Mrs B Anthony v Meacher Jones & Company Ltd and others: 2402401/2016
EMPLOYMENT TRIBUNALS
Case No 2402401/2016
Between
Mrs B AnthonyClaimantMeacher Jones & Company Ltd and othersRespondent
Before
Employment Judge Tom RyanDate 16 October 2018
REASONS
[1]These are the written reasons for the judgment sent to the parties on 24 January 2017.[2]This is an application by the claimant to join into the proceedings as 4th and 5th respondents, Mrs Davina Marjorie Meacher-Jones who is known as Mrs Marjorie Meacher-Jones and Chester Business Services Limited (“CBS”).[3]In determining this application I have had regard to a witness statement from Mrs Meacher-Jones and various documents from the claimant, some of which are described in her statement. I have heard oral evidence from the claimant.[4]I set out the basis of the application chronologically and by reference to the relevant documents.[5]The claimant was employed by Meacher-Jones & Company Limited (“MJC”) between 2 April 2012 and 20 August 2014 when she resigned claiming constructive unfair dismissal and brought an earlier claim to the Tribunal. That claim was in respect of, so the claimant tells me, unfair dismissal contrary to section 103A of the Employment Rights Act 1996 on the basis that it was because she made protected disclosures. She also, she tells me, named Mr Glyn and Mr David Meacher-Jones in those proceedings as respondents because it appears also to have contained a detriment claim. It is what the claimant has in mind when she made them respondents, on the grounds they were directors of MJC, a point to which I will return.[6]The earlier proceedings were settled by way of an ACAS COT 3 agreement in April 2015.[7]In the meantime the claimant had started new employment on 20 October 2014 with another firm of accounts, Morris & Company. By these proceedings the claimant brings complaints under the protected disclosure provisions of the Employment Rights Act 1996 in respect of allegations of post employment detriments.[8]The first three respondents defended the claims in their response and the matter was listed before Employment Judge Horne for a case management preliminary hearing on 14 October 2016. EJ Horne, based upon the claim form and a document entitled “Response to the ET3” provided by the claimant on 11 October 2016, identified the issues in this case. He set out the detriments upon which the claimant relies at paragraphs 2-5 of the record of the hearing and the issues at paragraphs 6-9.[9]The claimant obtained ACAS early conciliation certificates for the three original respondents. No extension of time is available to the claimant by reason of those certificates because in either case they were either issued on the day or the day after the reference to ACAS and so under the early conciliation provisions no extension of time results.[10]The last allegation in time is one of three allegations factually made against Mrs Marjorie Meacher-Jones and dates back to 10 March 2016. The other allegations stretching between 19 June 2015 and 23 December 2015 were, to put it colloquially, even further out of time when the claimant was presented on 12 August 2016.[11]EJ Horne decided that the Tribunal had jurisdiction to consider the complaint so far as it related to the sixth detriment dating from 10 March 2016 on the reason that it was not reasonably practicable to present the claim and extended the time to 12 August 2016, which is the date of presentation, thus giving the Tribunal jurisdiction. It therefore follows that in relation to all earlier acts it will be an issue at the final hearing as to whether any of those earlier acts, taken together with the last act, if that is established, formed part of a series of acts similar to the last detriment such that it would be possible for the claimant to say that they were within time.[12]The allegations that the claimant makes of detriment are as follows:. 12.1. that on 19 June 2015 MJC failed to disclose information which she had requested and she makes that claim against the company and against Glyn and David Meacher-Jones as workers for or agents for MJC; 12.2. that on 10 November 2015 Allington Hughes, who I understand to be the solicitors acting for the company, wrote to the company making detrimental allegations; 12.3. The third allegation appears at paragraphs 4.4 and 4.5 of Employment Judge Horne’s order, thus: “On 11 November 2015 Davina Meacher-Jones wrote a letter under the letterhead of ‘CBS’ The letter was addressed to the claimant's new employer and made detrimental allegations. It is the claimant's case that Davina Meacher-Jones was a worker for MJC at the time. Despite purporting to act on behalf of CBS she wrote the letter in the course of her employment with MJC and in so doing contravened section 47B(1)(a). There is another route to liability which is not dependent on Davina Meacher-Jones’ employment status. Glyn and David Meacher-Jones as workers for and/or agents of MJC connived with Davina Meacher-Jones to write the letter. The part they played in that decision was contrary to section 47B(1)(a).” 12.4. that Allington Hughes wrote a further letter to the claimant containing detrimental allegations on 7 December 2015; 12.5. that Mrs Meacher-Jones on 23 December 2015 wrote a letter to the claimant containing detrimental allegations, and EJ Horne records that MJC is liable by the same two routes as for detriment 3; 12.6. finally, on 10 March 2016 Mrs Meacher-Jones made a written complaint to ACCA about the claimant, and EJ Horne recorded “liability rests with MJC as for detriment 3”.[13]From this I take that in relation to detriments 3, 5 and 6 the current basis of the allegations against the three existing respondents is that either Mrs MeacherJones was a worker for MJC and therefore what she did was done in the course of her employment with MJC; or alternatively that her husband, Glyn, and/or her son, David, as workers for or agents for MJC connived with her to write the letter and therefore they would become liable under 47B(1)(a).[14]Employment Judge Horne recorded that in a document that the claimant submitted at that hearing, dated 11 October 2016 and described as a response to the ET3, the claimant applied to join Mrs Meacher-Jones and CBS as respondents to the case.[15]I note that the claimant alleges that CBS and the respondents (in particular David Meacher-Jones) have significant if not ultimate influence over the management and conduct of both CBS and Mrs Meacher-Jones (paragraph 4). The claimant alleges that throughout her own employment with MJC, although not on the payroll of that company Mrs Meacher-Jones worked: “As an administrator and credit controller for four days a week for the respondent company. She was an integral part and member of the company and was included in all management functions of the respondent company, including but not limited to organisation chart and holiday planner. She was under my supervision and reported to me.”[16]In paragraph 6 of her witness statement the claimant refers to Mrs Meacher Jones having stated that she was employed by MJC in her witness statement prepared for the earlier proceedings. Mrs Meacher-Jones does not dispute that in her witness statement but said that it was done in haste and she had intended to say that she was employed by way of being a client or contractor, or providing services as a contractor. The merits of that can be explored at a further hearing if I grant permission to amend.[17]In paragraph 8 she refers to Glyn and Mrs Marjorie Meacher-Jones being held out as integral members of the company on the company’s website, and as regards the complaint which is the subject matter of detriment 3, which I think is a letter to the claimant's new employer, the claimant alleges in paragraph 12, that whilst Mrs Meacher-Jones started writing on behalf of the first respondent herself she refers to the fact that Mrs Meacher-Jones made reference to and cited exact wordings from letters that the claimant had addressed to the respondents’ legal representative. She said it is apparent from those documents the respondents not only failed to protect her following protected disclosures, they had “intentionally disclosed such information to Mrs Meacher-Jones for no other motive than to continue their campaign to harass and terrorise me”.[18]In paragraph 18 the claimant alleges that Mrs Meacher-Jones was directly influenced by the protected disclosures, and in her letter of 1 December 2015, which I believe is not itself a letter that is the detriment, Mrs Meacher-Jones said that she would make a complaint to ACCA following their conversation with the protected disclosure investigation officer, and she submitted that the respondents had deliberately divulged facts inherent to the initial claim and confidential information to Mrs Meacher-Jones.[19]In paragraph 34 the claimant says: “I would like to apply to add both CBS and Mrs Meacher-Jones as joint respondents to this claim. Both of them are mentioned in the claim form and are intrinsic to the original claim. The addition would merely be a re-labelling exercise.”[20]The application to amend was not determined by EJ Horne but was put over to be determined in December. It came before EJ Rice-Birchall on 5 December 2016. She decided that it was necessary for the claimant to provide to the proposed additional respondents a statement of what claims were being brought in respect of them, the legal basis on which it is said they could be a party, evidence on which the claimant relied to support her application and evidence why there was a delay in making the application. Time was given for the claimant to do that, for the respondents to respond and then the matter was set over until today.[21]On 17 December 2016, the claimant submitted to the Tribunal and copied to the respondents’ advisers something she described as her witness statement under the heading “Response to order dated 5 December 2016”.[22]The claimant largely repeats what she says before. She says in paragraph 4 that Mrs Meacher-Jones worked under her supervision as administrator for MJC. It is common ground, as the claimant alleges, that they worked in the same premises. Mrs Meacher-Jones’ statement evidences that CBS rents a space in the building from MJC. The claimant asserts that Mrs Meacher-Jones was included in the third respondent’s organisation chart and holiday planner. She refers to the previous witness statement; and the claimant says: “I also was a worker for CBS throughout my employment for the respondent. I oversaw the day-to-day running of the business of CBS and made management decisions similar to those of the third respondent.”[23]The claimant points out at paragraph 8 that Mr Glyn and Mrs Meacher-Jones and Chester Business Services had no other employees apart from those two directors, and all clients’ work within Chester Business Services was carried out by staff employed by MJC. She then seeks to set out at paragraphs 10 onwards the basis of her claim. Although it is not set out in legal language it is clearly, in my judgment, intended to convey the substance of the detriments as identified in the claim form. The claimant then describes the effects upon her.[24]With regard to delay the claimant refers at paragraph 19 to the reasons given by EJ Horne in extending time in October: that she discovered the ACCA complaint made by Mrs Meacher-Jones towards the end of May 2016/beginning of June 2016; her concentration was solely on making sure she defended the allegation against her. She said that focus was on that and because of that she did not do enough research in ensuring she had covered all aspects of her claim in her ET1. She said that as she had no legal training or experience she had not realised, “unlike my previous unfair dismissal individuals and agents working for my ex employer can be named as respondents to my victimisation claim”. I will return to that subject, a matter on which she was cross examined at length by Mr Flynn. She did not foresee that the resisting respondents would argue in their ET3 that Mrs Meacher-Jones was not an employee. She had already included all the details in essence of the claim against Mrs Meacher-Jones and CBS apart from naming the respondents, and she described it again as a re-labelling exercise: “I apply to include the proposed respondents at the earliest opportunity.”[25]The claimant assumed that the proposed respondents would have had access to a copy of the response, to the ET3. The remainder of the document is really argument in relation to whether I should exercise discretion in her favour or not.[26]Once that information was provided to the proposed respondents they put in a submission, described as a response, on behalf of Mrs Meacher-Jones and CBS. Attached to that is a witness statement from Mrs Meacher-Jones with a number of documents appended to it.[27]The proposed respondents’ position is put in this way. As far as the work is concerned Mrs Meacher-Jones was not engaged by the third respondent, MJC, as a worker or employee. Notwithstanding that it is noted that the claimant says that to all intents and purposes Mrs Meacher-Jones was an employee of the third respondent, it was submitted that she falls short of saying that Mrs MeacherJones was an employee because Mrs Meacher-Jones was not.[28]The submission continues: “Mrs Meacher-Jones performed work for CBS who contracted with the third respondent to provide services for it and vice versa.”[29]It is submitted that if Mrs Meacher-Jones was not employed by the third respondent then there can be no claim against under section 47B(1)(a).[30]Without reciting the entirety of Mrs Meacher-Jones’ evidence it is clear that there is a close relationship between the two companies and not only by reason of the family connections.[31]Her son, David, the second respondent, worked for accountants until forming JC in about 2004/2005 as I understand it. By then Mr Glyn Meacher-Jones had retired from employment, and with Mrs Meacher-Jones at that point commenced trading as CBS. That company was originally formed by David Meacher-Jones, it is said. From paragraph 12 and onwards Mrs Meacher-Jones sets out the work that she and her husband have done for CBS. She lists some bullet points in paragraph 13: Office administration Organising conferences Credit control Bookkeeping Tax Returns Payroll Accounts Preparation of business plans[32]Mrs Meacher-Jones’ case is that in making the complaints to Morris & Company and to ACCA she was protecting the interests of CBS. She does not accept that she was doing it on behalf of MJC or her son. In paragraph 75 she says in evidence she did not liaise with David about sending those letters. She did not feel the need to consult David Meacher-Jones about it at the time. She said, “Once I had submitted the ACCA complaint and received confirmation that was being investigated I did notify David of this and I had given his name as a witness. When I told David this he told me he wanted nothing at all to do with the matter and asked that I notify the ACCA that he did not wish to form part of their investigation”. Mrs Meacher Jones refers to two letters which, written in May and August 2016 state that neither David or Glyn Meacher-Jones are party to what she calls “the claim”. I think that was meant to mean the complaint against Mrs Anthony of a form of professional misconduct.[33]From the complaint form which Mrs Meacher-Jones filled in it is difficult to know whether she is writing in a private capacity or on behalf of CBS. I suspect it is probably not disputed that it was on behalf of CBS Limited, although she says that she is complaining on her own behalf. She identified her son as being able to assist in the investigation and she refers to a letter sent to ACCA on 12 February which is a letter written on CBS letterhead and says she is writing to enquire how to make a complaint, and the allegations are that: “Mrs Anthony removed confidential accounting information from my company whilst being employed by my son’s accountancy practice. This came about as my business and his shares the same office and the information taken has been forwarded to a third party without our permission or knowledge until now, and she has accused my husband and I of tax evasion on a personal and business level.”[34]The formal complaint is dated 11 November 2015 and sets out essentially the same allegations but in an extended form.[35]In response to all of that the claimant has submitted outline arguments in writing. I do not believe it is necessary for me to recite them.[36]One thing I should make clear as far as legal matters is concerned is the claimant having told me that she discovered that she can make a claim of what is called personal employment victimisation, she has hit upon the fact that section 27 of the Equality Act 2010 defines victimisation and she has sought to rely upon that. I explained to her in oral argument that the provisions of that Act create a separate statutory scheme. The claims made in these proceedings are like a complaint of victimisation but there are different legal provisions. The complaint which the claimant has made does not engage the sections of the Equality Act 2010 in relation to agency or vicarious liability.[37]The claimant attached to her submissions two documents. The first of those was a letter she had written to Mr David Meacher-Jones on 25 May 2016 alleging breach of the COT3 to which I do not need to refer. The second document was headed “File Note” dated 29 November 2016, which is basically a decision by a senior investigations office of the ACCA, Richard Foster, about the complaints made by Mrs Meacher-Jones. The allegation that the officer felt the ACCA could consider was one of breach of the fundamental principle of confidentiality. The outcome of the investigation was that he considered insufficient evidence had been shown that the claimant had breached that principle, and he gave reasons for that decision.[38]The claimant’s oral evidence to me addressed her state of health, the circumstances in which she had come to apply to join these two prospective additional respondents, and the delay in doing so.[39]The claimant’s health was a factor taken into account by EJ Horne in October. In my judgment, it is a relevant factor to take into account at this stage as well. The claimant was, as EJ Horne had also recorded, visibly upset and distressed and weeping at various points throughout the hearing before me.[40]She has seen her doctor. She was referred to the Mental Health Team for counselling. She was prescribed an antidepressant, Mirtazapine. At the time with which I am concerned, namely between August and October 2016 principally, she was taking medication daily, and although she was then referred to counselling she has only recently had he first counselling session. She tells me the counsellor said she will write to the GP. She has not received a formal diagnosis, but clearly she presented with symptoms which warranted in the doctor’s opinion at least that she be referred to the Mental Health Team and they have obviously taken her on.[41]It is relevant in my judgment also to consider the claimant’s response to my question about the visible distress that she manifested to EJ Horne and in the Tribunal. In her written documents she goes into much greater detail, but it is clear to me from the level of her distress and the fact she tells me that this is her daily state. It is evidenced by something she said which I do not think Mr Flynn sought to contradict. The claimant having obtained new employment with Morris & Company was working five days a week for them up to 1 September 2016. However, she found that she was in tears for considerable periods of the working week which she found embarrassing and upsetting, and therefore reduced her work to one day a week. She describes it to me thus “I know it’s pathetic but its how I was, it gets embarrassing”. It seems to me it is evidence supporting the degree or level of her ill health beyond the fact that she has received medication and counselling. Judges understand that claimants sometimes get upset when asked to talk about or justify their claims before the Tribunal. The fact that this claimant is upset on a daily basis whether she is discussing this case or not indicates to me a level of illness which certainly is a relevant factor in deciding the application to amend to join these respondents. I record that factor aware that I do not have any detailed formal medical evidence.[42]The claimant’s basis of application is put by her in the way I have described. In the course of argument I considered with Mr Flynn, an alternative basis on which the claimant, were she represented by competent counsel, might have put her case forward.[43]So far as delay is concerned, Mr Flynn submits that the claimant is an intelligent person, which is obviously right; that she was able to identify when the claim went in that not only could she bring the claim against MJC but against the two named individual respondents. The thrust of his submission on this can be reflected in the rhetorical question, “Well if you could put it in against them (i.e. the first 3 respondents why couldn’t you put it in against CBS and Mrs Marjorie MeacherJones at that stage?”.[44]On the claimant’s evidence it is clear that she was represented by solicitors in the initial proceedings. She had tried without success to get her home insurers to provide legal representation and advice in relation to these latter proceedings. However, they enabled her to identify it as a post termination victimisation claim because of protected disclosures, and that is where she got the formulation from in her claim form. The references to the statute that she put in, she tells me and I accept, were copied from the earlier claim form, of course one that was in her possession by reason of having made the earlier claim with the benefit of solicitors. She said that she believed that there should be a remedy because of the actions of Mrs Meacher-Jones. She had thought that she could rightly describe Mrs Meacher-Jones as an employee of the third respondent, and under the extended definition provided by section 43K of the Employment Rights Act 1996 it may be that the such an argument could succeed.[45]It does not seem to be disputed that the claimant did work, whilst in the employment for MJC, in some way, shape or form for CBS. It seems to me there is sufficient evidence at first blush to show this degree of cross working. One of the matters I therefore put to Mr Flynn was the possibility that the claimant could argue, although it is not the way that she has argued the matter at this stage, that under the extended definition, which I think it section 43K of the Employment Rights Act 1996, the claimant could say that in those circumstances she was a worker for CBS for part of the time, the work having been done under the control of MJC and the worker assigned to work for CBS, or part of that work, by MJC.[46]I think Mr Flynn accepted that as a matter of jurisprudence it is possible that the Tribunal could find that the claimant was a worker for CBS in those circumstances. Thus, if the existing respondents and Mrs Meacher-Jones’ argument that what she did was done on behalf of CBS and was not done on behalf of MJC succeeded without CBS being added, the claimant might have a legitimate cause of action against CBS which could not be upheld.[47]Of course if the claimant can establish her case in the way identified by EJ Horne then MJC and the directors may be liable. I think that Mr Flynn also accepts that if the claimant can bring in CBS by being a worker for CBS under section 43K, then she could also claim that Mrs Meacher-Jones was a worker for CBS and name her as a respondent just as she could as if she were employed directly by CBS.[48]Mr Flynn submitted that the claimant should not be allowed to put a case in that way because it is contrary to the way she has put her case at the moment, but in my judgment it is clear from listening to the claimant that she has very little appreciation of the legal intricacies of the legislation. I think Mr Flynn fairly acknowledges that the terminology in the protected disclosure provisions of the Employment Rights Act 1996 are sufficient to baffle lawyers let alone litigants in person, even intelligent ones. Although he makes no formal concession he does not contend that my suggestion that the claimant could put her claim in that way is one that is bound to fail. His case is that if I were prepared to allow the claimant to go forward putting the case on that alternative basis I should still not grant permission to amend to add the respondents because he says they will be prejudiced both because of delay and necessity to have in mind the time limits.