that is as important to him as his pay. It was a simple enough matter, had there been such an agreement, for him to send an email shortly after the meeting to say “This is to confirm our agreement on 19 January 2016 that my fee for client A will be increased to £10,000 per month” and

(c) I am supported in my findings by the findings at paragraph 54 of the Judgment of the three-person tribunal chaired by Judge Gordon.

[41]It is not disputed by the respondent and I find that when the claimant came to invoice the respondent at the higher rate of £10,000 she did not challenge it at the time. She simply told him that his invoices were “wrong” without saying what exactly was wrong. I find that the respondent was under a huge amount of pressure at the time and felt that she was being “bombarded” with invoices from the claimant and that she did not challenge it at the time because of the pressure she was under. Nevertheless, I find as a fact that there was no agreement that the claimant’s fees for client A were to increase to £10,000 per month for January and February 2016. For client WK

[42]It was said by the respondent in closing submissions that this was not originally part of the claim but had been added during case management hearings. It has been part of the list of issues since July 2019 and I considered that if there was a question over whether this was properly included, it should have been raised in the last 18 months and not in closing submissions so that the tribunal would consider it.

[43]The claimant confirmed during this hearing that the sum he claimed was limited to £4,000 and not an additional £2,000. The invoice was at page 64-65 of the claimant’s bundle and referred to at paragraph 22 of his witness statement. Pages 524-528 of the claimant’s bundle showed documents from client WK confirming that this client had paid the respondent firm for the work done by the claimant.

[44]The respondent’s case was that the claimant had been overpaid by £2,483.13 in relation to this client. In a Schedule of Payments made by the respondent to the claimant (a document prepared by the respondent) there were five separate sums paid to the claimant which the respondent attributed to client WK, totalling £8,438.13. The respondent said that the claimant was paid everything he was due and that the post termination payments in April 2016 meant that he had been fully paid, if not overpaid. The problem for the respondent was that she had not sought to show how those payments had been allocated.

[45]The claimant did not dispute the accuracy of the statement of payments but he did not know how the payments had been allocated. The schedule of payments on five dates relied upon by the respondent as relating to WK said “A Dobbie consultant fee (ref on A/c AL)”. Case no. 2301370/2016 ph judgment + cm Nov 2014 wip version 8

[46]I find that there is no dispute on the entitlement to £4,000 and this is the amount to which the claimant is entitled in respect of client WK because he did the work and the respondent firm was paid. Credit must be given for sums paid by the respondent and this is referred to in more detail below. For client M

[47]This related to work done by the claimant on the extension of a commercial lease. For this client the issue was whether the claimant was partially paid with a payment of £556.75 and whether the remainder was due. The respondent said that there were no fees owing because the claimant did not do all the work on the file. There was a witness statement from a Mr B of the client confirming that the client had paid and this did not appear in dispute.

[48]The sum in issue was £906. There were some problems with the transaction which had to be resolved with the client. In the course of the transaction the fees were negotiated with the client. The client was unhappy and a reduced fee was agreed and the claimant was entitled to 40% of that. The respondent accepts that £906 was the correct fee at 40% to which the claimant would be entitled had all been well and that she paid £556.75 in April 2016. She says she had to spend 2 hours doing some remedial work on the case.

[49]The parties agreed that £906 was the correct sum due to the claimant but it was reduced by the respondent because there was a client complaint and she had to carry out work to deal with this. She therefore reduced the amount she was prepared to pay to the claimant and paid him £556.75 in April 2016. I refer in the conclusions below to the claimant’s entitlement in this matter. For client U

[50]For client U, there were three amounts claimed. The first was for £300 for a matter called 1 USQ and the second and third payments were both for £800 for 25 O Square and 81 O Square. In the claimant’s bundle at pages 145 and 146 were the invoices from the respondent firm to the client U in December 2015. Client U is a property management company that had consistent and ongoing work with the respondent.

[51]It was the respondent’s case that the claimant did not do the work and that it was done much later by the respondent and Ms Duncan long after the claimant left. The tribunal was taken in one of the respondent’s bundles to invoices in November 2016 which had titles that corresponded with the properties in question and billed for work after the claimant left. The December 2015 invoices said that they were for money on account, although VAT had been charged.

[52]The claimant said that for this client, issues arose three or four times a year which involved work for that client. He recalled issues relating to a car park and to the Right To Manage for the building. The respondent said that he did very little work and/or that he did not do work of any substance and/or that it was she and Ms Duncan who did the work based on the November 2016 invoices. Case no. 2301370/2016 ph judgment + cm Nov 2014 wip version 9

[53]The tribunal heard from Mr Rupert Wertheimer who was a property manager at client U until either mid-March or mid-April 2016, he could not recall which date. His evidence was that the claimant worked for client U on litigation related to 81 O Square and the other matters. Although Mr Wertheimer’s recall was not detailed, he was satisfied that the claimant acted for him on more than one occasion. He was the manager responsible for paying the respondent firm’s invoices and he said at the date of his departure it was all paid up to date.

[54]He was asked about the reference to “money on account” on the December 2015 invoices and what this meant. He said that it meant on account for work that was pending, but that the work “could have been in hand already” because the disputes referred to in the invoices were ongoing for some time. He recalled in relation to one of the matters it was a dispute that started in 2009 and only settled this year (2020). For the other matter of 81 O Square Mr Wertheimer said that this had been dealt with and closed off before he left in March or April 2016.

[55]Based on the claimant’s evidence that he did work for client U and this was corroborated by Mr Wertheimer, I find that the claimant did work for that client. I do not accept the respondent’s evidence that he did very little work or no work of any substance. This is not supported by Mr Wertheimer who was also the manager responsible for paying the respondent firm’s fees. His evidence, which I had no reason to doubt, was that the respondent was paid up to date by the time that he left and that the matter of 81 O Square had been dealt with and closed off before he left.

[56]In the Schedule of Wages claimed, which was in one of the respondent’s bundles with the respondent’s comments, it was accepted that the respondent has been paid by client U for the work on these matters. She says that it was billed against money taken on account so I find that on all three matters the client has paid the respondent.

[57]I find that in relation to the work on 81 O Square, based on Mr Wertheimer’s evidence that this was all done and closed off before he left and that he was responsible for paying the respondent, that the requirements for payment under the Consultancy Agreement are met for this matter of £800.

[58]Based on Mr Wertheimer’s evidence with his confirmation that invoices referring to money on account was for work pending and his lack of confirmation that the work done on the other two matters was done by the claimant, I find that the claimant has not discharged the burden of proof in relation to the other two matters for client U. I make no comment on whether or not VAT should have been charged in relation to requests for money on account as this does not form part of the issues for determination. For client FE

[59]In relation to client FE the claim was for £250 for employment advice on a settlement agreement and whether this was paid. It is not in dispute that the percentage due to the claimant was 50% if he introduced the client and it was Case no. 2301370/2016 ph judgment + cm Nov 2014 wip version 10 50% of £500. The invoice from the respondent firm to the client was at page 139. The respondent accepted that the fees were paid by the employer in that case. The respondent’s position was that this was paid to the claimant and included in the April 2016 post-termination payment of £2,306.75. The claimant said he did not know this because he did not know what the payment of £2,306.75 related to.

[60]There did not appear to be a dispute that the claimant was entitled to the sum of £250 as payment of his wages on this matter and to the extent there that might be any dispute, it is my finding that the claimant is entitled to this sum. Credit must be given by the claimant for sums paid to him. Post termination payments

[61]The respondent made two post termination payments to the claimant in April 2016. She did not attribute those payments to work done for any particular client and the claimant has not given credit for those payments as he says it is not up to him to decide how the respondent wished to allocate it.

[62]Those post termination payments were made on 6 April 2016 in the sum of £2,306.75 and on 8 April 2016 in the sum of £2,100, making a total of £4,406.75. Whilst it would have been much more helpful if either the respondent had made clear what those payments were for and/or for the claimant to have given credit for them against sums claimed, I find that these payments have been made and that credit must be given for them against the sums claimed.

The relevant law

[63]Section 13(1) of the ERA 1996 provides an employer shall not make a deduction from wages of a worker employed by him unless the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or the worker has previously signified in writing his agreement or consent to the making of the deduction.

[64]Section 24(2) of the ERA 1996 provides that where a tribunal makes a declaration that the claimant is entitled to payment of any unlawful deduction, it may order the employer to pay to that worker, in addition to any other amount ordered to be paid to the claimant, such amount as the tribunal considers appropriate in all the circumstances to compensate him for any financial loss sustained, which is attributable to the matter complained of. The loss must be as a result of the unlawful deduction.

Conclusions

[65]This is a case which depends upon the contractual arrangements between the parties and the statutory provisions in section 13 of the Employment Rights Act Case no. 2301370/2016 ph judgment + cm Nov 2014 wip version 11 1996. Where I make reference below to the “employer” this is in a loose sense as Employment Judge Spencer decided at an earlier hearing that the claimant was a “worker” and I am aware that he was not an employee. Workers of course have the protections afforded by section 13.

[66]I have made findings above that there was no contractual agreement between the parties for any claw back of the claimant’s fees. If a worker or employee performs below standard, the employer has options it can take. This is either to performance manage the worker or to terminate the contract subject to the legal requirements that apply to that situation. The remedy is not to make deductions from pay and this is the purpose of section 13 Employment Rights Act, so that employees and workers are not subject to deductions from wages where there is no agreement to the deduction. This protects workers and employees from having their pay reduced when the employer decides that it is not happy with the work done.

[67]It was acknowledged by counsel for the claimant that if the respondent thought that the claimant had acted negligently, there were other routes that she could have taken. I make no comment about this. The respondent acknowledges in many of the cases that the claimant did the work but says it was not of any value. The deduction of his pay is and was not an available option in those circumstances. For client A

[68]My finding above is that there was no agreement to increase the claimant’s monthly fee for client A to £10,000 per month. His entitlement is to £5,000 per month.

[69]I also find that even if the claimant did not do the work to the standard required by the respondent, there is no entitlement on the part of the respondent to “claw back” his pay for the reason set out above. He is entitled to be paid in respect of client A but at a monthly fee of £5,000 and not £10,000. For client WK

[70]The finding above is that there is no dispute on the entitlement to £4,000 and this is the amount to which the claimant is entitled. Credit must be given overall for sums paid by the respondent. For client M

[71]The finding above is that the claimant did the work and the client was billed and paid the respondent. The respondent made a reduction in the amount she paid to the claimant because she had to deal with a client complaint and do work herself. She paid £556.75 against the £906 due. I agree with the respondent’s submission that there are no grounds to withhold payment of wages. This is not Case no. 2301370/2016 ph judgment + cm Nov 2014 wip version 12 the remedy for an employer when on their case a worker does not do the work well. The balance due to the claimant in respect of client M is £349.55. For client U

[72]The finding above is that the claimant is entitled to be paid £800 in respect of work done for client U but there is no entitlement on the other two matters. For client FE

[73]The finding above is that the claimant is entitled to the sum of £250 with credit to be given overall for any sums paid by the respondent to the claimant. Considering remedy

[74]The findings above will assist the parties in calculating the figure that is due to the claimant from the respondent in relation to the matters upon which he has succeeded in this case. He has not succeeded on all matters.

[75]From that final figure, the claimant must give credit for the two April 2016 posttermination payments in the total sum of £4,406.75.

[76]I took the view that it was not possible to determine remedy without hearing further from the parties. There is a section 24(2) claim which can only be addressed when the tribunal has made a declaration as to the entitlement to payment. Any losses that might be awarded under section 24(2) must be as a result of the unlawful deductions. The closing submission from the claimant at paragraph 37 of the written submissions was for £3,716 on the basis that the claimant succeeded in full which he has not. The respondent did not make any submissions on the section 24(2) claim and neither party made oral submissions upon it.

[77]The parties are strongly urged to seek to resolve the final issue of remedy. They will be able to calculate the sum due to the claimant from the findings above and offset the sums paid by the respondent post-termination in April 2016. The claimant will need to show an evidential link between any losses incurred as a result of the failure to pay him what is due.

[78]The parties are also urged after 4.5 years of litigation to take a pragmatic approach to this versus the continuing stress of the litigation and the time and cost of yet another hearing. The tribunal envisages a three hour remedy hearing and will make strict orders as to presentation of evidence (particularly documents) in the light of the history of the case. It is hoped that this can be avoided.

[79]I expressed my thanks to both counsel for the high standard of their work in a difficult case and their skill in taking the tribunal to the relevant documents where the document preparation was lacking in focus and no heed had been taken by Case no. 2301370/2016 ph judgment + cm Nov 2014 wip version 13 the parties from the comments made by the previous tribunal at paragraphs 7 and 8 of the Reasons. ____________________ Employment Judge Elliott 7 December 2020 Sent to the parties and entered on the Register on: 07/12/2020 For the Tribunal: Case Number: 2301370/2016 EMPLOYMENT TRIBUNALS Claimant Respondent Mr A Dobbie v Paula Felton t/a Feltons Solicitors Heard at: London Central on: 17-21 and 24-28 June 2019 Before: Employment Judge Gordon Mr J Walsh Mr S Godecharle Appearances For the Claimant: Adam Ohringer (counsel) For the Respondent: Susan Chan (counsel) Reasons provided following request pursuant to Rule 62(3) of the Employment Tribunal Rules of Procedure 2013.

Conclusions

[1]This hearing was to determine whether the claimant was subjected to detriment for having made protected disclosures. It has already been determined that two disclosures were protected.

[2]We have worked to an agreed list of issues, which is appended to this judgement. Eleven detriments are alleged, some comprising several acts. A twelfth detriment relates to a report prepared by Claire Duncan, now deceased, formerly third respondent in these proceedings.

[3]We are also asked to decide how long the claimant’s engagement would have lasted had it not terminated when it did, but not how much he should be awarded if successful. A hearing has been listed on 4 and 5 December 2023 to decide remedy if required. Procedural History

[4]The claimant worked for the respondent as solicitor under a contract for services. That contract was terminated by her on the 15th March 2016.

