Mr A Ali v Clearwater Solicitors and Others: 2408062/2022
EMPLOYMENT TRIBUNALS
Case No 2408062/2022
Between
Mr A AliClaimantClearwater SolicitorsRespondentDate 29 February 2024
JUDGMENT
The complaint that the claimant was unfairly dismissed is struck out.
REASONS
[2]Section 108 of the Employment Rights Act 1996 requires a claimant to have not less than two years service to make an unfair dismissal complaint.[3]The claimant was employed by the respondent for less than two years.[4]Therefore, the claimant is not entitled to bring such a complaint.[5]The claimant has failed to give an acceptable reason, despite being given the opportunity to do so, why the complaint should not be struck out.[6]Accordingly, the complaint of unfair dismissal is struck out. The claimant’s other complaints are not affected by this judgment.
Introduction
[1]This was a preliminary hearing for case management purposes. I had before me a bundle consisting of 181-pages and the claimant’s witness statement.[2]This preliminary hearing has been listed to determine striking out the claimant’s breach of contract claim (and any other claim following the further information provided by the claimant) under rule 37 of the Employment Tribunal Rules of Procedure 2013 contained in Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, or making a deposit order under rule 39.[3]The parties agreed the open preliminary hearing with an estimated length of hearing of I day will be heard by CVP. There was a discussion about whether I can deal with the claimant’s claims of disability discrimination in addition to the breach of contract, and the parties finally agreed that as the claimant is confused and only prepared to deal with the breach of contract and not his other claims including the claim of indirect age discrimination which appears to be a new claim raised by the claimant in his witness statement dated 4 December 2023 without any amended pleading or an application to amend. I have today (29 February2024) checked the Tribunal file and the position is that the claimant has not made a formal application to amend explaining time limit issues and he has not produced a draft amended Grounds of Complaint. The existing claims do not include a complaint brought under section 19 of the Equality Act 2010 (“the EqA”) relating to his protected characteristic of age. The claimant is aware that the final hearing is listed to start on the 21 October 2024 and we discussed the impact of a late application to amend on the trial and the issue of the balance of prejudice between the parties.[4]Finally, the parties also agreed that I could deal with the respondent’s application for specific discovery in relation to the claimant’s mitigation.[5]We also discussed reasonable adjustments for the claimant. I was guided to the Equal Treatment Bench Book and Presidential Guidance for Vulnerable Witnesses as the claimant has a number of medical conditions. I agreed the claimant could take as many breaks as he wanted during the hearing, which he did.[6]I had before me the claimant’s witness statement dated 4 December 2023 which I took into account. No live evidence was heard, and my deliberations took into account oral submissions made by both parties and the documents to which I was referred to in the preliminary hearing bundle which are undisputed. As I have heard no evidence under oath and was not in a position to resolve any conflicts in the positions adopted by the parties, my findings set out below are for the purpose of this preliminary hearing only and do not bind any other judge. Case Summary[7]ACAS Early conciliation took place between 24 June and 3 August 2022. By a claim form received on the 30 August 2022 the claimant who was employed as a solicitor/business development 21 April 2021 (according to the claimant) or 1 October 2021 (according to the respondent) and resigned on the 25 March 2023.[8]The claimant did not have 2 years continuity of service and his claim for unfair dismissal was struck out on the 5 December 2022.[9]Turning to the breach of contract claim, the claimant brings a complaint of breach of contract for damages in excess of £300,000 under the contractual jurisdiction of employment tribunals governed by S.3 Employment Tribunals Act 1996 together with the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 SI 1994/1623 (“ETA”). The claimant is aware of the £20,000 limit in the Employment Tribunal. The 21 April 2021 Business Agreement reached between the parties.[10]The claimant maintains he negotiated a sale of a solicitors practice “AA Solicitors” including goodwill and a lease, to the first respondent, who reneged on an agreement to employ him on an agreed salary and other payments. It is the first respondent’s failure to pay the claimant the agreed salary and other payments which gives rise to the breach of contract claim.[11]The Agreement is set out in a document titled “Business Agreement” made on 21 April 2021 (“the Business Agreement”). It is notable that the parties intended the contract to be a “Business Agreement” and not a contract of employment. An Employment Tribunal has no jurisdiction over the enforcement of business agreements and their terms. It can only enforce a legally binding contract between an employer and an employee. The claimant was not an employee when he entered into the Business Agreement to sell his legal practice AA Solicitors to the respondent with part of the consideration being either a self-employed consultancy agreement or an employment contract with the first respondent. The Business Agreement did not specify whether the claimant was to be employed under a contract of employment or work for the first respondent on a self-employed basis as a consultant, and there is no reference to the actual amount of payment other than the percentage generated as a result of the business sale of AA Solicitors.[12]The Business Agreement included the following provisions relating to the self-employed consultancy agreement or employment contract:12.1 Clause 1 and 2: the claimant will “work at Clearwater Solicitors Ltd (CS). The start date will be on 14 June 2021.”12.2 Clause 2: the claimant “will become self-employed or employed consultant for a minimum of 4 years of Clearwater Solicitors Ltd with the following duties: to supervise and work at the office…supervise and run the conveyancing department…as well as some fee earning” (my emphasis).12.3 Clause 6 provided the claimant “will be paid a monthly wage/fee” and entitled to 20 percent of the billing and after 4 years a premium for using the trading name and goodwill of AA solicitors.12.4 The Agreement was witnessed and signed by the parties.[13]It is undisputed the claimant’s employment did not start on the 14 June 2021.