[49]So armed with all that I then turn to consider rule 34 of the Employment Tribunals Rules of Procedure 2013 which provides that the tribunal has power “on its own initiative, or on the application of a party or any other person wishing to become a party, add any person as a party, by way of substitution or otherwise, if it appears that there are issues between that person and any of the existing parties falling within the jurisdiction of the Tribunal which it is in the interests of justice to have determined in the proceedings”.[50]Guidance in respect of that rule has been published by the President of the Employment Tribunal in 2014 as part of the general case management guidance, and the relevant section is that under the heading “Amendment to the Claim and Response including adding and removing parties”.[51]Paragraphs 1 to 11 set out the principles in relation to amendments. The guidance draws substantially on the earlier decisions of Cocking v Sandhurst and Selkent Bus Company v Moore. The factors to be taken into account by the tribunal are the nature of the amendment to be made, the time limits and the timing and manner of the application. Under the heading “Time Limits” paragraph 10 states: “The Tribunal will give careful consideration in the following contexts:-(1) The fact that the relevant time limit has expired will not exclude the discretion to allow the amendment…(2) It will not always be just to allow an amendment even where no new facts are pleaded. The Tribunal must balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.”[52]These principles are relevant where the application is for amendment by way of adding a party.[53]At paragraph 12 the guidance states: “The Tribunal may on its own initiative on the application of a party add any other person.” It goes on essentially to reflect rule 34.[54]Paragraph 13 describes some of the circumstances which may give rise to the addition of parties. Sub-paragraph (2) states: “Where individual respondents other than the employer are named in discrimination cases on the ground they have discriminated against the claimant and an award is sought against them.”[55]I acknowledge that the claim here is not one of discrimination. However, I consider that this part of the guidance can properly be applicable to public interest disclosure detriment claims. It might be thought to be particularly capable of extension where the claim, as here, is akin to a victimisation claim.[56]In paragraphs 14-18 the guidance makes clear that asking to add a party is an application to amend the claim; that the Tribunal will have to consider the type of amendment sought. The considerations set out in relation to amendments generally apply.[57]Paragraph 15, provides: “When you apply to add a party you should do so promptly. You should therefore set out clearly in your application the name and address of the party you wish to add and why you say they are liable for something you have claimed. You should further explain when you knew of the need to add the party and what action you have taken since that date.”[58]Applying those principles I consider that the following conclusions may be drawn.[59]The claimant has sought to set out clearly why she says CBS and/or Mrs Meacher-Jones are liable for something she has claimed. I have identified the basis for that by reference to the ET1, EJ Horne’s order, the claimant's further submissions and upon the legal basis that the claimant may be able to say that she was a worker for CBS and thus entitled to raise the complaint against CBS and Mrs Meacher-Jones, either in substitution or in addition to the previously identified basis of the complaint against the original respondents.[60]So far as the claimant's knowledge about it, her case is that it was only when she saw the response to this claim and she saw the denial of the employment status that she went online and did Google research and spoke to friends and tried to get some legal advice that she realised she could name individuals as well as directors. When asked why she had named directors in the first instance and not individuals the claimant said that in her profession she was aware that directors owed duties to companies in relation to its conduct, and of course in accountancy terms that may well be right.[61]In terms of my discretion, whilst I take into account that the claimant is intelligent and has been able to formulate her claim to some extent herself, it is clear to me having heard her that she has no real insight into the legal complexity of making claims of this sort to the Tribunal. One example of that is the fact that she sought to rely on provisions in the Equality Act 2010.[62]I think that the claimant’s state of health is a material and significant factor in considering the question of time and delay. Allowing the amendment would in effect require me to grant an extension of time for about two months. The claimant did not in fact delay for the entirety of that period, if as I accept it was when she received the ET3 which I think was the latter part of September that she appreciated the need to make an application. She had managed to formulate her application to amend on 11 October and it went before Employment Judge Horne on 14 October with accompanying documents, and I am told there was a significant volume of documents. I do not consider that delay of this order, or extension of this degree, can properly be said to cause prejudice of itself.[63]As to the balance of prejudice, if I allow the application to amend then it is right that Mrs Meacher-Jones and CBS will have to submit a response. I think it is highly likely, notwithstanding M Flynn’s suggestion to the contrary, that Mrs Meacher-Jones would have been called to give evidence in any event. She certainly gave a witness statement in earlier proceedings.[64]I agreed with Mr Flynn that the hearing which had been listed for late March 2017 would not be able to go ahead if permission were granted to amend to include these respondents.[65]In my judgment the claimant has some prospect, I put it no higher than that because I accept that she may ultimately fail, of success in her allegations against Mrs Meacher-Jones. If she succeeds in establishing detriment 6 against Mrs Meacher-Jones and CBS it is more likely than not she will succeed in relation to the detriment in respect of informing Morris & Company. She may succeed in her other complaints as well.[66]I cannot ignore the fact of family relationships and the fact that families discuss matters as being relevant to the motivation for why anybody acts in a family arrangement like this. That is not lifting the corporate veil, it is just common sense. I recognise that there will be extra cost incurred if I allow the application to amend. It will require Mrs Meacher-Jones and CBS to answer a claim they would not otherwise have to meet.[67]If the amendment were not granted it seems to me there is a risk of more substantial injustice and hardship because if, as I think, the claimant has an arguable case on the formulation of section 43K that I have alighted upon, were she not allowed to pursue that in my judgment the risk of injustice and hardship to her I would be greater. If she has an argument at all in relation to detriment for post termination victimisation for protected disclosures it is one which could lie equally against MJC as against CBS. If the claim against MJC fails because they say Mrs Meacher-Jones was acting only on behalf of CBS and the claimant can be said properly to work for CBS, then the claimant would lose a remedy that she would otherwise have.[68]In those circumstances I consider the balance of injustice and hardship would fall more harshly upon the claimant were I to refuse than it would fall harshly upon Mrs Meacher-Jones and CBS if I were to grant it.[69]For those reasons I allow the amendment to add Mrs Meacher-Jones and CBS has fourth and fifth respondents. CERTIFICATE OF CORRECTION Employment Tribunals Rules of Procedure 2013 Under the provisions of Rule 69, the Reserved[70]Prior to the financial year 2015 the third and fifth respondent were named on the same PI policy and submitted dual tax returns, the later due to the limitation of the IT equipment, and for a period of 3 years since the third and fifth respondent have had separate PI policies and tax returns. Whilst this points to a possibility of the two businesses being integrated or legally connected in some way, based on the evidence before it the Tribunal found (as admitted by the claimant) the third and fifth respondents were separate legal entities and distinct companies. As submitted by Mr Flynn on behalf of the respondent, there was no group structure, no articles of association, no board meetings or other documentation that showed the third and fourth respondent operated as part of a group structure. There was no evidence profits were held on account for each other, as maintained by the claimant. It is undisputed both file accounts separately with Companies House.[71]The claimant complains the third respondent terminated its appointment as company secretary of the fifth respondent by filing the TMO2(f) on 31 December 2015 the date of termination being 26 June 2015 which is the date given by Companies House as the date of resignation. The claimant’s argument is the forms submitted were a sham, requesting the Tribunal to lift the corporate veil on the basis that she had raised the second protected disclosure prior to the termination of the third respondent’s appointment. The evidence before the Tribunal was Companies House accepted the TMO2(f) as the 26 June 2015 resignation and the Tribunal accepted this was the formal date of resignation. The claimant did not put to the second respondent that the TMO2(f) was a sham.[72]The Tribunal concluded the third respondent intended to terminate its company secretary appointment on 26 June 2015, the formal notification of this was lodged with Companies House on 31 December 2015 and the relevant date of resignation was 26 June 2015 following which the third respondent no longer acted in this capacity after this date. The Tribunal took the view it was not unreasonable for the claimant to assume, based on this information, the third and fifth respondent were connected in some way, without further clarification of the relationship. The status of the claimant in respect of the fifth respondent[73]There was no satisfactory evidence before the Tribunal that the claimant was a worker in the fifth respondent. During the period of her employment the fifth respondent contracted with the third respondent to carry out bookkeeping, credit control and administration. The claimant was instructed by the second respondent on behalf of the third respondent, her employer, to carry out work on the clients of the fifth respondent. The claimant was not instructed to carry out work personally on behalf of the fifth respondent, whose accountancy work was allocated to her at times via the practice manager.[74]There was no evidence the claimant worked directly for the fifth respondent, who had no control over what work she did or how she carried out the work and was not obliged to provide her with work. There was also no obligation on the fifth respondent to offer work to the claimant. The second respondent’s evidence that the claimant did not undertake a great deal of accountancy work during her employment with the third respondent, and was involved more in the marketing side, was not disputed by the claimant. The claimant accepted she was not required to provide personal service to the fifth respondent, and had she left the employment of the third respondent the work would have been delegated by the third respondent, and not by the fifth respondent, to someone else working within the third respondent, whether they be employees, workers, subcontractors or contractors. The claimant’s employment with the third respondent[75]The claimant, a certified chartered accountant regulated by the ACCA, commenced her employment with the third respondent on 2 April 2012. The claimant entered a written contract of employment, her role being to assist the second respondent to whom she reported.[76]In addition to a salary paid by the third respondent the claimant was entitled to receive monthly commission from the third respondent paid on invoices generated by the claimant for work done on existing client accounts. The claimant brought with her several clients to the third respondent, including Chinese clients as the claimant was fluent in mandarin, and she was paid commission on these clients based on records of work carried out. It is undisputed the commission payments paid in relation to clients the claimant brought into the respondent’s business, (who were transferred to the fifth respondent on the basis that small uncomplicated accounts were better suited to the fifth as opposed to third respondent, who dealt with larger more complicated accounts) amounted to approximately £20 per month in comparison to the commission she earned when working on the third respondent’s clients accounts, that totalled between £800 to £2000 pr month in addition to annual salary. It was not disputed the £20 was paid by the third respondent, not the fifth and it was not recouped.[77]The claimant does not dispute several clients, such as Mrs Y Lu, Mrs Williams and Ruth Randall were sent invoices by the fifth respondent for work carried out, which were paid. A number of invoices were included within the bundle, for example, at page 594 Y Lu trading as Mayflower was invoiced on 17 September 2014 for £720 by the fifth respondent. The same invoice is referred to in a letter dated 1 December 2014 from the third respondent who confirmed payment had been received by the fifth respondent in relation to that invoice but not an earlier one. There was no satisfactory evidence before the Tribunal to show these documents were a sham, and it was conceded by the claimant that Mrs Y Lu had paid the invoices. As submitted by counsel, Mrs Y Lu would not have paid invoices had the work not been carried out either by or on behalf of the fifth respondent, and the claimant’s explanation that Mrs Y Lu was not sufficiently versed in English to understand the difference between the companies was not credible, bearing in mind Mrs Y Lu ran a business and she had been provided with correspondence from both the third and fifth respondent on headed notepaper, which was clearly different in form and content.[78]The Tribunal preferred the evidence of the second respondent, supported by contemporaneous documents, to the suspicions of the claimant which were not supported, that the true position was the fifth respondent outsourced work to the third respondent and visa-versa. Clients of the fifth respondent, such as Mrs Y Lu, who had been brought into the business by the claimant during her employment with the third respondent, were worked on by the claimant in her capacity as an employee of the third respondent, and for which she received commission paid for by the third respondent. The cost to the third respondent was included in the monthly fee agreed at the outset of the financial year charged to the fifth respondent. The fifth respondent did not recover commission paid to the claimant, it amounted to approximately £20 per month and it was unconcerned with such a small amount. The clients, such as Mrs Y Lu, were sent an invoice by the fifth respondent, and the monies paid reflected in the fifth respondent’s accounts filed with Companies House.[79]In contrast to the claimant’s arguments that the invoices were a sham and not authentic, on the face of the documentation in the bundle, this did not appear to be the case and on the balance of probabilities, the Tribunal accepted the documents reflected the true position that the third and fifth respondent were legally independent to each other, and the second respondent only controlled the third and not the fifth respondent, which was in the control of his parents. The Tribunal formed the view, as in many family businesses, the lines between companies can be blurred, but that does not mean to say that they are no longer legal entities in their own right, or become a group of companies or linked in some other way purely as a result of family ties.[80]An issue arose under cross-examination concerning whether the fifth respondent had been invited regularly to meetings held at the beginning of the month chaired by the claimant and attended by the second and fourth respondent. This was disputed by the second and fourth respondent, and taking into account the information set out within the invite and its format. The Tribunal accepted as credible the explanation of the second respondent that there were no monthly meetings and the claimant had not chaired any monthly billing meeting. It was not credible the claimant had supervised the fourth respondent in respect of billings for both the third and fifth respondent. The document relied upon by the claimant was not an invitation to attend a meeting but reminder to “close last month’s billing.” The Tribunal found it difficult to understand how the claimant could so inaccurately record the history of her employment, when it is undisputed that the billings of both the third and fifth respondent were allocated by way of commission to the claimant’s earnings paid by the third respondent. Shareholders agreement[81]The claimant entered a Shareholders Agreement in July 2013 for the transfer of shares in the third respondent to her. The email of 30 May 2014.[82]On 30 May 2014, the claimant emailed the second respondent at 16.50.20 following a telephone conversation, which concluded “Due to the unpleasant nature of the telephone conversation, I suggest you put other comments in the future in writing.” This email followed a chain of emails and it is not disputed the second respondent received it.[83]A second version of this email was produced by the second respondent that included the addition “If you do not give me what I want then I will do everything I can to put your company in liquidation…I told everyone I love you and you have humiliated me.” This email appeared not to follow a chain and was stand-alone.[84]The second respondent refers to this email at paragraph 33 of his statement, setting out beforehand personal issues with the claimant within the workplace, which the Tribunal does not intend to repeat. It was alleged the claimant in her email of 30 May 2014 “made a threat to do everything she could to put the company into liquidation.” This threat is borne out in the email, the inference being that it had been sent to the second respondent. In a question put to the second respondent by the Tribunal he confirmed the email had been found early pre-March 2017 in boxes of documents described as “mountains of paper” built up over several years by the claimant, and he had not questioned its authenticity.[85]The Tribunal considered the second version of the email in some detail in an attempt to establish who had written it and the motivation behind the changes made, and was unable to reach a conclusion on the basis that it could conceivably have been written by any of the parties either following the fall out of the personal relationship on the part of the claimant, or in anticipation of the litigation on the part of the respondents, particularly the second respondent. Either way, the email points to the total breakdown in the personal and working relationship between the parties during the relevant period and this fact underpinned the acts and omissions that followed the breakdown in relationship and the claimant’s resignation.[86]The Tribunal accepts the claimant’s chronology that the first protected disclosure was made in or around late 2013/early 2014 and it concerned the third respondent’s audit registration status. In its content it was different to the disclosure made on 22 August 2015, despite the information relied on the claimant in the second disclosure being known to her when she made the first disclosure and yet she said nothing at the time. Termination of the claimant’s employment with the third respondent[87]The claimant did not have a contract of employment with the fifth respondent and she was not a worker. The claimant was an employee of the third respondent until her resignation on 20 August 2014. She also held shares in the third respondent as at 31 February 2013 and that continued to be the case throughout this litigation and was a bone of contention between the parties resulting in litigation threats, it formed the basis for what transpired in 2015/2016 and this claim.[88]The claimant made an application before this Tribunal for the redaction of paragraphs 27 and 28 in the second respondent’s witness statement on the basis that she did not want this information to become public knowledge, and the third respondent agreed to this course of action. Nevertheless, it is clear to the Tribunal the personal intimate relationship between the second respondent and claimant is relevant to the factual matrix, explaining the imploding breakdown between the parties and how they reacted to events as they unfolded including the repeated litigation threats. The relationship between the second respondent and claimant was not that of a straightforward employee and employer, and this impacted on the second respondent’s parents, particularly the fourth respondent whose aim was to protect her son, her husband who was suffering from ill health and business. The claimant downloaded confidential information[89]On 7 August 2014 at 23.39 the claimant downloaded confidential documents to which she had access as part of her duties with the third respondent. The claimant appeared not to understand the documents she retained illegally were the property of and confidential to the third and fifth respondent. A small number of these documents were included in the bundle in accordance with case management orders. The claimant retained on to these documents after her resignation unbeknown to the third and fifth respondent. Her evidence that the documents belonged to the third respondent only was not borne out by a straight-forward interpretation of those documents that clearly related to the fifth respondent. The claimant did not have the consent of either the first, second, third, fourth or fifth respondent to retain onto the confidential documents, which included the names of clients, financial details relating to clients, customer activity, customer sales reports, all in her possession and downloaded from the third and fifth respondent prior to her resignation. The November 2013 information before the claimant that gave rise to the disclosure on 22 August 2017.[90]There was no mention of the information that gave rise to the second disclosure dated 22 August 2015 either before or after the claimant had terminated her employment and on this issue, she remained silent for a period in excess of 20- 21 months. There was no evidence that any new information had come to the claimant’s attention which explained the delay in her making it, and when asked for an explanation the claimant stated that she had waited to see how the third respondent would deal with the first protected disclosure a response which bore little logic if the claimant believed in late 2013 the third and fifth respondent were involved in fraud. In the 22 August 2015 disclosure, the claimant referred to events allegedly discovered as far back as November 2013, she not raised a protected disclosure at the time, despite raising the first protected disclosure in late 2013 early 2014.[91]The Tribunal concluded the 22 August 2015 disclosure referred to allegations that went as far back as November 2013, the allegations were not disclosed to the ICAEW at the time of the first protected disclosure and were disclosed for the first time on 22 August 2015, approximately 20-21 months after the claimant had a “notion” the first, fourth and fifth respondent were embroiled in VAT and tax evasion.[92]The first protected disclosure related to the third respondent’s audit registration status, was made to the second respondent and ICAEW and there was no overlap with the second disclosure and so the Tribunal found. This finding is relevant to the Tribunal’s consideration of whether it was a protected disclosure, and conclusion that the 22 August 2015 disclosure was not a protected disclosure in respect of the first respondent in his capacity as director of the fifth respondent, the fourth and fifth respondent. The dispute over the claimant’s shareholding valuation and alleged breach of restrictive covenants[93]Following the claimant’s resignation communications took place regarding the sales and purchase of her shareholding in the third respondent and a disputed valuation. In a letter dated 27 August 2014 Hillyer McKeown acting on behalf of the claimant offered to sell the shares to the third respondent at a valuation of £100,000.[94]In a letter dated 2 September 2014 the second respondent wrote to the claimant reminding her of restrictive covenants which he would have “no hesitation” in enforcing.