Mr R Saravanan v Acculegal Solicitors (a firm): 3323947/2016

EMPLOYMENT TRIBUNALS

Case No 3323947/2016

Between

Mr R SaravananClaimant

Acculegal Solicitors (a firm)Respondent

Before

Employment Judge McNeill QC

In person for claimant

Mr E Lewis (instructed by Solicitor) for respondent

Date 8 March 2017

JUDGMENT

[1]The claimant was not an employee of the respondent within the meaning of section s.230(1) of the Employment Rights Act 1996. He therefore did not have the right not to be unfairly dismissed and his claim for unfair dismissal is dismissed.

[2]The claimant was a worker within the terms of s.230(3)(b) of the Employment Rights Act 1996 and regulation.2 of the Working Time Regulations 1998. His claims for unauthorised deductions from earnings and holiday pay may therefore proceed.

[3]The claimant was an employee within the meaning of s.83(2)(a) and (4) of the Equality Act 2010 and his complaints of discrimination may proceed.

REASONS

[1]The respondent in this case is a small firm of solicitors with two partners, Mr Bajoori and Mr Tirumala, who both gave evidence before me. The respondent 1 ph judgment + cm Nov 2014 wip version engages other solicitors from time to time, sometimes on a long term basis. Those solicitors are always engaged on the basis that they are self-employed.

[2]The matter was listed before me to determine preliminary points on the claimant’s employment status. Strike-out application

[3]At the start of the hearing, I dealt with an application to strike out. The claimant applied to strike out the response on the basis that some documents in relation to a Mr Pillai had not been disclosed. It appeared that Mr Pillai had been sponsored and interviewed for a job towards the end of the period when the claimant worked for the respondent. It was not clear how these documents were relevant to the preliminary issues, although they may have been relevant to the substantive discrimination claim. If they had any relevance to the preliminary issues, it was minimal. Any failure to disclose could not justify the draconian step of a strike out and I dismissed the application at the start.

Facts

[4]In August 2011 the claimant first contacted Mr Bajoori. The claimant is a practising solicitor. He said he was an authorised representative of an education and manpower consultancy and he wanted to discuss referral business. Mr Bajoori gave the claimant some temporary unpaid work experience in about September 2011. The claimant was then a Tier 4 general student in the UK studying for an LLM. There was discussion between the claimant and Mr Bajoori in late 2011 in relation to the claimant potentially working for the respondent on a self-employed commission basis.

[5]During 2012 the claimant sought to persuade Mr Bajoori to apply to the Home Office for a sponsor licence to become a licensed sponsor under the Tier 2 provisions. Mr Bajoori could then sponsor the claimant for further leave to remain in the UK. The standard occupational classification SOC Code required an annual salary of £39,000 to sponsor a newly qualified solicitor. The respondent was not in a position to pay this amount and Mr Bajoori told the claimant this.

[6]The claimant was persistent. He wanted to remain in the UK. His children were performing well at school and he himself initiated the sponsor licence application on behalf of the respondent in August 2012. He proposed a business plan to Mr Bajoori. He said that if he was sponsored as a self-employed individual, he would use his contacts in the Indian legal market. He had worked as a solicitor in India for some 17 years. He said he would attract work with a minimum billing of £100,000. On that basis, he could earn £40,000 being 40% of the £100,000 which was required by the SOC Code.

[7]In November 2012 the claimant sent an email to Mr Bajoori, referring to page 81 of the Tier 2 Sponsor Guidance, where it was stated that a Tier 2 employee could be self-employed. The claimant sought to persuade the respondent to sponsor him specifically on the basis that he would be self-employed. That was very 2 ph judgment + cm Nov 2014 wip version much at the forefront of the discussions. This would be advantageous to the claimant and is what he suggested to the respondent.

[8]The sponsor licence application was made in August 2012. A copy of that application was at page 40 of what has been called the “disputed bundle”. It was a dispiriting aspect of this case that, although both parties were solicitors, there was a distinct lack of cooperation in preparing for the hearing, including in the preparation of bundles.