[14]The claimant will give undisputed evidence to the effect that the respondent before it entered into the Business Agreement was aware he was the subject of a disciplinary due to be adjudicated by the Solicitors Disciplinary Tribunal (“the SDT”). However, there is an issue as to whether the claimant informed the respondent that he could not act as a supervisor or manager, could not act as head of department and did not have the right to practice as an individual solicitor. The respondent disputes that the claimant provided this information, although they were aware that he was the subject to a disciplinary. The respondent will rely on an email sent to it by the claimant on the 6 April 2021 (before the Business Agreement was signed) confirming that “following a decision of the SDT I have a fine etc but the main issue is I have restrictions on my practicing certificate which are essentially; I cannot own a company, cannot be a director or be colf or cofa etc or be signatory to a client account…” It is notable that what the claimant omits from the email is the fact that the SDT placed an indefinite restriction which had an effect on his ability to practice to supervise other staff (including solicitors) and run a department. In short, the claimant was unable to meet the terms of the Business Agreement as recorded in clause 2 referenced above, and yet he agreed with the respondent to supervise and run a department as part of the sale agreement. The SDT judgment[15]The Solicitors Disciplinary Tribunal judgment is dated 7 May 2021 following a hearing between 29 March and 1 April 2021 at which a number of allegations regarding fraud on behalf of AA Solicitors Ltd was found against the claimant. The claimant was ordered to pay a fine of £35,000 he was the subject of indefinite restrictions on his practice including not being a partner or working without being under supervision, in short he was unable to supervise others or be responsible for running a department, and any practice employing him was required to supervise at all times.[16]The Business Agreement was to come into effect on the 14 June 2021. In May 2021 Mohammed Mahrouf Yaqub (the second respondent) who had negotiated the Business Agreement found AA Solicitors had closed in December 2020 and no longer existed as a business entity. The second respondent took the view that the Business Agreement reached on the 21 April 2021 was frustrated. The second respondent’s evidence will be that the first respondent did not purchase the claimant’s firm AA Solicitors, and the Business Agreement was null and void on the basis that its performance was impossible as AA Solicitors no longer existed, and it was different from what the parties originally intended.[17]The claimant provide the second respondent with a copy of the SDT Order dated 1 April 2021 on the 4 May 2021, which was the first indication the respondent had of its contents, and approval had to be obtained from the Solicitors Regulation Authority (“the SRA “) in order that the first respondent could employ the claimant in any capacity. The new oral agreement entered into by the parties.[18]By 11 May 2021 it was agreed between the claimant and the respondents that he could not work as previously agreed and an oral agreement was entered into whereby the claimant would be employed as an assistant solicitor under the terms set out by the SRA in a letter dated 1 July 2021 including that the claimant “if approved” would be employed as a conveyancing solicitor in the conveyancing department with limited involvement in the work, “no involvement” in client care letters, new quotes and case opening, no exchange or completions until after a file review and no involvement with post-completion or supervisory duties. The claimant was required to be supervised. I find by the 11 May 2021 the parties had proposed a new agreement on the basis that the original contract terms set out in the Business Agreement were no longer relevant or effective. As a matter of logic, even if I had found that enforcement of the Business Agreement was within the Tribunal’s jurisdiction, which I did not as it was clearly a commercial agreement with payment for a business, part of which the claimant has included in his damages claim of £300,000, I would have gone on to find the proposed agreement was the 11 May 2021 oral agreement whereupon the respondent would offer an employment contract to the claimant when the employment restrictions were agreed by the SRA and approval granted for the claimant to be employed by the first respondent.[19]The SRA set out a number of recommendations in an email dated 2 September 2021 to the claimant including the limitations referred to above, which he accepted on the 2 September 2021. Approval for the claimant to be employed by the respondent was granted on the 10 September 2021 with the restrictions in place, the second respondent having confirmed he accepted the conditions on behalf of the first respondent.[20]Having made the offer to the claimant, which he accepted the consideration being a payment of salary, which fell well below the payments the claimant expected to receive under the Business Agreement had he commenced working under either a consultancy agreement/employment contract on the 14 June 2021 with the purchase of AA Solicitors. Following the SRA’s decision on the 10 September 2021 the respondent employed the claimant on the 1 October 2021 as an assistant solicitor. Prior to his date the claimant was not employed by the respondent but conducted in-house training on a self-employed basis.[21]The claimant’s employment with the first respondent began on the 1 October 2021, there were concerns about him, and he resigned having found another job on the 31 March 2022. The claimant believes he was constructively unfairly dismissed. Contract claims – law and conclusion[22]The contractual jurisdiction of employment tribunals is governed by S.3 ETA, together with the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 SI 1994/1623 (‘the Order’) for a tribunal to be able to hear a contractual claim brought by an employee, that claim must arise or be outstanding on the termination of the employee’s employment, and must seek one of the following:• damages for breach of a contract of employment or any other contract connected with employment• the recovery of a sum due under such a contract, or• the recovery of a sum in pursuance of any enactment relating to the terms or performance of such a contract.[23]Under Article 3(c), the employment tribunal only has jurisdiction in respect of an employee’s contract claim if the claim ‘arises or is outstanding on the termination of the employee’s employment’. Only employees working under a contract of employment can bring a contract claim and the claim must relate to the contract in question. In the claimant’s case the contract he seeks to enforce is a Business Agreement that was no longer relevant or effective and over which the Tribunal has no jurisdiction, bearing in mind it relates to the sale and purchase of AA Solicitors and there is no guarantee the claimant would have started work as an employee as opposed to a self-employed contractor at the start date on 14 June 2021. I did not accept the claimant’s argument that he personally was AA Solicitors and the first respondent was essentially purchasing him and not the limited company AA Solicitors Ltd, bearing in mind that AA Solicitors Ltd were no longer trading and another firm of Solicitors had taken over the files and some of the staff.[24]The reality is that the Business Agreement was superseded by the oral agreement to employ the claimant on completely different terms, which the claimant accepted evidenced by the fact that he worked for the first respondent from 1 October 2021 to 31 March 2022 on the terms agreed, which included a requirement that the claimant was supervised at all times and pay and for which he received was substantially less pay than the claimant had envisaged being paid as either a selfemployed consultant or employee under the Business Agreement.[25]The claimant submitted that the Business Agreement was enforceable, arguing that he had agreed to the restrictions and substantial decrease in salary, but at the same time the Business Agreement was a binding contract, the sale of the business was a work in progress because hundreds of cases were transferred from the solicitor’s practice that took over the files of AA Solicitors before it closed down as a result of indemnity insurance problems and indemnity insurance run off. The claimant argued that the terms of his employment were all included in the Business Agreement and the relevant parts were enforceable on termination of his employment as of 31 March 2022 and within the Tribunal’s jurisdiction because the parties intended it to be legally binding for a period of 4 years, which covered the period of his actual employment.