[95]In a letter dated 17 September 2014 the second respondent on behalf of the third respondent offered £6000 for the shareholding, indicating that a service could no longer be provided to the clients she previously dealt with and who required a Chinese speaking accountant acting for them.[96]On 20 October 2014, the claimant commenced employment with Morris & Co, a firm of accountants based in Chester and the North West.[97]Mentor acting on behalf of the third respondent emailed Hillyer McKeown on 27 October 2014 confirming the claimant had obtained employment with Morris & Co, alleging clients had been approached by Morris & Co. The non-solicitation clause in the claimant’s contract was referred to. In a number of letters dated between 21 and 27 October 2014 from Morris & Co information concerning the transfer of clients was requested. It is not disputed a number of clients moved from the fifth respondent to Morris & Co, causing a substantial loss of business. It is undisputed approximately 29 clients out of the 50-60 clients instructing the fifth respondent moved to Morris & Co, and this loss of business was a blow to the fifth respondent. At this stage the respondents were unaware the claimant held commercially sensitive information concerning the fifth respondent’s clients, including fee calculations and billing.[98]The third respondent sent a letter dated 30 October 2014 to Morris & Co that referred to the “29 of our clients have chosen to instruct you,” and it is undisputed the third and fifth respondent lost clients to Morris & Co during this period. There was no similar letter from the first or fourth respondent on behalf of CBS; Morris & Co had not written to the fifth respondent in similar terms. The loss of clients is relevant to what transpired later, and the motivation of the second and fourth respondent for their actions.[99]On 13 January 2015 Hillyer McKeown sent a letter before action concerning the share valuation to the second and third respondent. Allington Hughes, instructed on behalf of second and third respondent responded and there was a clear issue over the shareholding and a list of the claimant’s clients currently instructing Morris & Co was requested. This related to an alleged breach of the claimant’s restrictive covenants. Party to party correspondence ensued and at an unknown date proceedings were issued by the third respondent against the claimant for training fees allegedly owed by the claimant (who was the defendant in the proceedings). It is clear from the contemporaneous correspondence the dispute continued concerning the shareholding and restrictive covenants and it is against this background the claimant entered into a COT3. COT3- dated 27 April 2015[100]The COT3 was agreed on the basis the claimant would be paid £20,000 by the third respondent without admission of liability. In accordance with clause 6 the parties agreed and undertook not to criticise the other or publish personal, derogatory or disparaging remarks about their working and private relationship. The first, second and third respondents in the present case were the only respondents in case number 2403196/2014 and it is accepted a protected disclosure was made for the purposes of the claimant’s present action. The Tribunal has not seen the first protected disclosure (which was not included in any bundle) however, it is agreed between the parties the first protected disclosure was different to the disclosure made post-termination on 22 August 2015.[101]The claimant was not happy with the COT3 outcome and felt she had been pressured into signing it by her solicitors. The claimant’s GP recorded on 27 April 2015 the settlement was not the intended outcome.[102]After the COT3 was signed acrimonious party-to-party correspondence relating to shares continued and on 11 and 28 May 2015 Allington Hughes reserved the right to issue court proceedings in relation to the claimant’s alleged breach of the Shareholder’s Agreement. It is against this background that the first alleged detriment took place, allegedly as a result of the claimant making the pre-termination protected disclosure. The first alleged detriment[103]In a letter dated 11 June 2015 to Allington Hughes, the claimant requested information in order to “appoint an expert value for my shareholdings.” The alleged detriment was the third respondent failing to disclose the information, and the first and second respondent’s failure as agent/workers for the third respondent. It is not disputed the information was not provided, and the Tribunal accepts on the balance of probabilities, the second respondent did not provide the information on behalf of the third respondent because they were at odds with the claimant concerning the share valuation and litigation was a possibility. The first respondent had no impact on this state of affairs, and was not a decision maker in this regard, the second respondent being entirely responsible for decisions made with reference to the third respondent. For the avoidance of doubt, having considered the second respondent’s motivation, the Tribunal is satisfied there was no causal connection with the earlier protected disclosure; the clear link was to the dispute over the shareholding valuation and the threat of litigation.[104]The Tribunal found the second respondent deliberately refused to provide the information sought by the claimant, but this was not done on the ground the claimant had made the first protected disclosure. The claimant’s threat to issue a derivative claim and to report the respondents to the ICAEW[105]The claimant in a letter dated 19 June 2015 to Allington Hughes wrote, “I intend to apply for a derivative claim against him [second respondent] and the other officers…”. The claimant referred to the first protected disclosure as follows “It came to light to me in April 2014 that Mr Meacher-Jones failed to comply with ICAEW’s regulations and caused the company’s audit registration to be removed by ICAEW in early February 2014…I also have evidence that Mr Meacher-Jones further breached legislations by continuing to promote the company as registered auditors and signing auditors reports when he was not authorised to do so.”[106]The claimant referred to alleged tax evasion on behalf of the second respondent for the first time as follows; “…I believe Mr David Meacher-Jones has caused the company to commit illegal conducts amounting to tax evasion. In December 2013, I came across the notion [my emphasis] that payments made to employees in the company including director Mr Glyn Meacher-Jones were not processed through the company’s PAYE system. Further to my inquiries I also have reason to believe Mr Meacher-Jones caused the company to commit VAT fraud by siphoning income received from a separate entity, Chester Business Services Limited…In the events that your client does not agree or fail; to respond, I’ll commence proceedings to apply for a derative claim in court. I will also apply for a Wallersteiner order that the company shall both fund the costs of the proceedings and indemnity in respect of adverse costs orders…I will also contact ICAEW and HMRC.” Based on a straightforward interpretation of this letter the Tribunal found the report to ICAEW was threatened as part of the derivative claim and costs order.[107]It was submitted on behalf of the respondent the 19 June 2015 letter was written in the context of the claimant threatening to bring a derivatives claim having made an offer to settle the shareholders dispute, and the threat was an attempt to apply pressure during the course of pre-litigation correspondence. Taking into account the factual matrix and contemporaneous correspondence, on the balance of probabilities, the Tribunal agreed. The claimant criticises the second respondent for divulging the contents of her letter to the first and fourth respondent soon after its receipt. Given the allegations of tax fraud against the first, second, third and fifth respondent it was not unexpected and contrary to the claimant’s belief, there was no prohibition in the letter being shared. It is what transpired following the 22 August 2015 disclosure to ICAEW that is relevant to these proceedings and not the threat to do so, the claimant relying on the disclosure made on 22 August 2015 as the basis of her claim.[108]Allington Hughes responded in a letter dated 29 June 2015 disputing the claimant had the locus standi to bring a derative claim against the second respondent on behalf of the third respondent adding “you are not acting in good faith in attempting to bring this claim. You appear to be perusing a personal vendetta against Mr Meacher-Jones.” The earlier protected disclosure was referred to and it was denied the third respondent had committed tax evasion, maintaining “the first respondent was not remunerated by the third respondent and therefore does not need to be accountable for under the PAYE system.” The claimant was warned she breached clause 6 in the COT3 and the third respondent would seek repayment of £20,000 plus damages.[109]For the avoidance of doubt there was no documentary evidence pointing to the first respondent ever being remunerated by the third respondent at any stage, and it was irrefutable the first and fourth respondent received no remuneration from either the third or fifth respondent other than the issue of dividends by the fifth respondent in their capacity. The second disclosure dated 22 August 2015.[110]On 22 August 2015 the claimant made a referral to ICAEW as follows: “In November 2013 I found out whilst David’s parents work four days a week for the company and payments were made to them, they were not in the company’s payroll…I knew they had never filled any self-assessment tax returns for income they received from the company…I queried David as to why there is another company incorporated by his parents in which some work was invoiced from Chester Business Services (CBS) was incorporated by his parents but essentially all works were carried out by Meacher-Jones staff using Meacher-Jones resources but CBS wasn’t VAT registered…I was told to put smaller clients that weren’t VAT registered through CBS…in my most recent correspondence to David’s legal representative, I have asked for him to either confirm or dispel my suspicions of VAT and tax evasion…”[111]A new case with ICAEW was set up to establish whether there was potential liability for disciplinary action as a result of the information provided by the claimant. The respondents were unaware of the referral. It is not disputed ICAEW had no regulatory powers over the first, fourth or fifth respondent and the Tribunal finds ICAEW was not a prescribed person for the purpose of section 43F ERA.[112]It is clear to the Tribunal from the acrimonious correspondence the parties were at odds, and this flowed from a number of sources, not least the outstanding shareholding issue, the claimant’s belief that it should be valued at £100,000 and she should be paid this sum. It is notable the claimant does not refer or suggest a complaint in the terms of the second disclosure until it becomes apparent to her, via the contemporaneous correspondence, that the shareholding valuation was in dispute and she may have to litigate. The threat of litigation escalated as time went by, and in a letter dated 27 August 2015 Allington Hughes threatened proceedings for breach of the non-solicitation clause alleging a number of business clients had been transferred to Morris & Co, claiming £70,500 damages inn compensation. It is notable this letter was written during a period when the respondents were unaware the claimant had followed up on her threat and written to ICAEW. Email sent by the claimant to Allington Hughes on 4 November 2015[113]The exchange of party-to-party correspondence continued to deal with these issues, including the email sent by the claimant to Allington Hughes on 4 November 2015. In this email for the first time the claimant referred to compiling and forwarding evidence to the “firm’s regulator,” set out the documents relied upon that went as far back as 2012 and included organisational charts drafted by her and the second respondent, holiday planners for 2013, invoices and sales ledgers dated 2014 and a September 2014 letter concerning a cross-option policy insurance. The Tribunal noted that these were documents in the claimant’s possession prior to and as at the termination of her employment some 15 months earlier on 20 August 2014, and yet she did not complain or refer to any of these matters post 20 August 2014 until the shareholder dispute and other threats of litigation. Taking into account the claimant’s unsatisfactory explanation for the delay in raising the issue with ICAEW, the Tribunal inferred on the balance of probabilities the claimant’s motivation flowed directly to the failure by the third respondent in valuating her shares at £100,00, the threat of litigation for breach of the restrictive covenants and claim for damages. Had the claimant genuinely believed it was in the public interest to make the second disclosure, she could have done so much earlier. The Tribunal has inferred that in failing to do she had no thought for the public interest and later, when subsumed by litigious correspondence and the prospect of not being paid £100,000 for her shares, her primary motivation was personal gain, secondary motivation to put pressure on the second respondent to gain the edge in the threatened litigation and so the Tribunal found on the balance of probabilities. It is the case the claimant when making the disclosure objectively held a reasonable belief the respondents were involved in criminal tax fraud, and the disclosure fell within S.43B. it does not matter whether the claimant was right in her belief, all that is required is that she actually believed that the respondents were involved in criminal activity and that belief was reasonable for the purpose of establishing part of the test for a protected disclosure.[114]Given the fact the claimant had retained confidential client documents, including client fees and payment schedules, relating to the fifth respondent, which had been first bought to the fourth respondent’s notice following the email of 4 November 2015, it was accepted by the Tribunal that the fourth respondent believed there was a high possibility the documents would be misused to the detriment of her family and the businesses. Her concerns formed the backdrop to the 11 November 2015 letter sent to Morris & Co. The second alleged detriment[115]In a letter dated 10 November 2015 from Allington Hughes to the claimant, the third respondent’s position concerning the derivates claim, shareholding valuation and COT3 was reiterated, and it was alleged “that you are already in breach of the COT3 Agreement and we suggest that you take no further action to publish detrimental, derogatory statements in relation to our clients.”[116]The Tribunal concluded, taking into account the contemporaneous documentation, the 10th November 2015 letter was written in response to the claimant’s letter of 4 November 2015 and ongoing litigious party-to-party correspondence on which the second and third respondent had taken legal advice, and there was no causal connection with the first protected disclosure made against the first, second and third respondent. The reference to the claimant taking no further action to publish detrimental derogatory statements was a reference to the COT3 and allegations she had made concerning alleged fraud against the first, second, third, fourth and fifth respondent and so the Tribunal found on a commonsense interpretation of the 10 November 2015 letter. The 11 November 2015 letter from the fourth respondent to Morris & Co.[117]In a letter dated 11 November 2015 the fourth respondent wrote to the directors of Morris & Co on the fifth respondent’s headed notepaper. The fourth respondent marked it as a formal complaint and confirmed it was written on behalf of “my husband and I” referring to the earlier letters dated 19 June and 4 November 2015 alleging tax fraud and disputing the allegations. She wrote “As accountants you can appreciate that allegations such as these are very serious and we are extremely disappointed that one of your employees should be making such unfounded and untrue statements about us and reporting them to various government and regulatory bodies.” The second part of the complaint related to the claimant having possession of “various confidential accounting records and client reports” relating to the fifth respondent. The fourth respondent did not ask Morris & Co for their return, she wrote; “In our opinion Mrs Anthony would appear to be perusing a vendetta against not only my son but also my husband and I following the withdrawal of her claim in April 2016. I trust that you take this complaint seriously and it can be resolved to our satisfaction through your own internal procedures within the next 14- days.”[118]In oral evidence the fourth respondent explained she had written this letter to protect the fifth respondent’s business, her husband and herself. Her intention was not for the claimant to have been disciplined by Morris & Co, but for the confidential documents to have been returned using Morris & Co’s internal procedure.[119]The Tribunal found, as submitted by the claimant, she reasonably perceived the writing of this letter as being detrimental to her given the fact that it was written to her existing employer and concerned allegations described as “serious.” The Tribunal were of the view that the fourth respondent’s motivation may well have been to protect given the fact it had only recently been brought to her attention that the claimant had retained confidential documents capable of damaging and undermining the business, however, it was also to make trouble for the claimant in the eyes of her new employer as a result of the loss of business caused by clients transferring to Morris & Co and the claimant threatening to raise a complaint with ICAEW. There was no reference to the earlier protected disclosure and this was not in the fourth respondent’s mind when she wrote the letter to Morris & Co.[120]The Tribunal fund there were mixed motives for the fourth respondent writing this letter, and the predominant primary motivation was to protect the first, second and fifth respondent’s good name, the business and individual protection, especially given the health of her husband. The claimant had no satisfactory evidence before the Tribunal, other than her suspicions, that the first and second respondent were in cahoots with the fourth respondent in writing this letter. The Tribunal accepted, on balance, the second respondent’s evidence that he did not know of this letter until May 2016 and the fourth respondent’s evidence that she spoke with her husband soon after the letter had been sent.[121]In an email sent 18 November 2015 by ICAEW to the claimant reference was made to part of the claimant’s complaint being put forward for investigation and further evidence was sought in subsequent emails from the claimant concerning other complaints, for example, a cross-option policy the second respondent had allegedly “lied” about. Disclosure of the claimant’s correspondence to ICAEW to the respondents.[122]In an email sent 16 October 2015 from ICAEW the claimant was asked for consent to disclose her correspondence and documents to be provided to the second respondent, which she agreed to. It is clear from the emails the respondents had not been informed of the ICAEW complaint by ICAEW prior to the 11 November 2015 letter to Morris & Co being sent, however, the fact the claimant had raised the issue with the ICAEW was known by the fourth respondent who was aware the allegations were serious. The fourth alleged detriment[123]The Claimant alleges that on 7 December 2015, Allington Hughes, on allegations as follows; “Our clients have now become aware of allegations you have made to the ICAEW against our client. This is a clear breach of the COT3 agreement…in that you have made and published detrimental or derogatory statements concerning matters relating to our clients…we have now instructed counsel to settle court pleadings…”[124]The Tribunal found the Claimant could not have reasonably perceive the passages in the letters as being detrimental to her, given the earlier correspondence relating to litigation, which the claimant has not pleaded as detriments. Had the claimant shown detriment, which she did not, the Tribunal would have gone on to find the second and third Respondent’s instruction to Allington Hughes was not influenced by the claimant’s pre-termination of employment protected disclosure; it was however influenced by the 22 August 2015 disclosure. The fifth alleged detriment- letter dated 23 December 2015 to the claimant from the fourth respondent[125]The claimant alleges a letter written by the Fourth Respondent to her, on the Fifth Respondent’s headed paper, dated 23 December 2015, caused her a detriment. With the knowledge of the first respondent but not the second respondent, the fourth respondent wrote to the claimant on 1 December 2015 further to the fourth respondent’s contact with ICAEW and “…having read the letters and enclosures you have sent to Meacher-Jones & Company Limited’s solicitors,” she accused the claimant of “dishonestly appropriating property belonging to my company Chester Business Services…The data is…very confidential…and is relating to clients of Chester Business Services and as you were employed by Meacher-Jones & Company Limited and not Chester Business Services Limited you should not have taken any of this information…if you do not return the documents to me…I will have no alternative but to make a report of theft to Cheshire constabulary and also make a complaint to the Association of Chartered Certified Accountants…”[126]The fourth respondent sent a letter 23 December 2015 chasing a reply to the to the 1 December 2015 letter, which the claimant had not given. The fourth respondent wrote;” I therefore have no alternative but to make a formal complaint to the Association of Chartered Certified Accountants.”[127]The Tribunal accepts a complaint to a governing body can amount to a detriment, and the claimant could reasonably perceive a formal complaint to the Association of Chartered Certified Accountants (“ACCA”) may result in an investigation and this could be detrimental to her.[128]Even if the Claimant can show that she has reasonably perceived the letter of 23 December 2015 to be detrimental, the fourth respondent’s motivation in writing this letter was not influenced significantly by the fact that the Claimant had made a protected disclosure pre-termination of employment or disclosure on 22 August 2015 and so the Tribunal found. The Fourth Respondent motivation was to protect the Fifth Respondent’s business interests and the return the confidential documents she reasonably believed the claimant had misappropriated, bearing in mind in her email of 4 November 2015 the Claimant had admitted that she was in her possession confidential information belonging to the Fifth Respondent and had made use of this information via Morris & Co. The Fourth Respondent believed that the Claimant was guilty of theft, and her threat to involve the police was an attempt to recover the documentation by this threat, and it had no causal connection with the pretermination protected disclosure or the disclosure on 22 August 2015. In short, as indicated below in its conclusion, the Tribunal found the 23 December 2015 letter was not done on the ground the claimant had made a protected disclosure. The sixth alleged detriment[129]The Claimant relies upon a complaint made by the Fourth Respondent to the ACCA on 10 March 2016. The complaint form gave the name and contact details of the second respondent as a person who could assist the investigation and the details of the complaint related to conduct outside work. An earlier letter sent to ACCA on the 12 February 2016 was attached to the 10 March 2016 complaint. In the 12 February 2016 letter to ACCA the fourth respondent alleged the claimant had “removed confidential accounting information from my company whilst being employed by my son’s accountancy practice. This came about as my business and his shares the same practice…She has accused my husband and I of tax evasion.”