[5]These proceedings were commenced in July 2016. It was determined on 5th October 2017 that he was a worker, but not an employee. Case No: 2301370/2016 2

[6]It then was determined in June 2019, by Employment Judge Gordon, sitting with lay members, following a 10 day hearing, that two of the three disclosures for which protection was claimed disclosed information, but that they were not made in the public interest. It was also held that if the disclosures had been protected the termination was not because of them. No determination was made in respect of the other detriments. The written judgment was sent to the parties in December 2019.

[7]The claimant appealed successfully, and the case was remitted back to a different tribunal. On 22nd September 2022 Employment Judge Gordon-Walker, sitting alone, determined that the disclosures made on the 29th February and 4th March 2016 were protected.

[8]As well as the claim of detriment for making protected disclosures, there was a claim of unlawful deductions from wages. Employment Judge Elliott made findings in that claim in a judgement dated 4 December 2020, but as there was insufficient information of payments made, determination of the amounts due was postponed to a further hearing,. Some findings made in that judgement are relevant in this decision. The claimant has applied for reconsideration of that decision. It was listed for hearing, but then postponed to the outcome of the appeal, and will now be re listed by Judge Elliott to decide the reconsideration application, and determine quantum. Anonymity

[9]In 2017 an order was made under rule 50 to anonymise the names of all clients of the respondent firm, with the exception of the claimant’s parents.

Evidence

[10]We were provided with a bundle of pleadings and orders (179 pages), a main bundle C (2,542 pages), a respondent’s supplementary bundle PF (615 pages, and a BSB bundle (478 pages) containing correspondence with the BSB and some miscellaneous material. There was also a bundle of “Claimant’s New Documents” (522 pages). Its admission was controversial and we only used it to read a more legible version of text messages in the main bundle.

[11]There have been complaints from a number of judges in these proceedings about lack of cooperation in preparing bundles – see E J Gordon, paragraphs 6, 8, 8, 18 of the December 2019 judgment, E J Elliott, paragraph 18 of the December 2020 judgment, and E J Gordon-Walker’s note of several unagreed bundles in her judgment of September2022. In view of this, in November 2022 E J Snelson laid down a careful timetable for disclosure of additional material and agreement of the contents, all to be finalised by 28 April 2023. It was disappointing then to receive so many bundles and to be told that as of midnight the day before the hearing start the respondent was restoring documents omitted by the claimant, and for the index for the main bundle to be unusable. We did not conduct any enquiry into why this had happened, and all were resigned to working with what was available, but numbering discrepancies increased the difficulty for counsel, and for the panel when trying to follow what had occurred.

[12]We heard live evidence from the claimant, Alastair Dobbie, and from the respondent, Paula Felton. Case No: 2301370/2016 3

[13]We admitted to evidence written witness statements of M_ B_ and Rachel Robertson for the claimant, and of John Crosfill, Chris Makin and the late Claire Duncan for the respondent. The claimamt had no questions for Mr Makin and Mr Crosfill. Ms Duncan had given evidence at the Gordon hearing. A number of documents were attached to Ms Duncan’s statement which had appeared in an earlier hearing bundle.

[14]The claimant had prepared his own witness statement, which tended to argue his case rather than set out a factual narrative. Ms Felton provided more narrative, but both in her statement and in replies to questions it was clear that she relies to a large extent on the documents for the detail of what happened eight years ago. We were provided with a detailed chronology which we could cross reference to bundle pages. In a case this old and with bundles so big this was particularly helpful.

[15]This case is part of a long and bitter conflict, and we are obliged to counsel for their calm professionalism in marshalling the evidence and presenting the arguments on the issues.

[16]At the conclusion of the evidence, the parties having exchanged written submissions, we heard oral submissions supplementing the written material before reserving judgment and setting the date for a remedy hearing if required.

Findings of Fact

[17]Findings were made on the termination detriment in the Gordon judgment of December 2019, where it was said that the disclosures had “little influence” on that decision. We need to set out in more detail the background and reasons for that decision in order to decide what effect the protected disclosures had on it, as well as to understand the reasons for the other matters alleged as detriment.

[18]The respondent was a solicitor and the principal in her practice, trading as Feltons solicitors. Other solicitors were contracted to work for her from time to time. All worked from home; conferences and client meetings would be held at serviced offices. From time to time there were some employed administrative staff.

[19]The claimant was called to the bar in 2006 but has not served pupillage. From about 2009 or 2010 he worked for the respondent as a paralegal, in parallel with other business commitments. In 2013 he passed the qualified lawyer transfer test with a view to qualifying as a solicitor. The respondent agreed to assist him in demonstrating relevant experience, and in March 2014 he was admitted a solicitor. Contract Terms

[20]On qualifying, on 6 March 2014 he and Ms Felton signed a contract as a consultant for a term of 6 months, which was renewed for a further 6 months as each term ended. Clause 3 provided that he was to be paid a consultancy fee of 40% of the “fees billed which have been paid and received by the practice, net of VAT and disbursements, on receipt of an appropriate invoice which shall be rendered at the end of each month by the consultant”. Where the consultant had introduced the client to Feltons, the consultant’s share of the profit costs paid by the client was increased to 50%. He was to be paid within 30 days of receipt of payment from the client. Case No: 2301370/2016 4

[21]Other terms stipulated that he was self-employed and not an employee. He could not be concerned in any business venture of a legal nature during the continuance of the agreement without the written permission of the practice, which was not to be unreasonably withheld.

[22]By clause 10 the practice could terminate the agreement forthwith if there was default, which included being guilty of serious misconduct or wilfully neglecting to perform his duties, any act of fraud or dishonesty, or being guilty of any conduct bringing or likely to bring the practice into disrepute in the eyes of the profession or its clients. Clause 11 provided that termination for any other reason could be effected by giving one month’s notice in writing. On termination the consultant was to deliver to the practice forthwith all records and papers relating to the firm’s affairs and business, and any other property belonging to it. The Parents Building Dispute

[23]The claimant lived with his parents. They were in dispute with a firm of builders, Lewis and Minton, about some attic conversion work to their bed and breakfast business in Kew. On 5th June 2014 the claimant emailed Paula Felton. He said: “my parents have claimed against their builders for breach of fiduciary duties. On the indemnity principle I am not allowed to seek costs from the other side that I would not seek from clients. As such, I would like to represent them via Feltons and would request in this instance that the firm does not take a percentage of profit cost on this. Would you accept this?”.

[24]Ms Felton replied: “assuming this does not become too contentious yes. I would just ask that you continue to help me on a few matters on this basis from time to time”.

[25]The claimant calls this the special arrangement, that is, he would get all profit costs paid for the work on the case, not just 50%. In evidence, he called it a contract to which there were three parties, himself, his parents, and Feltons. In our finding, there are two contracts. One is the contract between Feltons and their client, his parents. The other is the contract between himself and Feltons that in this instance he would get 100% of the profit costs recovered, provided the matter did not become “too contentious”.

[26]The claimant then drafted a client care letter dated 11th June 2014 which his parents signed. Page 2, outlining the matter covered by the agreement, starts: “it is our understanding that you require us to conduct litigation in the case listed above, which have been commenced already”, in other words, court proceedings had already begun. The claimant is to do the work, assisted by another consultant A C, supervised by his principal Paula Felton. Her hourly rate is £320 per hour, it is £300 for the claimant and £210 for AC. He emailed the draft to Ms Felton on 17 July. His parents signed a copy which he kept at home.

[27]In the course of the building dispute, Counsel for the builders pointed out that the claim form was defective, and in December 2014 the claimant served an amended particulars claim on behalf of his parents. There was an order that the parents pay the costs thrown away of the amendment, and the claimant paid the builders’ direct access barriste, (Crosfill) with a personal cheque. There had been a notice of hearing from the court in October 2014. It might be thought that by this stage the matter was contentious if it had not already been contentious when the claimant said to Ms Felton that they had Case No: 2301370/2016 5 “claimed”.

[28]In January 2015 the claimant emailed Ms Felton saying that the defendants in the building claim were challenging whether there was a genuine indemnity on legal costs, adding he had the client care letter at home. Ms Felton replied that there should be no difficulty with the indemnity principle as “the client care letter should be sufficient”, and on 7th January the claimant signed a costs schedule in Feltons’ name for the purposes of the imminent case management hearing. Cost costs and disbursements to date were stated as £46,348. A precedent H form, which added in expected future costs, was sent to the court by the claimant for the costs budgeting hearing in a total of £92,190. The existence of an indemnity was confirmed in the statement of truth.

[29]In February 2015 the claimant asked the respondent to promote him to partner in the parents matter, so that when costs were capped his work would not be restricted to £200 per hour, and he could claim the partners rate. Ms Felton did not agree.

[30]The respondent was not involved further in this case until 25 November 2015, when the case was settled at a joint settlement meeting, which she attended in order to show that the parents’ liability to pay costs to the respondent firm was genuine. The claim settled for £110,000 without being spilt for damages and costs, and counsel were to daft a Tomlin order. It is clear that around half of this must have represented the costs shown in the budget.

[31]By then a joint single exert surveyor (French) had prepared a report which had been rejected by the court and another was instructed. The claimant had instructed a forensic accountant (Makin) on the consequential loss to the bed and breakfast business of the building work. Clara Johnson of counsel had been instructed by him from August 2015 and she conducted the settlement meeting.

[32]A few days after the settlement meeting, on the 29th November, the claimant emailed Paula Felton about a payment having been made by another client on an invoice, of which presumably 40% would have been paid to him under the consultancy agreement. He said: “would you like to keep that as a thank you from my parents for your very helpful engagement”. He suggested this was more tax efficient (no invoice, no VAT). We do not have her full reply in the bundle, but the it concludes with Ms Felton protesting: “are your parents going to pay Feltons anything? Given the discussion I had with Crosfill and what I told him they should”, a reference the challenge to the parents’ liability to pay costs to Feltons which had been countered by producing the client care letter.

[33]The terms of settlement were recorded in a Tomlin order, whereby £5,000 was to be paid to the claimants forthwith, then £50,000 before the 24th January 2016, and £55,000 before 24th March 2016. The claimant was to register a legal charge over the builders’ two properties to secure payment of the money. The order provided for payment to the claimant, not the claimant’s solicitors, as would be expected if the solicitor were not holding money on account of costs

[34]On 30 November Paula Felton sent counsel details of the firm’s bank account for inclusion in the agreement. She also advised about a proposed term for release of the charge proposed by the builders’ solicitors. Clara Johnson said Case No: 2301370/2016 6 that she was not a conveyancer. Paula Felton said that she would draft the charge to be registered at the Land Registry, but the messages show that she became too ill. The claimant asked if he could get his parents’ conveyancers to draft it, and they did. The draft was sent to Ms Felton to register. She did so on 18 January, while she was still in hospital, as the claimant was pressing to have it lodged before the imminent trial. Form CH1 drafted by the parents’ conveyancer and signed by the claimant and his parents contains on page 3 several recitals in very small print. Towards the bottom of the page, still in very small print, is a provision that the charge will be released when the money is paid to Calvert Smith Sutcliffe, the parents conveyancing solicitors. Ms Felton seems not to have noticed. The claimant made no arrangement for Calvert Smith Sutcliffe to send the money to Feltons. This meant that when the money was paid by the builders it went direct to the parents.

[35]As for the immediate payment, on 30th November the claimant had sent the builders’ solicitors details of his parents’ personal bank account for payment of the £5,000, so that did not go to Feltons either. He told the tribunal he did not copy it to the respondent because she was not particularly well at the time.

[36]In January 2016 the claimant and his parents disputed counsel’s fee. This did come to the respondents attention, until on 5th March 2016, when she was checking the claimant’s email inbox. Emails showed Ms Johnson was owed £8,200 in all, £1,100 from an August 2015 hearing, and £7,100 for the mediation meeting. It was being suggested that she had left the job undone by not drafting a legal charge. In a vigorous defence of the work she had done she said: “you are simply scraping the barrel to come up with reasons not to pay me. Are you doing this with all the professionals you instructed in the case? It is highly improper. I know you are trying to keep hold of as much money as you can for your parents but Feltons are under contractual obligations (and I would say moral obligations) to pay the professionals who patiently assisted you with the case”.

[37]As for other disbursements, unknown to Paula Felton, the claimant's parents disputed their liability for the Makin bill, asking in February 2016 for details of the medication he was receiving following a heart attack he suffered in March 2015, which delayed finalisation of his report, though he had made a recovery from a triple by-pass operation by the date of his report in August 2015. Mr Makin brought a claim for his fee in the county court, and in May 2017 obtained judgement for the £4,480 fee, plus £4,393.46 costs, an unusual award for a small claim.

[38]In August 2018 Feltons issued county court proceedings against the parents to recover their fees. The firm received £9,378 for the VAT due.

[39]Reviewing the story of the costs arrangements between the claimant, his parents, and the respondent firm, there was some agreement to vary the usual terms as to profit share, without clarity on what “too contentious” meant. The respondent was not kept up to date on the developing position, and given that by the date of the joint settlement meeting, less than three months from trial, it must have been contentious, she would have expected some profit costs for Feltons, though the matter had not been discussed in any detail, and it is also possible that she had forgotten the brief exchange of emails 18 months earlier. She knew there was an indemnity agreement with the client - Case No: 2301370/2016 7 she had defended it at the settlement meeting. She sent the firm's account details to counsel for the agreement, expecting settlement money would be channelled through the firm. The claimant did not tell her the initial £5,000 was going to the parents direct, nor did he arrange for the conveyancing solicitors to remit the money to Feltons, nor did he draw the respondent’s attention to the small print in the CH1. Had she seen it, she would have queried it and checked if there was money on account or an arrangement with Calvert Smith. In our finding, a principal required to sign a document in the name of the firm is entitled to expect the fee earner conducting work in the name of the firm to draw her attention to this. Even if the agreement were that the claimant should have 100% of the profit costs in this case, it is still the case that by reason of the indemnity, Feltons were still liable for the VAT on profit costs, for expert fees and counsel's fees. Had there been no indemnity, the parents would have recovered around half the settlement figure. She had at the end of November protested the “offer” to forgo the claimant’s share of an interim payment on another matter as a payment for her involvement in the settlement meeting. She did not follow it up, probably because she was ill and in and out of hospital. It was understandable that when she did pay it full attention, Ms Felton concluded, rightly or wrongly, that there had been underhand treatment and that she had been misused and cheated. The client A litigation

[40]Feltons acted for a consortium of insurers in Germany, client A, in high value contentious proceedings in the UK. The claimant was assigned to this. He spoke German, and established a good relationship with the client.