[26]I am aware that parties who enter a contract of employment when the performance of which was not to start until a later date (in the claimant’s case 14 June 2022) could be enforced. In the well-known case of Sarker v South Tees Acute Hospitals NHS Trust 1997 ICR 673, EAT, the EAT held that the term ‘employee’ is widely defined in the Employment Rights Act 1996 (ERA) as anyone who has entered into a contract of employment, without any requirement that the worker must actually have started performing the appropriate duties under the contract. The EAT observed that the relevant legislation seemed to support the proposition that ‘employment’ begins when a contract of employment is entered into, not when an employee starts work under that contract. Accordingly, the EAT held that the phrase ‘the termination of the employee’s employment’ in Article 3 had to be construed by reference to the termination of the contract of employment, whether or not the employee has started work. Furthermore, the EAT stated that its conclusion was supported by the purpose behind the extension of contractual jurisdiction to employment tribunals, which was to avoid the situation where an employee is forced to use both a tribunal and a court of law in order to have all his or her claims determined.[27]I do not accept the claimant’s submissions. I found that the contract connected to his employment was the oral agreement reached between the parties including the limitations placed on the claimant by the SDT and SRA before he commenced working for the respondent as an employee on 1 October 2021, just under 3 months after he was to start working either as an employee or self-employed consultant on 14 June 2021. The Business Agreement is unclear as to what capacity the claimant would be working for the first respondent, and this is a problem for the claimant, given the Tribunal has no jurisdiction to hear a breach of contract claim brought by a self-employed consultant. There is also the issue of time limits, and I do not accept the proposition that as the claimant’s employment/self-employment should have commenced on the 14 June 2021 and was delayed until the 1 October 2021 with the effective date of termination being 25 March 2022, the claim was within time. Had the claimant believed at the time that (a) the Business Agreement was an employment contract it was reasonably practicable for him to have issued proceedings for breach of contract within the statutory 3 month period and sue on the Business Agreement. Instead, the claimant has waited until 24 June 2022 before undergoing ACAS early conciliation and presenting the claim form on 30 August 2022 relying on a breach of contract that allegedly took place on 14 June 2021 before he had agreed new terms and conditions of employment with the first respondent under which he continued to work for approximately 5 months.[28]The contract in question must be a contract ‘connected with employment’ As indicated above, an employment tribunal has jurisdiction to hear contractual claims only where the claim relates to a breach of the employment contract, or another contract ‘connected with employment’ and I took the view that this was not a case where I needed to deal with the doctrine of frustration as the factual matrix speaks for itself under lining the hopelessness of the claimant’s case. If I am wrong on this point, I would have gone on to find the doctrine of frustration was trigged. It is apparent from the 6 April 2021 email sent by the claimant to the respondent above, that due to an number of unforeseen events including the closure of the claimant’s business AA Solicitors Ltd by December 2020 and the restrictions imposed against the claimant’s ability to practice as a solicitor, the business could not be sold and the claimant could not supervise or run a department. In short, as far as the respondent was concerned these were unforeseen events that made the performance of the Business Agreement impossible, and as evidenced by the new contract entered into by the parties pending the claimant starting work on the 1 October 2022, what the parties were left with was radically different from that which they both envisaged at the time the Business Agreement was entered into on 21 April 2021. Law: strike out on the basis of no reasonable prospects of success/deposit order[29]The Tribunal’s power to strike out the Claim is set out in Employment Tribunals Rules of Procedure 2013 rule 37(1) that “(a) that it is scandalous or vexatious or has no reasonable prospect of success; (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant … has been scandalous, unreasonable or vexatious”.[30]The Employment Tribunals Rules of Procedure 2013 rule 39(1) provides that where “the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument”.[31]In Ezsias v North Glamorgan NHS Trust [2007] EWCA Civ 330. The Court of Appeal held, as a general principle, cases should not be struck out on the ground of no reasonable prospect of success when the central facts are in dispute. On a strikingout application (as opposed to a hearing on the merits), the Tribunal is in no position to conduct a mini-trial, with the result that it is only in an exceptional case that it will be appropriate to strike out a claim on this ground where the issue to be decided is dependent on conflicting evidence. Such an exception might be where there is no real substance in the factual assertions made, particularly if contradicted by contemporary documents or, as it was put in Ezsias, where the facts sought to be established by the claimant were 'totally and inexplicably inconsistent with the undisputed contemporaneous documentation' (para 29, per Maurice Kay LJ). I found that this was the case in respect of the claimant’s breach of contract claim which has no real substance and the “facts” relied on by the claimant can properly be described as 'totally and inexplicably inconsistent with the undisputed contemporaneous documentation' that reflects what appears to be a factual matrix largely accepted by the parties.[32]In Ezsias, reference was made to 'a crucial core of disputed facts' that was 'not susceptible to determination otherwise than by hearing and evaluating the evidence.' Lord Justice Morris Kay in paragraph 26 stated the issue was “whether an application has a realistic as opposed to a merely fanciful prospect of success” and he accepted that there may be cases which “embraced dispute of facts but which nevertheless may justify striking out on the basis of their having no reasonable prospect of success. I took the view that the claimant’s case has no reasonable prospects of success given the contemporaneous documentation which reflected the dealings between the parties at the time and not the gloss now given to them by the claimant who has these proceedings in mind.[33]The basis for making a deposit order with reference to the provision “little reasonable prospect of success” imposes a lower threshold compared to a threshold for striking out a claim, thus a deposit order is a less draconian alternative to striking out a claim perceived to be weak but which could reasonably be described as having no reasonable prospect of success. I considered whether the claimant’s claim of breach of contract fell under the description of “little reasonable prospect of success” a less draconian outcome, and decided that it did not and fell under the definition of “no reasonable prospect of success.”