[130]There was no indication from the claimant that she had not received the ACCA complaint form and 12 February 2016 letter which refers clearly to two separate companies and the fourth respondent’s belief that her business was the[131]There was no satisfactory evidence before the Tribunal that the first and second respondents were party to the ACCA complaint, and had known of it beforehand. The fact the second respondent was referred to by name is not indicative that he agreed to or knew of the complaint, something more was needed. This was a matter explored by the Tribunal at the liability hearing given the possibility that the second respondent could avoid liability by blaming his mother when they engineered the correspondence together, wishing to protect their respective businesses and family members. The Tribunal accepted the fourth respondent’s evidence that first respondent was displeased and told her he wanted nothing to do it. The Tribunal accepts on the balance of probabilities, neither the first, second or third respondent were party to the ACCA complaint, and that the fourth respondent did not have the power to bind the third respondent by her action. The fourth respondent made the position clear in a letter to ACCA sent 19 May 2016 when she confirmed the first or second respondent were not party to the claim. The second respondent was angry and swore at his mother when he became aware of the situation in late May 2016, as related below.[132]The claimant was made aware of the ACCA complaint by a letter dated 20 May 2016 together with enclosures, and she was informed the matter was to be investigated.[133]In a letter dated 25 May 2016 the claimant, not to the fourth respondent but to the second respondent, complained the terms of the COT3 had been released to the fourth respondent, who was neither a director nor officer of the third respondent. It is notable she did not say the fourth respondent was an employee or worker of the third respondent. The ACCA complaint made by the fourth respondent was referred to, and in view of that complaint “post termination victimisation” was alleged “following harassment and defamation due to Mr G and Mrs D Meacher-Jones actions.”[134]The claimant did not say the second or third respondent was responsible, maintaining breach of the COT3 had taken place (neither the first, fourth or fifth respondent were party to the COT3) and had caused her detriment. Attached to the 25 May 2016 letter was appendix 1, a copy of the complaint letter dated 11 November 2015 to Morris & Co. The claimant threatened to issue Employment Tribunal proceedings unless:(a) the fourth respondent withdrew the ACCA complaint,(b) the first and fourth respondent withdrew their complaint and allegation raised with Morris & Co (the claimant not alleging the second and third respondent were part of that allegation),(c) a written apology from the first and fourth respondent, and(d)£65,000 compensation for post-termination victimisation. The Tribunal have been informed by both parties the sum of £65,000 was offered to the claimant on an open basis without admission of liability to settle the proceedings and refused, the claimant seeking seven million three hundred and three thousand, two hundred and fifty-three pounds eighty-three pence revised to six point one million pounds. The second respondent’s knowledge of the fourth respondent’s actions[135]The 25 May 2016 letter from the claimant was the communication which resulted in the second respondent being made aware for the first time of the fourth respondent’s complaint to Morris & Co, and ACCA. The second respondent was questioned by the judge on his state of knowledge, as was the fourth. The Tribunal, took into account contemporaneous documentation, the second and fourth respondent’s response to the questions and the manner in which their evidence was given, was satisfied on the balance of probabilities, that both were telling the truth. Upon being informed of the position the second respondent gave evidence, which he was reluctant to admit to, that he had sworn at his Mother, and showed his displeasure with her. A copy of the letter 25 May 2016 was provided to the fourth respondent by the second respondent. The 1 June 2016 letter from the fourth respondent written on behalf of the fifth respondent to ACCA[136]The claimant has today produced an email trail, together with a previously undisclosed letter dated 1 June 2016 from the fourth respondent writing on behalf of the fifth respondent to ACCA. The claimant had come upon this letter accidently after closing submissions and made an application to introduce the evidence, requesting the Employment Tribunal refer the matter to the Crown Prosecution Service on the basis that the respondent’s witnesses had committed perjury. The claimant also maintained the second respondent could not have realistically discussed the matter at length with his mother, given her oral evidence before the Tribunal that she had not raised the issue with the second respondent between May 2016 and November 2016.[137]The Tribunal have revised their notes of the evidence, and it is clear the fourth respondent’s evidence was that she did not discuss the matter with the second respondent between November 2015 to May 2016, and not the dates given by the claimant.[138]The 1 June 2016 letter reads as follows; “Further to your email of 19 May 2016 my son received the enclosed letter and documents from Mrs Anthony on 25 May 2016…She appears to be making a claim against my son’s business unless I withdraw my complaint to ACCA and my son pays her £65,000…My son…finds this communication from Mrs Anthony to be very stressful. From my point of view this has put me in a extremely difficult position in that if I do not withdraw my complaint a claim will be brought against my son by Mrs Anthony…I am appalled by the fact that upon receiving confirmation of your inquiry into her conduct the first thing Mrs Anthony did was make threats against my family and certainly this is not something I would expect from a member of the Association of Chartered Certified Accountants. Having discussed this at length with my son he has confirmed that this is not the first-time Mrs Anthony has made threats against him or a member of his staff trying to obtain money from them whilst threatening legal action against them and I enclose a copy of an email dated 3 September 2014 from Mrs Anthony to Joanne Lark, who is an employee of my son’s company. I was wondering if there was any assistance the ACCA can provide in situations such as these, as I feel that is important that I continue with the complaint against Mrs Anthony but I am concerned about the pressure my son would be put under if I continue.”[139]The evidence from both the second and fourth respondent was that the second respondent was very upset when he became aware of the ACCA complaint, and the fact he provided the fourth respondent with documentation (referred to by her in the 1 June 2016 letter) is not evidence of a conspiracy, and nor is there any basis for the Tribunal to conclude the second and fourth respondent were attempting to pervert the course of justice.[140]Taking into account the factual matrix and context in which the 1 June 2016 letter was written, the Tribunal found it reinforced the evidence given by the second respondent that he was unaware of the fourth respondent’s actions until receipt of the 25 May 2016 letter from the claimant, and that the fourth respondent’s motivation was to protect her family and business against a backdrop of recriminations, threats and litigation. Law Public Interest Act Disclosure S47B Employment Rights Act 1996[141]S.47B(1) Employment Rights Act 1996 (“the ERA”) provides- “(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected[142]S.47B(1)A ERA provides “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(a) by another worker of W’s employer in the course of that other worker’s employment, or(b) by an agent of W’s employer with the employer’s authority, on the ground that the worker has made a protected disclosure.[143]S.47B(1B) Where A is subjected to detriment by anything done or mentioned in subsection 1(A) that thing is treated as also done by the worker’s employer.[144]S47B(1C) for the purpose of subsection 1(B) it is immaterial whether the thing done is with the knowledge or approval of the worker’s employer. Post- employment detriment[145]It is not disputed S.47B ERA gives a right not to be subject to detriment after termination of employment. The Court of Appeal decision in Woodward v Abbey National Plc (no 1) [2006] ICR 1436, CA found S.47B complaints dealt with the same concept as discrimination legislation and the definition of worker under S.230(3) ERA extends to those who have worked under the relevant contract.[146]In Onyango v Berkely (t/a Berkely solicitors) [2013] ICR D17 the EAT held that protection is not the limited to disclosures made during employment and includes those made after employment had ended. Definition of worker[147]References to a worker’s contract, employment and to a worker being employed are to be construed regarding the definition of “worker” is set out in S.230(3) ERA and S.43K ERA.[148]A "worker" is defined by section 230(3) of ERA 1996 as: "An individual who has entered into or works under (or, where the employment has ceased, worked under) -(1) a contract of employment; or(2) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual."[149]Section 43K ERA extended the definition of ‘worker’ in the context of protected disclosure. It states as follows:(1) For the purposes of [Part IVA of ERA 1996] "worker" includes an individual who is not a worker as defined by section 230(3) but who – a) Works or worked for a person in circumstances in which – i. he is or was introduced or supplied to do that work by a third person, and ii. the terms on which he is or was engaged to do the work are or were in practice substantially determined not by him but by the person for whom he works or worked, by the third person or by both of them…(2) For the purposes of [Part IVA of ERA 1996] "employer" includes- a) in relation to a worker falling within paragraph (a) of subsection (1), the person who substantially determines or determined the terms on which he is or was engaged..."[150]In the extended definition of worker in the context of protected disclosures set out in s.43K ERA. the Tribunal is required to consider who the claimant’s employer was and whether the extended definition made the fifth respondent her employer, the claimant having agreed the third respondent was her employer when she made the first protected disclosure during her employment, with a view to deciding whether the term on which the claimant was engaged to do work was in practice decided by the third or fifth respondent, or both. The Tribunal decided she was not engaged to do work that was in practice decided by the third and fifth respondent, all of her work was decided by the second respondent on behalf of the third respondent business who was the sole employer of the claimant who exclusively determined the terms on which she was engaged.[151]On behalf of the respondent the Tribunal was referred to the EAT decision in Day v Lewisham & Greenwich NHS Trust and another [2016] EKEAT/0250/15 in which it was found “substantially means “more than trivially.” It was submitted on behalf of the respondent “substantially” in s.43K(1)(a)(ii) means “in large part.” The Tribunal noted the Court of Appeal in the same case citation [2017] EWCA Civ 329 held the fact that an individual was a "worker" within the meaning of the S.230 ERA did not preclude them from also falling within the extended meaning of "worker.” “The wording of s.230(2) could not be read literally. An agency worker who had a second job as a waitress, and was therefore a 'worker' under s.230, could not sensibly be precluded from seeking to rely on the extended definition of work with respect to the agency work. Some words had to be added to the provision to limit the impact of those words.” The Court of Appeal agreed that the provision should read "'worker' includes an individual who as against a given respondent is not a worker as defined in s.230(3).” It concluded “the whistleblowing legislation was to be given a purposive construction. If a training body did not determine the terms of a worker's engagement at all, it could not be an employer within the wider definition. It could therefore subject a whistleblowing trainee to detriment without risk of legal sanction. Some words had to be read into the provision because a literal construction could not be what Parliament intended…There was no obvious rationale which stated that if the individual was an s.230(3) worker in respect of one party, he could not rely on the extended definition against the other.” The test to be applied by the Tribunal was set out; “There had been no recognition that the trust and HEE could substantially determine the terms of engagement. The Tribunal had not engaged directly with the question whether HEE itself substantially determined" the terms on which the doctor was engaged.” Qualifying disclosures[152]S43A and B sets out the meaning of qualifying disclosures as defined by S.43B ERA. 153. . S.43B(1) provides in this part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure; tends to show one or more of the following:(a) criminal offence,(b) That a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject;(c) miscarriage of justice,(d) that the health and safety of any individual has been, is being or is likely to be endangered,(e) environmental damage, and(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed. The claimant is relying on (a) and (b).[154]It is not sufficient for a worker to have made the qualifying disclosure in order to gain protection; the disclosure must fall within one of the six the requirements set out under ss.43C-43H ERA.[155]S43(C) provides for the disclosure to his (a) employer or other responsible person. The Enterprise and Regulatory Reform Act 2013 s 18 (“the 2013 Act”) removed good faith as a formal requirement in Ss 43C and Ss. 43E-43G with effect from 25 June 2013, although under S.s 49(6A) and 123(6)(A) ERA the Tribunal has the power to reduce damages arising out a detriment where the disclosure was not made in good faith. Providing a worker has met the public interest test it is possible he or she may have ulterior motives but still hold a reasonable belief that the disclosure is made in the public interest. In respect of the claimant the Tribunal found she had ulterior motives and held a reasonable belief the disclosure was in the pubic interest.[156]Disclosures to employers have the least stringent conditions, disclosures to any other person whom the worker reasonably believes to be responsible for the relevant failure have “intermediate” conditions and the most stringent conditions cover disclosures to any other person or body including those of “exceptionally serious” failures which the Tribunal will refer to as “external disclosures.” This is not a case involving exceptionally serious failures and S.43F disclosure to prescribed persons is not relevant as it is not disputed the claimant did not make a disclosure to a prescribed person. The Tribunal is concerned with a disclosure made under S.43C to the employer (the third respondent) and S.43G in respect of the disclosure made to the Institute of Chartered Accountants in England & Wales(“ICAEW”).[157]In relation to external disclosures made under S.43G ERA the worker must circumnavigate a number of hurdles to claim whistleblowing protection, unless the disclosure concerns an “exceptionally serious failure” which is not an argument that has been put forward by the claimant in this case. The claimant does not rely on the argument that the disclosures was made to a “prescribed person” as set out in Schedule 1 to the Public Interest Disclosure (Prescribed Order) 2014. The list does not include disclosure of information to the ICAEW, the professional body to chartered accountants. S.43G ERA[158]In order to gain protection under the ERA a worker must satisfy 4 conditions set out in S.43G (1) as follows159.1 the worker must reasonably believe that the information disclosed, and any allegation contained in it, is substantially true – 43G(b). 159.2 the worker must not have made the disclosure for personal gain (i.e. the claimant’s predominant/primary motivation if there are mixed motives should be considered) – 43G(C) 159.3 any one of the conditions in subsection S43G(2) must have been met. Subsection 43G(2) ERA sets out the following conditions: S43G(2)(a) provides that, at the time he makes the disclosure, the worker reasonably believes that he would be subject to a detriment by his employer if he makes a disclosure to his employer or in accordance with S.34F, (b) that, in a case where no person is prescribed for the purpose of S43F in relation to the relevant failure, S.43G(2)(b) provides the worker reasonably believes that it is likely that evidence relating to the relevant failure will be concealed or destroyed if he makes a disclosure to her employer (i.e. considering whether the worker perceives a threat either to herself or the relevant evidence applying a subjective test, or S.43G(2)(c) that the worker has previously made a disclosure of substantially the same information - (1) to his employer, or (ii) in accordance with S43F (i.e. that the information is not being disclosed for the first time to the employer or prescribed person), or 159.4 in all the circumstances of the case it must be reasonable to make the S43G(3) ERA[159]S43G(3) provides in determining for subsection (1)(e) whether it is reasonable for the worker to make the disclosure, regard shall be had in particular to-(a) The identity of the person to whom the disclosure is made,(b) The seriousness of the relevant event (i.e. having regard to the seriousness of the threat to the public interest).(c) Whether the relevant failure is continuing or is likely to occur in the future,(d) Whether the disclosure is made in breach of a duty of confidentiality owed by the employer to any other person (e.g. confidential information that arises in a client business/relationship).(e) In a case falling with subsection 2C(i) or 2C(ii), any action which the employer or the person to whom the previous disclosure in accordance with S43F was made has taken or might reasonably be expected to have taken as a result of the previous disclosure…(4) for the purposes of this section a subsequent disclosure may be regarded as a disclosure of substantially the same information as that disclosed by a previous disclosure as mention in subsection 2(c) even though the subsequent disclosure extends to information about action taken or not taken by any person as a result of the previous Detriment[160]In a claim for detriment the claimant must prove that she has made a protected disclosure and that there has been detrimental treatment on the balance of probabilities, the burden is then on the respondent to prove the reason for the treatment. S.48 ERA sets out the burden of proof, s48(2) provides that on a complaint of detriment in contravention of S.47B it is for the employer to show the ground on which any act, or deliberate act, was done — S.48(2). Where a claim is brought against a fellow worker or agent of the employer under S.47B(1A), then that fellow worker or agent is treated as the employer for the purposes of the enforcement provisions in Ss.48 and 49, and accordingly bears the same burden of proof as the employer — S.48(5)(b). Once all the other necessary elements of a claim have been proved on the balance of probabilities by the claimant — i.e. that there was a protected disclosure, there was a detriment, and the respondent subjected the claimant to that detriment — the burden will shift to the respondent to prove that the worker was not subjected to the detriment on the ground that he or she had made the protected disclosure.[161]If the Tribunal find that the worker was subjected to a detriment it is necessary for the claimant to establish that the detriment arises from an act, or a deliberate act, by the employer. In the well-known EAT decision in London Borough of Harrow v Knight [2002] EAT/0790/2001 it clearly established that the question of the “ground” on which the employer acted in victimisation cases requires an analysis of the mental processes (conscious or unconscious) which caused him so to act. The Tribunal considered the mental process of the respondents in relation to the six detriments alleged by the claimant.[162]The term “detriment” is not defined in the ERA, but it has been construed in discrimination law which is applicable to S.47B detriment claims. A detriment will be established if a reasonable worker would or might take the view that the treatment accorded to them in all the circumstances had been to their detriment. It is clear from case law reporting a worker to a professional body can amount to a detriment and on behalf of the respondent this point was conceded.[163]The Tribunal was, on behalf of the respondent, referred to Aspinall v MSI Mech Forge Ltd UKEAT/891/01 and NHS Manchester v Fecitt [2012] IRLR 64. In the case of a detriment, the Tribunal must be satisfied that the detriment was "on the ground that the worker has made a protected disclosure" (section 47B(1), ERA 1996). The EAT has held that the detriment must be more than "just related" to the disclosure. There must be a causative link between the protected disclosure and the reason for the treatment, in the sense of the disclosure being the "real" or "core" reason for the treatment.[164]In Fecitt the Court of Appeal held where an employer satisfies the Tribunal that it acted for a legitimate reason, then that necessarily means that it has shown that it did not act for the unlawful reason being alleged. One of the main issues before the Court of Appeal concerned the causal link between making the protected disclosures and suffering detriment, and it was held that s.47B will be infringed if the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer’s treatment of the whistleblower. “Where a whistleblower is subject to a detriment without being at fault in any way, tribunals will need to look with a critical – indeed sceptical- eye to see whether the innocent explanation given by the employer for the adverse treatment is indeed to genuine explanation…if the reason for the adverse treatment is the fact that the employee has made the protected disclosure, that is unlawful.” Lord Justice Elias at paragraph 41 set out the following: “Once an employer satisfies the tribunal that he has acted for a particular reason – here, to remedy a dysfunctional situation – that necessarily discharges the burden of showing that the proscribed reason played no part in it. It is only if the tribunal considers that the reason given is false (whether consciously or unconsciously) or that the tribunal is being given something less than the whole story that it is legitimate to infer discrimination in accordance with the Igen principles.” This test is particularly relevant to the present case and was applied by the Tribunal when considering the evidence, particularly that of the second and fourth respondent’s explanations. Conclusion – applying the law to the facts[165]With reference to the first issue, namely, has the Claimant made a protected disclosure during the course of her employment, the Tribunal found that she had, the Respondents admitting that the first disclosure was a protected disclosure. The second protected disclosure[166]With reference to the second disclosure, namely, had the claimant made a disclosure when she emailed ICAEW on 22 August 2015, the Tribunal found that she had in respect of the first, second and third respondent. On behalf of the First, Second and Third Respondent it was admitted that the email of 22 August 2015 was a protected disclosure and the First, Second and Third respondent are bound by the admission, given with the benefit of legal advice.[167]Turning to the First Respondent, it is admitted that the email is a protected disclosure in relation to his directorship of the Third Respondent only. The first respondent does not accept that it is a protected disclosure in his capacity as a director of the Fourth Respondent.[168]The 22 August 2015 letter was capable of being a qualifying disclosure, in accordance with S.43B(1) - tending to show a criminal offence and/or the respondents have failed, are failing or likely to fail to comply with any legal obligation to which they are subject. It is the manner of the disclosure to an external body, the ICAEW that has caused the claimant difficulties in establishing the disclosure was protected against all the respondents.[169]S43(C) provides for the disclosure to the claimant’s employer or other responsible person. In respect of the second and third respondent disclosure was made to the ICAEW, a body responsible for the second and third respondent only. ICAEW is the regulatory body for Chartered Accountants and the First, Fourth or Fifth Respondents are not chartered accountants. ICAEW has no legal responsibility for the First, Fourth or Fifth Respondent, and the claimant was aware of this. The disclosure of information to the ICAEW was not a disclosure to a person who has legal responsibility for the alleged actions of the First, Fourth or Fifth Respondent so as to amount to a responsible person under section 43C ERA. The ICAEW is not a prescribed person for the purposes of section 43F ERA. In respect of the first respondent in his capacity as director of the fifth respondent, the fourth and fifth respondent, the claimant made a disclosure to a complete outsider on 22 August 2015 and under S.43G ER in order to gain protection she must satisfy the 4 conditions set out in S.43G (1).