[41]Around May 2015 the claimant drafted Particulars of claim with a view to issuing proceedings. As it later turned out, he had already issued a claim form, which therefore had to be served within four months, on 27th August. He asked Claire Duncan to review the draft for him. She advised that it was impossible to discern the case from the pleading and counsel should be ask to advise - the claimant was not competent to settle, and would be struck out or forced to amend if the draft were filed in the present form. The claimant made some changes after speaking to counsel. Ms Duncan looked at it again. She commented it was still made little sense, there was no tangible case pleaded, it was unclear on dates, the cause of action, the facts, and was altogether not CPR compliant. She made some specific comments on the draft which she sent to the claimant. She also told the Paula Felton that the claimant was out of his depth. On the 18th August the claimant asked Ms Duncan whether he should issue proceedings in the commercial court or TCC. He told her counsel had reviewed the draft pleading; he was going to issue the claim form protectively, but she was concerned he could not tell her the limitation date. On the 28th August he asked her to meet him, and they met on the 1st September. It turned out that the claimant had instructed another firm of solicitors as process servers to draft the brief particulars and serve the claim form on 25 August. The claim form had not been signed, and did not have a concise statement of the cause of action. The process serving firm had attempted to contact the claimant on several occasions during the day but without response, so it had been served unamended. The claimant asked counsel to advise, who told firmly he should pass responsibility to Case No: 2301370/2016 8 another firm or a locum litigator to run it full time, because the claimant had insufficient experience to run a case of this complexity and size to trial on his own. The claimant’s report to Paula Felton was not very clear, but she understood enough to write that “it is clear someone more experienced needs to be hands on with this. The risk is too high to allow me to continue with this case otherwise in the current manner”.

[42]The claim was struck out on the 10th September because of its defects by order made on the application of the defendant, and the claim form had to be re issued later, paying a further issue fee of £10,000, and £6,000 costs.

[43]On 11th of September 2015 Paula Felton notified her professional indemnity insurers of an event likely to give rise to a claim. She wrote on the form that she would be terminating the claimant's contract, adding “I am sacking Alastair as he did not ask me to check the form or notify me that he was lodging it that date”.

[44]She did not sack him, but when they met on the 1st of October 2015 she explained that on the instructions of the insurer she now had to keep a close cheque on all external communications, to prevent the risk of a recurrent mistake. She had to read and approve everything before it was sent out.

[45]Despite that, on 21st October the claimant told the process serving solicitors that they were now in the pre-action protocol stage for professional negligence, and they should inform their insurers. When Paula Felton saw that he had written this, she told the claimant that claiming against agents was “her call” and could he run stuff like this past her first.

[46]The claimant suggested that Claire Duncan was added to work on the file and the client be asked to agree to pay for her time as well on the monthly retainer. Paula Felton wrote to client A explaining that payments on account were billed and transferred, there was unlikely to be any overpayment because of the intensity of her time and the work ahead. In October she told the claimant that she was likely to agree a team retainer with client and at the end of October she went to meet the client in Stuttgart, with the claimant, though as found by the Gordon tribunal he did not stay for that part of the meeting where she stated that other fee earners besides the claimant would work on the file from then on. She noted at that meeting that the client spoke good English and the claimant was not needed to translate. It was agreed that there would be a monthly retainer for the next four months and thereafter itemised bills. The client care letter that followed showed a retainer of 50 hours per month for the claimant and another 50 hours for other members of the team, equating to £25,000 per month from the 1st of November. Leading counsel was brought in to advise and direct.

[47]At the beginning of November the claimant complained to Paula Felton that while he understood that she had been withholding payment to meet the costs he had incurred in client A matter, he had to be paid on time each month or he would look for work elsewhere. Miss Felton replied that she was working out a schedule of payments, and it was difficult to receive emails like this from him when she had been “fully supportive of you throughout this mess, when I have been encouraged by everyone, including my insurer, to dismiss you”. Until his mistake she had had a 16 year no claim history on her insurance. He was free to look elsewhere. The claimant responded blaming the process server, a paralegal for not delivering papers in time, Claire Duncan for not Case No: 2301370/2016 9 meeting him before the 1st September, and said he needed money for child support payments.

[48]On 21st of December 2015 the claimant told Paula Felton that his work on the client A matter was increasing and he wanted to suggest a higher monthly payment to the client.

[49]In January 2016 Paula Felton told the claimant that they should read in Claire Duncan on client A and get her to attend the client meeting, and also she had a new litigator coming on board, and insurance/ banking specialist. A few days later she explained as another contractor (Ed Jones) was also reading in. The claimant said that he had spoken to MR of client A about the costs. Client A would like a costs review at the end of February. In the meantime the claimant wanted £10,000 for January and February “as I'm pulling most of the weight here”. That would mean all client A’s payments were going to the claimant, and none to other Feltons’ fee earners. The claimant has alleged that on the 19th January 2016 miss Felton agreed to this, but Judge Eliot has found that there was no such agreement.

[50]There were two other problems going on with the client A litigation. First of all, a new claim form having been issued, it had now to be served with particulars of claim, and despite the fact that the claimant was said to be the only one with a complete grasp of the factual matrix, he was unable to draft particulars of claim satisfactorily or explain that to others. The other problem that arose was that the defendant said the litigation should be stayed because the contract included in arbitration clause. The claimant had not noted this. Leading counsel advised.

[51]Difficulty also rose in December 2015 with another client, M. The claimant had like accepted instructions to act in a commercial lease. He had little conveyancing experience.

[52]The question of payments to the claimant came to a head at the end of February. On the 25th February the claimant sent Paula Felton an invoice for his work in January based on £10,000 work, not £5,000. She replied that the invoices he was sending were not correct, specifically challenging the addition of VAT. He re-sent his invoice without it. The claimant is not registered for VAT. The correspondence background to the protected disclosures

[53]On 26th February 2016, immediately prior to the first protected disclosure, Paula Felton wrote to the claimant saying she was becoming: “deeply uncomfortable with the amount of issues that are continually arising in this case such as claim form and procedural problems, failing to clearly confirm arbitration excluded and this... MR (client A) was very anxious about costs. I'm going to have to do a deal with him and we need to ensure (A’s) costs are not driven up by constantly clearing up problems from earlier case handling”.

[54]It is in response to this that the claimant wrote to her the 29th February the e-mail which contains the first protected disclosure. The e-mail covers a lot of ground besides the protected disposure He addresses whether they can recover pre-action costs, about instructions in 2010 from one JS, whether the arbitration issue is problematic, and then the section on costs and the need for a new costs budget. He suggests that leading counsel delivered particulars of claim at the very latest stage, so extending the costs of the pre-service stage, before addressing the invoicing to the client showing team Case No: 2301370/2016 10 costs, rather than just himself. It is at this point that he makes the protected disclosure observation that on a detailed assessment “the firm is highly vulnerable to later disparity” and has to explain why it has billed more hours than have been recovered. He states this vulnerability has been protected by his increased billing in January and February “as agreed on the day of service of the claim form”, (the agreement on which Judge Elliot found against the claimant) but that there could be deficiencies for October to December.

[55]Miss Felton replied soon after asking when she could collect the client A files from him that week, as she was sending them to be costed. She would reply separately to his e-mail.

[56]Shortly after, she emailed client A saying she had not been proposing additional costs to bring in a litigation specialist, quite the reverse, she was allocating lead responsibility to someone new with a vast amount of legal and technical experience, “Alastair has been useful thus far but we need a strong team leader closer to Anthony's (leading counsel) calibre technically to ensure that his costs are kept within reason too”.

[57]Next, the claimant proposed Friday for the collection of client A files so that he could “trim out the duplication” and give her the most ordered set.

[58]An hour and a half after that, he sent her an invoice for his work in February 2016 on client A, again for £10,000, not £5,000. This came 4 days after his January invoice. Client had not yet paid for February; the money was due within 30 days of client A doing so.

[59]Later that afternoon he said that if she was feeling ‘uncomfortable’ – a reference to her e-mail of 26 February - they should meet to discuss the confidence and trust between them, including “the need, if any, for the involvement of a supervising senior solicitor in litigation” (emphasis added). He proposed bringing in a third party for the meeting. Ms Felton replied on the 2nd March that she could do a meeting on Thursday the following week, but they did not need a mediator. The files would be collected on Friday “what time is good for you and where from? I'm going to have the files collated and costed, it is a big job and need starting asap”. The end of February was of course the end of the standard retainer period with client A, after which costed bills would have to be delivered.

[60]The claimant replied, in the e-mail which was claimed as a protected disclosure but found not to disclose information tending to show wrongdoing, and so not qualify for protection, questioning whether the new solicitor proposed would be breaching restrictive covenants if brought in. He also said that she would not be able to cost the file accurately from the hard copy as it probably only represented 10% of the work he had done, though there were several boxes worth of papers. Most of it was on e-mail which needed to be collected together. On the meeting, and whether they needed a mediator, he said “of course we are in contractual dispute on payment”. He then referred to client A being disappointed at the delay in providing their costs budget, and the claimant had not been able to answer his questions on a new team member. Client A considered that “the essential knowledge of the case history is with me”. All this, and “the firm's policy to hold me liable for adverse costs in a scenario where in reality there are substantial firm profits on the case to cover such a cost” made him consider whether the working relationship should be continued by him providing his services through a limited company Case No: 2301370/2016 11 which had a tax loss (this was his maths tutoring business). Paula Felton replied that she had discussed James Driver with him before. He himself had said that he did not feel procedurally competent to deal with the matter alone. She could access the emails herself. He had been seeking to undermine her. She had done nothing but support him even when she had to notify her insurer of a potential claim. His payments were up to date, with the exception of disbursements where she was waiting for his outline. Finally, she moved from client A to the parent dispute: “you have dictated to me how my firm should be paid for the substantial amount of work undertaken on your parents personal matter. A large costs award was made on the basis of the cost schedules for Feltons time you prepared and submitted the other side. You had indicated that Feltons would receive at the meeting with counsel. I do not consider this to be acceptable and reserve my right to bill under the retainer”. As for the following weeks meeting, “either we agree a position or we simply terminate the consultancy agreement”. As he was looking elsewhere perhaps he would prefer this.

[61]As a panel we noted that the relationship was in difficulty even before the second protected disclosure, and there was much more going on than the overbilling protected disclosure.

[62]The claimant responded later that day stating that in the parents’ matter “it is clear that we agreed that no profit costs or percentage would be taken as a firm”, forwarding the 10th June 2014 e-mail about not becoming too contentious. He had kept his side of the bargain by working without pay on three matters. They should collaborate because he intended to bill the entire file against the single joint expert (Mr French), RICS having finished its investigation; she could be engaged as supervising solicitor and so recover costs. In other words, he was offering her a cut of new litigation arising from that dispute as compensation.

[63]On 4th March followed the second protected disclosure. This is also a discussion of the arrangement for his parents case, saying she was making an unlawful deduction from his pay, and threatening to hit his parents with a bill when he pushed for contractually due payments. The case had settled in November but only when in March he took a firm stance on his pay did she raise these issues. She should discuss it with her his father in the light of impending actions against another builder. He had also raised “how the firm stands if there are costs review. This is not to attack you or question your integrity, it is to protect you”. This is a clear reference back to his e-mail 2nd March, and it does of course question her integrity. Although she had lost a great deal of confidence in him and his judgement, he said, he had a right and duty to express his professional opinion within the firm. Later in the e-mail he refers back to the “haphazard claim form service” and that he had offered to forgo payment to himself to make sure litigation continued “without pushing Feltons into insolvency”, but he did not admit personal liability, Including liability for any increased insurance premium. He blamed the difficulty drafting the claim form the previous year on Claire Duncan for not attending a meeting. He wanted an agreement that nobody would sue anybody else, by which he would not bring a claim for unfair treatment or unlawful pay deductions, and she would not claim against him or his parents. In the client A litigation, the files were not to be transferred to a new supervising solicitor, Case No: 2301370/2016 12 and instead there should be a regular two hour meeting once a week “where I can address within the expanding fact matrix of the litigation” his concerns issues and questions with James Driver as mentor.

[64]It was at this juncture that the respondent came across the correspondence with Clara Johnson disputing her fees, and she wrote to her saying “I had absolutely no idea that this is going on”.

[65]On 8th March Paula Felton recorded her discussion with MR of client A, to discuss her meeting with an expert witness the previous day,. Going forward, she would deal with consolidation of the case, making sure the fact matrix was consistent with the statements. She also discussed the claimant’s ongoing involvement. She said the claimant had achieved what he could by extracting facts, but they needed someone who was technically competent to tie everything together. They needed a more experienced solicitor for the next stage. The claimant could possibly help with research but she now had a copy of every single document, so he was not to worry.

[66]On 9th March Paula Felton asked the claimant for copies of his time recording notes on the file. They were needed for cost draftsman to prepare a bill. It was clear from the client's evidence in tribunal that he did not keep time records on this case, as he had on his parents building dispute. He thought a costs draftsman would somehow allocate time to tasks from the specimen hours of the monthly retainer.

[67]On 9 March Ms Felton saw an email the claimant had sent to the joint expert’s (French) solicitors’ on behalf of his parents, so she could see more litigation on that was coming, and next day she terminated the retainer of the claimant's parents, saying it had only covered the dispute with the builders. She would come back to him about the costs schedules; as their son had acted: “I do not expect to receive the type of correspondence I have seen other professionals receiving in this matter”. She asked them to deal with Clara Johnson's account, as counsel had been instructed via Felton’s. Termination of the consultancy agreement

[68]On 15th March the claimant wrote to Paula Felton saying he had not been paid since 2015 (i.e. no payment for January or February) 2016. There was £29,435 outstanding. She must complete payment “before i engage in further work”.

[69]Later that day he and his father engaged in correspondence with her about Feltons not being entitled to payment in the building dispute. Paula Felton replied to the father that it was a genuine indemnity as represented in the joint settlement meeting, which settled relying on a cost schedule for Feltons’ charges. The claimant replied on behalf of his parents that they would pay her for 9 hours work, £2,880. Clara Johnson had settled on a no cost basis, and then declined to continue negotiating the terms of the order after the meeting.