[34]From the schedule of loss it is clear that the claimant’s unlawful deduction of wages relate to the Agreement dated 14 June 2021 also included in the breach of contract claim, and the loss of earnings from 25 March 2022 to 14 June 2025 are damages flowing from the dismissal. The claimant’s schedule of loss set out the following. There is no stand-alone unlawful deduction of wages claim and I have also dismissed this claim on the basis that it also has no reasonable prospects of success.[35]In exercising these powers, I had in my mind at all times the overriding objective in seeking to deal with cases justly and expeditiously and in proportion to the matters in dispute. This case has been listed for 6-days starting on the 21 October 2024. The hearing allocation is too long can now be reduced still taking into account the reasonable adjustment of breaks as and when required for the claimant. The parties will send to the Tribunal a blank Agenda dealing with the remaining disability discrimination complaints and an agreed list of draft issues.[36]In conclusion, the claimant’s complaint of breach of contract brought under S.3 Employment Tribunals Act 1996 together with the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 SI 1994/1623 is scandalous or vexatious or has no reasonable prospect of success, is struck out and dismissed. The claimant’s complaint of unlawful deduction of wages brought under section 13 of the Employment Rights Act 1996 is scandalous or vexatious or has no reasonable prospect of success, is struck out and dismissed.[37]A separate Case Management Order has been sent to the parties dealing with the respondent’s application for specific discovery and the date for the preliminary hearing, which will not take place before myself.[1]This is a preliminary consideration of the claimant’s application for a reconsideration, the Tribunal having struck out his claims for breach of contract and unlawful deduction of wages. This judgment did not affect the complaint of unlawful disability discrimination which will proceed to a final hearing listed for 6 days commencing on 26 August 2025.[2]As at previous hearings reasonable adjustments have been made for the claimant in accordance with the Equal Treatment Bench Book by way of breaks whenever he has requested one, and on one occasion suggested by myself to give the claimant time to make sure he has covered all of his points in submissions.[3]At this reconsideration hearing I have taken the claimant’s arguments at their highest in order to consider whether it was in the interests of justice to revoke the judgment and order the claimant to pay a deposit as a condition of continuing with his claims having been invited to do so by the claimant. I have concentrated on the claimant’s main arguments distilled from his application for a reconsideration and oral submissions in order to establish whether it is in the interests of justice to confirm, revoke or vary the judgment on the basis of the claimant’s arguments including new evidence which has come to light following disclosure. This new evidence has been inserted in the bundle for reconsideration consisting of 540 pages. I have also taken into account the respondent’s written response to the application, oral submissions made by Mr McFarlane and case law, which I do not intend to repeat in their entirety. The claimant’s reconsideration application dated 27 March 2024 “The Employment Judge has not used the correct bundle for making the Judgment and therefore has not considered all the evidence from the claimant references in his statement and needed for a just decision. The Bundle to be used and agreed was 442 pages long. The Judge has used a bundle with only 181 pages. “[4]The parties accept the reference to 181-pages is a typographical error and that I had the correct bundle of 442-pages before me. “The respondents are a solicitor’s company represented by a major employment corporation who specialise in employment litigation. The claimant is a litigant in person with many serious and underlying health conditions and disabilities. These are worsening and also are exacerbated by the respondents ongoing harassment and intimidation. The parties should be placed on an equal footing as per the overriding objective and in the interests of Justice.”[5]The claimant does not dispute that reasonable adjustments were made at all hearings I have been involved with, including the hearing held on 31 January 2024 with a view to the parties being placed on an equal footing taking into account that whilst the claimant is a litigant in person, he is a solicitor with a practicing certificate with litigation experience. “[the Tribunal] …accepting the claimant resigned on the 25th March 2022. This is not correct and there is a contemporaneous note at page 166 of the bundle. That is the most accurate record of the meeting. It does not make sense for the claimant to resign from a 4 year employment agreement and with his son Shiraz Ali, a Trainee Solicitor as per the agreement, Sana Iqbal Solicitor, still employed at the firm and with all the claimant’s life’s work in clients, his goodwill, name, ongoing clients and cases all tied in with the Respondents and being owed many thousands of pounds in overdue bonus payments etc.” The claimant repeated this submission orally.[6]Para.7 of the reserved judgment and reasons refers to the claimant having resigned on the 25 March 2022. I had not appreciated that the claimant’s claim was not one for constructive unfair dismissal/discriminatory dismissal and whether the claimant was expressly dismissed or not was one of the issues to be decided. I agree with the claimant that whether the claimant was dismissed or resigned and claiming constructive unfair dismissal is not a matter that can be decided at a preliminary hearing without all of the evidence being heard. Accordingly, I have deleted the reference in para.7 and 20 to the claimant’s resignation and inserted the following: “the effective date of termination is 25 March 2022. There is an issue between the parties as to whether the claimant resigned or was expressly dismissed.”[7]With reference to the fundamental issue before me in this reconsideration hearing I take the view that whether the claimant was dismissed or resigned is not relevant other than on time limit and jurisdiction given the claimant can only bring a complaint for breach of contract upon termination of employment. “Both parties entered into lengthy negotiation, and these are documented in the bundle used at the previous hearing but don’t seem to be in this bundle. I attach these for reference. The employed terms were agreed between the parties and written down in the business agreement. Even if they were not written down, they would have been binding as they were agreed between the parties. In this case they were written down too as evidence of what was agreed. Duly signed by the parties. The intention was to be bound by the agreed terms.” The claimant repeated this submission orally, referring to handwritten notes of the negotiations entered into before the 21 April 2021 which was to come into effect on 14 June 2021 (“the Business Agreement”).[8]I accept that there were lengthy negotiations. I concentrated on the Business Agreement signed by the parties. It is this agreement I took into account. There was no need to consider the negotiations leading up to it in order to ascertain whether the Business Agreement was a contract of employment. At no point during his submission did the claimant deal in any meaningful way with the limitations on the Employment Tribunal who has no jurisdiction over the enforcement of business agreements and their terms. The Tribunal can only enforce a legally binding employment contract between an employer and an employee, and in this respect the claimant submitted that the “Business Agreement” included an employment contract because there was an agreement to employ him. I did not agree for the reasons set out in the reserved judgment and reasons, particularly at para.11.