[9]The claimant was very much involved in the process of his own recruitment. He drew up or was instrumental in the drawing up of a job description for India Desk Solicitor in September 2012. It was a requirement of the certificate of sponsorship that the resident labour market test should have been met and that the relevant job should have been advertised in two places. That was done.

[10]The claimant initially worked for a company called Haslaw & Co and they issued a certificate of sponsorship on 26 October 2012. However, the claimant continued to want to work for the respondent and he continued to be in contact with Mr Bajoori. The claimant made an application for further leave to remain under Tier 2 which was approved by the Home Office on 11 December 2012. He was granted leave until 11 November under the sponsorship of Haslaw & Co. The respondent advertised the India Desk post and the claimant continued to seek to persuade the respondent that they should take him on.

[11]In February 2013, the claimant applied for the job that was advertised. He enclosed a CV, said why he wanted to join the respondent firm and said that he was confident that he would be billing not less than £100,000 in the first year and would be able to manage the India Desk as an excellent one. He said he would welcome the opportunity to discuss his application in person. It is noted that the claimant at no time achieved anywhere near the £100,000 billing promised.

[12]The Certificate of Sponsorship from the Home Office, filled in by the respondent, referred to normal weekly hours of 37.5 and gross ‘salary’ of £40,000 per year. It was said that the job was not on a client contract and that the resident labour market test had been met. Mr Bajoori said, and I accepted, that there was no place on that online form to say if the job was going to be on a self-employed basis, although it was common ground between the claimant and the respondent that an individual engaged under a Certificate of Sponsorship may be selfemployed. This was confirmed, amongst other places, in an email sent from the business help desk at the Home Office to the claimant in November 2013. It stated in relation to Tier 2 and the guidance: “If the migrant is working on a selfemployed basis there must be a contract for employment/services between you and the migrant. This contract must clearly show…” and then it refers to names and signatures, staff mandates, the contract details of the job and an indication of how much the migrant will be paid and then there is a reference to reporting duties and the importance that if the individual is to be self-employed, then the engaging organisation must still be able to meet the reporting duties.

[13]The application for a Certificate of Sponsorship was approved on 9 May 2013 in a letter from the UK Border Agency. That approval was confirmed. It said: “Positions given for the employment detailed below”; there was reference to the 3 ph judgment + cm Nov 2014 wip version respondent’s job title “solicitor” and a salary of £40,000. The claimant wanted to start the job straight away. I was taken to a document in the joint bundle, page 67, which set out various options including an Option 1: “self employed”. It was a document prepared by the claimant. It set out the advantages for him of being self-employed, the advantages for the employer and then it referred to the documents to be maintained for the UK Border Agency. The claimant wrote at the top of this document: “I prefer Option 1 as it is good for both the firm and me.” It was very clear that the claimant’s preference was to be self-employed.

[14]There was a dispute between the parties as to whether that document was produced by the claimant in around May 2013 or, as the claimant said, around March to April 2014. I concluded, having looked at all the documentation and accepting that it was important to the claimant from as early as 2012 that he should be self-employed, that it probably was produced in May 2013.

[15]I was taken to a written agreement which was a standard form agreement. It was dated 16 May 2013 and on the final page of the agreement there were two signatures: Mr Bajoori and the claimant. There was a dispute between the parties in relation to this document. The respondent said that the claimant signed it in May 2013 and was given a copy at that time. The claimant said that he only signed the document on the final page. He was not given a full copy of the agreement and only signed the final page in 2016 about two months before his engagement terminated.

[16]It was surprising that two solicitors should give such different versions of events in relation to a contract and it would have assisted if there had been witnesses to the signatures or indeed a signature on each page or something confirming that the contract had been read in its entirety. I weighed up the evidence in order to determine whose account was more probable and concluded that the claimant did sign the contract in around May 2013. It may not have been as early as the respondent said but I concluded that it was close to when he started working for the respondent. The terms of the contract specifically stated that it was for a three year term and that the claimant would be self-employed: the respondent would engage the claimant “on a self-employment basis”. Later in the contract there was reference to employment and indeed termination of employment.

[17]There were general terms set out at paragraph 2 of the contract that the claimant would work under the supervision of the firm. Clients introduced to the firm by the claimant would be the firm’s clients. The claimant would be responsible for the conduct of all clients and clients’ matters subject to supervision. There was reference to the billing of a minimum of £40,000.