[70]Paula Felton then emailed the claimant terminating the consultancy agreement. She began: “following the communications from you of the last few weeks and those in relation to your parents’ matters with various threats and accusations I feel I have no option but to terminate our consultancy agreement. I have tried to remain patient and hope that we could work through this but I can see now that this is simply not going to happen”. On the parents matter, whether she got paid or not, a representation had been made in conference and to counsel as to costs, which he now said was false. She Case No: 2301370/2016 13 also had complaints from professionals about his conduct and competence. On the client A file, the records were incomplete and there was no time recording, so there would be great expense in having his part of the file rebuilt, organised and costed. She had tried to support him over the claim form. There have been further concerns about his competence; he was upset that she had looked at the need for his continued involvement in the move toward trial. He had ignored direct instructions. She had not intended to sue him. She had never objected to him getting work with other firms. His legal adviser status was shown on many of his website presences, “But you have threatened to be several times the tribunal?”;all she had done was to explain that he must undertake regulated activities only via solicitors’ firms. Events following Termination

[71]Next day the claimant said he had been reviewing the SRA requirements for managing a firm and he found her management sorely lacking. He also had serious concerns about Feltons’ solvency. He might have no option but to report the entire situation to the SRA (the solicitors’ regulator). He questioned why she had progressively eroded the infrastructure of what was “a promising firm two years ago”, suggesting it was to do with her personal life.

[72]Paula Felton replied that her firm was solvent. She asked the claimant to direct all correspondence to Claire Duncan. As to billing, she could not follow how he reached a total of £29,000+, he had billed for unagreed amounts, he had not recorded his time, and he had billed for February before the month was finished. As she was concerned about his personal solvency, she had sent him a cheque for £10,000 on account, to help with his cash flow problem. We have seen the cheque, which the claimant returned and did not cash. It says on the back that it is “on account of final settlement”. The claimant maintains that this meant he would accept it in full and final settlement, which we considered to be a mistaken understanding.

[73]After that, on 17th March, there was more correspondence about what the claimant was owed for client A work, and what work Claire Duncan and Ed Jones had been doing on it. He did not think it right that Claire Duncan should be dealing with their dispute, as she would be a witness of fact if the SRA investigated the firm.

[74]At the same time, Clara Johnson said that she was still owed £2,100 for attending the joint settlement meeting in the parents’ building dispute. Paula Felton said that she would arrange to pay that, although subsequently Ms Johnson said that she did not wish to hear anything more about the matter. Reports to the SRA and BSB

[75]On 24th March Paula Felton emailed the Solicitors Regulation Authority with a report about the claimant's conduct in his parents matter. Although this is identified in list of issues as a report signed on the 5th March 2016, on comparing the handwritten date on the various copies in the bundle, and based on internal evidence, we conclude that it was in fact written on the 15th March 2016, the date of the termination.

[76]After outlining the retainer and the settlement meeting, she stated “the issue I feel I need to report is the element of purposeful misrepresentation by Alastair and his subsequent behaviour which has left Feltons unpaid. He arranged for his parents to instruct another solicitor to collect the settlement sum of £115,000 without my knowledge and presumably to take this out of reach of Case No: 2301370/2016 14 payment of legal costs and disbursements without discussing this with me again”. He had been hostile and aggressive to counsel. There was “at least a question over Alastair 's integrity” which she felt she had to report. She had given him opportunities to correct the situation, pointing out that he could not say one thing to the court and professionals and act in another, “but he just became more hostile. Issuing spurious threats that I must do as he says. I had no alternative than but to view this behaviour as a risk and end my working relationship with him”. She wanted this report on the record in case of “further complaints about his integrity and aggressive manner in the future”. In her covering e-mail she said she was not asking for action, but felt bound to report as his behaviour could bring the profession into disrepute.

[77]However on 10th April she wrote saying that after “almost four weeks worth of extremely insulting emails from Mr Dobbie and his continued abuse towards Clara Johnson, a female barrister, I do wish to make this a formal report. His conduct is unbefitting of a solicitor.” The prompt for this was his reply to Claire Duncan (see below) suggesting her memory was defective ad asking for her medical records.

[78]On 4th April 2016, she had also written a report to the Bar Standards Board. She sent it on 13th April. She said she did this because she remembered the BSB was also his regulator. The report concerns the dispute over whether the retainer was real in the parents’ building dispute. She attached her report to the SRA. That was further poor professional conduct in his correspondence with Clara Johnson and John Crosfill (counsel for each side in the building dispute) and herself. He had accused her of being insolvent, under the influence of medication affecting her mental capacity, and had launched attacks on others, he had made false representations to the court, encouraged his parents to refuse to pay counsel’s fees, and been aggressive towards fellow professionals. At the end, in an apparent afterthought, she complained that he had discussed private practice matters with third parties, with allegations of dishonesty on her part to her client “in that I have charged for work not done, which is a lie”. In a section asking for witness details she said: “see above and make your own enquiries please I do not wish witnesses to be harassed”.

[79]The reference to medication is because on the 9th April the claimant wrote to Claire Duncan ‘surmising’ the allegations Paula Felton was making about him were because she was suffering “some serious or transitory memory deficiency due, I would suggest, perhaps to her current or past medical history” as “she has undergone both scheduled and emergency medical treatment, presumably supported by medication”.

[80]Following up the history of the BSB complaint, the BSB wrote asking her for evidence and when she did not reply, dismissed the complaint because there was no further information. Then on 16th of August 2016 she emailed the BSB asking for a review of their decision, attaching emails in which the claimant had criticised John Crosfill in April 2015, saying that omitting te word “loft” from the defendants’ company name he had used a false name which was a criminal and civil offence. In September 2016 the BSB reopened the complaint. On 22nd November 2016 they contacted the claimant about it. We can see that in November 2018 Feltons told the BSB they were suing the claimant’s parents for the sums claimed for solicitors’ fees. Case No: 2301370/2016 15 Claire Duncan’s Report

[81]Paula Felton asked Claire Duncan to deal with the correspondence from the claimant from the time of termination because, as she put it, she had a “mini nervous breakdown” and could not cope with the claimant. We were told Claire Duncan worked for the Government Legal Department in the employment law team, but had her own practice which contracted with Feltons. Paula Felton had a number of conversations with Claire Duncan, and sent her the correspondence. On the 5th April Claire Duncan sent a report to the claimant. She recited that he worked on an ad hoc basis as a self-employed consultant until entering a consultancy agreement in March 2014. He had continued to undertake work for third parties as an Internet legal advisor, a director of QuickBooks and Richmond Maths Limited and as a lecturer of Dobby Associates. He had also registered with an agency for additional work in 2015. The terms of the agreement were recited. She moved on to the current position, saying that it had been clear in the latter part of 2015 that he was not capable of running the client A case; solutions had been discussed in November 2015 but he had insisted on retaining control. In 2016 he had tried to amend the agreement by demanding payments of £10,000. Then in early 2016 it had come to light that he had sent unprofessional correspondence to professionals which reflected badly on Feltons, and that he was conducting personal work through Feltons and retaining payments for his own benefit while leaving Feltons liable for 3rd party fees (a reference to the parents building dispute). Then in February March 2016: “you sent a number of unprofessional emails to Paula Felton which made any future working relationship impossible and the agreement was terminated with immediate effect on the 15th March 2016”.

[82]She then said that following inquiries (which she did not specify) it was evident that he may have used confidential information, diverted valuable opportunities for his own profit, failed to act in good faith, acted where his own interests conflicted with his duties to the practice, failed to account for personal profit, solicited the practice’s clients for his own benefit, brought the practice into disrepute, misled the court and defendants in relation to costs on the parents’ case, failed to maintain files in an acceptable manner and conducted himself in a manner unbefitting a solicitor. The practice had thereby suffered loss and damage, including significant management time and costs investigating his misconduct, loss of reputation, disruption of relationships with clients and loss of revenue.

[83]He had suggested that some of his allegations were whistle blowing. They related mainly to alleged late payment of his invoices. She considered that was not in the public interest, and amounted to a personal grievance.

[84]On his invoices, the files were being sent to a cost draftsman. It was not agreed that his £5,000 monthly payment for client A had increased by agreement to £10,000. He was also seeking payment for fees which had not yet been received. The practice calculated that he was owed £7,306.75, after deducting money paid to Clara Johnson and 50% of the adverse costs paid to the defendant solicitors. He would be paid £2,306.75 fourth with and the balance when he had retuned all files, books and receipts for disbursements due to him. The £10,000 cheque he had not cashed had been cancelled. He was reminded of his obligation to account for personal profit made while Case No: 2301370/2016 16 holding himself out to be acting on behalf of the practice, and to disclose correspondence, invoices and payments on named matters.

[85]The claimant replied saying he would tell the SRA of the disclosure, anonymously, and in challenging some of the assertions, he included the suggestion that Paula Felton’s health and medication affected her powers of recall, adding a demand that she immediately disclose to him: “all medical records of Ms Felton including but not limited to operations, admissions, both scheduled and unscheduled, and medication. If memory or neurological function have been specifically annotated by any member of the medical establishment please disclose also these notes”.

Relevant Law

[86]By section 47B(1)A of the Employment Rights Act 1996: “ 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. This includes acts done “by another worker of W's employer in the course of that other worker's employment” - section 47B (1A Detriment means being put at a disadvantage. The test of whether someone has been disadvantaged is set out in Shamoon v Chief Constable of RUC

(2003) UKHL 11

, and the test is whether a reasonable worker would or might take the view that the treatment accorded to them had in all the circumstances been to their detriment - Jesudason v Alder Hay Children’s NHS Foundation Trust

(2020) EWCA Civ 73

, but “An unjustified sense of grievance cannot amount to detriment” Barclays Bank v Kapur no2 1995 IRLR 87. 87. The test of whether any detriment was “on the ground that” she had made protected disclosures is whether they were materially influenced by disclosures– NHS Manchester v Fecitt

(2012) ICR 372

. This is less stringent than the sole or principal reason required for claims about dismissal.

[88]The Tribunal is required to make a careful evaluation of the respondent’s reason or reasons for dismissing her - or subjecting her to other detriment. This is in essence a finding of fact, and inferences to be drawn from facts, as a reason is a set of facts and beliefs known to the respondent - Abernethy v Mott, Hay and Anderson

1974 ICR 323

CA, and Kuzel v Roche Products Ltd

(2008) IRLR 530

, CA.

[89]In assessing reasons, tribunals must be careful to avoid “but for” causation: see for example the discussion in Chief Constable of Manchester v Bailey

(2017) EWCA Civ 425

(a victimisation claim), and Ahmed v Amnesty International

[2009] IRLR 884

. However, it is not necessary to show that the employer acted through conscious motivation – just that a protected disclosure was a ground for detriment– what caused the employer to act as he did - Nagarajan v London Regional Transport (1999) ITLR 574. These cases concern the Equality Act, but the same considerations apply to analysis of why the employer acted as it did in the context of a protected disclosure: “the reasoning which has informed the European Union analysis is that Case No: 2301370/2016 17 unlawful discriminatory considerations should not be tolerated and ought not to have any influence on an employer’s decisions. In my judgment, that principle is equally applicable where the objective is to protect whistleblowers, particularly given the public interest in insuring that they are not discouraged from coming forward to highlight potential wrongdoing.” – Fecitt.

[90]If we find that a protected disclosure was a material ground for the termination of the contract, we are asked to consider how long the claimant would have continued to work for the respondent if it had not been terminated on 5 March. This finding will be relevant to remedy for detriment. We must consider what would have happened if the respondent had acted lawfully -Hill v Governing Body of Great Tey Primary School

2013 ICR 691

. While this involves a degree of speculation, the finding must be based on evidence of what this particular employer would have done if it acted fairly- Teixeira v Zaika Restaurants Limited

2023 IRLR 176

. Discussion Detriment One

Discussion

[91]The first detriment is that from 2 March Feltons pursued the claimant’s parents for legal fees for which they were not liable other than beneficially to the claimant, on the basis of the special arrangement between the claimant and the respondent about fees in this case, and the £2,435 accepted in settlement between claimant and respondent. It also includes issuing a claim in the county court in August 2018 against his mother and father.

[92]It was suggested that pursuing the parents for fees was not a detriment to the claimant. In his witness statement the claimant described this as a “campaign of harassment” against him and his parents, but said nothing else of how he experienced it. Despite that, we considered that this did involve the claimant. He lived at home with them. It is possible that they may have reproached him for not getting the costs arrangements clearer. Whatever the precise arrangements about costs between him and his parents, he may well have derived some benefit. He represented them, and although on occasions he made a show of consulting his parents on their views before responding, he sometimes drafted his father's replies to Paula Felton. Further, if he genuinely thought (and that we are not wholly convinced of this) that the proceedings had not become “too contentious”, it might be reasonable to consider that being pursued for the fees was at a disadvantage.

[93]Why did the respondent do this? In our view, it was in part because the parents had been represented by Feltons, who would be liable to pay counsel and experts if not instructed by direct access. Even if the claimant was entitled to 100% of the profit costs under the special arrangement, Feltons were still liable for VAT, and only recovered it nearly five years after the settlement, after starting proceedings. Ms Felton was also outraged by what she saw as the duplicity of stating one thing to the court while maintaining to her the arrangement was something else. She will also have been upset by the diversion of settlement funds under her nose, and was upset by the attack on counsel in the name of Feltons. In our view these were the real reasons. Many of them preceded the disclosure on 29 February. We do not accept that Ms Felton “accepted” the offer to let her withhold a payment to him when he Case No: 2301370/2016 18 proposed it in 2015. She was clearly angry even then that he suggested Feltons would not share the profit recovered in the usual way. Not until after the first disclosure did the claimant send her the July 2014 email - until then she could genuinely have forgotten all about it, and after it, she did not accept that it had not become contentious.. Finally, when the claimant himself maintained that the special arrangement meant Feltons were entitled to nothing (not even disbursements and VAT) it was hard for Ms Felton to act otherwise. If there had been no overbilling suggestion on 29 February, and no repetition on 4 March, she would have acted just the same. The disclosures had no effect on any detriment. Detriment Two

[94]The first part of this is that on 3rd of March Paula Felton revoked his access to the office e-mail account. There have been various suggestions about whether this occurred innocently, such as an automatic password reset. Having considered the evidence on the contemporary documents we conclude that and you difficulty the claimant had accessing his e-mail account that day was accidental. Have miss Felton intended to lock him out, she would not have investigate it as soon as he raised it and sent him a new password link Later in the day. The claimant may have apprehended that this was the prelude to being taken off the case and out of the firm, but it was a misapprehension.