[9]In his Grounds of Complaint, the claimant refers to the negotiations at para.2 “to buy/merge all my interests in AA Solicitors, including the name, goodwill…” and he argued that payment for which was to be made via wages and bonuses. It was fundamental to my conclusion that striking out was appropriate in Mr Ali’s case on the basis that “the Business Agreement did not specify whether the claimant was to be employed under a contract of employment or work for the first respondent or on a selfemployed consultancy basis as a consultant...” Mr Ali has not asked me to reconsider this conclusion, which I believe is key to the question whether Mr Ali was suing under a contract of employment or a Business Agreement concluding on a plain reading of the Business Agreement it consisted of the latter. Further, from the period 14 April 2021 to SRA approval of the claimant’s employment with the respondent, a contract of employment could not have been entered into. I have commented further on this below.[10]Taking the claimant’s case of breach of contract and unlawful deduction at its highest, whilst I am satisfied that the claimant’s reliance on the Business Agreement defies the test of basic logic, nevertheless, an oral agreement was reached concerning the contractual employment terms and no written terms and conditions of employment were provided to the claimant who started working in the capacity of an employee. This requires evidence to be heard for the reasons set out below. “The claimant refers to his witness statement and says that both parties knew each other well. The respondents were aware of the claimant[‘s] issues at the SDT, the newspaper article shows that, the email of the 6th of April 2021 on the order of the SDT makes clear what the position was. The respondents had a copy of that order before we signed the Agreement. The respondents had been in touch with the SRA as to how quicky permission could be sought for the claimant, prior to signing of the agreement, this was discussed and both parties had done their due diligence. They signed the agreement including the employment terms because they wanted to be bound by them. The agreement was signed by the claimant and the respondents. The agreement is between Asghar Ali, the claimant as a person, and the respondents.” In oral submissions the claimant also referred to the Solicitors Disciplinary Tribunal order dated 1 April 2021 (in the bundle) which indefinitely prevented the claimant from practicing as a sole practitioner or partner, act as head of legal practice/compliance officer for legal practice or a head or finance etc., hold client money, be a signatory to any client account and “work as a solicitor other than in employment approved by the Solicitors Regulation Authority” (“the SRA”). My emphasis.[11]I had taken the claimant’s disciplinary history into account and its effect on the respondent’s application to the SRA. It is not in dispute and there was no need for me to go into great detail other than to record that the respondent were required to obtain the approval of the SRA before employing the claimant, which is an indication that the claimant could not have been employed under the 21 April 2021 Business Agreement with a start date on the 14 June 2021 as argued by the claimant. The claimant’s contract of employment could only commence after the respondent had obtained approval from the SRA. The SRA decision is dated 10 September 2021 and the claimant started work as an employed solicitor for which he received a monthly payment on the 1 October 2024. I have commented further on this employment relationship below. “The respondent has not disclosed all the communications with the SRA, including the email of the 29th June 2021to the SRA, which was responded to by the SRA email of the 1st June 2021. We have asked for that email and other disclosure from the Respondents about 7 times. This is still not forthcoming. The 2nd Respondent says in his statement at paragraph 14 and 15 that he wrote to the SRA on the 5th of May 2021, and they replied on the 11th May 2021. These have not been disclosed. They initiated the restrictions, as the SDT order did not require the onerous conditions as per the SRA permission. These were asked for and applied for by the Respondents.” In oral submissions the claimant accepted documents requested had been provided by the respondent and argued that the respondents had intentionally proposed onerous conditions in order the circumvent and void the 21 April 2021 Business Agreement.[12]The claimant confirmed that communications with the SRA have now been disclosed, namely the respondent’s application for approval to employ the claimant on 5 May 2021 which included “I can confirm during his employment he will not breach any of the conditions in the attached order. We have not confirmed a start date as we wish to have approval before we confirm the same” [my emphasis]. The SRA responded on 11 May 2021 requiring the respondent sent details and the name of the person “directly responsible for supervising Mr Ali on a day-to-day basis” and the name of the person if the manager with overall responsibility for supervision and management of the claimant was absent.[13]It is notable that the SRA in the same letter requested details of “Mr Ali’s proposed job title, and a copy of any proposed contract/main terms and conditions/job description of proposed employment” (my emphasis). The use of the word “proposed” is a further indication that the claimant’s contract of employment was yet to be agreed and the claimant’s argument that it must include the terms agreed in the 21 April 2021 Business Agreement with a start date on the 14 June 2021 that never took place, has no reasonable prospect of succeeding at a final hearing.[14]It is notable that the first respondent’s application for SRA approval was dated after the alleged start date of the claimant’s employment/selfemployed consultancy on the 14 June 2021; a further indication that he was not an employee at the time.[15]It is clear from the undisputed contemporaneous documents that the terms agreed in the Business Agreement had been overtaken by events, particularly the SRA conditions, which the claimant ultimately agreed to when he entered into the employment contract after the SRA had approved his employment on 10 September 2021, just under 5 months after the Business Agreement was signed. It is notable that it took the claimant until 30 August 2022 to issue proceedings, over 16 months after Business Agreement was signed by both parties, just under 13 months after the claimant was to start work either as an employee or in the capacity of a self-employed consultant and some 11 months after he had entered into a contract of employment approved by the SRA. “The respondents have had the benefit of all the claimants work base, client case, live cases transferred, his team, use of the premises from May to October 2021, expertise, hundreds of thousands of fees earned from his clients and it seems once that was done they chose to create a situation where such restrictions were put in place to engineer and end the agreed 4 year deal and terms. No Charge or payment was made for the transfer of the work, the team, the goodwill, The consideration was the 4-year employment for Asghar Ali and the training of Shiraz Ali to become a solicitor and for Sana Iqbal to be employed.” This is the nub of the claimant’s case, and he is aggrieved “the Respondents have cherry picked what they wanted and then dismissed both Asghar Ali now also Shiraz Ali. They have had their cake and eaten it. They have not honoured the 4-year employment deal.”