[18]The claimant continued to work for the respondent from 16 May 2013 to 21 May 2016 when his engagement terminated. During the time he worked for the respondent, he brought in a significant number of his own clients. He was not paid any regular salary but payments were made to him from time to time. He said in his ET1 that he was paid a total of just over £59,000 over the three years, which he said was about half of what he was due to be paid. He worked in the office but his attendance was sometimes erratic: he did not work a regular five days a week during normal office hours. 4 ph judgment + cm Nov 2014 wip version

[19]At page 113 of the joint bundle I read an email from the respondent to the claimant of 1 April 2016. In the context of locks being changed and the claimant not having a key, it was stated: “you are neither the first person to come to the office nor the last person to leave. On the contrary your attendance has been very irregular and erratic to say the least.” and then there was reference to not staying in the office when requested.

[20]If the claimant was sick he would phone in; his holidays would be agreed with the respondent; he would let the respondent know to an extent what he was doing on a day to day basis, for example if he had been in court he would let them know when he finished. He was supervised by the respondent in accordance with their regulatory responsibilities and was covered by their professional indemnity insurance. Client care letters to the clients that he had brought in would go out in the respondent’s name. The claimant could not subcontract his work to anyone outside the firm.

[21]The claimant had a degree of autonomy, beyond autonomy in the normal professional sense. He only worked with clients that he had brought in to the firm. He did a significant amount of marketing on his own behalf and for his own benefit: although successful marketing also benefitted the respondent. He went to India in June/July 2015 for a marketing visit and requested and was given permission to go on those dates. He was there for at least a month it appeared, although the respondent’s view was that no work came in as a result of that visit. In short, there was a degree of control exercised by the respondent but the claimant essentially carried out his own work as he thought fit. If he did not have any work to do, he did not have to attend the office.

Law

[22]Under s. 230(1) of the Employment Rights Act 1996 (ERA), an “employee” is “an individual who… works under (or…worked under) a contract of employment.

[23]Under s. 230(3)(b) of the ERA, a “worker” includes a person who worked under a contract of employment or: “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”. Regulation 2 of the Working Time Regulations 1998 (WTR) is in identical terms.

[24]Under s. 83(2)(a) of the Equality Act 2010 (the EqA), “employment” means: “employment under a contract of employment, a contract of apprenticeship or a contract personally to do work”.

[25]I was referred to the case of Autoclenz Ltd v Belcher

[2011] ICR 1157

and to Pimlico Plumbers Ltd v Smith

[2017] EWCA Civ 51

[26]In Autoclenz, the Supreme Court held that in determining employment status, the essential question was: “what was the true agreement between the parties?”. A written contract might not reflect the true agreement between the parties. 5 ph judgment + cm Nov 2014 wip version

[27]In Pimlico Plumbers v Smith, the Court of Appeal considered the principles for determining whether an individual was a ‘worker’ within the meaning of the Employment Rights Act s. 230(3)(b) and regulation 2 of the Working Time Regulations and whether a particular working situation fell within the definition of ‘employment’ in s. 83(2)(a) of the Equality Act 2010.

[28]At paragraph 84 of the judgment, the Court set out the principles applicable to determining whether there was a requirement for personal performance. Submissions

[29]The claimant submitted that there was no written contract between him and the respondent. There was an implied contract. He relied on the Certificate of Sponsorship document and to the references in that document to normal working hours and the salary of £40,000 as giving rise to an implied contract.

[30]The respondent disputed that the claimant was employed under a contract of employment or a worker.

Conclusions

[31]I could not imply a contract from the Certificate of Sponsorship. The claimant did not refer to any of the usual tests for implication of a contract, such as the tests of necessity or the officious bystander test, in submitting that I should imply a contract from a document that was plainly not intended to have contractual effect but was, as it said on its face, a Certificate of Sponsorship.

[32]In any event, there was a written contract in this case which provided that the claimant would be self-employed. The labelling of the arrangement as selfemployment was not, in itself, determinative. As in Autoclenz, it might not reflect the true agreement between the parties.