[95]Next, it is asserted that the demand that he returned his files on client A was a detriment, because of his 29th of February disclosure about overbilling. We hold that Ms Felton wanted the files back so as to draft a bill. The contemporary material shows a request, not a demand, and ordinary exchanges about when they would be ready for collection. There is a factual connexion between the disclosure and Ms Felton wanting the files back so that costs draftsman could cost the work done by him, and incorporate work done by her and other consultants. But it was clear that at the end of February the four months of agreed monthly retainer had come to an end and from then on it had been agreed that bills submitted had to be based on work done. There would have to be a reconciliation of money paid under retainer and work done on the file. The claimant knew this. Miss Felton was also preparing for this much earlier: on 21st of January she asked client A’s MR for copies of all invoices they had received from the various fee earners, and his spread sheet, so she could be clear about disbursements. Asking for the files so that a bill could be drawn is a legitimate request, and any sense of disadvantage was unreasonable - it was not a detriment.

[96]Miss Felton may also wanted the files back because she was getting in a more senior person, James Driver, to run the case. That might be a detriment to the claimant – he would be billing fewer hours. But bringing in more senior people had been flagged up many months before, as she pointed out to the claimant on 2 March She had not taken active steps on this until then, perhaps because she was ill, perhaps because the new difficulty with the litigation in January undermined her lingering trust, suggesting as it did that the claimant's grasp on the factual matrix, or at any rate of the legal implications of the facts, was not quite what it seemed. In our finding, asking for the files back so they could be costed was not a detriment, and if it was, the request was made because of the client agreement on billing, not Case No: 2301370/2016 19 because the claimant had suggested she was over billing. If the request was also made so that an incoming fee earner could grasp the whole case, that was also something long planned, which was not precipitated by a protected disclosure, but by developments in January and February which had made her act now.

[97]There is an allegation that it was a detriment that the claimant was excluded from a scheduled meeting with a witness – JS - for client A, that took place on 7 March. We could see that as long ago as the 9th December 2015 Paula Felton had said that she would see JS to draft his witness statement. On 21st January 2016 she had asked the claimant for the latest versions of all witness statements, contact details, and “anyone we need to speak to” as she was “reading Claire in”. She the arranged the meeting. The plan that she would draw up JS’s witness statement long preceded any disclosure. For any other witness it was clearly already the plan that other fee earners should see witnesses rather than the claimant. Making the disclosure had no material effect.

[98]The final part of detriment two is that the claimant was excluded from any further involvement with client A. We could see that from time to time Paula Felton had suggested to client A that the claimant would have a continuing, albeit diminished role, perhaps in research. Our reading is that a solicitor with a longstanding client with valuable litigation will take great pains to reassure the client that everything is in safe hands, whatever her personal reservations about the ability of any individual, and this is entirely compatible with a plan to drop the claimant from the case once the new litigator was on board and had gained the client’s trust. The January communications just cited show that he was already being eased out of preparing witness statements. On whether the timing suggests that the disclosures of the 29th February or 4th March played a part in this, we concluded that the claimants representations in the contemporary correspondence that MR was unhappy about bringing in another litigator, and that he was meeting MR (having recently brought him over for London for no good reason) indicated to Paula Felton that he was stirring client A into retaining him, and now no longer agreed that a senior litigator should be brought in – the reference to “if any” on 29 February, carrying greater weight with her than any suggestion of overbilling. Detriment Four

[99]The next in time, listed as detriment four, is terminating the consultancy, and doing so without due process. The Gordon tribunal listed the respondent’s reasons for terminating the consultancy agreement in order of importance paragraphs 53 – 58. They were firstly his insistence on being paid double the monthly fee for January and February 2016, ending with saying on the 15th of March that he would do no further work unless he was paid. The second in order of importance was the dispute about whether he was entitled to 100% or 50% of the fees for handling his parents claim, which was allied to the claimant deciding not to bill them at all, despite representing an indemnity agreement to the opposition, and then disputing counsel's fee, exposing the firm to sanction. The third in order of importance was concern about the claimant's competence. The Gordon tribunal discounted complaints made by third parties, before concluding that the information alleged to be protected disclosures “had little influence” on the decision to terminate. It is this finding Case No: 2301370/2016 20 that has been remitted to us, to decide what influence the information about overbilling had – was it an effective cause of the decision to terminate?

[100]Having examined the evidence for ourselves, we concur with the Gordon tribunal with the significant reasons for ending the agreement. His asserting she had agreed to double the fee was important. At the beginning of March they were in dispute on his fees, he stated, saying they needed a mediator, and then he said he was not working until paid, precipitating the termination.

[101]We also agree on the significance of the parents’ dispute. Some account has to be given of why the costs in the parents’ dispute mattered in March. When she first learned that Feltons might not be getting paid, at the end of November, she was ill at least until mid January. It can also only come to her attention in the second half of February at the earliest that the money for which the charge was registered was going to the parents and not to Feltons, a diversion she was not until then aware of, however much the claimant seeks to argue she knew because she signed the CH1 form. The discovery on 5 March of his combative correspondence with counsel was a major influence. They made her believe he was underhand, dishonest, and damaging the firm’s reputation. The sequence of emails on 15 March shows what will have been at the forefront of her mind.

[102]As for competence, in September she had told the insurers she was sacking the claimant, and then seems to have changed her mind, contrary to advice. There was however already a plan to ease him out of anything but research and translation work; she had learned in Stuttgart that his language skills were not needed; she was already putting this plan into action in December, about interviewing JS. Her confidence in his competence was undermined still further in January and February over the pleadings difficulties in the client A litigation.

[103]What evidence is there of the part played by disclosures? The claimant argues that the opening of the 15th of March termination e-mail “the communications from you of the last few weeks and those in relation to your parents matters with various threats and accusations” must be read disjunctively, as the parents dispute plus threats and accusations, which must include, it is argued, what he said about overbilling. This is possible, but not compelling, it could be loose drafting. The rest of the email concerns, in turn, the parents dispute, his competence running client A’s matter, and his freedom to work elsewhere. Here there is the reference to “you have threatened me several times with Tribunal?” The meaning of this was obscure to us. It could mean that in referring to whistleblowing he had hinted at bringing employment tribunal proceedings for making protected disclosures, but in the context of that paragraph we considered it was about the Solicitors Disciplinary Tribunal, which is alluded to when speaking of him undertaking regulated activities, but not explicit from other material.

[104]The next paragraph: “what is clear is that this relationship has come to an end and I will not be manipulated into continuing it by threats from you”, we examined very carefully, as “threats” could include the assertion that she was overbilling client A and that this was whistle blowing. It could also refer to that part of his long e-mail of the 4th of March which had included his proposal that he would not “bring any claim for unfair treatment or unlawful wage reductions” if she would not make a claim against him or bill his parents, and Case No: 2301370/2016 21 the challenge to her integrity in billing. We do not accept that the suggestion he would bring proceedings for unauthorised deductions from pay(which has nt been held to be a protected disclosure), or for unfair treatment (specified here as being locked out of his email account) was what she meant when she mentioned threats. In our finding, the threat she had in mind was his undermining her by his repeated suggestions that discussion with MR showed he was unhappy about the costs position and about her bringing in James Driver, such that she should keep him on the case. This is far more plausible as ‘manipulation to keep him on’ than either a challenge to the billing, which she saw as an attack to persuade her that he should be paid by reference to all the monthly payments rather half of them, or to the proposed compromise of possible future claims. We concluded that, having regard to the overwhelming force of his refusal to work if she did not accept the doubling of his monthly bill, the discovery of what had been going on in the parents building dispute, and the underlying plan which was to ease him out anyway, the overbilling assertion as an allegation of wrongdoing, or the assertion that he had been locked out of his account, had no effect on the decision to end the contract.

[105]The claimant draws our attention to the e-mail she wrote a few hours later, telling client A that the business relationship with the claimant had ended. She had “tried to talk things through with him but his constant stream of emails attacking my integrity and the other issue has meant that I simply cannot continue to work with him”. She assured him that contrary to the claimant's assertion she had put in many more hours than she had built over the last six months and he would see that from the cost schedule in due course, then added other matters to reassure the client that the case would proceed smoothly and effectively. “Attacking my integrity” suggests at least a reference to the 4th March e-mail, a protected disclosure, which refers to her integrity. Despite this, we do not consider that this reference suggests that this disclosure was an effective cause of termination. She would not want to open up with the client about the claimant seeking to undermine her with him, let alone that he was trying to double his monthly payment from the retainer, or that this had led to confrontation and him downing tools. Attacks on her integrity was shorthand for the dispute about how the case should be handled, whether James Driver should take over, whether she had agreed to double his fee, whether she had agreed but rowed back from a special arrangement that he could retain 100% of the profit costs in the building dispute, and so on. We also consider that if she did include the allegation of overbilling in the attack on her integrity, it was not one that caused her particular concern. She knew that she and others had done billable work on the case, related both to the defective claim form, and to the developments in early 2016 in serving particulars of claim, and, unlike the claimant, she knew the client had been told that. It was not a credible threat, to her mind, and in our finding, it was not operating on her decision to terminate.

[106]The second part of this detriment is that she terminated the engagement without any due process. As he was not an employee, no process would be expected on termination. At most it means that he was entitled to notice. On the respondent’s analysis of his behaviour (on which Claire Duncan's analysis was no doubt based) he was not entitled to notice. For very similar reasons as Case No: 2301370/2016 22 those for termination itself, we conclude that termination without notice was because of the parent retainer dispute, undermining her with client A, and asserting an agreement about doubling his fee which she believed to be dishonest. It was not because of any disclosure. Detriment Three

[107]This is the report to the SRA, drafted on the date of termination and submitted on the 24th March, followed by making it “formal” on the 10th April. (The list of issues does not specify what the “repeated complaints on dates unknown” are, and we have not been able to find it out from the case management orders or pleadings.)

[108]The report itself is concerned with the retainer issue on the parents’ building dispute. The claimant’s case is that she only decided to send this because he had made protected disclosures. We considered carefully why in her view matters that come to a head now. It was important that over 4 and a half hours on the afternoon and evening of the date of drafting this report, there had been lengthy emails from the claimant and his father about the charging arrangements. It would be at the forefront of her mind. These emails included allegations from the claimant and his father that Clara Johnson had not done her work properly, and the claimant took this attack on counsel, a woman, hard. We considered that was relevant to why it was composed when it was. It was not a way of getting back at him for asserting wrongdoing. She was genuinely troubled by his behaviour.

[109]There was no detriment to the claimant until it was submitted, on 24th of March. By that date the claimant had faced his accusation the firm was insolvent, an existential threat, particularly when he said he was going to report the entire situation to the SRA. This had nothing to do with either protected disclosure, but her “mini breakdown” at this point may well have been the reason for delaying submission, alternatively, his threat to report her may have made her want to get hers in. Neither reason had anything to do with the disclosures of wrongdoing.

[110]She changed it to a formal complaint on the 10th April for the reasons she gave, namely, insulting emails. The requirement to disclose her medical records to establish that failure to accept that Feltons had no claim to costs from his parents, and that she had agreed to double his monthly payment, was due to faulty memory, was particularly insulting. Detriment Five and Nine

[111]This is the complaint to the BSB, first the initial complaint, then the revival on 16 August 2016 (we think the reference to 21 November is a mistake). Unlike the complaint to the SRA it contains less information underlying her allegations, though she did attach the SRA complaint itself. Counsel for the claimant described it as a “vengeful scrawl”, an impression that the failure to respond to requests for further information might reinforce. Nevertheless, we considered that it was made for the same reasons (and on the same grounds) as the SRA complaint, and was done because she could not complain about the claimant to one regulator and not the other, as he was dual qualified. It was not done to get back at him because of the protected disclosures of wrongdoing. We reached this conclusion despite the addition at the very end saying that the allegation of overbilling was a lie. Clearly this is about the protected disclosure on 29th February and 4th March. It was tacked on to a Case No: 2301370/2016 23 number of other matters which in her belief were unbecoming conduct, and may have been added after the 4th April. In our finding she was already outraged by his conduct, now aggravated by his post-termination allegations of insolvency and “memory loss”. We do not find that the mention of overbilling at this stage was the real reason surfacing in an unguarded moment. We remain of the view that there were already several sufficient effective causes for complaining about the claimant's conduct relying in court proceedings and in representations to opposing counsel on Feltons’ retainer to establish a genuine indemnity for costs payable in settlement, and then denying Feltons were entitled to anything, and his correspondence with counsel who had achieved a satisfactory settlement. This suggestion of overbilling she saw as one more ungrateful outrage, which made no difference to the decision to report his conduct to the regulator.

[112]As for reviving the complaint, our reading was Ms Felton had overlooked the request for further information, and when she was turned down for that reason, she went to look for the evidence they wanted and then supplied it. Notably, it concerned the claimant abusing other counsel.