[170]The claimant must reasonably believe that the information disclosed, and any allegation contained in it, is substantially true – 43G(b). With regard to whether the claimant reasonably believed that the information disclosed, and any allegation contained in it, was substantially true, the Tribunal found on the balance of probabilities that she did, having come across the “notion” in November 2013. In her letter dated 19 June 2015 to Allington Hughes the claimant referred to the disclosure in the following terms; “…I believe Mr David Meacher-Jones has caused the company to commit illegal conducts amounting to tax evasion. In December 2013, I came across the notion that payments made to employees in the company including director Mr Glyn Meacher-Jones were not processed through the company’s PAYE system. Further to my inquiries I also have reason to believe Mr Meacher-Jones caused the company to commit VAT fraud by siphoning income received from a separate entity, Chester Business Services Limited…”[171]The 22 August 2015 referral to ICAEW is in much stronger terms as follows: “In November 2013 I found out whilst David’s parents work four days a week for the company and payments were made to them, they were not in the company’s payroll…I knew they had never filled any self-assessment tax returns for income they received from the company…I queried David as to why there is another company incorporated by his parents in which some work was invoiced from Chester Business Services (CBS) was incorporated by his parents but essentially all works were carried out by Meacher-Jones staff using Meacher-Jones resources but CBS wasn’t VAT registered…I was told to put smaller clients that weren’t VAT registered through CBS…in my most recent correspondence to David’s legal representative, I have asked for him to either confirm or dispel my suspicions of VAT and tax evasion…” It is the Tribunal’s view the claimant reasonable believed VAT and tax evasion were taking place in November 2013. It is incomprehensible that the claimant, who was a shareholder in the third respondent, did not raise her “notion” when the first protected disclosure was made, and why she then waited in excess of approximately 21 months before raising such a serious issue for the first time. The claimant was aware of the whistle-blowing process, having made serious allegations in a protected disclosure in late 2013/early 2014. Taking into account the factual matrix the Tribunal concluded the claimant made the disclosure for personal gain, and preferred submissions made on behalf of the respondents on this point.[172]With reference to the requirement that the claimant must not have made the disclosure for personal gain, the issue is not whether the claimant made a personal gain but whether her purpose in making the disclosure was to make a personal gain, and the Tribunal took the view the claimant’s primary motivation was to pressurise the second respondent as director of the third respondent with regards to the threatened litigation, particularly the shareholder’s dispute in which she sought payment of £100,000. Given the substantial passage of time between the alleged fraud being brought to the claimant’s notice and the disclosure, the manner and timing of the 22 August 2015 letter in relation to acrimonious and litigious party-toparty correspondence, the Tribunal concluded the claimant’s motive in making the allegations was not a desire to protect the third respondent from alleged fraud by the first, second and fourth respondent and/or inform the public, despite the fact that she was a shareholder in the third respondent for a substantial time during the relevant period when the alleged fraud was taking place. The Tribunal found on the balance of probabilities, taking into account the contemporaneous documentation and oral evidence before it, the claimant’s sole motive was to put pressurise on the second respondent so as to resolve the shareholding dispute in her favour and ward off any prospect of litigation enforcing the restrictive covenants coupled with a damages claim and repayment of the COT3 settlement monies.[173]Turning to Subsection 43G(2), ERA S43G(2)(a) is not applicable, turning to S.43G(2)(b) there was no suggestion the claimant reasonably believed evidence relating to the relevant failure will be concealed or destroyed if she made a disclosure to the second/third respondent, the claimant having retained a number of documents which she provided to ICAEW when the disclosure was made. In short, between November/December 2013 and the claimant’s resignation nothing changed in relation to the alleged fraud reported on 22 August 2015, except for the claimant downloading a number of confidential documents before her resignation. Turning to S.43G(2)(c) it is undisputed the claimant had not made a disclosure of substantially the same information when she made the first protected disclosure prior to termination of her employment.[174]Finally, in all the circumstances of the case it must be reasonable to make the disclosure in accordance with S43G(3) ERA which provides in determining whether it is reasonable for the worker to make the disclosure, regard shall be had in particular to the fact the disclosure was made to ICAEW, who the claimant knew had no authority over the first, third and fifth respondent and could not take any action against them. With reference to whether the relevant failure is continuing or is likely to occur in the future, the Tribunal was referred to a report prepared by Mercier dated 3 March 2016 (after the claimant had made the disclosure) following a review of the ICAEW’s Practice Assurance Regulations, including laws, regulations, professional standards, and tax. In the summary of findings, the third respondent was found to have demonstrated satisfactory compliance with the Practice Assurance standards. An undated VAT report was also obtained from “The VAT People” to which the Tribunal was referred which confirmed the third and fifth respondent had operated successfully as separate businesses and there was a cross-over in term of them supplying services. The Tribunal took the view that as the reports were compiled after the claimant had made the disclosure, they did not assist the respondent other than to show the claimant’s criticisms were not borne out by the evidence as at March 2016.[175]The Tribunal took the view the claimant did not give consideration to the possibility of the relevant failure continuing or likely to occur in the future; had she done so she would have made the disclosure earlier than she did. Finally, in providing ICAEW with confidential documents belonging to the fifth respondent it is arguable the claimant was in breach of a duty of confidentiality owed by the third respondent to the fifth respondent given the fact the confidential information arose in a client business/relationship when the claimant was carrying out work for the third respondent when the third respondent was acting on behalf of the fifth respondent in accordance with a contractual agreement reached at the outset of every financial year.[176]In conclusion, the Tribunal finds the email to ICAEW on 22 August 2015 did not amount to a protected disclosure in relation to the first respondent in his capacity as director of the fifth respondent, the fourth and fifth respondent. Given the concessions made on behalf of the first respondent in his capacity as director of the third respondent, the second respondent and third respondent, the Tribunal finds the 22 August 2015 email amounted to a protected disclosure, and thus is required to consider the six detriments relied upon by the clamant. There is no requirement to deal with the fourth and fifth respondent in connection with the alleged detriments the Tribunal having found there was no protected disclosure. However, if the Tribunal is wrong on this point, and given the time spent in evidence dealing with the alleged detriments, the Tribunal has proceeded, in the alternative, to deal with the issues in the same order as they were agreed. Detriment 1: letter dated 11 June 2015[177]The Claimant alleges that the Third Respondent failed to disclose information requested by her in a letter dated 11 June 2015. The Claimant says that the First and Second Respondent also failed to disclose this information as workers/agents of the Third Respondent.[178]With reference to the first issue, namely, could the Claimant reasonably perceive the failure to disclose the information as being detrimental to her, the Tribunal did not agree with the respondents that she could not reasonably perceive the failure to disclose information to be detrimental to her. The claimant believed the information was necessary in order for her to value the shareholding dispute. The Tribunal accepts however, given the tone of the party-to-party correspondence during this period, the claimant should reasonably have recognised there was an ongoing shareholder dispute and the second/third respondent’s failure to divulge the information formed part of pre-litigation confrontation.[179]With reference to the second issue, namely, can the First, Second and Third Respondents show that the decision not to disclose this information was not influenced significantly by the fact that the Claimant had made a protected disclosure, the Tribunal held that it can on the balance of probabilities. The contemporaneous correspondence clearly show the failure to disclose information related to the litigious dispute, and there was no suggestion it was linked in any way to the earlier protected disclosure made before the claimant resigned and entered a COT3. All of the parties were legally advised during this process, and following that legal advice the Tribunal accept the second respondent believed the information sought by the claimant was not relevant and not disclosable, and it was his decision alone to refuse the information she sought.[180]There was no evidence before the Tribunal to the effect that the First Respondent was involved in the process so as to be liable. The fact that he was a director of the third respondent during this period is not sufficient to attract personal liability, and it is clear from the relevant documents the second respondent only was in charge, instructing solicitors and dealing with the pre-litigation. The claimant has not discharged the burden of proving that the First Respondent was as a worker for the Third Respondent. For the reasons set out above, he was not an employed by the Third Respondent, was not instrumental in any decisions and thus no personal liability can attach to him. The claimant accepted during the liability hearing that she had no cogent argument as to how either the first or fourth respondent could be agents for the third respondent, and there was no evidence before the Tribunal pointing to the possibility that they were agents; accordingly, the Tribunal found they were not.[181]With reference to the second and third respondent’s liability this turns on whether the claimant was subjected to the detriment on the ground that she had made the first protected disclosure. S.48(2) ERA provides that the second respondent will bear the burden of proving, on the balance of probabilities, the grounds on which he had refused to provide the information. In Aspinall cited above, the EAT held that the words ‘on the ground that’ in S.47B require a causal nexus between the fact of making a protected disclosure and the decision of the employer to subject the worker to the detriment. The EAT in London Borough of Harrow v Knight cited above, ruled that the test required by the statute necessitated a determination of whether the act or omission complained of was ‘on the ground that’ the employee had made a protected disclosure. The question was whether the protected disclosure formed part of the motivation (conscious or unconscious) of the employer in subjecting the employee to the detriment. The Tribunal considered the evidence in the light of this test concluding the second respondent was not influenced in any way, whether consciously or unconsciously, by the fact the claimant had made the first protected disclosure and on the balance of probabilities, the claimant has failed to prove the causal link between the disclosure and the detriment.[182]The claimant’s complaint with regard to detriment number 1 would thus have Detriment 2 – 10 November 2015 letter from Allington Hughes[183]The Claimant alleges that on 10 November 2015, Allington Hughes, on allegations.[184]With reference to the first issue, namely, could the Claimant reasonably perceive the passages in the letters as being detrimental to her, the Tribunal found that she could not. The letter must be read in context. It is a response setting out the third respondent’s position concerning the derivates claim, shareholding valuation and COT3. As indicated above, the Tribunal concluded, taking into account the contemporaneous documentation, the 10th November 2015 letter was written in response to ongoing litigious party-to-party correspondence on which the second and third respondent had taken legal advice, and there was no causal connection with the first protected disclosure. The reference to the claimant taking no further action to publish detrimental derogatory statements was to the allegations she had made concerning alleged fraud against the first, second, third, fourth and fifth respondent, who at the time were unaware of the 22 August 2015 disclosure to the ICAEW other than through references in the claimant’s correspondence when it was threatened. It cannot therefore be said the third respondent’s instruction to Allington Hughes was influenced significantly by the fact that the Claimant had made a protected disclosure because at the time of the letter the respondent’s knowledge was limited to a threat the claimant had made on 19 June 2015 to report the respondents for tax evasion in the context of issuing proceedings to apply for a derivative claim and costs.[185]Had the claimant satisfied the Tribunal she had been subjected to detriment number 2, it would have gone on to find the instruction to Allington Hughes was not on the grounds a protected disclosure had been made on 22 August 2015 but .as part of on-going correspondence relating to a shareholder dispute, an alleged breach of the Claimant’s employment contract and a breach of the COT3 agreement signed on 27 April 2015. The Tribunal accepted the Second Respondent followed legal advice, and was seeking to assert/protect the third respondent’s legal rights.[186]The claimant’s complaint with regard to detriment number 2 would thus have Detriment 3 – letter dated 11 November 2015 to Morris & Co.[187]The Claimant relies upon a letter written by the Fourth Respondent, on the Fifth Respondent’s headed paper, dated 11 November 2015 to Morris & Co.[188]With reference to the first issue relating to detriment 3, namely, could the Claimant reasonably perceive the writing of this letter as being detrimental to her, the Tribunal found that she could for the reasons set out above. It accepted the fourth respondent was aggrieved and concerned over the claimant’s actions, not least, the fact she had retained and allegedly used to her own benefit, sensitive confidential information belonging to the fifth respondent, which she had no business in retaining after she resigned, and she was suspected of poaching clients. The fourth respondent was intent on causing the claimant mischief with her new employer, and that was the motivation behind the letter which could conceivably damage the claimant and put her new employment at risk, or at the very least, cause difficulties for her.[189]With reference to the second issue, namely, can the Claimant prove that the First and/or Second Respondent connived with the Fourth and Fifth Respondent to write this letter and in doing so, exercised authority on behalf of the Third Respondent (section 47B(1A)(b), the Tribunal found on the balance of probabilities that she had not, accepting the letter was written by the Fourth Respondent in her capacity as a director of the Fifth Respondent without the knowledge or input by the first and second respondent, and therefore it cannot be said to have been done during the course of employment and does not fall within s.47(1A)(a) ERA. The first respondent was made aware of the fact that his wife had written the 11 November 2015 letter shortly after it had been sent, the second respondent became aware in late May 2016 after he had received the claimant’s letter dated 25 May 2016.[190]For reasons already given, the claimant has not produced any coherent evidence to prove that the Fourth Respondent was a worker for the Third Respondent and that, in writing this letter, she was acting in the course of her employment with the Third Respondent (section 47B(1A)(a) ERA). The letter was written by the Fourth Respondent in her capacity as a director of the Fifth Respondent and not in the course of her employment with the Third Respondent. The Tribunal found the fourth respondent was not engaged as a worker or employee of the fifth respondent. It was submitted on behalf of the respondent the claimant in paragraph 4 of her “Response to Order of 5 December 2016” stated “with all intent and purpose MMJ [the fourth respondent] was an employee of MJC [the fifth respondent]” and fell short of saying the fourth claimant was an employee of the third respondent because she was not. The Tribunal agreed, having considered tests such as mutuality of obligation, control, and integration into the third respondent, and taking into account the explanations, which the Tribunal accepted on balance, given as to why a photograph of the fourth respondent was on the third respondent’s website with the title of administrator and why the fourth respondent had provided her holiday dates. To reiterate its findings, the clear evidence before the Tribunal was that the fourth respondent performed work for the fifth respondent without salary but with payment of a divided, the fifth respondent contracted with the third respondent to provide services to it and visa-versa and it is in that capacity the fourth respondent worked on behalf of the fifth respondent carrying out administrator duties[191]The claimant has not made out her case that she was a worker for the Fifth Respondent and that the Fourth Respondent wrote the letter as an agent/worker of the Fifth Respondent (section 47B(1). The claimant was not engaged by the fifth respondent in accordance with S.43K; she carried out work for the fifth respondent under the contract between third and fifth respondent. The provisions set out in S.471(A) ERA did not apply and the Tribunal accepted submissions made on behalf of the respondents that the fifth respondent is a corporate entity and cannot be a worker engaged in employment for the purpose of S.47B(1A)(a).[192]With reference to the third issue, namely, if the Claimant can show that she has reasonably perceived the letter of 11 November 2015 to be detrimental and that one of paragraphs 8(b) to (d) apply, then can the Respondents (as applicable) show that the decision to write this letter was not influenced significantly by the fact that the Claimant had made a protected disclosure, the Tribunal found on the balance of probabilities the fourth respondent, who was solely responsible for writing the letter, can show it was not influenced significantly by the fact the claimant made a protected disclosure. It was submitted on behalf of the respondents the Fourth and Fifth Respondent say that the letter was written for the purpose of protecting the Fifth Respondent’s business interests, and the evidence points to this. In her email of 4 November 2015, the Claimant had admitted that she had in her possession confidential information belonging to the Fifth Respondent and had made use of this information. The Fourth Respondent believed that the Claimant was guilty of theft. The Claimant had also sought to undermine the First, Fourth and Fifth Respondents reputation in the profession in which they practiced. The Fourth Respondent believed the claimant was poaching clients who instructed Morris & Co soon after the claimant commenced her employment, and she wanted the return of the confidential client information and lists belonging to the Fifth Respondent in the hope of avoiding misuse of said information. These are all of the matters that influenced significantly the fourth respondent when she wrote the letter to Morris & Co, and whilst the Tribunal finds the fourth respondent was aware of the claimant’s threats in connection with ICAEW she had not knowledge of the 22 August 2015 disclosure to the ICAEW until some date in December 2015 which resulted in the fourth respondent sending to the claimant the letter dated 23 December 2015, alleged detriment five below.[193]The claimant’s complaint with regard to detriment number 3 was found to be part of a series of similar acts carried out by the fourth respondent and as there was a continuous act between the 3rd, 5th and 5th detriment the Tribunal found the claim was lodged in time as set out below, and it had the jurisdiction to consider the complaints. Detriment 4- letter written by Allington Hughes dated 7 December 2015[194]The Claimant avers that on 7 December 2015, Allington Hughes, on allegations.[195]With reference to the first issue, namely, could the Claimant reasonably perceive the passages in the letters as being detrimental to her, the Tribunal found that she could not as it was written in response to earlier correspondence against a backdrop of litigation threats. The Tribunal repeats the same points it has made in relation to Detriment 2 with the exception of one matter; by 7 December 2015 the respondents were aware of the disclosures made by the claimant to ICAEW for the first time and on a straight-forward interpretation of the letter Allington Hughes was threatening to issue proceedings for breach of the COT3 resulting from the “allegations” made by the claimant to the ICAEW. The 7 December 2015 letter cannot be considered in a vacuum; and should be viewed in context there having been earlier threats of litigation to recover the COT3 settlement monies if the claimant continued to publish detrimental or derogatory statements resulting from her attempting to put pressure for a settlement to be reached in respect of the shareholding, damages for breach of restrictive covenants and retention of confidential information. In short, the threat of litigation was nothing new, should not have taken the clamant by surprise and nor could she reasonably perceive it to be detrimental to her given the general litigious tone of correspondence between the parties. For the avoidance of doubt, had it been the case that the 7 December 2015 letter was a stand-alone document without the previous threats of litigation emanating from the claimant and the confrontational correspondence from both parties, the Tribunal could in those circumstances have found it would have been reasonable for the claimant to have perceived the passage in the 7 December 2015 letter detrimental to her.[196]With reference to the second issue, namely, can the Third Respondent show that its instruction to Allington Hughes was not influenced significantly by the fact that the Claimant had made a protected disclosure, the Tribunal found that it can, accepting on the balance of probabilities the second respondent’s evidence that the letter was written as part of on-going correspondence relating to a shareholder dispute, an alleged breach of the Claimant’s employment contract and a breach of the COT3 agreement signed on 27 April 2015. The Tribunal accepted also the second respondent followed legal advice given in relation to the third respondent by Allington Hughes seeking to assert/ and/or protect its legal rights.[197]The claimant’s complaint with regard to detriment number 3 would thus have Detriment 5- letter dated 23 December 2015[198]The Claimant relies upon a letter written by the Fourth Respondent to her, on the Fifth Respondent’s headed paper, dated 23 December 2015.[199]With reference to the first issue, namely, could the Claimant reasonably perceive the failure to disclose the information as being detrimental to her, the Tribunal found in the context of the 23 December 2015 letter there was no issue concerning failure to disclosure information. The issue, as recorded in promulgated judgment sent 29 March 2017 at paragraph 12.5 is that the 23 December 2015 letter contains detrimental allegations and at the time the fourth respondent was a worker for the third respondent, despite purportedly acting on behalf of the fifth respondent she wrote the letter in the course of her employment with the third respondent, and in so doing contravened S.47B(1)(a).