[33]However, the respondent never paid the claimant a salary and the claimant never asked for salary. The claimant said that his salary was only due at the end of the year but, even at the end of the year, he never asked for salary. The claimant registered as self-employed in early 2014 for tax purposes. Again, this was not conclusive as to the claimant’s employment status but it pointed to the understanding of the parties as to the nature of their arrangement.

[34]The claimant was expected to and did bring in his own clients. He was not provided with clients by the firm. Although there was some degree of control by the respondent, as set out in the findings of fact above, the claimant had a high degree of autonomy, both in relation to marketing and to the hours that he worked.

[35]The Home Office document did not prohibit self-employment. On the contrary both parties accepted that the claimant could be self-employed. 6 ph judgment + cm Nov 2014 wip version

[36]The claimant relied on an email at page 70 of the joint bundle which referred to how much the migrant would be “paid”. He submitted that this indicated that he was employed under a contract of employment. I rejected that submission. Being paid was equally consistent with self-employment and indeed £40,000 billing was referred to in the written agreement.

[37]In all the circumstances and taking into account all the above factors, I concluded that the claimant was from the start engaged by the respondent on a selfemployed basis. That was what both parties intended and understood. The claimant was not employed under a contract of employment within the meaning of s. 230(1) of the ERA and his unfair dismissal claim failed and was dismissed.

[38]I then considered whether the claimant was a “worker” within the meaning of s. 230(3)(b) of the ERA and regulation 2 of the WTR and whether he was employed under a contract “personally to do work” within the meaning of s. 83(2)(a) of the EqA.

[39]Dealing with the EqA definition first, I concluded that the claimant was employed under a contract personally to do work. He was required to carry out his work himself, subject to being able to delegate work within the firm, and this was not work that he could sub-contract to anybody else or supply a substitute.

[40]As to whether the claimant was a worker under the ERA and the WTR, the claimant was working under an express contract under which he undertook to do or perform personally work for the respondent. The respondent was not his client or customer and he was not carrying on some separate professional business undertaking.

[41]On that basis, the claimant was entitled to bring his claims for unlawful deductions and holiday pay under the ERA and WTR.

[42]On the basis that the above claims would proceed, after discussion and after agreeing that the provisional dates listed for the hearing would be vacated and that the hearing would take place on 25th to 28th September 2017 inclusive at Watford Employment Tribunal, Radius House, 51 Clarendon Road, Watford WD17 1HP to deal with issues of liability, and remedy if appropriate, the following orders were made. ORDERS Made pursuant to the Employment Tribunal Rules 2013 1. Further information 1.1 The respondent will disclose to the claimant by 3 March 2017 the CV interview notes and letter of offer to Mr Pillai together with email correspondence in relation to his recruitment. 7 ph judgment + cm Nov 2014 wip version 2. Bundle of documents2.1 By 7 August 2017 the claimant will send an index to the proposed joint bundle to the respondent. The respondent will notify anything they wish to add, to the claimant, by 14 August 2017.

2.2 The claimant will send the respondent a full, indexed, paginated bundle to arrive on or before 21 August 2017 and will bring six copies of the bundles to the hearing. 3. Witness statements

3.1 It is ordered that oral evidence in chief will be given by reference to typed witness statements from parties and witnesses.

3.2 The witness statements must be full, but not repetitive. They must set out all the facts about which a witness intends to tell the Tribunal, relevant to the issues as identified above. They must not include generalisations, argument, hypothesis or irrelevant material.