[113]It is suggested that the correspondence with the BSB in the autumn of 2016 shows details being provided by the respondent that widen the range of complaints against the claimant, well after he had stopped working for her, and were vexatious - meaning designed to get him into trouble, not because there was genuine concern about his conduct. As far as we can see from the correspondence, this was a belated attempt to provide the information she had failed to provide earlier in the year. It is said that this shows she was coordinating complaints from clients, but the selections we were shown, heavily redacted as they are, show her collecting evidence of what she had already asserted, rather than digging up new material. If new, it shows examples of the claimant disputing the fees of other experts in the case, as well as disparagement of both sides’ counsel, which provided evidence of her initial assertions and was of similar character. It was also contemporaneous with her correspondence with the costs draftsman preparing the client A bill (the claim was now settling) about the lack of any time recording by the claimant. If the continued supply of material about the claimants activity went beyond the scope of the original complaint, it was more likely fuelled by her irritation at the claimant’s neglect of basic discipline in file keeping than any protected disclosure. Detriment Six

[114]This is failing to pay the claimant’s invoice for legal work dated 29th February 2016. There is reference to not including sums agreed in a letter 5th April 2016, which we understand to be Claire Duncan's letter. In our finding, the respondent did not pay his invoice because she did not accept that there was any agreement to double his monthly payment on the client A matter. As for not paying the remaining £5,000 conditional on return of his files, we note that the claimant states that two boxes of files were returned, and that he agrees that there were other papers outstanding on termination which were not returned. Whatever the rights and wrongs of whether the condition was fulfilled, we think that this was the reason why there was any shortfall here, not the disclosures. Detriment Seven and 3(a) to (i) Case No: 2301370/2016 24

[115]This is instructing Claire Duncan to conduct an investigation and produce a report into his conduct, referring to the initial report on the 5th April, a further communication on 30th May, and other unspecified communications. It is complained that this was detrimental, being unnecessary, and because Ms Duncan was not impartial. We will also discuss under this heading item three on the list of issues, which deals with the detail of Claire Duncan's findings.

[116]It cannot be said that she was instructed to conduct an investigation and prepare a report into his conduct. Ms Felton asked Claire Duncan to deal with all the correspondence from the claimant because she could not face it herself. Claire Duncan chose to present it in a format closer to a grievance investigation. If it was a grievance investigation, there need not have been a meeting with the claimant, as he had left. She would have stated what she had found out from her investigation if it as a grievance, but it was not. She was answering letters on a variety of matters.

[117]On the specifics alleged, (paragraph three of the list of issues) we discount a , d, e and f, as matters of interpretation of the law - for example, whether he was a worker rather than self-employed - which were legitimately arguable, and cannot be said to be detriment.

[118]For the rest, item b. is that she made unjustified or unnecessary (or both) criticisms of the claimant's conduct. It is possible from her succinct formulation to attribute these accusations to the parents retainer issue, or to his discussion of firm’s business with client A, or to others (we think client M). She may not have been right, but insofar as it was only published to the claimant it cannot be said to be detrimental when he had already adopted a combative tone with Feltons in his correspondence before and after termination. Item c. Is that she sought to deprive him of sums properly due under the contract with the respondent. We do not see that this can be viewed as more than reasonable correspondence about a matter in dispute (how much he was owed) and it was not unreasonable to insist on delivery up of books and files, as required by the contract, before the final payment was made. This was businesslike, and it was he who had asserted contractual breach. We can see for example Claire Duncan writing about practical arrangements for this on the 19th April. Item g. is that she had failed to engage in any due process after dismissal detriment judgement or termination or treatment by the respondent. As already stated we are not aware what the due process would be. If he wanted to assert that he was entitled to notice of termination, he could have said so or sued. If he thought there should be a meeting to negotiate, Ms Felton probably thought a meeting was futile. Item h is that she said counsel had been paid when she was not, which was an attempt at “further fraud on the claimant and/or his parents”. In fact, Paula Felton had said she would pay counsel in full, and it was counsel who said she wanted no more to do with it. At the stage that this was said, it was true, not an attempt at fraud.

[119]The final item is i, that she threatened the claimant with an injunction, costs and later a further complaint to the SRA “in relation to further protected disclosures or to dissuade the claimant from making them”. This is about a letter written on 31st May 2016 covering recent things the claimant had said in correspondence. Under the heading “Public Interest Disclosure Act 1998” it is said that the matters of which he complained were personal complaints Case No: 2301370/2016 25 against the practice and Ms Felton, the disclosure of which is not in the public interest. It went on: “if you persist in pursuing these false allegations and continue to threaten public disclosure of your complaints, (emphasis added) then we will have no option but to seek an injunction”. The claimant was asked for an undertaking to provide at least five working days’ notice of any “proposed public disclosure” otherwise they would seek an injunction and costs. We note that the injunction concerned “public disclosure” of his complaints, rather than persisting in false allegations, or making protected disclosures on matters of public interest. The proposed injunction was a legitimate protection of the firm’s reputation if he was going to make the public allegations about hr firm’s business and its clients to persons other than the firm or an appropriate regulator, for example, on social media or in the press. A reasonable person would understand that he was being asked not to make disclosures to the public, and that this was not putting him at a disadvantage. Detriment Nine

[120]This is that on 6th November 2016 Feltons asked the claimant’s parents for legal fees “in breach of the special arrangement regarding fees in this matter”. As far as we can see that this was a legitimate dispute both about Feltons liability for expert’s and counsel's fees, and for VAT, and it was legitimate for Feltons to dispute that the matter was “not too contentious”, thr condition on which he relied. This is a continuation of detriment 1. It was not because the claimant had made protected disclosures about overbilling client A, or that he was being mistreated for that. Detriment Ten

[121]This is making a “vexatious” subject access request to the claimant on the 10th January 2017. Miss Felton says she made this request because client papers had not been returned and she wanted to find out what he had retained, believing that as data controller of individual clients’ data and under their client care letters she could do this. It was probably not the right procedure, and would not achieve what she wanted. In our finding however, she did not do it to vex the claimant, but because of the ongoing dispute about whether all papers had been returned; more particularly, whether he did have any time recording notes, the cost draftsman having pointed out to Paula Felton in October and November 2016 how few time records there were for his work. The claimant admitted to the tribunal that he still had many files about other clients in storage, so her concern about papers not having been returned was real. The subject access request was a misguided attempt to get the material, but was not done to vex the claimant because of protected disclosures. Detriment Eleven

[122]This is failing to pay the £5,000 promised by Claire Duncan on the 5th April. We know that this was conditional on delivery of his books and files. Some were returned in November 2016. Others we know have still not been returned. Not paying was probably for that reason, not because of making protected disclosures about overbilling or unlawful deductions from wages. We also know that there is lack of clarity on what the claimant has and has not been paid, which has still to be explored in the further hearing in the unlawful deduction from wages claim before Judge Elliot. Case No: 2301370/2016 26 How long would the claimant have continued if not terminated on 15 March 2016?

[123]If we are wrong about public interest disclosures not being an effective cause of the termination of contract, we should consider how long the claimant would have continued but for that.

[124]We do not think it would have lasted long. The relationship was in trouble before any protected disclosure. Paula Felton would have continued to resist paying any invoice based on the doubling of his monthly payment. The claimant had already said he would stop work until he was paid. If he carried through with this, he may only have lasted a week before she reached the conclusion that employment should be terminated. Similarly, there is no reason to think that the claimant would have made any concession on the matter of his parents’ retainer. We know that all he was prepared to offer the respondent was the opportunity to do work on satellite litigation, while she was concerned about VAT, paying counsel, settlement money being diverted away from Feltons without her knowledge, and the firm's reputation. For her the issues were what he said he was owed, the retainer issue, the deception associated with that, and the attacks on counsel. For the deception alone it is unlikely she would have given him a month’s notice.

Conclusion

[125]It is not shown that the claimant suffered any of the pleaded detriments because he had made protected disclosures. Employment Judge Goodman Dated: 13 June 2023

LIST OF ISSUES

[1]It has been determined that the Claimant made the following disclosures and that, for the purposes of Part IVA ERA 1996 they were protected disclosures in that they were made to the employer and tended to show in his reasonable belief that ‘a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject’:a. On 29 February 2016, that Ms Felton was billing Client A incorrectly.

b. On 4 March 2016 i. That Ms Felton was billing Client A incorrectly; ii. That the Claimant had suffered an unlawful detriment on 3 March 2016 as a whistle-blower.

[2]Did the Respondent subject the Claimant to all or any of the following detriments: One -a. On or from 2 March 2016, pursuing the Claimant’s parents for legal fees which: i. The Claimant’s parents were not liable for other than beneficially to the Claimant, on the basis of the special arraignment and the £2,435 accepted in settlement between the Respondent and the Claimant; ii. Departed from the special arrangement reached between the Claimant and the Respondent regarding the fees on this matter. iii. Included issuing a Claim in the county court on 22 August 2018 (Claim No. E5QZ8N0T) against the Claimant’s mother and father Two -b. From 2 March 2016: i. Revocation of the Claimant’s access to his office email account; ii. A demand that the Claimant return his files relating to Client A; iii. Excluding the Claimant from a scheduled meeting with a witness for Client iv. Excluding the Claimant from any further involvement with Client A. Three - On 5 March 2016, making a false and/or vexatious complaint about the Claimant to the Solicitors Regulatory Authority (“the SRA”). And making repeated complaints on dates unknown. Four- d. On 15 March 2016: i. Terminating the Claimant’s engagement with the First Respondent. ii. Terminating the Claimant’s engagement without any due process. Five- e. On 4 April 2016, making a false and/or vexatious complaint about the Claimant to the Bar Standards Board. This included a copy of the complaint made earlier to the SRA. And making repeated complaints on dates unknown. Six -f. Failing to pay the Claimant’s invoice for his legal work, dated 29 February 2016, including sums which Claimant says the Respondent agreed were owing in her letter of 5 April 2016. Case No: 2301370/2016 28 Seven-g. By instructing Claire Duncan to conduct an investigation and to produce a report into the Claimant’s conduct which was provided on 5 April 2016 (and 30 May 2016, followed by further communications between Ms Duncan and the Claimant) which: i. Was unnecessary; ii. Was undertaken by the Claire Duncan who was not impartial; Eight- h. On 6 November 2016, again pursuing the Claimant’s parents for legal fees (while reserving their rights to bill further sums) in breach of the special arrangement regarding fees on this matter. Nine- i. On 21 November 2016, renewing the false and/or vexatious complaint about the Claimant to the Bar Standards Board (“the BSB”). Ten -j. On 10 January 2017, making a vexatious subject access request of the Claimant. Eleven- k. Failing to pay the sum of £5,000 which the Respondent admitted was owing to the Claimant in a letter dated 5th April 2016, known by the Respondent to be earmarked for legal fees for the Claimant by at least 19 April 2016.

[3]Did the Respondent subject the Claimant to a detriment in that Claire Duncan produced a report regarding his conduct on 5 April 2016 (and 30 May 2016, followed by further communications between Ms Duncan and the Claimant) which:a. Denied as well as diminished the import of the Claimant’s disclosures;

b. Made unjustified and/or unnecessary criticisms of the Claimant’s conduct;

c. Sought to deprive him of sums properly due to him under his contract with the Respondent.

d. Denied the jurisdiction of the Employment Tribunal.

e. Denied worker status.

f. Denied that the disclosures were in the public interest and protected.

g. Failed to engage in any due process as to dismissal, detriment, termination or treatment by the Respondent.

h. Made false statements about having paid counsel when counsel had not been paid, and thus attempted a further fraud on the Claimant and/or his parents.

i. Threatened the Claimant with an injunction, costs and later a further complaint to the SRA in relation to further protected disclosures or to dissuade the Claimant from making them, in breach of the SRA Code of Conduct?

[4]If so, were any such detriments on the ground that the Claimant had made a protected disclosure for the purposes of s.47B of the ERA 1996? In so far as it is found that Ms Duncan committed acts of unlawful detriment, the First Respondent accepts ‘vicarious liability’ for those actions under s.47B(1B) of the ERA 1996 and does not rely on the ‘reasonable steps defence in s.47B(1D).

[5]If so, what sum should be awarded to the Claimant by way of compensation under s.49 of the ERA 1996 taking into account:a. The loss of earnings flowing from the detriments;

b. The financial losses incurred by the Claimant in responding to the complaints made to the SRA and BSB; Case No: 2301370/2016 29

c. Injury to feelings; and,

d. Damage to reputation. Case no. 2301370/2016 ph judgment + cm Nov 2014 wip version 1 EMPLOYMENT TRIBUNALS Claimant Respondent Mr A Dobbie v Paula Felton t/a Felton Solicitors Heard at: London Central On: 3 and 4 October 2023 Before: Employment Judge Elliott Appearances: For the Claimant In person For the Respondent: Ms S Chan, counsel

LIST OF ISSUES

[1]The decision on Reconsideration was given orally on 3 October 2023 and the decision on Remedy was given orally on 4 October 2023 The claimant requested written reasons.

[2]By a Judgment sent to the parties on 7 December 2020 the claim for unlawful deductions from wages succeeded in part and proceeded to this remedy hearing.

[3]This litigation has been ongoing for over 7 years, the claim having been presented on 21 July 2016. There is a separate part to this claim which is a whistleblowing claim heard originally by Employment Judge Gordon, Mr J Walsh and Mr S Godecharle in June 2019. This was appealed to the Employment Appeal Tribunal which handed down a decision on 11 February 2021. Case no. 2301370/2016 ph judgment + cm Nov 2014 wip version 2

[4]It was remitted to the Employment Tribunal and heard in June 2023 by Employment Judge Goodman, Mr R Pell and Ms N Sandler. Their decision was that the claimant was not subjected to detriment for making protected disclosures and the claim was dismissed. The claimant said there was an appeal pending before the EAT on that decision. The respondent was not aware of this.

[5]This hearing was to deal with the claimant’s reconsideration application of 13 December 2020 from the decision of 7 December 2020. It was also listed to deal with remedy. One of the reasons for the very long delay was the claimant’s wish for the remitted hearing on the whistleblowing aspect of the claim to take place prior to this reconsideration hearing.

[6]Where findings of fact have been made by the tribunal which heard the remitted whistleblowing claim in June 2023 impact upon the issue of unlawful deductions from wages, I considered this tribunal to be bound by those findings. That was a 5 day hearing, including deliberation time, before a 3 person tribunal. Remote hearing on day 2

[7]The hearing on day 1 was in person. The hearing on day 2 had to be a remote public hearing due to a rail and tube strike. After the hearing had been converted to CVP and the parties informed, the tube strike was called off. The rail strike went ahead. The hearing was conducted using the cloud video platform (CVP) under Rule 46.

[8]In accordance with Rule 46, the tribunal ensured that members of the public could attended and observe the hearing. This was done via a notice published on Courtserve.net. A member of the public attended briefly by CVP on the morning of day 2.

[9]The parties were able to hear what the tribunal heard.

[10]The participants were told that is was an offence to record the proceedings.