[200]The first issue is therefore could the Claimant reasonably perceive the passages in the letter as being detrimental to her, and the Tribunal found that she could not, the letter having clearly been sent as a result of the fourth respondent’s belief the claimant had misappropriated commercially sensitive documents belonging to the fifth respondent having “read the letters and enclosures you have sent to Meacher-Jones & Company Limited’s solicitors.” Within the body of the 23 December 2015 letter there are accusations of The claimant of “dishonestly appropriating property belonging to my company Chester Business Services…The data is…very confidential…and is relating to clients of Chester Business Services and as you were employed by Meacher-Jones & Company Limited and not Chester Business Services Limited you should not have taken any of this information…if you do not return the documents to me…I will have no alternative but to make a report of theft to Cheshire constabulary and also make a complaint to the Association of Chartered Certified Accountants…”[201]As indicated earlier the Tribunal accepts a complaint to the police or a body such as the Association of Chartered Certified Accountants can amount to a detriment, and the claimant could reasonably perceive a formal complaint may result in an investigation, and this could be detrimental to her.[202]With reference to the second issue concerning the fourth respondent’s worker status in respect of the third respondent, the Tribunal has dealt with this above, finding she was not a worker or an employee. Had she been either, in respect of the third issue the Tribunal would have gone on to find the letter was written on the fifth respondent’s letter headed notepaper by the Fourth Respondent in her capacity as a director of the Fifth Respondent and not in the course of her employment with the[203]With reference to the fourth issue, had the Claimant shown that she has reasonably perceived the letter to be detrimental, the Tribunal finds on the balance of probabilities, the decision by the fourth respondent to write this letter was not influenced significantly by the fact that the Claimant had made a protected disclosure. The Tribunal accepted the fourth respondent’s intention was to securing the return of confidential information, there had been a number of requests in the past ignored by the claimant and this exacerbated the situation. In short, the Fourth Respondent’s motivation was to protect the Fifth Respondent’s business interests; given her belief that it had lost clients and confidential documents had misappropriated.[204]In her email of 4 November 2015, the Claimant had admitted that she was in her possession confidential information belonging to the Fifth Respondent and had made use of this information via Morris & Co. The Fourth Respondent believed that the Claimant was guilty of theft, and her threat to involve the police was an attempt to recover the documentation by this threat, and it had no causal connection with the pre-termination protected disclosure or the disclosure on 22 August 2015. In submissions Mr Flynn asked the Tribunal to conclude the claimant’s retention of confidential business documents printed out just before midnight on 7 August 2014 shortly before her resignation, was for nefarious purposes, i.e. to poach clients. Whether or not the Tribunal believe the claimant’s motivation to have been nefarious is beside the matter; the real issue is what was in the mind of the fourth respondent. The Tribunal finds she believed the claimant’s retention of confidential documents capable of damaging the business to be nefarious, and on the basis of what had transpired with the loss of clients to Morris & Co, the claimant’s new employer, her belief in this regard may have been borne out by the reality and it is this fact that underpinned the fourth respondent’s motivation for acting as she did. In short, the fourth respondent was concerned the claimant would continue to cause damage to the business by her use of confidential information.[205]Taking into account the contemporaneous correspondence and factual matrix, the Tribunal accepts on the balance of probabilities, the fourth respondent wrote the letters of 1 and 23 December 2015 primarily in order to recover the fifth respondent’s confidential information held by the claimant.[206]The claimant’s complaint with regard to detriment number 5 was found to be part of a series of similar acts carried out by the fourth respondent and as there was a continuous act between the 3rd, 5th and 5th detriment the Tribunal found the claim was lodged in time as set out below, and it had the jurisdiction to consider the complaints. Detriment 6- letter dated 10 March 2016[207]The Claimant relies upon a complaint made by the Fourth Respondent to the ACCA on 10 March 2016.[208]With reference to the first issue, it is not whether the Claimant could reasonably perceive the failure to disclose the information as being detrimental to her, but as recorded in promulgated judgment sent 29 March 2017 at paragraph 12.6 and the Preliminary Hearing case Management Orders made on 14 October 2016 promulgated 2 November 2016, does liability rests with MJC as for Detriment 3 i.e. that the fourth respondent was a worker for the third respondent at the time, and wrote the letter during the course of her employment with it the 10 March 2016.[209]Whilst the Tribunal accepts a complaint to ACCA can amount to a detriment, as indicated earlier, at the time the fourth respondent was not a worker for the third respondent, she did not purportedly act on behalf of the third respondent and nor did she write the letter in the course of her employment with the third respondent. The fourth respondent did not contravene S.47B(1)(a). The letter to ACCA was written by the Fourth Respondent in her capacity as a director of the Fifth Respondent and not in the course of her employment with the Third Respondent.[210]As indicated previously, the Claimant has not proved on the balance of probabilities she was a worker for the Fifth Respondent and that the Fourth Respondent made the complaint as an agent/worker of the Fifth Respondent and in this regard also the requirements set out in section 47B(1) has not been met.[211]Had the claimant shown that she had reasonably perceived the complaint to be detrimental and that the third, and/or fourth respondent attracted liability (which she did not) the Tribunal would have gone on to find the fourth respondent’s decision to make the complaint was not influenced significantly by the fact that the Claimant had made a protected disclosure. As was the case with earlier complaints and letters sent to the claimant, the 10 March 2016 complaint cannot be read in a vacuum, and must be interested in the light of the ongoing party-to-party correspondence, the fact the fifth respondent had lost business to Morris & Co, alleged breaches of restrictive covenants, the retention of confidential information and the contentious dispute concerning the claimant’s shareholding, its valuation and alleged breaches of the COT3. It is against this background the Tribunal accepted, on the balance of probabilities, the complaint was made for the purpose of protecting the Fifth Respondent’s business interests and the first and fourth respondent who believed they were being accused of tax evasion.[212]The claimant’s complaint with regard to detriment number 6 is dismissed, the Tribunal having found on the balance of probabilities, even had the claimant made a protected disclosure in respect of the fourth and fifth respondent, which she had not for reasons above, having heard from the fourth respondent and taken into account the contemporaneous correspondence, the Tribunal would have gone on to find the complaint to ACCA was not influenced significantly by the fact that the Claimant had made a protected disclosure. The motivation was to protect the fifth respondent’s clients and recover confidential business information. Jurisdiction[213]The Claimant’s complaint was presented to the Employment Tribunal on 12 August 2016. EJ Horne decided to extend the time for the Claimant to present her claim in relation to Detriment 6. There is no time limit issue in relation to Detriment 6; there is in relation to all other Detriment.[214]With reference to whether any detriments that the Claimant is found to have suffered as a consequence of having made a protected disclosure are part of a series of similar acts or failure to act, the Tribunal found there was no continuous act between the 1st, 2nd and 4th detriment which all involved the second respondent exclusively, and Allington Hughes acting on his instruction, and the claimant’s complaints are out of time under section 48(3)(a) ERA, it being reasonably practicable for the claimant to have presented her claims within the statutory time limit.[215]A complaint that a worker has been subjected to a detriment for making a protected disclosure must be presented to an employment tribunal before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates, or, where the act or failure to act is part of a series of similar acts, the last such act or failure to act —S.48(3)(a) ERA.[216]In a complaint that a worker has been subjected to a detriment the Tribunal will need to consider the point in time at which the alleged detriment is said to have occurred, and not the point in time at which the disclosure or disclosures relied upon were made — Canavan v Governing Body of St Edmund Campion Catholic School EAT 0187/13.[217]The claimant has alleged detriments 1 to 6, a number of acts by different people, including a firm of solicitor, were so connected that they formed part of a ‘series of acts that were ‘similar’ to one another and not isolated incidents or a discrete act. It is undisputed they occurred outside the 3-month period, and an extension of time was granted in respect of Detriment 6, which became the last act. The last act (or failure) within the 3 month may be treated as part of a series of similar acts (or failures) occurring outside the period. If it is, a complaint about the whole series of similar acts (or failures) will be treated as in time as being connected to Detriment 6, taking into account all of the evidence before it given at the liability hearing. There must exist some link between them, a relevant connection between the acts which makes it just and reasonable for them to be treated as in time and for the claimant to be able to rely on them under S.48(3) ERA. The Tribunal found Detriment 3 and 4 involved the fourth respondent and were connected to Detriment 6 and each other, and were “similar” to one another.[218]In order to ascertain this Tribunal took into account all the circumstances surrounding the detriments alleged, including the personnel involved in them and when considering jurisdiction explored the possibility of any connection between them i.e. were the respondents in cahoots as suspected by the claimant, the second respondent giving instructions to the fourth respondent to act in the way she did and if not, why did the individuals and / or solicitors act as they did. The Tribunal has dealt with this in its finding of facts above and conclusions. To recap in short, it found the alleged detriments carried out by the fourth respondent were unknown to the second respondent until May 2016. There was no satisfactory evidence the respondents organised their actions so as to cause the claimant the detriments she alleges; the overwhelming evidence before the Tribunal was that the communications perceived by the claimant to amount to detriments were causally connected to the threatened litigation involving the second and third respondent over a myriad of matters, not least the threats to that business as a result of a belief the claimant’s had breached her contract of employment in respect of the restrictive covenants and duty of confidentiality.[219]The alleged detriments amount to a series of distinct acts taking place over a period and the time limit begins to run when each act occurred. In short, the Tribunal is satisfied that Detriments 1, 2 and 4 concerned different incidents and ought to be treated as individual matters, Detriments 3, 5 and 6 involved similar acts relating to the fourth respondent and can be considered as part of a continuing act and, in consequence, are in time.[220]In respect of Detriments 1, 2 and 4 the Tribunal has the power to extend the time limit for a reasonable period if it is satisfied that it was not reasonably practicable for the complaint to have been presented in time — S.48(3)(b). There was no evidence before the Tribunal it was not reasonably practicable, the reverse given the fact the claimant was represented by solicitors throughout the relevant period and she was involved in other litigious matters involving threats of litigation. There was nothing to prevent the claimant from issuing proceedings within the statutory time limit apart from her motivation. The claimant’s intention was to put pressure on the second and third respondent in relation to resolving the shareholders dispute, warding off court proceedings to enforce the restrictive covenants and a claim for damages and repayment of the COT3 settlement monies.[221]In conclusion, the claimant’s complaint of detriment numbered 1, 2 and 4 brought under Section 47B of the Employment Rights Act 1996 as amended, were not presented before the expiry of the statutory limitation period, the Tribunal was satisfied that it was reasonably practicable for the complaint to be presented before the end of that period, it does not have the jurisdiction to consider complaints numbered 1, 2 and 4, which are dismissed. In the alternative, had complaint numbered 1, 2 and 4 been brought within the statutory time limit, the claimant was not subjected to any detriment by any act, or any deliberate failure to act, by the first, second or third respondent done on the ground that the claimant had made a protected disclosure and the claimant’s claim for detriment numbered 1 to 5 brought against the first, second and third respondent in accordance with Section 47B Employment Rights Act 1996 as amended is not well founded and is dismissed.[222]The claimant’s complaint of detriment numbered 3 and 5 brought under Section 47B of the Employment Rights Act 1996 as amended, were part of a series of similar acts, there was a continuous act and the complaints were presented before the expiry of the statutory limitation period, the Tribunal does have the jurisdiction to consider complaints numbered 3 and 5. In relation to complaint numbered 3, 5 and 6 the claimant was not subjected to any detriment by any act, or any deliberate failure to act, by the first, second or third respondent done on the ground that the claimant had made a protected disclosure.[223]The claimant’s claim for detriment numbered 3,5 and 6 brought against the first, second and third respondent in accordance with Section 47B Employment Rights Act 1996 as amended is not well founded and is dismissed.[224]The claimant was not a worker employed by the fourth and/or fifth respondent and her claims for detriment brought against the fourth and/or fifth respondent in accordance with Section 47B Employment Rights Act 1996 as amended is not well founded and is dismissed.[225]The fourth and/or fifth respondent was not an agent of the third respondent acting with the third respondent’s authority and the claimant’s claim for detriment brought against the fourth and/or fifth respondent in accordance with Section 47B Employment Rights Act 1996 as amended is not well founded and is dismissed.[226]The claimant did not satisfy the conditions set out in Section 43G(1) of the Employment Rights Act 1996 and she did not make a qualifying disclosure in respect of the first respondent acting in his capacity as director of the third respondent, the fourth respondent and the fifth respondent, and her claim brought under Section 47B are dismissed.[1]The claimant applies for reconsideration on the basis that it was in the interests of justice for the Tribunal to reconsider its Judgment and Reasons promulgated on 2 October 2017 (“the promulgated Judgment”). This decision has been held back at the claimant’s request pending her return from holiday.[2]In addition to the 28-page document setting out the grounds for reconsideration, the claimant has also produced written submissions referred to as “Application Outline Argument” that ran to 65 paragraphs in 13-pages and made lengthy oral submissions in support of her application, which the Tribunal took into account. The claimant also relied upon a number of new documents marked appendix 1 and 2 which the Tribunal has not seen previously. Given the fact the claimant was a litigant in person, the Tribunal considered the documents, despite the fact that the letter dated 20 March 2017 sent to the claimant from Allington Hughes was marked ‘without prejudice’. “Appendix 1” is an email sent 26 April 2018 by the claimant to Allington Hughes after the liability hearing whereupon the claimant is raising fresh arguments concerning the fifth respondent’s tax registration following her attempts to obtain evidence from HMRC.[3]With reference to the document marked “Appendix 2” undated and related to a hearing held by the Tribunal of the Disciplinary Committee on 9 and 10 January 2018 in relation to the second respondent, the Tribunal has considered its contents. The document confirmed the second respondent on 26 February and 4 July 2014 had issued an audit report in the trading name of the Meacher Jones when the firm was not a registered auditor. It recorded on 12 May 2014 the second respondent issued an accountant report in respect of unaudited statements of a company when the company was not entitled to audit exemption. The second respondent was issued with a “severe reprimand” and fine of £5000 plus £3000 costs to ICAEW. The claimant submitted the second respondent was a “liar and fraud” on the basis that the second respondent had denied signing the audit report and then admitted to this at the disciplinary hearing. For the reasons set out below, the Tribunal did not accept the findings of the Disciplinary Committee undermined the second respondent’s credibility at the liability hearing.[4]The Tribunal took into account the Skeleton Argument produced on behalf of the respondents and oral submissions made by Mr Flynn. The claimant’s arguments on reconsideration were not always easy to follow; and for this reason the Tribunal has attempted to set out and paraphrase its understanding of the arguments without repeating every single point that has been made. The Tribunal has re-visited the notes taken during the liability hearing, which are voluminous and are not duplicated at length within this Judgment. It has also considered the promulgated Judgment.4.1 During the claimant’s oral application for a re-consideration the claimant accused Mr Flynn and his legal team of perjury, appreciating it was a very serious allegation and yet she continued to allege they had been party to the non-compliance of case management orders intentionally, and knowingly complicit when the second respondent had lied under oath in the knowledge that the template email had not been written by the claimant but by the second respondent, and the email was then used to threaten the claimant into a settlement. The claimant relied on a third document she produced at this reconsideration hearing, a “without prejudice” letter from Allington Hughes that referred to the claimant seeking £7.3 million pounds of damages, a final offer of £60, 00.00 and referred to the email sent to the second respondent of 30 May 2014 in which the claimant allegedly wrote “If you do not give me what I want then I will do everything I can to put your company into liquidation.” All of these matters were nothing new and have been referred to in the promulgated Judgment. There is no requirement for the Tribunal to consider this matter again.4.2 The disappointment she feels at the outcome of her case is understandable but it does not necessarily follow that the outcome of the case was partly a result of the respondents’ legal advisors and counsel committing the very serious act of professional misconduct as alleged. The claimant as an accountant is fully aware of the seriousness of such allegations.4.3 It is notable the claimant, when making oral submissions at this hearing, alleged the Tribunal was at fault because it had failed to lift the corporate veil and consider whether VAT/tax evasion had taken place. It was the Tribunal’s view that this has always been the crux of the matter for the claimant, evidenced not least by her cross-examination of the second respondent at the liability hearing coupled with her pre-occupation with this allegation during the life of this case. The claimant has missed the point; all that was required was for her to establish she reasonably believed disclosure made to the ICAEW concerning the second respondent fell under section 43B(1)(a) and/or (b) and the Tribunal accepted a protected disclosure had been made. There was no requirement for the claimant to “prove” the second respondent had been embroiled in a fraud, it was not a matter the Tribunal was qualified to reach a judgment on and this was made clear to her at the time. In oral submissions Mr Flynn reminded the Tribunal that the claimant’s allegation concerning VAT not being accounted for was new; it had not been raised and yet it was an issue apparent to the claimant at the liability hearing and even at its highest, whether VAT was accounted for or not, did not impact on the decision concerning why the respondents’ acted as they did. The law - reconsideration[5]An employment tribunal judgment can be challenged by seeking a ‘reconsideration’. Rules 70–73 of the Employment Tribunal Rules of Procedure (‘the Tribunal Rules 2013’) contained in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 SI 2013/1237 (‘the Tribunal Regulations’) set out the procedure for tribunals to ‘reconsider’ judgments.[6]Rule 70 of the Tribunal Rules 2013 provides an employment tribunal with a general power to reconsider any judgment where it is necessary in the interests of justice to do so. This power can be exercised either on a tribunal’s own initiative or on the application of a party. Rules 71–73 set out the procedure by which this power can be exercised. Only a ‘judgment’ can be reconsidered using this power.[7]There is an underlying public policy principle in all proceedings of a judicial nature that there should be finality in litigation. Reconsiderations are thus best seen as limited exceptions to the general rule that employment tribunal decisions should not be reopened and relitigated. It is not a method by which a disappointed party to proceedings can get a second bite of the cherry, they are not intended to provide parties with the opportunity of a re-hearing at which the same evidence can be rehearsed with different emphasis, further evidence adduced which was available before or case law to which the Tribunal had not been taken to, for whatever reason.[8]Under rule 70 of the Tribunal Rules 2013, a judgment will only be reconsidered where it is ‘necessary in the interests of justice to do so’. This ground gives an employment tribunal wide discretion, but it does not mean that in every case where a litigant is unsuccessful he or she is automatically entitled to a reconsideration: it can be used to correct errors that occur in the course of proceedings it is irrelevant whether a tribunal’s alleged error is major or minor taking into account the overriding objective to deal with cases justly and the interests of justice to both sides. This is particularly relevant to the claimant’s application, as he is attempting to re-argue the case, formulating a number of arguments, both those previously used and new ones, possibly due to his own inexperience.[9]Upon reconsideration of a judgment, the employment judge or tribunal (as the case may be) may confirm, vary or revoke the original decision and, if revoked, the decision may be taken again — rule 70.[10]On behalf of the respondent the Tribunal was referred to the Court of Appeal decision in Ministry of Justice v Burton and another [2016] EWCA Civ 714 commenting that the earlier law on reconsideration cannot be ignored, and the EAT decision in Outasight VB Ltd v Brown UKEAT/0254/14 in which it was held the previous law on the interests of justice category remains relevant to the Tribunal’s discretion under the current rules. The same basic principles apply to the 2004 Employment Tribunal Rules as the 2013 Rules.