3.3 The facts must be set out in numbered paragraphs on numbered pages, in chronological order.

3.4 If a witness intends to refer to a document, the page number in the bundle must be set out by the reference.

3.5 It is ordered that witness statements for the main hearing will be exchanged by 4 September 2017. Judicial mediation 1. I raised the possibility of this case being considered for an offer of judicial mediation. I explained how the process operates and provided a note giving a full explanation of the judicial mediation scheme. I emphasised that this was just an enquiry as to whether the parties would be interested in the Regional Employment Judge considering whether the case would be suitable for an offer of judicial mediation. 2. The parties will notify the tribunal jointly if they wish to proceed to judicial mediation, such notification to be given by 17 March 2017. CONSEQUENCES OF NON-COMPLIANCE 1. Failure to comply with an order for disclosure may result on summary conviction in a fine of up to £1,000 being imposed upon a person in default under s.7(4) of the Employment Tribunals Act 1996. 2. The tribunal may also make a further order (an “unless order”) providing that unless it is complied with, the claim or, as the case may be, the response shall be 8 ph judgment + cm Nov 2014 wip version struck out on the date of non-compliance without further consideration of the proceedings or the need to give notice or hold a preliminary hearing or a hearing. 3. An order may be varied or revoked upon application by a person affected by the order or by a judge on his/her own initiative.

The Law

[43]There are three categories of res judicata: cause of action estoppel, the rule in Henderson v Henderson and issue estoppel. (Divine-Bortey v Brent London Borough Council

[1998] ICR 886

CA) 43.1. Cause of action estoppel is where the cause of action in the later proceedings is identical to that in earlier proceedings which were decided between the same parties. There is an absolute bar on re-litigating all points decided in the earlier proceedings. 43.2. The rule in Henderson v Henderson extends cause of action estoppel to points which might have been put but which were not raised and decided in the earlier proceedings. 43.3. Issue estoppel is where a particular issue which is a necessary ingredient of the cause of action in the later proceedings has been litigated and decided in earlier proceedings between the same parties.

[44]The structure of the protection against detriment by reason of protected disclosures provides that a disclosure is protected if it is a qualifying disclosure within the meaning of s.43B of the Employment Rights Act 1996 (hereafter the ERA) and is made by the claimant in one of the circumstances provided for in s.43C to 43H ERA. In the present case, the disclosures, if made, were made to the claimant’s employer and so the relevant section is s.43C. A qualifying disclosure means, “any disclosure of information which, in the reasonable belief of the worker making the disclosure, [is made in the public interest and] tends to show one or more of the following—(a) that a criminal offence has been committed, is being committed or is likely to be committed,

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

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged, or

(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.”

[45]One of the challenges for the tribunal was that in the present case it was not always clear which of the 6 routes the claimant relied upon when arguing that his disclosures were protected. Taking his case at its highest, it appeared that he was alleging that s.43B(b) and (d) were potentially engaged: breach of a legal obligation or health and safety endangerment.

[46]Breach of a legal obligation in this context means more than “immoral, undesirable or in breach of guidance”: Eiger Securities LLP v Korshunova [2017] I.R.L.R. 115. In that case, it was held that, in order to fall within s.43B, the tribunal should have identified the source of the legal obligation to which the claimant believed the respondent were subject and how they had failed to comply with it. The identification of the obligation did not have to be detailed or precise but it had to be more than a belief that certain actions were wrong.

[47]When considering whether the worker reasonably believed that the disclosure was made in the public interest, the tribunal has to ask(a) whether the worker believed, at the time that he was making it, that the disclosure was in the public interest and

(b) whether, if so, that belief was reasonable: Chesterton Global Ltd v Nurmohammed [2017] I.R.L.R. 837 CA.

[48]Statutory annual leave entitlements are set out in the Working Time Regulations 1998 (hereafter the WTR) and the effect of the relevant regulations is to provide that, in default of any other agreement between the employer and the worker, the annual leave year runs from the date of the workers’ employment, the worker is entitled to 28 days’ holiday each calendar year including bank holidays and leave entitlement does not carry over from one year to the next. The worker is entitled to be paid on termination of employment for any leave accrued but not taken at the time the contract ends.

[49]It is accepted by the respondent that the claimant is owed holiday pay. Rights to annual leave and additional annual leave are set out in reg.13 & 13A of the Working Time Regulations 1998. Where a worker’s employment is terminated during the course of his leave year then his employer shall make him a payment in lieu of that proportion of his accrued annual leave which has not been taken as at the date of termination: reg.14. In the present case, the claimant took no annual leave because it was disputed that he was entitled to do so. Whether the claimant is entitled to payment in respect of both annual and additional annual leave or only in respect of annual leave will depend upon our findings about the manner in which he was to be remunerated.