[11]I was satisfied that the claimant, as the only witness, was not being coached or assisted by any unseen third party while giving his evidence. The issues The issues for this hearing were as follows:

[13]Whether the findings made at the liability hearing on 2 and 3 December 2020 in relation to clients A and U should be varied or revoked and if revoked whether that decision should be taken again.

[14]In relation to remedy, what is the amount due to the claimant based on the findings made at liability stage, including an findings on reconsideration. Case no. 2301370/2016 ph judgment + cm Nov 2014 wip version 3

[15]In relation to the part of the claim that succeeded in relation to unauthorised deductions from wages, whether the tribunal should also award an amount under section 24(2) of the Employment Rights Act 1996 as compensation for financial loss?

[16]Following then decision on Reconsideration, the parties were in agreement that the starting point for remedy was that the amount due to the claimant was £15,399.55 with credit to be given for the sum of £4,406.75 paid post-termination. It was agreed that the balance due to the claimant was £10,992.80.

[17]The issue for the tribunal was whether the respondent should be given credit for other sums paid to the claimant in 2015 such that on the respondent’s case, the claimant had been overpaid. At the start of day 2 the respondent no longer pursued this point. Documents for this hearing

[18]There was a bundle for each side. There was a bundle of 91 pages from the claimant including case law and 2 witness statements. There was a bundle of 153 pages including a witness statement from the respondent. Although there was a page limit of 100 pages, the claimant did not oppose the introduction of this bundle.

[19]The claimant’s bundle included a witness statement from Ms Rachel Robertson. This was relied upon by the claimant for remedy purposes and not Reconsideration purposes. It was before the tribunal in June 2023 before Employment Judge Goodman and colleagues. It was not challenged at that hearing as the respondent did not regard it as relevant to the issues for the whistleblowing detriment hearing. The respondent also regarded it as irrelevant to this hearing and did not propose to challenge it. The witness was not called. Ms Robertson’s evidence was that she worked for Ms Felton and also was not paid.

[20]The claimant complained that the respondent had only produced part of his contract of employment. He had only noticed this on the day of this hearing. I was not prepared to delay the proceedings further for a full copy to be produced when the parties have been litigating for over 7 years, they are both lawyers and they know what is required. The claimant said he could point the tribunal to parts of a Judgment from Employment Judge Spencer in 2017 that could reference this. The provisions of his consultancy agreement were recorded in every judgment in these proceedings.

[21]There were written and oral submissions from both sides. All submissions including any authorities relied upon were fully considered, whether or not expressly referred to below. Witness evidence Case no. 2301370/2016 ph judgment + cm Nov 2014 wip version 4

[22]The tribunal heard from the claimant only. There were 2 witness statements from the claimant, one dated 5 June 2019 and the other dated 23 August 2023.

[23]It was not necessary to hear from the respondent given the concession made at the start of day 2.

[24]As stated above there was an unchallenged witness statement for the claimant from Ms Rachel Robertson. This witness was not called. Matters upon which the claimant succeeded In relation to client A

[25]The finding was that there was no agreement to increase the claimant’s monthly fee for client A to £10,000 per month and that his entitlement was to £5,000 per month. The finding was that even if the claimant did not do the work to the standard required by the respondent, there was no entitlement on the part of the respondent to “claw back” his pay and he was entitled to be paid in respect of client A but at a monthly fee of £5,000 and not £10,000. For client WK

[26]The finding was that as there was no dispute on the entitlement to £4,000, this was the amount to which the claimant was entitled. Credit had to be given overall for sums paid by the respondent. For client M

[27]The finding was that the claimant did the work and the client was billed and paid the respondent. The respondent made a reduction in the amount paid to the claimant because she had to deal with a client complaint and do work herself. She paid £556.75 against the £906 due. The finding was that there were no grounds to withhold payment of wages. The balance due to the claimant in respect of client M was £349.55. For client U

[28]The finding was that the claimant was entitled to be paid £800 in respect of work done for client U on one matter but there was no entitlement on the other two matters. For client FE

[29]The finding was that the claimant is entitled to the sum of £250 with credit to be given for any sums already paid by the respondent. Case no. 2301370/2016 ph judgment + cm Nov 2014 wip version 5 The claimant’s application for Reconsideration

[30]On 13 December 2020 the claimant made an application for Reconsideration in respect of the findings in relation to clients A and U. The application was amended on 18 July 2023. The respondent’s submission was at page 117 of their bundle.

[31]Set out below are submissions made by the parties but it is not intended as a full replication of the entirety of the written and oral submissions which were fully considered. In relation to client A

[32]There was a finding of fact in relation to client A that there was no agreement to increase his monthly fee for that client from £5,000 to £10,000 per month. There were three reasons given for this finding at paragraph 40 of the liability decision. The claimant said that ground (b) was an “error of reasoning”. The finding was: “(b) there is no written record of any such agreement - clause 14 of the Consultancy Agreement of 6 March 2014 states that the agreement “shall only be capable of being varied by a supplemental agreement in writing signed by or on behalf of the parties hereto”. The claimant is a solicitor and understands the importance of a written record of an agreement, particularly one that is as important to him as his pay. It was a simple enough matter, had there been such an agreement, for him to send an email shortly after the meeting to say “This is to confirm our agreement on 19 January 2016 that my fee for client A will be increased to £10,000 per month””.

[33]The claimant’s case is that on the list of issues - paragraph 11 liability decision, being - the issue was whether the claimant was entitled to payment under his consultancy agreement in respect of the interim bills paid by client A in 2016 or whether the respondent is entitled to refuse or reduce the amount paid to the claimant on the basis that the claimant did no or little work of value in January or February 2016 and if so whether it is true that the claimant did no or little work of value in January or February 2016 – he is entitled to 40% of £25,000 being £10,000 per month.

[34]The claimant’s case is that the tribunal having made a finding in his favour in relation to client M on the 40% basis, it could find that there is a such an agreement in relation to client A. The 40% basis is a reference to the claimant’s Consultancy Agreement is set out at paragraph 28 of the decision sent to the parties on 7 December 2020.

[35]The claimant relied upon paragraph 7 of Employment Judge Spencer’s decision of September 2017 which was a decision about his status as a worker. Clause 2 said that the agreement was for 6 months and thereafter could be renewed. The claimant said that the respondent could have terminated the consultancy contract.. The claimant said that under the terms of clause 5 of the contract (set out at paragraph 7c of the decision of Judge Spencer) he was entitled to be paid for doing the work. Case no. 2301370/2016 ph judgment + cm Nov 2014 wip version 6

[36]Following Arnold v Britton

2015 UKSC 36

the claimant submits that the respondent does not like the commercial consequences of the consultancy agreement but he should still be paid under it. The respondent invoiced £25,000 on it at the relevant time and he should be entitled to 40% being £10,000. The case law concerned the interpretation of a service charge clause in the lease of a holiday chalet and was on interpretation of contractual provisions.

[37]I asked the claimant which contract he sought to rely on for his entitlement to £10,000 – was it the oral agreement he said was made on 19 January 2016 or the consultancy agreement? He said both agreements applied because they were consistent with each other.

[38]The claimant also submitted that in relation to the finding that he did not record the oral variation upon which he relied, it was for the respondent to have recorded the variation. The claimant read back paragraph 40 of the December 2020 decision, substituting the word ‘respondent’ for the word ‘claimant’.

[39]The respondent said that the claimant was relying on a totally different case to that which he relied upon in December 2020. At the hearing in December 2020 he put his case on firmly the basis of the 19 January 2016 oral agreement in Richmond and the finding was that this was not agreed.

[40]At this hearing in October 2023, Mr Dobbie argued that client A was billed at £25,000 and he was therefore entitled to 40%, namely £10,000. On the respondent’s submission this was a new approach which was misconceived. The claimant said that the original finding was correct, that he was entitled to £5,000 and it was not varied.

[41]The respondent said that the claimant sought to argue that under the terms of the consultancy agreement, he would have received £10,000 and this involved looking at what the respondent was billing client A for his and 3 other fee earners’ work. Judge Goodman and colleagues found at paragraph 70 of their decision that no time recording had been done in relation to the claimant’s work for this client.

[42]The respondent relied upon paragraph 46 of the decision of Employment Judge Goodman’s tribunal, where they decided in relation to client A as follows: “The claimant suggested that Claire Duncan was added to work on the file and the client be asked to agree to pay for her time as well on the monthly retainer. Paula Felton wrote to client A explaining that payments on account were billed and transferred, there was unlikely to be any overpayment because of the intensity of her time and the work ahead. In October she told the claimant that she was likely to agree a team retainer with client and at the end of October she went to meet the client in Stuttgart, with the claimant, though as found by the Gordon tribunal he did not stay for that part of the meeting where she stated that other fee earners besides the claimant would work on the file from then on. She noted at that meeting that the client spoke good English and the claimant was not needed to translate. It was agreed that there would be a monthly retainer for the next four months and thereafter itemised bills. The client care Case no. 2301370/2016 ph judgment + cm Nov 2014 wip version 7 letter that followed showed a retainer of 50 hours per month for the claimant and another 50 hours for other members of the team, equating to £25,000 per month from the 1st of November. Leading counsel was brought in to advise and direct.”

[43]The respondent submitted that if the tribunal found that the consultancy agreement applied, the claimant should not be paid for work carried out by other fee earners. In relation to client U

[44]There were three amounts claimed in relation to this client. The first was for £300 for a matter called 1 USQ and the second and third payments were both for £800 for 25 O Square and 81 O Square. The finding was that the claimant was entitled to be paid £800 in respect of work done on one matter for client U but not on the other two matters.

[45]At the hearing in December 2020 the tribunal heard from Mr Rupert Wertheimer, a witness called by the claimant, who was a property manager at this client and who was responsible for paying the respondent firm’s invoices. He said at the date of his departure it was all paid up to date.

[46]I found based on Mr Wertheimer’s evidence with his confirmation that invoices referring to money on account was for work pending and his lack of confirmation that the work done on the other two matters was done by the claimant, that the claimant did discharge the burden of proof in relation to two matters for client U. He succeeded only in relation to one matter for £800.

[47]The claimant submitted that he should have succeeded on the other matters but said that relevant documents were not in front of the tribunal in December 2020 because of late disclosure by the respondent.

[48]The claimant says that had disclosure been made earlier, he would have relied on an invoice that had been in the bundles before Judge Gordon’s tribunal. He accepts that the document was not in front of the tribunal in December 2020 and complains that this was because of the respondent’s late disclosure.

[49]The claimant drew the tribunal’s attention to an email from Ms Felton to Ms Duncan, who was working for Ms Felton in April and May 2016. The claimant said that the pleaded case in the ET3 was that the claimant did not do the work for this client and it was Ms Duncan who did the work. The claimant said that in the email at page 105, dated 31 March 2016, Ms Felton says: “He will be paid on [SQ] when I am.” The claimant says that this shows that he did the work. The claimant says that the email does not say that Ms Duncan did the work.

[50]The next sentence of that email said: “I am costing 25 and 81 O Square and if justified he will be paid the £800 per case”. I found in the claimant’s favour on 81 O Square but not on 25 O Square. Case no. 2301370/2016 ph judgment + cm Nov 2014 wip version 8

[51]The respondent said that this email was not an admission that the claimant had done all the work on O Square, just that if the work was evidenced, he would be paid.

[52]The claimant drew the tribunal’s attention to a letter from solicitors acting for clients of the respondent dated 14 April 2016 (page 149) using his reference, his initials “AD”. The claimant’s termination date was 15 March 2016. The claimant submitted that the respondent would not have used his reference on this letter unless he had been doing the work on 25 O Square. The claimant said that the letter showed that it was an ongoing matter on which he was working.

[53]The claimant took the tribunal to an invoice at page 72 dated 30 November 2015. This was not in front of the tribunal in December 2020. This related to 81 O Square on which I found in the claimant’s favour. The claimant suggested that it showed there had been a lack of disclosure by the respondent.

[54]The respondent took the tribunal to page 144 relating to 25 O Square, dated 28 November 2016 which was 8 months after the termination of the claimant’s engagement. This was an invoice which itself described work going to 28 November 2016. The work billed was for £2,000, 40% of which is £800. The respondent also took me to an email of 23 June 2016 at page 151, regarding 25 O Square from solicitors for the freeholder of the respondent’s client. The date of the correspondence was 3.5 months after the claimant left. The respondent submitted that this showed that there was continuing correspondence after the claimant left including the letter at page 149 referred to above. The respondent submitted that it could not be the case that the work had all been done and paid by the time the claimant left.

The relevant law

[55]Under Rule 70 of the Employment Tribunal Rules of Procedure 2013 a tribunal may reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration the original decision may be confirmed, varied or revoked. If it is revoked it may be taken again.

[56]In Outasight VB Ltd v Brown 2015 ICR D11 (EAT) HHJ Eady accepted that the words “necessary in the interests of justice” allows the tribunal a broad discretion to determine whether reconsideration of a judgment is appropriate in the circumstances. This discretion must be exercised judicially, “which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation” (judgment paragraph 33). The EAT also held that the rules in relation to Reconsideration in relation to the introduction of “new evidence” did not change with the introduction of the Tribunal Rules in 2013; the principles under the preceding Rules remain the same.

[57]The relevant principles are set out in Ladd v Marshall

1954 3 All ER 745

where the Court of Appeal said that in order to justify admitting fresh evidence, it is Case no. 2301370/2016 ph judgment + cm Nov 2014 wip version 9 necessary to show:(i) that the evidence could not have been obtained with reasonable diligence for use at the original hearing;

(ii) that the evidence is relevant and would probably have had an important influence on the hearing; and

(iii) that the evidence is apparently credible

[58]Section 13(1) of the ERA 1996 provides an employer shall not make a deduction from wages of a worker employed by him unless the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or the worker has previously signified in writing his agreement or consent to the making of the deduction.

[59]In relation to remedy section 24(2) of the ERA 1996 provides that where a tribunal makes a declaration that the claimant is entitled to payment of any unlawful deduction, it may order the employer to pay to that worker, in addition to any other amount ordered to be paid to the claimant, such amount as the tribunal considers appropriate in all the circumstances to compensate him for any financial loss sustained, which is attributable to the matter complained of. The loss must be as a result of the unlawful deduction. Conclusions on Reconsidération On client A

[60]At this Reconsideration hearing, the claimant ran an argument that he had not pursued in December 2020. This was that in the alternative to the tribunal finding that no agreement was reached on 19 January 2016 to increase his fee from £5,000 to £10,000 per month, he was entitled to it under his Consultancy Agreement.