[16]It is undisputed the SRA set out a number of recommendations in an email dated 2 September 2021 to the claimant including the limitations referred to above, which he accepted on the 2 September 2021. Approval for the claimant to be employed by the first respondent was granted on the 10 September 2021 with the restrictions in place, the second respondent having confirmed he accepted the conditions on behalf of the first respondent. During this period there is no suggestion by the claimant in any contemporaneous document that the SRA restrictions had effectively been imposed by the first respondent with the aim of voiding the 21 April 2021 Business Agreement, and there was nothing to stop the claimant from enforcing the terms of sale in the civil courts. “The claimant was employed by the Respondents; this is clear from the SRA authorisation and the respondents admit that he was employed as at page 149 of the bundle.”[17]I have considered the SRA decision dated 10 September 2021 in detail and contrary to the claimant’s submission, it is clear that the decision deals with an application by the first respondent. The following is relevant in the contemporaneous document referring to the first respondent’s application; “for approval to employ Asghar Ali who is subject to a condition (amongst others) that he may only act as a solicitor in employment we have approved, by order of the Solicitors Disciplinary Tribunal…5.5. the firm propose to employ Mr Ali as an assistant solicitor in the firm’s conveyancing department…On 2 September 2021 I emailed both the firm and Mr Ali recommending the firm’s application be granted subject to the conditions listed…Mr Ali responded the same day to confirm he accepts the recommended conditions….I have considered the information provided by the firm about the proposed role and the arrangements of Mr Ali’s supervision, and whether that mitigates the risk relating to Mr Ali…I note that the allegations found proven against Mr Ali related to RTA claims which were fraudulent or alternatively suspicious…The firm have confirmed that Mr Ali will be practicing as a solicitor in the conveyancing department, he will not be opening files…and all his files will be checked…Therefore, there is little risk of the conduct that resulted in Mr Ali’s STD judgment will be repeated…given the seriousness of Mr Ali’s adverse regulatory history…a condition is necessary limiting his work to that described by the firm. I also consider that any changes the firm wish to make regarding Mr Ali’s employment should first be approved by us…” [my emphasis].[18]The claimant’s argument concerning the respondent’s knowledge of the STD Order has no merit. The claimant submitted that there is a dispute about the date when the first respondent had received the STD order, and the “key point” is that the restrictions on his practicing certificate “were based on what the respondent asked for…and they are using that to show the restrictions frustrated the contract…they had the cases, my goodwill, the use of the office and…the whole team…they had cases worth hundreds of thousands of pounds in fees…the restrictions they asked for was a way of reneging on the agreement they had to employ me for 4 years and the other terms agreed. It was manipulated…It is essentially these kinds of facts which go into a lot more detail as the respondent’s motivation, my dismissal and breaching the terms of my employment that can only be decided at a full hearing.” I did not agree with the claimant; the contemporaneous documents are clear in their effect, including correspondence received from the SRA, and realistically there can be no core of disputed facts. In short, the claimant was found guilty of serious professional misconduct by the STD who set out conditions and required limitation on his practising certificate to be agreed between a prospective employer, the claimant and the SRA, which was done. The SRA conditions fundamentally affected what work and responsibilities the claimant could perform, for example, he had to be supervised at all times instead of supervising others. It is not credible that the SRA would agree conditions and limitations with the claimant (who raised no issue at the time) and the first respondent that were not necessary to protect the public. It is not credible that the first respondent would somehow manoeuvre the SRA into setting the conditions and limitations with the sole objective of taking over the claimant’s practice without payment.[19]The claimant’s insistence that the SRA authorisation is evidence that the respondents “admit” he was employed goes to the heart of his credibility and is misconceived. The language used by the SRA can be interpreted in one way only, giving the words their ordinary commonsense meaning, which is that the respondent proposed to employ the claimant, and his employment could not be confirmed until the SRA laid down conditions that were agreed to by the respondents and claimant. I take the view that there is no reasonable prospect of the claimant persuading a Tribunal at final hearing that he was employed under the 21 April 2021 Business Agreement and that the subsequent conditions suggested by the respondents to the SRA were designed to undermine the 21 April 2021 Sales Agreement giving the respondents the means by which to take advantage of the claimant and avoid employing him under the original terms. The claimant referred to the documents in the bundle as evidence that prior to June 2021 the first respondent had generated income through cases sent to it be the claimant and files transferred as part of his argument that both parties were acting in reliance of the 21 April 2021 Business Agreement. This information did not persuade me that there was a central core of facts in dispute concerning whether the 21 April 2021 Business Agreement was a contract of employment, and the transfer of files points strongly in the direction of a sale agreement which is outside the jurisdiction of the Tribunal.[20]In short, the undisputed documents speak for themselves, and there is no requirement for the Tribunal at a full hearing to look behind them.[21]I do not intend to deal with the claimant’s observations about salary payment, mixing the SRA and STD orders in any great detail other than to record that the contemporaneous documents reflect the conditions imposed on the claimant were a requirement for him to practice as a solicitor, and there is no suggestion the claimant was “forced to accept them” or the salary payments he received from the respondent at the time. The SRA decision dated 10 September 2021 made it clear that on “2 September 2021 I emailed both the firm and Mr Ali recommending the firm’s application be granted subject to the conditions listed…Mr Ali responded the same day to confirm he accepts the recommended conditions...” [my emphasis]. Taking the claimant’s case at its highest, he may have unwelcomed the conditions imposed by the STD and SRA and agreed to by the respondents, but adhering to these conditions was the only means by which the claimant could practice as a solicitor and enter into a contract of employment with the first respondent against a background of serious fraud allegations. Law[22]Under Rule 70 of the Employment Tribunal Rules of Procedure 2013 a judgement can be reconsidered where it is necessary in the interests of justice to do. Under Rule 72 if a judge considers that there is no reasonable prospect of the original decision being varied or revoked, the application must be refused.