[11]The Tribunal was referred to Fforde v Black UKEAT/68/80 decided under the 2004 Rules, relied upon by Mr Flynn as authority for the proposition that the “interest of justice” category could only be successfully relied upon when something had gone wrong with the Tribunal’s procedure, so that a party had been denied natural justice and there had been no denial of natural justice in the case of Mrs Anthony. It was also referred to Flint v Eastern Electricity Board [1975] ICR 395 and the guidance from Mr Justice Philips that whilst a Tribunal has a wide discretion, it is not boundless, must be exercised judicially with regard to the interests of both parties and public interest in the finality of litigation. Mr Flynn submitted the claimant was attempting to re-litigate because she did not like the decision, and in the case of Serious Organised Crime Agency v O’Docherty [2013] EXCA Civ 518 (decided in a different context) Mummery LJ described finality as being “critically important.”[12]Ladd v Marshall [1954] EWCA Civ 1, the case referred to the Tribunal by the claimant, established the criteria for the Court to accept fresh evidence in a case on which a judgement has already been delivered. In the Judgment of Lord Denning in order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive: thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible. The claimant’s grounds[13]First ground:13.1 The first ground relied on is the Tribunal has failed to ensure the parties are on an equal footing.13.2 Contrary to the claimant’s assertion at paragraph 1 the issues subsumed into the promulgated Judgment were specifically produced for clarification purposes and agreement with the parties, having been produced by Mr Flynn at the Tribunal’s request. At no stage did the claimant indicate she disagreed with them, and contrary to her oral submissions made at this hearing, she did not inform the Tribunal during the liability hearing that(a) she could not fully understand them, and(b) when offered an adjournment in relation to documents produced by the respondents during the liability hearing, did not say she needed an adjournment in order to understand the issues. The claimant had a number of days after she received the written issues to make such representations and she made none. In oral submissions made at the reconsideration hearing the claimant alleged “I pleaded for the Tribunal to dismiss the defence and in hindsight I should have pleaded adjournment. The Tribunal on its own initiative should have offered an adjournment.” The Tribunal does not agree as there was no indication before them the claimant had an issue with what the claimant took to be “agreed issues” and an adjournment having been offered and not taken up on another matter.13.3 At paragraphs 2 and 3 the claimant alleges the issues placed “unfair weighted advantage in favour of the respondents” and it was unjust for the Tribunal to rely as heavily as it did on making its decisions based on a list of issues prepared by Mr Flynn. The parties were aware from the outset of the liability hearing understanding the issues were fundamental, and the Tribunal would be responding to them when it came to its decision. In oral submissions at the reconsideration hearing the claimant maintained she was not aware of the relevant sections of the legislation and wasn’t given the opportunity to adjourn. This was not the case, and the written list of issues as set out in the promulgated judgment clarified the Section 43C relied upon following oral representations by Mr Flynn also confirming the same on day one.13.4 The judge’s hand-written notes taken on the first day of the liability hearing reflect: (a) There is a note to the effect that the issues set out at paragraph 7 and 8 of the 14 October 2016 case management minute were discussed and in addition, Mr Flynn had raised the issue concerning the ICAEW and the claimant was aware that she would need to address it. (b) At the outset the Tribunal and claimant were provided by Mr Flynn with a skeleton argument referred to as “opening submissions” that set out a number of issues which Mr Flynn spoke to, and the claimant, had she been in any doubt beforehand, was made fully aware of the respondent’s case. This was further clarified and expanded upon at the outset of the liability hearing and she was cognisant of the fact that the issues in the case should be addressed. By the second day of the liability hearing it became apparent to the Tribunal that the claimant was not addressing the issues in the case by the way she answered questions on cross-examination and Mr Flynn was asked to prepare a list of issues early on in the second day. The claimant did not challenge the list of issues, nor did she ask for an adjournment or seek to amend the issues.(c) The claimant produced a document at the reconsideration hearing by way of an email sent to her by Mr Flynn at 7.50pm on 9 August 2017 attaching the list of issues. These were the issues incorporated by the Tribunal in the Reserved Judgment. In response, the claimant produced for the Tribunal a “Response to list of Issues” stating “I know understand the concerns the Tribunal has in relation to the preliminary issue regarding protected disclosure raised by the respondent’s counsel on the first day of the hearing.” The claimant set out why she thought the respondent’s position was incorrect in paragraphs 3 to 11. There was nothing to put the Tribunal on notice that the claimant did not agree or understand the issues, which she was invited to address during her cross-examination of the second respondent and speak to during closing submissions.(d) In the preliminary hearing notes reference was made to the screen shot and the email in which the claimant had allegedly threatened to put the company into liquidation, which she denied sending, alleging the respondent was perverting the course of justice. The Tribunal was aware of the claimant’s position and took it into account.(e) The claimant on 7 August indicated she needed more time to read the respondent’s disclosure argument, and issue discussed at the start of the process. It was made clear from the outset by Mr Flynn that the pre-COT3 Public Interest Disclosure (“PID”) was accepted by the respondent, and there was no concession of the 22 August 2018 PID “because it is not a PID as it was made to ICAEW and under S.43C…there is an issue of legal responsibility as ICAEW has legal responsibility for chartered accountants and the 4 and 5th respondent were not chartered accountants and therefore disclosure does not fall under S.43C and 43d does not apply.” In response, the claimant maintained she was a worked for the fifth respondent and an employee of the third respondent, and “Mr Flynn is deflecting issues…the issue is whether the fifth respondent managed or influenced the first, second and third respondent.” Mr Flynn indicating it was in issue, and the claimant queried why it had been not been raised before. There was no suggestion the claimant failed to understand the issue as set out by Mr Flynn orally, then in writing when asked to produce a document setting out the issues in full and finally, in oral submissions Mr Flynn having made his submissions first and the claimant offered and given time to absorb them before making her oral submissions after the evidence had been completed.(f) Reference was also made by Mr Flynn to the claimant’s personal relationship with the second respondent and its effect on her motivation, in response the claimant maintained a COT3 had been signed by her on the basis that the personal relationship would never be referred to again. The claimant was aware the past relationship was a fundamental part of the factual matrix in the case relied upon by the respondent. The judge’s notes confirm the claimant was cross-examined on her personal relationship with the second respondent and its breakdown, and she referred to being offered £65,000 settlement before the proceedings started.(g) The notes reflect the Tribunal adjourned at 11.48 to read the documents and did not re-convene until the next day. The claimant had time to understand the respondent’s argument on the ICAEW. A note was made of the documents the Tribunal was referred to by the claimant. The documents it was referred to in the reconsideration hearing, namely pages 243, 245 and 961 were not referred to by her (or the respondent) at any stage during the liability hearing, and nor were they read.13.5 On the second day of the liability hearing Mr Flynn reiterated that the respondent will argue the 22 August 2015 disclosure was not a protected disclosure; it was not made to a protected person as the fifth respondent was a separate legal entity and not a chartered accountant. The claimant clarified that it was the 22 August 2015 disclosure she was relying on, and not the earlier protected disclosure made whilst she was in employment which had not been included in the bundle, although the outcome of the investigation was included and the Tribunal was referred to it. The claimant did not complain that she could not understand the respondent’s position and needed more time. It was a relatively straightforward matter although the facts in the case were complex and at times difficult to understand on the claimant’s part, as she was unable to express herself at times without confusion. There is a note to the effect that the issues set out at paragraph 7 and 8 of the 14 October 2016 case management minute were discussed and in addition, Mr Flynn had raised the issue concerning the ICAEW and the claimant was aware that she would need to address it.13.6 Paragraphs 6 to 8 of the claimant’s reconsideration application are difficult to understand in the context of a reconsideration. The claimant relied upon the disclosure made to ICAEW on 22 August 2015; it was a fundamental part of the case considered by the Tribunal. The claimant was not happy with the respondent’s argument that it did not amount to a PID in respect of the 4th and 5th respondent brought up at the outset of the liability hearing; however, she did not seek an adjournment or clarification of the respondent’s position which had been made clear by Mr Flynn. As far as the Tribunal was concerned the claimant was aware from the morning of day 1 this was an issue it would need to decide, and she would have to deal with both in her evidence and closing submissions. The claimant did not maintain she had been caused “overwhelming hardship and injustice” and had she made an application for the issue to be have been “dismissed” (which she did not) the Tribunal would have rejected it on the basis that it was one of the key issues in the case and could not be ignored. The fact that it was raised by counsel at the outset is unsurprising; more often than not in Employment Tribunal cases when issues are discussed and agreed before the evidence is heard, new matters and fresh arguments are raised. Providing the parties understand the issues and have time to deal with them (which the claimant had over a period of days) it would not be in accordance with the overriding objective to derail a 6-day liability hearing as now suggested by the claimant at paragraph 13, although this was not proposed by her at the time.13.7 With reference to paragraph 10 the Tribunal can do no more than repeat paragraphs 25 and 26 of the promulgated Judgment. There was no suggestion by the claimant at the time that the respondent was “allowed to take advantage of the fact that I was a litigant in person to require that I spend a substantial amount of time on a point that they knew was incorrect.” Further, there was no suggestion Mr Flynn intentionally raised the point to disadvantage the claimant; such matters are often aired by parties during discussions concerning the issues with a view to them being resolved before evidence is taken. That is what happened in the claimant’s case, when the argument was found to be in her favour.13.8 With reference to the remainder of paragraph 13 as indicated above, the claimant did not seek an adjournment and further, she responded by producing a written document titled “Claimant’s response to list of issues” recording at paragraph 1 “Having received the list of issues from the respondents’ legal representatives yesterday evening, I now understand the concerns the Tribunal has in relation to the preliminary issue regarding protected disclosure raised by the Respondent’s counsel on the first day of the hearing. In paragraph 2 she wrote “I’d like to bring to the Tribunal’s attention that the respondent’s position is incorrect” and in paragraphs 3 to 11 set out arguments to this effect. Nowhere in her argument did the claimant raise any issue with a lack of understanding or requirement for an adjournment and the Tribunal formed the view at the time that the claimant was aware of the issues, agreed them and was prepared to deal with them, which she did.13.9 With reference to paragraph 15 the claimant is incorrect in her assertion that she was unaware of the relevant legislation; she was made aware at the outset by Mr Flynn and this was then, for the avoidance of any confusion on the part of the claimant, set out in the written issues. The Tribunal accepts the written issues were provided to the claimant on the evening of 9 August 2017 at 19.50 well before close of evidence and oral submissions being given by her on the agreed issues.13.10 With reference to paragraphs 23 and 24 the Tribunal accepts it informed the claimant that it was not a specialist in accountancy, it cannot recall using the phrase “nitty gritty,” terminology the Judge would not ordinarily have been used. It did inform the claimant words to the effect that detailed accountancy information was unnecessary, the claimant sought to explore in detail whether the second respondent was guilty of fraud in addition to a number of other matters not relevant to the issues to be decided. At the reconsideration hearing the claimant clarified that the Tribunal had made a fundamental error in this regard on the basis that it had failed to lift the corporate veil and then explore whether the third and fifth respondent were separate businesses. The Tribunal made it clear at the liability hearing their role was not to lift the corporate veil; it considered whether the businesses were separate, a task the Tribunal undertook with much thought as set out in the promulgated judgment.13.11 The claimant in her first ground repeats a number of arguments and submissions made during the liability hearing and the Tribunal does not intend to revisit its findings having considered the points in detail after closing submissions. It is notable on the second day of the liability hearing the judge’s notes record on cross-examination the claimant confirmed the third respondent had instructed her to carry out work for the fifth respondent, and that she was a worker for the fifth respondent through the third respondent and this matter was further explored by Mr Flynn with the claimant confirming a number of matters, including the fact the first and fourth respondent did not ask her to perform work on behalf of the fifth respondent, and that she was an employee of the third respondent. This is an argument she repeated at the reconsideration hearing, and is one which the Tribunal does not intend to revisit.[14]Second ground:14.1 With reference to the second ground, namely, the second respondent’s failure to comply with case management orders and the “tampering” of the 30 May 2014 email, the claimant alleges that the failure was on the part of the first respondent, who did not give evidence on health grounds, also. The Tribunal considered explanations given at the liability hearing for the failure to provide metadata ordered, accepting the second respondent’s evidence and bundle of emails marked “R5” on the balance of probabilities. The Tribunal dealt with the Case Management Order and the failure to comply with it at paragraphs 11, 28 to 32, 84 and 95 of the promulgated judgment. It assessed the second respondent’s evidence on cross-examination and the panel asked questions for clarification. Based on the evidence before it the Tribunal reached the conclusions it did on the balance of probabilities, taking the entire factual matrix into account when it came to assessing credibility. The fact the first and/or second respondent failed to comply with a case management order is but one matter that contributed to the Tribunal’s overall assessment of the case, and its findings at paragraphs 84 and 85. The claimant in this application is re-hearing and finessing arguments previously before the Tribunal, which it considered when deciding the facts on the evidence before it at the time.14.2 Mr Flynn reminded the Tribunal that as a result of the IT professional being out of the country and not being in a position to give evidence at the liability hearing an adjournment was suggested part way through, which the claimant did not want to take up. Authenticity of documents was not an issue raised by the claimant at the time. This was not disputed by the claimant at the reconsideration hearing.14.3 With reference to paragraph 39 and 40 the Tribunal notes the promulgated judgment at paragraph 84 and had the claimant cross-examined the second respondent on the heading of the “tampered email” this would have been an important point and reflected in the judgment. She did not, and reconsideration is not the means by which a claimant can make up any deficiencies in cross-examination. It was not readily apparent to the Tribunal that the heading of the tampered email was indicative of the second respondent having printed it off from his own email account, and without giving the second respondent an opportunity to comment on the claimant’s observation (i.e. via the claimant’s cross-examination), it is not in the interests of justice for the Tribunal to now accept at face value, the claimant’s submission that the heading of the tampered email clearly shows the second respondent’s evidence as untrue.14.4 With reference to the paragraph 48 and the claimant’s complaint that she had no opportunity to verify the authenticity of the documentation presented by the respondents during the liability hearing, this was not an argument she used at the time and has been raised exclusively for the purpose of the reconsideration hearing. At the reconsideration hearing it was pointed out to the claimant by the judge that she had no recollection of the claimant seeking an opportunity to “inspect authenticity” to which the claimant responded that she had not realised the Tribunal would accept evidence when there was “obvious non-compliance, which was clearly incorrect as the documents were admitted in evidence and cross-examined on.14.5 There was no issue concerning authenticity of documents raised during the liability hearing. It is difficult for the Tribunal to understand the claimant’s point raised after the event. It is notable the claimant has made no attempt to explore authenticity of documents prior to this hearing and she merely asserts she did not the opportunity to do so. That assertion is not entirely correct as she had the opportunity to cross-examine witnesses and could have explored authenticity of documents as she did with the “tampered email.” The Tribunal has considered the 20 March 2017 email there being no strong objection by Mr Flynn that privilege should not be waived. In the same way the claimant introduced the 20 March 2017 letter into the reconsideration application she could have raised it at the liability hearing, and failed to do so. The 20 March 2017 letter adds nothing; a dispute had always existed concerning who had sent the “tampered email” one which the Tribunal unfortunately not able to resolve even on the balance of probabilities. The 20 March 2017 letter points the finger at the claimant, and it is conceivable that had the Tribunal this document before it there would have been no difference to the outcome.14.6 The claimant has made similar submissions in the past, rejected by the Tribunal who would not accede to her request to make a referral to the Crown Prosecution Service on the basis that the second respondent had committed perjury and the Tribunal does not intend to deal with the claimant’s application again.[15]Third ground15.1 The claimant averred the Tribunal had, with reference to the Case management Order regarding the fifth respondent’s registration as a tax agent with HRMC and professional indemnity insurance, erred in concluding the fourth respondent was a credible witness. The claimant’s assertions and submissions in this regard were considered by the Tribunal at the liability hearing and it can do no more than reiterate its findings in this regard as set out in the promulgated judgment, especially at paragraphs 36 and 37. The claimant is attempting to rehearse and clarify evidence to persuade the Tribunal that the first respondent was supervised for Money Laundering Regulations by ICAEW through the third respondent, was thus a prescribed person under Section 43F, and the second respondent had ultimate control behind the fifth respondent. The Tribunal heard a great deal of evidence on the control point, no evidence on the money laundering argument (which may in any event have been irrelevant) and a reconsideration is not the vehicle by which the claimant can make good any deficiencies in her case.15.2 The claimant seeks to argue the case further at paragraph 16 onwards in her application Outline Argument document maintaining the Tribunal failed to identify the validity of tax registration as being paramount in determining the existence of two separate businesses as alleged by the respondent. In paragraph 18 the claimant maintained the Tribunal had erred in not considering the redaction of the letters sent by the respondent’s seeking the fifth respondent’s tax registration which must mean there was a previous response form HMRC and that correspondence had not been disclosed. Mr Flynn submitted the relationship between the two businesses took up time, the claimant stating the Tribunal should lift the corporate veil to establish tax evasion and despite clear guidance from the Tribunal at the time that these were not matters suitable for the Tribunal, the claimant did not listen.[16]Fourth ground:16.1 The claimant’s observation concerning the Tribunal’s assessment of the credibility of her witnesses is noted, however, the Tribunal’s position is clearly set out at paragraphs 17 to 19. The Tribunal acknowledges the correct name of Xiegong Li Hodgson should be Xuedong Li Hodson and the name in the judgment is amended under the slip rule as it was clearly a typing error.16.2 In direct contrast to the claimant’s observation at paragraph 89 in the reconsideration application, paragraph 18 of the promulgated judgment refers to the claimant’s submission that Ms Hodson’s husband prepared her statement. A reconsideration is not the means by which a Tribunal is required to re-assess the credibility of witnesses again, that exercise having been carried out when the evidence was fresh in the minds of the Tribunal and prior to it reaching its findings of facts.[17]Fifth ground: 17.1 The Tribunal makes the same observations in respect of Joanne Lark, who did not attend and could not be cross-examination as set out in paragraph 15 of the promulgated judgment. The claimant has not explained in the reconsideration application how she was prejudiced by the Tribunal giving weight to some the undisputed evidence set out in Joanne Lark’s witness statement, rejecting other disputed evidence on the basis that the claimant could not cross-examine that evidence.[18]Sixth ground:18.1 The claimant argued the Tribunal made an incorrect finding of facts in connection with paragraph 35 in the promulgated judgment in contrast to paragraph 6 of the fourth respondent’s witness statement. The Tribunal has re-visited the witness statement of the fourth respondent and the Tribunal fails to see there being any conflict between its findings and paragraph 6, which makes no reference to PI cover. The claimant attempts to re-hearse the evidence in relation to PI cover, rental payments, invoices and engagement letters questioning the authenticity of the documents relied upon by the respondent. It was for the claimant to explore via cross-examination any issues she had with authenticity of documents. The Tribunal assessed the evidence before it, including the documents relied upon, having heard from the various witnesses. The Tribunal took into account the claimant’s submissions and dealt with a number of them in the promulgated judgment.18.2 With reference to paragraph 140 and 141 the Tribunal had before it evidence relating to the number of clients that moved from the fifth respondent to Morris & Co. The actual number is irrelevant; it was undisputed between the parties a considerable number of clients were approached and moved and this provided part of the motivation for the fifth respondent’s actions.