[61]Whilst I agreed with the respondent that the claimant did not run this argument in December 2020, when represented by counsel, the claimant was right that the point was contained in the list of issues identified by Employment Judge Gordon in 2019. It needed to be dealt with.

[62]I deal first with the claimant’s submission that it was for the respondent and not himself to have recorded in writing any variation to the contract. I found on a balance of probabilities that there was no agreement made on 19 January 2016 for the doubling of the claimant’s fee on client A. The claimant says there should have been a variation to the agreement because he was not satisfied with the fee and he considered that the basis for it had changed, but my finding was that there was no such agreement.

[63]I gave three reasons for that finding, all of which are stand alone. I found that the respondent did not agree to double the claimant’s fee because she was dissatisfied with the standard of his work. This is sufficient on its own to support the finding that the agreement was not reached.

[64]The fact that there was nothing in writing to record that agreement is of great significance in that the beneficiary of that agreement was the claimant. Had he reached an agreement to double his fee, I find on a balance of probabilities, Case no. 2301370/2016 ph judgment + cm Nov 2014 wip version 10 knowing the terms of the agreement as to variation, he would at the very least have dropped a short email to confirm the agreement that his fee for client A had been increased from £5,000 to £10,000 per month.

[65]I saw no basis upon which to vary the finding made at paragraph 40(b) of the decision of December 2020 and confirm the decision that there was no such agreement.

[66]At paragraph 30 of the decision of December 2020 I found that: “There was a separate arrangement for the claimant in relation to his work for this client.” This is my primary finding of fact, that there was a separate agreement in place for work on client A. It was the agreement to be paid at £5,000 per month for 50 hours work. That was the governing agreement in relation to client A and not the consultancy agreement.

[67]If I am wrong about this, I deal with the claimant’s submission that he is in any event entitled to be paid the sum of £10,000 under the terms of the consultancy agreement. He relied on the undisputed fact that the respondent invoiced Client A in the sum of £25,000 and says his 40% share was £10,000. The result to him is the same as if he had succeeded in showing that there was an agreement in January 2019 to double his fee.

[68]Employment Judge Goodman’s tribunal found that the client care letter to client A following the meeting in Stuttgart, “showed a retainer of 50 hours per month for the claimant and another 50 hours for other members of the team, equating to £25,000 per month from the 1st of November”. My finding on reconsideration is that by seeking 40% of the fee billed at £25,000, the claimant is seeking to benefit from the work done by fee earners other than himself. He is not entitled to be paid at 40% of fees billed and paid in relation to work done by other fee earners.

[69]As found by Judge Goodman’s tribunal at paragraph 70, there was no time recording for the Client A file. For this reason I find that even if I am wrong on my primary finding, the claimant has not discharged the burden of proof as to his entitlement to be paid an additional £10,000 for work he did on client A. Other fee earners were involved.

[70]The claimant is not left without any payment for his work for client A. His entitlement is at £5,000 per month and not £10,000 per month. The original decision in relation to client A is confirmed. On client U

[71]The claimant said that there were missing documents and emails in relation to client U. At no point had the claimant made any application for specific disclosure of any missing emails in relation to 25 O Square or the transaction called SQ. This reconsideration hearing had been on hold for nearly 3 years so there was ample time to make such an application.

[72]In relation to the respondent’s email saying: “I am costing 25 and 81 O Square and if justified he will be paid the £800 per case”, I agree with the respondent’s Case no. 2301370/2016 ph judgment + cm Nov 2014 wip version 11 submission that this is not an admission of liability in relation to 25 O Square. It is a statement that the respondent is looking at it, and if it was justified she would pay the claimant in relation to those matters.

[73]In terms of the use of the claimant’s initials in the reference on a letter from solicitors dated 14 April 2016, this is not enough to show that the claimant did the work which was billed and paid by client U. It shows that at some point a reference was generated using the claimant’s initials. It is not evidence of the work done by the claimant, or that the bill was paid by the client.

[74]The claimant’s reliance on a list of apparent attachments to an email on what appears to have been 10 May 2016 (bundle page 151) to the respondent, is not enough to satisfy the tribunal that the claimant was working on the other matters for client U. It shows that some correspondence took place some of which was with solicitors.

[75]The invoice at page 150 was dated 30 November 2016, eight months after the termination of the claimant’s engagement. It gives no indication of who did what work or on what dates. It shows that work was taking place 8 months after the claimant left.

[76]At the hearing in December 2020 the claimant called a witness from client U, Mr Wertheimer. He could not confirm that the work was done by the claimant other than on 81 O Square. He did not corroborate the claimant’s case on the other 2 matters. He was the person responsible for paying the invoices from the respondent. I found that the claimant had not discharged the burden of proof as to his entitlement to wages for work done on the other two matters for client U.

[77]It was clear from the documents that work for client U went on for many months after the termination of the claimant’s engagement in March 2016. There were no records supporting the work done by the claimant on those two matters. I accept that work was done on these two matters for this client, but the claimant has not discharged the burden of proof and he did not gain support from his witness on these two matters.

[78]The original decision as to payment in relation to client U is confirmed. Remedy The starting point

Remedy

[79]The parties were in agreement as to the starting position on remedy. It was set out in a letter sent to the respondent from solicitors then instructed by the claimant. The letter was dated 5 January 2020 but it was agreed that it was incorrectly dated and should have said 5 January 2021 as it followed the December 2020 hearing. It was at page 55 of the respondent’s bundle.

[80]The parties agreed that sums found to be due to the claimant amounted to £15,399.55 and that credit was to be given for the sum of £4,406.75 being made up of two post-termination payments. It was agreed that this left a balance due to the claimant of £10,992.80. Case no. 2301370/2016 ph judgment + cm Nov 2014 wip version 12

[81]What was initially in dispute was whether the respondent had made such payments to the claimant that meant he had been paid this amount during his time working for the respondent and furthermore he had been overpaid. The respondent’s initial position was that she did not owe any further sums to the claimant as she sought credit to be given in the sum of £14,131.38.

[82]Counsel for the respondent said that there had been email correspondence between the parties overnight between day 1 and day 2 of this hearing, regarding the financial transactions between the parties. I did not have sight of this correspondence. The claimant had sent a Schedule of Overpayments and the claimant had sent a Reconciliation Statement. I was told that the amounts were in dispute. I had indicated to the parties that if it was necessary to go into the detail of all the transactions between the parties over the period of the claimant’s engagement it may be necessary to have a jointly instructed accountant’s report which would involve further time and cost. The respondent said that she had made a decision to be pragmatic on the matter and had decided not to pursue an argument that the claimant had been overpaid. Whilst the claimant did not accept this reasoning, it gave an agreed starting point for remedy. The claim under section 24(2) ERA 1996

[83]This left for determination the claim under section 24(2) Employment Rights Act for losses as a result of the unlawful deductions.

[84]The claimant said that he sought the sums set out in the letter from his then solicitors, sent on 5 January 2021, at page 55 of the respondent’s bundle. At the end of the letter, (page 57) the claimant sought in addition to the sum of £10,992.80 interest, costs and interest on legal costs in the total sum of £19,288.95. Together with the sum found due, this made a total of £30,281.75.

[85]Item (c) on page 57 was described at “Additional costs incurred - £13,339.80”. The claimant said that this was his legal costs including counsel’s fees and item (d) was interest on those legal costs.

[86]I explained to the claimant that an application for costs was a separate matter, not covered under section 24(2) ERA.

[87]In the solicitor’s letter of 5 January 2021, interest was claimed at the Judgment Debt rate of 8%, being a daily rate of £2.41 and calculated in that solicitor’s letter of 5 January 2021 at £4,258.47.

[88]The claimant also wished to claim interest on his overdraft. The claim for overdraft interest did not appear to be included in the calculations set out in the letter from the claimant’s solicitors.

[89]The claimant took the tribunal to an email at page 106, dated 10 July 2023, in support of his claim for the interest he said he incurred on an overdraft to cover the £10,992.80 unpaid by the respondent. Case no. 2301370/2016 ph judgment + cm Nov 2014 wip version 13

[90]It was not apparent that this was an email from either of his banks, NatWest or Lloyds. It was an email from clientsupport@premierukbusiness.com. The subject title of the email was “Please send me my SATR’s for 2015 onwards, thanks”. It was not disputed that SATR’s referred to Self-Assessment Tax Returns.

[91]That email gave a total figure for interest from 2016 to 2022 of £8,257.17.

[92]There was nothing to show from that document, how or on what base figure, the interest had been calculated. The claimant said that the figures for 2019 to 2020 covered an overdraft of £16,000 and not £10,992.80. He said that the figures from 2016 to 2019 covered the sum unpaid by the respondent. There were no underlying documents to support this.

[93]The claimant’s evidence was that the first £5,000 incurred interest at a rate of 49.9% with a Lloyds overdraft and the remainder with NatWest at 34.4%. Again no underlying documents were produced to evidence this.

[94]I asked the claimant if he had explored cheaper ways of funding the overdraft and he said yes, he had by taking out a loan in 2019 at 7.9% and he had borrowed from friends. The claimant said that this was almost the same as the amount of interest on judgment debts at 8% which is what he sought. The claimant had produced no documents to show the taking out of this loan at this rate of interest.

[95]The respondent submitted that there should be no award under section 24(2). It was discretionary in any event. The respondent submitted that the claimant’s evidence as to the loss he said was attributable to the lack of payment of £10,992.80 was “confused and hazy”.

[96]The respondent said that the figures set out in the email at page 106 gave no basis upon which to discern how the figures were calculated.

[97]The respondent submitted that until today, there was no Judgment Debt so that the claimant could not claim interest at 8% on Judgment Debts.

[98]It appeared to the respondent that the claimant was saying that he needed to take out an overdraft because he was impecunious although the claimant did not make that express submission.

[99]The respondent pointed to the income received by the claimant from his employment with the respondent, his employment with the next firm of solicitors and legal fees earned in acting for his parents in their litigation. It was submitted that this produced a figure of in excess of £300,000 and the claimant did not need to run up such substantial overdraft fees.

[100]The claimant said that his earning capacity was hindered due to restrictive covenants with the respondent.

[101]The respondent said that the claimant had not shown that the overdraft costs he sought were directly related to the sum of £10,992 and this was for him to prove. Case no. 2301370/2016 ph judgment + cm Nov 2014 wip version 14

[102]The claimant said that for two years he was only earning around £18,000 and even now he considered that he was earning less than the average rate for a solicitor in London.

[103]The claimant pointed to the lack of engagement with the letter from his solicitors of 5 January 2021. He said it was not even acknowledged.

[104]The claimant said that he wanted to be compensated for the consequences of the respondent’s non-payment. Conclusions on section 24(2) ERA

[105]Neither party was aware of any case law on this issue. I was also not aware of any case law on the point.

[106]Section 24(2) gives the tribunal a discretion to award such amount as it considers appropriate in all the circumstances, to compensate the claimant for any financial loss sustained, which is attributable to the matter complained of. This means that the loss sustained must be attributable to the non-payment of the sum of £10,992.

[107]Any losses which the claimant says he has suffered as a result of being held under restrictive covenants do not fall for consideration. The issue of restrictive covenants fall outside this tribunal’s jurisdiction.

[108]Although it has been submitted that the tribunal should award 8% as the interest on judgment debts, there has not until day 1 of this hearing, been a judgment debt upon which the interest could run.

[109]The claimant was aware that it is unusual for a wages claim to be left outstanding for seven years. I make the finding that it was the claimant’s wish for this Reconsideration and Remedy hearing to be delayed until after the outcome of the remitted whistleblowing detriment claim. This hearing could have taken place earlier, certainly during 2021.

[110]I decline to award interest at the rates the claimant says he was charged by his banks on his overdraft. This is firstly because he has not produced any documentation evidencing the interest rates claimed or the amount of the overdraft upon which these rates were calculated. These are very substantial rates at nearly 50% and 35%. Secondly, the claimant could secure borrowing at a much lower rate of interest. He says he did this in 2019 by taking out a loan at 7.9%. Again, there were no documents to support this.

[111]It is a matter of public record that bank base rates were under 1% from 2016 until 2021. It is accepted that the base rate is not the borrowing rate but I find that the cost of borrowing was lower from 2016 to 2021 than it is today.

[112]The tribunal has a discretion to award a sum considered appropriate to compensate the claimant for any financial loss sustained, provided it is attributable to the unpaid wages of £10,992.80. Case no. 2301370/2016 ph judgment + cm Nov 2014 wip version 15

[113]I accept that the claimant had to borrow to cover the amount of unpaid wages. The fact that he has other earnings does not mean that he can afford to take the brunt of wages which are unpaid. He gave evidence that he had considerable outgoings and it was not in dispute that he had approached the respondent during his consultancy for money on account to help him with cashflow. I accept and find that the claimant borrowed to cover the amount of unpaid wages and it is not acceptable for him to be kept out of his wages for a number of years.

[114]There was very little supporting documentation to show the amount borrowed or the basis of the calculations. I find that the claimant did not need to incur exorbitant overdraft rates when it was possible for him to take out a loan to cover the unpaid wages. He said he did this in 2019 at 7.9% but there was no supporting evidence of this.

[115]Awards under section 24(2) are rare. Wages claims brought independently of other claims regularly fall under a faster process in the Employment Tribunal and are heard relatively swiftly.

[116]In this case given the number of years for which the claimant has been kept out of his wages and my finding that he has had to borrow to cover it, I have decided to exercise the discretion. I find that the borrowing was attributable to the non-payment of wages.

[117]I exercise the discretion for a five year period from 2016 to 2021. As I have said above, the claimant wished to delay this hearing until after he had an outcome from his remitted whistleblowing detriment claim. This hearing could otherwise have taken place in 2021.

[118]In the exercise of this discretion I apply a notional borrowing rate of 5% across the five year period. Applying this rate to £10,992.80 over five years gives an annual figure of £549.64 x 5 years = £2,748.20.

[119]The respondent shall pay to the claimant the sum of £10,992.80 + £2,748.20 making a total award to the claimant of £13,741.