[23]There is an underlying public policy principle in all proceedings of a judicial nature that there should be finality in litigation and reconsiderations are a limited exception to the general rule that judgements 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, and it is the Tribunal’s view that this is precisely what the claimant is seeking to achieve, whatever the merits of his argument. In arriving at my conclusion, I have taken into account that striking out a claim at preliminary hearing stage is a draconian step used in exceptional circumstances, and if there is any room for doubt, a deposit order is less draconian. Conclusion[24]In oral submission both parties made reference to the Court of Appeal judgment in Ezsias v North Glamorgan NHS Trust [2007] EWCA Civ 330.[25]The claimant submitted that both the breach of contract claims and unlawful deduction “should go to a final hearing with all the evidence in the matter.” The issues to be resolved can only be resolved justly at a full hearing with evidence given by the parties and “the claimant’s case involved a crucial core of disputed facts that could only be resolved through a full hearing and evaluation of evidence as per the case as per the decision in the case of Ezsias v North Glamorgan NHS Trust in the Court Of Appeal.” The claimant argued that the claims “should be decided a full hearing, with a panel including a Judge and lay persons. It should be decided after evidence is given, by the claimant, by the respondents, by Shiraz Ali, by Sana Iqbal. Only then can there be justice and fairness in the matter… Deciding a major part of the employment case without hearing evidence from all those involved has not done justice to the claimant and is not in the interest of justice…the case of Ezsias should support the claimant case. In that case it was said ‘the claimant’s case involved a crucial core of disputed facts that could only be resolved through a full hearing and evaluation of evidence as per the case’. That is applicable in this case.” In oral submissions the claimant referred to the substantial number of documents in the bundle, including evidence of the legal practice/business transferred by the claimant as an individual to the first respondent, relied on as evidence that employment terms had been agreed upon the terms of the 21 April 2021 Business Agreement being reached and he was an employee under that agreement.[26]The claimant further argued that his claims should not be struck out on the ground of no reasonable prospect of success when the central facts are in dispute. I dealt with this argument in the reserved judgment and reasons, and the position has not changed with reference to the Business Agreement following Mr Ali’s application for a reconsideration and the production of a number of documents. It appears to me that the core facts relating to the breach of contract and unlawful deduction of wages claims are recorded in undisputed contemporaneous documents explored above. There is no real substance to Mr Ali’s assertions, a number of which were undermined by the undisputed contemporaneous documents. In Mr Ali’s claims (setting aside the disability discrimination complaints which should rightly proceed to a final hearing) there is no 'crucial core of disputed facts' relating to the Business Agreement and the aftermath, despite Mr Ali’s best attempts at generating then for the purpose of this reconsideration.[27]The claimant’s arguments relied on at this reconsideration hearing reinforced the findings made in the reserved judgment and reasons that when he entered into the Business Agreement in the capacity of a sole practitioner, to sell his legal practice, AA Solicitors, part of the consideration was either a self-employed consultancy agreement or in the alternative, an employment contract entered into with the first respondent. The claimant did not take up any employment with the first respondent until following the SRA’s decision on the 10 September 2021 when the respondent employed the claimant on the 1 October 2021 as an assistant solicitor. These events superseded the 21 April 2021 Business Agreement which the claimant chose not to enforce in the civil courts. Between the 21 April 2021 and/or the 14 June 2021 to 1 October 2021 when his employment commenced and he was paid wages, the claimant was not contractually entitled to wages and his claim that the first responded made an unlawful deduction of wages has no reasonable prospects of success.[28]From 1 October 2021 until the claimant’s dismissal/resignation on 25 March 2022, just under 6 months the claimant was paid salary under the oral agreement and the term of that agreement is in issue. The claimant agreed the SRA conditions in writing, following which the first and only contract of employment with the first respondent was entered in to but not evidenced in writing. In order to disentangle the contractual position as at the 1 October 2021 when the claimant started working for the respondent in the capacity of an employee (as conceded by both parties) evidence will need to be heard, and whilst I take the view the claimant’s case that he had reached an oral agreement for a salary payment in excess of this monthly pay may be weak taking into account the number of months the claimant worked, giving the claimant the benefit of the doubt, it is in the interests of justice for the breach of contract/unlawful deduction of wages issue for the period 1 October 2021 to 25 March 2022 to proceed to a final hearing.[29]The claimant is aggrieved that the respondent has had the benefit of the claimant’s business and he had been subjected to severe limitations on his ability to practice that affected him financially. Given the position adopted by the regulators, the claimant’s argument that a full panel should hear evidence on how the respondents “reneged” on the Sales Agreement “shows poor intentions” is unpersuasive, and there is no getting away from the fact that the factual matrix in this case, supported by undisputed contemporaneous documentation, results in the claimant’s case being very weak and likely to fail, in other words, with the exception of the employment period 1 October 2021 to 25 March 2022, they fall into the category of “scandalous or vexatious or has no reasonable prospect of success; and (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant … has been scandalous, unreasonable or vexatious…” for the reasons already stated in the reserved judgment and reasons.[30]I prefer submissions made on behalf of the respondent by Mr MacFarlane to the effect that (paraphrasing) even if the claimant’s arguments were taken at their highest, his arguments are fanciful in relation to the Business Agreement. I do not accept Mr MacFarlane’s argument that the claimant has still not established any claim that has a prospect of success in respect of his period of actual employment. Mr McFarlane submitted Ezsias (above) does not assist the claimant as this was a case that involved diametrically opposing evidence and there was a crucial core of disputed facts, in contrast to the claimant’s case where it is permissible to hear the matter by taking his case at its highest without hearing oral evidence. For the claimant’s employment contract to be lawful it had to comply with the SDT and SRA conditions failing which the claimant “crucially” could not work and the Business Agreement was superseded and frustrated because it was incompatible with the practicing conditions placed on the claimant, and had any contract of employment been entered into at the time of the business agreement it would have been void for illegality. It appears to me that once the claimant had agreed terms with the first respondent and SRA the contract of employment was in place, and it was lawful.