[19]Seventh ground:19.1 The claimant’s submissions (repeated at paragraph 20 onwards in the Application Outline Argument document) that she had made qualifying disclosures about tax evasion whilst still in employment was not evidence before the Tribunal, who was not referred to the claimant’s witness statement in case number 2403196/2014 that was not relevant to these proceedings and which had resulted in a COT3 agreement. The claimant is in relation to the seventh ground attempting to introduce new evidence and revisit evidence already given, for example, in relation to Joanne Lark as set out in paragraph 145 which is irrelevant.19.2 The clear evidence before the Tribunal was the claimant made two protected disclosures, one when she was still in employment the other to ICAEW after a delay. The claimant has repeated and expanded upon the evidence she gave for the delay arguing why ICAEW was the relevant authority. There is no requirement for the Tribunal to revisit this evidence.19.3 Contrary to the claimant’s observation at paragraph 20 of the Application Outline Argument document, the Tribunal took into account the fact the claimant had made two protected disclosures and the evidence before the Tribunal was not that the qualifying disclosure made during employment was “in respect of the second disclosure.” The Tribunal considered in great detail the motivation of the respondents, particularly that of the second and fourth, drawing on the contemporaneous documentation in addition to oral evidence given on cross-examination and re-examination. In her application before the Tribunal the claimant, with her references to the respondents’ attempt to “camouflage the set up of the working arrangements…such as taking out professional indemnity insurance and registering as a separate tax agent...putting in place joint engagement letters and sub-contractor agreement” is attempting at re-hashing the evidence already heard by the Tribunal with a view to persuading the Tribunal to agree with the claimant’s version of events and conclude the second respondent was engaged in a fraud and tax evasion. It was not the Tribunal’s role to consider “whether the respondents were abusing the corporate veil” and it was not for the Tribunal to lift that corporate veil. It is notable that the lifting of the corporate veil and proving the second respondent had acted fraudulently was one of the claimant’s main objectives at the liability hearing, and she found it difficult to move away from this and address the key issues in the case and the Tribunal’s promulgated judgment reflects this including its view that the “personal intimate relationship” between the second respondent and claimant impacted on the events that transpired, and the fourth respondent. The animosity between the claimant and second respondent was out of kilter with an employment relationship.[20]Eighth ground:20.1 When the claimant asked the Tribunal to redact the paragraphs at 27 and 28 of the second respondent’s witness statement she did ask for the personal relationship not to be mentioned, and the Tribunal was sensitive to the fact that the claimant, who had a husband and family, wished to avoid her private affairs being aired in public. On its part the Tribunal sought to prevent either party from becoming embroiled in acrimonious personal allegations exploring the relationship, its breakdown and aftermath. It has always been the respondent’s case that fact the claimant had been in an “intimate personal relationship” with the second respondent and that had broken down during a time when she was an employee of the third respondent, and this was relevant. There is a difference between exploring the “ins and out” of a broken personal relationship in a case where such information is not relevant; to the fact it was broken and steps were taken in the aftermath. As the case progressed and evidence became clearer the breakdown of the personal relationship was relevant, and given the claimant’s sensitivities the judge took the view it was only right to warn her that it would be mentioned. The Tribunal has attempted to refer to the relationship in the most subtle and sensitive manner in order to minimise any hurt for the claimant in her personal life.20.2 The evidence before the Tribunal was not that the first and fourth respondent were accustomed to the second respondent’s infidelity and thought nothing of it. To the contrary, there was no evidence regarding the first respondent and in respect of the fourth respondent the Tribunal took into account all of the evidence before it (including that given by the second respondent) and came to the conclusions it did. It is irrelevant whether or not the first respondent was a party to the COT3, the fourth respondent’s motivation for her actions was a fundamental issue to be decided upon and the personal relationship and its aftermath was found to have been a factor.[21]Ninth ground21.1 With reference to the information forwarded to the ICAEW the Tribunal heard evidence form the fourth respondent to the effect that she believed the claimant had in her possession of information confidential to the third and fifth respondent. This was supported by the contemporaneous documents and accepted by the Tribunal. Whether or not the second and/or fourth respondent believed the claimant held confidential information and whether this knowledge formed part of the motivation for her to act as she did was explored by the Tribunal. The Tribunal does not intend to re-hearse its findings on this matter set out in the promulgated judgment. The fact that claimant was a shareholder of the third respondent as she maintains in her written application, is not relevant. In oral submissions made during the reconsideration application the claimant accepted there was no requirement for the Tribunal to look to see if there was a “legal breach of confidentiality” by her, but the fact the fourth respondent approached the claimant and not the third respondent “means her motive was not to get the information back” alleging “the motive…cannot be true because the fourth respondent didn’t ask for the information from the third respondent.” The claimant’s argument was that it was the third respondent and not the fourth who should have requested the information from her and this was what she would have expected.21.2 It is undisputed the claimant retained documents containing confidential information belonging to the third and fifth respondent when she was no longer an employee; these were used by her and produced in the agreed bundle. The fact they were disclosed to ICAEW does not negate the reality of the situation as genuinely believed by the fourth respondent, namely, the claimant had retained the documentation post employment when she ought not have done so, and these documents could be used to harm individuals and the business. The fact that the documents were obtained legitimately in the first place during the claimant’s employment is irrelevant; it is the retention of the documents post employment and what was in the mind of the second and fourth respondents when they acted as they did.[22]Tenth ground22.1 With reference to paragraph 174 onwards under the title “Contradictory findings” the Tribunal did not accept the claimant’s assertion that the fact Morris & Co did not write to the fifth respondent’s clients and yet clients were lost was evidence the third respondent managed the fifth respondent’s client ledger and the second respondent controlled the fifth respondent bearing in mind the relationship between the parties.22.2 In the application Outline document the claimant further expanded upon this point at paragraph 8 arguing clients within the fifth respondent when they moved to Morris & Co had only given permission to release information “withheld and managed” by the third respondent whom they identified as their authorised tax agent/accountant. With reference to paragraph 9 in the application Outline document the claimant incorrectly maintained the Tribunal failed to take into account the fact that the second respondent was founder of the fifth, represented the fifth respondent over billing in court and instructed a marketing executive to engage clients in the fifth respondent. The Tribunal does not intend to re-visit this issue again.[23]Eleventh ground 23.1 With reference to paragraph 179 onwards “Unfounded findings” the claimant is attempting to re-hearse and re-new her evidence and arguments. The Tribunal reached the findings it did partly based on the contemporaneous documentation, particularly the party-to-party correspondence and the litigation threats. It was irrelevant to the Tribunal’s consideration whether the claimant breached the COT3 and/or her restrictive covenants and whether they were binding or had fallen away. The evidence was clear, litigation was being threatened on the part of both parties and having considered the factual matrix in it’s entirely the Tribunal formed a view regarding the claimant’s motive for making the protected disclosure and acting as she did, as set out in the promulgated judgment.[24]Twelfth ground 24.1 With reference to paragraphs 186 onward; “Detriments” the claimant repeats a number of her arguments set out within the reconsideration application and at liability hearing stage, which the Tribunal does not intend to re-visit.[25]Thirteenth ground25.1 With reference to paragraph 191 “Incorrect interpretation and application of the law” the claimant expanded considerably on this in her document titled “Application Outline Argument for Hearing on 11 May 2018” and at the hearing itself. She clarified her argument was the Tribunal failed to correctly apply the extended definition of worker set out in Section 43K ERA in that:(a) Section 43K does not require the terms on which the claimant worked for the fifth respondent to be determined by both the third and fifth respondent,(b) The claimant was a “worker” for the fifth respondent on terms substantially determined by the third respondent through the second respondent. In oral submissions the claimant asserted the definition extends to a worker presented to a sub-contractor by its employer. The claimant argued as an employee of the third respondent she was “asked” to do work for the fifth respondent at the request of the second respondent and therefore was a worker of the fifth respondent. The third respondent determined what work she did for the fifth respondent through the second respondent and under Section 43(K) the claimant maintained she was a worker for the fifth respondent, despite not having entered into a contract of employment with it.(c) The claimant argued the Tribunal had erred in finding the first and fourth respondent were not workers of the second respondent by virtue of the extended definition of Section 43K. In oral submissions the claimant maintained the first and fourth respondent worked for the third respondent because the work they did was determined by the second and third respondent. The Tribunal does not intend to re-visit this argument, which it dealt with in the promulgated judgment.25.2 The claimant selectively refers to paragraph 50 in the promulgated judgment. Mr Flynn submitted that what the claimant described was just a client relationship and nothing more. The fifth respondent was a client of the third respondent and work was distributed to the claimant (and other staff) via the second respondent. The claimant cannot be a worker under those circumstances, and if the claimant were found to have been a worker every accountant and solicitors practice giving work to their employees on behalf of a client would become a worker of that client. The Tribunal agreed. It found as set out in the promulgated judgment the third and fifth respondents were two separate companies with a contractual relationship involving clients, and the fact the claimant was employed by the third respondent and within her contract of employment instructed by the second respondent to carry out some work for the fifth respondent’s clients does not make her a worker under Section 43K as there is no worker relationship. The claimant was not working for the fifth respondent, she was working for the third respondent and the Tribunal does not intend to revisit this issue, having considered it at length at liability stage.[26]Fourteenth ground 26.1 The correct dates are 7th to the 11th & 14 August 2017.[27]In the Application Outline Argument the claimant introduced an allegation that the Tribunal was perverse and/or biased in its judgment. Obviously, the Tribunal deny that this was the case as it would not knowingly produce a perverse or biased judgment; this is a matter for the EAT to consider. It is notable during oral submissions Mr Flynn described the Tribunal as “bending over backwards” for the claimant. The Tribunal, throughout the liability hearing, was mindful of the fact the claimant was a litigant in person and attempted, as best as possible, to level the playing field between her and a legally represented respondent, hence the suggestion that an agreed list of issues be produced in one document and the Tribunal reminded the claimant of those issues at various stages of the hearing, giving her time overnight to prepare additional cross-examination of the second respondent in order that she could take into account the issues.[28]The Judge’s notes record at the end of the third day when it became apparent the claimant’s cross-examination of the second respondent was limited to his alleged misconduct and to him allegedly providing her with no answer as to the audit status, the claimant was referred by the judge to the list of issues. The notes reflect the claimant was given an opportunity to prepare further questions with the issues in mind. In addition, she was referred to detriments and issues set out in the Case management Order. The hearing adjourned until the next day to give the claimant time to prepare her cross-examination. On the fourth day the claimant continued with her cross-examination of the second respondent and it was at this stage the second respondent gave evidence that he had found the email in a box of papers in his office in March 2017.[29]The judge’s notes record a discussion also took place about the respondents attempt to rectify their failure to comply with the Case Management Order and an adjournment was discussed in order that further evidence could be obtained. The note reflects that the claimant “disagrees but wants to get the case done…I have a copy of the fabricated email on the phone. Agreed to crack on with the case.”[30]After close of evidence both the claimant and respondent had prepared written closing submissions prior to making oral submissions, and prior to submissions being made the Tribunal reminded the parties again of the importance of the agreed issues. The claimant confirmed she did not agree with any of Joanne Lark’s witness statement having originally only disputed paragraph 5. The claimant had been requested to deal with what weight should be given to Joanne Lark’s evidence. Prior to closing submissions and after close of evidence the claimant also introduced new evidence in an email dated 13 August 2017 which the Tribunal allowed and considered despite the fact that the claimant’s case had closed, given she was a litigant in person and some leeway was appropriate.[31]With reference to the Tribunal’s alleged “overly lenient approach in condoning the respondent’s obvious failure to comply with case management orders,” this was a matter considered by the Tribunal at length and an adjournment offered to the claimant, which she refused. At no stage of that process did it become apparent to the Tribunal that the second respondent was guilty of perverting the course of justice as alleged by the claimant on numerous occasions, and this was dealt with in the promulgated Judgment.[32]With reference to the claimant’s allegation set out in paragraph 58 onwards in the Application Outline Argument, the without prejudice correspondence had no effect on the Tribunal’s findings. There was no application made by the claimant for the Tribunal to take the without prejudice correspondence placed in the agreed bundle to be taken out. The Tribunal understood privilege had been waived by the very fact that the documents (including without prejudice letters from the respondents) were in the agreed bundle. With reference to paragraph 59 at not stage did the claimant state the issues were not agreed? They were referred to as agreed issues numerous times, a copy was given to the claimant, she did not dispute the contents, prepared a response to the list of issues and prepared written closing submissions with reference to them (at the Tribunal’s suggestion) as can be seen by her references to the six detriments.
Conclusion
[33]With reference to the new evidence produced by the claimant, seeking to adduce fresh evidence available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at that time can be a ground for reconsideration where the interests of justice required it under Rule 70. Even if those principles set out in Ladd v Marshall are not strictly met, the interests of justice may still allow fresh evidence to be adduced where some additional factor or mitigating circumstance has the effect that the evidence in question could not have been obtained with reasonable diligence at an earlier stage. This might apply where, for example, by the introduction of evidence at the hearing.[34]The Tribunal is mindful of the fact that it is not generally in the interests of justice that parties in litigation should be given a second bite of the cherry simply because they have failed for whatever reason to adduce all the evidence available in support of their cases at the original hearing. It is fundamental that the new evidence is likely to have an important bearing on the result of the case and is likely to influence the decision.[35]With reference to the document generated by the Tribunal of the Disciplinary Committee on 9 and 10 January 2018 in relation to the second respondent, clearly, this is a document that was not in existence at the time of the liability hearing. The claimant sought to argue that at the liability hearing the second respondent insisted he had done nothing wrong and the audit investigation was not conclusive, which he could not have believed given the Disciplinary Committee’s findings, thus the Tribunal should find the second respondent was a “liar and fraud” on the basis that the second respondent had denied signing the audit report and then admitted to this at the disciplinary hearing. The Tribunal did not accept the findings of the Disciplinary Committee undermined the second respondent’s credibility at the liability hearing. At the reconsideration hearing the Tribunal explored with the claimant the fact that it was not part of the case before the Tribunal whether or not the second respondent had signed the audit report. The Tribunal was referred to Ladd v Marshall [1954] EWCA by the claimant who argued a self-confessed liar cannot be a credible witness. Mr Flynn submitted there was no allegation of dishonesty made by the Disciplinary Committee, and on the face of the document that appeared to be the case. The process of signing audits and an accounts report appeared to be an administrative one, and without a great deal more evidence the Tribunal is not in a position to conclude the second respondent’s credibility was undermined to such an extent that it should set aside its judgment. The findings of the disciplinary committee may not show the second respondent in good light in respect of issuing two audit reports and one accountants report but it cannot be said from this the second respondent‘s evidence could not be relied upon, and that he had subjected the claimant to detriment and in doing so was “materially influenced” by the protected disclosure in accordance with NHS Manchester v Fecitt [2012] IRLR 64, which was one of the key issues at the liability hearing.[36]The claimant is seeking to argue the respondent had lied under oath and committed perjury, and the new evidence should result in the promulgated Judgment being revoked on the basis that the original decision was reached, where there were conflicts in evidence, these were resolved in the second respondent’s favour and they should have been resolved in the claimant’s favour. In short, the claimant submitted the new evidence showed the second respondent was unreliable and his evidence should not be accepted. The problem for the claimant is that the new evidence does not relate to any crucial finding of fact and the Tribunal reached its findings as to the credibility based on all the evidence before it and this would be difficult to revisit solely on the basis of the claimant’s reconsideration application as she has not produced any evidence which casts doubt over the Second Respondent’s credibility let alone the fifth respondent.[37]Events that occur subsequent to a hearing may justify reconsideration in the interests of justice. The Tribunal’s view is that the claimant’s attempts at uncovering evidence to support her case and challenge the Tribunal’s findings is not a evidence the Tribunal can consider after the event, given the fact the claimant had sufficient opportunity at the liability hearing to explore the issue of credibility and put her arguments forward.[38]It was submitted on behalf of Mr Flynn that given the Tribunal’s findings in paragraphs 181,184, 192, 195-6, 200, 204 and 2011 dealing with the issue that any disclosure was not a material factor in the alleged detriments, even if the claimant was correct it would not change the outcome and therefore, it is not in the interests of justice to grant the claimant her application. The Tribunal agreed.[39]Mr Flynn submitted that the claimant’s reliance on the Sub-contractor’s Agreement dated 4 July 2007 between the third and fifth respondent and signed by the second respondent had not been a document to which the claimant had referred to in the written evidence, oral evidence and numerous written submissions. The Tribunal agreed. It also accepted Mr Flynn’s submission that the claimant’s interpretation of page 245 of that Agreement was incorrect. The Tribunal considered the document for the first time at the reconsideration hearing concluding that clause 4 setting out the responsibilities and duties of the subcontractor, noting the agreement was that the subcontractor (being the fifth respondent) agreed to uphold all relevant aspects of the ICAEW’s code of Ethics. It is not evidence that the fifth respondent was regulated by the ICAEW, quite the reverse. Had the fifth respondent been so regulated clause 4 would not have been necessary. The Sub-contractor Agreement is merely a contract between two companies; one party to the contract (the third respondent) was regulated by ICAEW, the other party (the fifth respondent) who was not so regulated. Contrary to the claimant’s belief the Sub-contractor’s agreement does not give the ICAEW regulatory power to investigate the fifth respondent.[40]The Tribunal concludes that the claimant’s reconsideration application is an attempt to re-litigate on issues the Tribunal has already considered at length over a 6-day hearing. A number of submissions made today were similar if not identical to those made at the liability hearing. The unanimous judgment of the Tribunal is that the claimant’s application for the Judgment to be revoked is unsuccessful and is dismissed. The Tribunal confirms its judgment and reasons promulgated on 2 October 2017. CASE MANAGEMENT ORDERS[41]The following case management orders are made to assist the parties to prepare for the preliminary hearing dealing with the respondent’s cost application against the claimant. The claimant has been served with the application, cost schedule and breakdown of costs. The following case management orders are ordered:
Conclusion
[1]The claimant will respond to the written application in writing, setting out the reasons why a cost order should not be made and any case law referred to. In addition, she will deal with the cost breakdown indicating which costs she accepts and/or disputes setting out cogent reasons for her position. The claimant will prepare a signed statement detailing her means including income, expenditure, savings and any other matters which could affect the Tribunal’s discretion. She will attach to the statement any supporting evidence i.e. bank statements, bills etc.[2]The claimant will send the documents set out in paragraph 1 to the respondent and confirm that she has done so to the Tribunal no later than 6 weeks after she has received this Judgment on Reconsideration in order to give the claimant time to take legal advice if she requires.[3]All of the relevant documents to be relied upon by both parties will be delivered to the Tribunal by 9.30am on the day of the cost hearing.[4]The cost hearing is listed for 1 day before a full Tribunal on 1 February 2019 at Liverpool Employment Tribunal, 3rd Floor, Civil & Family Court Centre, 35 Vernon Street, Liverpool, L2 2BA commencing at 10.00am. 14.8.18