[31]Accordingly, the Reserved Judgment and Reasons promulgated on 13 March 2024 is varied as follows:31.1 Para 17: “By 11 May 2021 it was agreed between the claimant and the respondents that he could not work as previously agreed and an oral agreement was entered into whereby the claimant would be employed as an assistant solicitor in the conveyancing department with limited involvement in the work, “no involvement” in client care letters, new quotes and case opening, no exchange or completions until after a file review and no involvement with post-completion or supervisory duties. The claimant was required to be supervised. I find by the 11 May 2021 the parties had proposed a new agreement on the basis that the original contract terms set out in the Business Agreement were no longer relevant or effective. As a matter of logic, even if I had found that enforcement of the Business Agreement was within the Tribunal’s jurisdiction, which I did not as it was clearly a commercial agreement with payment for a business, part of which the claimant has included in his damages claim of £300,000, I would have gone on to find the proposed agreement was the 11 May 2021 oral agreement whereupon the respondent would offer an employment contract to the claimant when the employment restrictions were agreed by the SRA and approval granted for the claimant to be employed by the first respondent.”31.2 Para 19: “Following the SRA’s decision on the 10 September 2021 the respondent employed the claimant on the 1 October 2021 as an assistant solicitor. Prior to his date the claimant was not employed by the respondent but conducted in-house training on a self-employed basis.”[32]The judgment is varied in respect of the oral agreement entered in to between the parties at paragraph 17 and 19 of the Judgment and Reasons promulgated on 13 March 2024 to the effect that the terms of the employment contract under which the claimant was employed from the 1 October 2021 to 25 March 2025 and whether those terms have been breached and/or the claimant suffered an unlawful deduction of ages, will be decided at a final hearing.[33]Mr Ali who submitted he has “even chances of success” has invited me to make a deposit order under rule 39(1) which provides that where “the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success” such an order can be made. The benefit to Mr Ali is clear, however, I cannot conclude that the his claims of unlawful deduction of wages and breach of contract in relation to the Business Agreement, has little reasonable prospects of success and accordingly the breach of contract claim and unlawful deduction claim relating to the Business Agreement and period 21 April 2021 to 30 September 2021 2021 should remain dismissed.[34]With reference to the breach of contract and unlawful deduction of wages claim relating to the employment period 1 October 202I to 25 March 2022, both will proceed to a final hearing and given the narrow issues I take the view that the 6-day final hearing allocation is sufficient and there is no need to extend the hearing time and/or adjourn it with a view to an extension. I am also satisfied that making a deposit order is in the interests of justice, particularly the respondent who will incur legal costs in defending two claims that in my view little reasonable prospect of success.[35]The Tribunal’s discretion must be exercised judicially, with regard not just to the interests of the party seeking the reconsideration, but also to the other party, the requirement for finality to the litigation and giving effect to the overriding objective to deal with cases ‘fairly and justly’ — rule 2. This includes: ensuring that the parties are on an equal footing, dealing with cases in ways which are proportionate to the complexity and importance of the issues, avoiding unnecessary formality and seeking flexibility in the proceedings, avoiding delay, so far as compatible with proper consideration of the issues; saving expense, and it should be guided by the common law principles of natural justice and fairness. As set out in the judgment of the Court of Appeal in Ministry of Justice v Burton [2016] EWCA Civ 714, referred by Mr McFarlane, when dealing with the discretion required, “that discretion had to be exercised in a principled way.” I have taken all of these matters into account. Deposit Order means.[36]As discussed with the parties there is an issue taking the claimant’s means into account as it appears he may not have made full disclosure in respect of work carried out. In anticipation of a possible deposit order with a view to means being assessed in order to ensure that any deposit order is not a barrier to justice, the claimant has provided evidence of means that is incomplete and fails to make any reference to conveyancing work carried out by Mr Ali for a firm of solicitor described as a “friend.” Mr Ali is yet to be cross-examined on his statement of means and there is an issue as to whether it can be relied on or not. The parties have been involved in two preliminary hearings and one reconsideration all of which have cost consequences for the respondent.[37]Taking into account a party’s means when deciding the amount of the deposit order is a requirement with a view of ensuring that the deposit order is not a barrier to justice. In accordance with the overriding objective and taking into account the unsatisfactory evidence before me, I propose with the agreement of the parties to make a deposit order of £500 in total as a condition of Mr Ali continuing with his limited claims of breach of contract and unlawful deduction of wages. The parties will liaise and write to the Tribunal no later than 14-days after receiving this reserved judgment and reasons confirming whether or not the £500 deposit is agreed, and if not, agree a case management order with specific reference to that documents relating to means the respondent believes is missing and why, that will include the parties exchanging witness evidence concerning the work the claimant has carried out and not disclosed, and the claimant will be ordered to up-date his statement of means.[38]In conclusion, the claimant’s application for a reconsideration hearing to set aside the judgment and reasons promulgated on 13 March 2024 is dismissed in part and the original judgment confirmed in relation to the 21 April 2021 Business Agreement and its effect.[39]The judgment is varied in respect of the oral agreement entered in to between the parties at paragraph 17 and 19 of the Judgment and Reasons promulgated on 13 March 2024 to the effect that the terms of the employment contract under which the claimant was employed from the 1 October 2021 to 25 March 2025 and whether those terms have been breached and/or the claimant suffered an unlawful deduction of ages, will be decided at a final hearing.[40]The Reasons sent to the parties on 13 March 2023 are varied at paragraphs 1, 7, 17, 19 and 21 as set out in the amended Reserved Judgment and Reasons redated 8 November 2024. CERTIFICATE OF CORRECTION Rule 67 Employment Tribunals Procedure Rules 2024 Under the provisions of Rule 67, the Reserved Judgment on Reconsideration and Reasons promulgated on 22 November 2024 and in accordance with the email received from the respondent on 25 April 2025 and attached email dated 9 December 202, the description of the respondent’s representative, Mr McFarlane, has been corrected as set out in block type and the reference to counsel has been substituted by the description “CONSULTANT.” Approved by Employment Judge Shotter Date 8 May 202512 May 2025 Important note to parties: Any dates for the filing of appeals or reviews are not changed by this certificate of correction and corrected judgment. These time limits still run from the date of the original judgment, or original judgment with reasons, when appealing.