[50]By reg.16 WTR the rate at which a worker is entitled to be paid is at the rate of “a week’s pay” and ss.221 to 224 of the ERA apply for the purposes of that calculation.

[51]S.221 ERA provides, “(1) This section and sections 222 and 223 apply where there are normal working hours for the employee when employed under the contract of employment in force on the calculation date. (2) Subject to section 222, if the employee's remuneration for employment in normal working hours (whether by the hour or week or other period) does not vary with the amount of work done in the period, the amount of a week's pay is the amount which is payable by the employer under the contract of employment in force on the calculation date if the employee works throughout his normal working hours in a week. (3) Subject to section 222, if the employee's remuneration for employment in normal working hours (whether by the hour or week or other period) does vary with the amount of work done in the period, the amount of a week's pay is the amount of remuneration for the number of normal working hours in a week calculated at the average hourly rate of remuneration payable by the employer to the employee in respect of the period of twelve weeks ending—(a) where the calculation date is the last day of a week, with that week, and

(b) otherwise, with the last complete week before the calculation date. (4) In this section references to remuneration varying with the amount of work done includes remuneration which may include any commission or similar payment which varies in amount. (5)...”

[52]We have been directed by Mr Aamodt to the case of Lock v British Gas Trading Ltd 946 CA. In that case the CA approved the first instance employment tribunal decision that it was possible to read the WTR so as to apply to an employee who was remunerated in part by way of results-based commission. The Court also concluded that such an employee would be entitled to paid annual leave under reg.13 WTR and that it should be considered that they fell within s.221(2) ERA, an employee whose remuneration does not vary with the amount of work done. This portion of statutory leave derives from the Working Time Directive (2003/88/EC) and, in order properly to implement EU rights the WTR must be read in that manner.

[53]The additional annual leave under reg.13A WTR derives from solely domestic law. In domestic law it is not possible for an employee who is remunerated by way of commission to calculate their holiday pay with reference to commission, but with reference to basic salary only: Evans v The Malley Organisation Ltd

[2003] IRLR 156

CA.

[54]By reason of s.23(4A) ERA, an employment tribunal may not consider that portion of a complaint of unauthorized deduction from wages which relates to a deduction where the date of payment of the wages from which the deduction was made was before the period of two years ending with the date of presentation of the complaint.

Findings of Fact

[55]We make our findings of fact after considering all of the evidence before us, taking into account relevant documents where they exist, the accounts given by all of those concerned about the relevant factual matters from time to time and the witness evidence, both statement evidence and oral testimony. Where it is has been necessary to resolve disputes about what happened we have done so on the balance of probabilities taking into account our assessment of the credibility of the witnesses and the consistency of their accounts with the rest of the evidence including with documentary evidence. We do not set out all of the evidence in these reasons; we set out our principle findings of fact on the evidence before us, those which it was necessary for us to make in order for us to decide the issues which the parties have asked us to decide.

[56]The background to the dispute between the claimant and the respondent is that in 2011 the former, an Indian National, was in the U.K. studying for an LLM as a Tier 4 general student under which scheme he was permitted to work a certain number of hours a week. He is a practicing solicitor who had qualified in India. A change in the immigration law made it desirable that he find an employer to sponsor him under Tier 2. Ultimately, following his initial request to the respondent firm, the claimant was sponsored by them under an arrangement which EJ Mc Neill QC concluded amounted to that of a limb “b” worker and/or an employee within the extended meaning of s.83(2) EQA.

[57]In order to decide the issues before us, we need to make findings about what was agreed to be paid to the claimant by way of remuneration. Was the agreement between the parties for the claimant to be paid a salary? Was he due to be paid commission? Was he entitled to be paid for overtime? The other issues to be decided concern whether or not the claimant made protected disclosures and what were the circumstances in which the agreement between them was terminated.

[58]The claimant’s case was that the agreed terms included a guaranteed basic salary of £40,000 gross p.a. and that that could be inferred from the Certificate of Sponsorship (page 263). On the face of that document the dates of the contract between the claimant and the respondent are said to be 8 May 2013 to 7 May 2016; in other words, the claimant’s sponsorship by the respondent would expire on 7 May 2016. The summary of his job description in the Certificate of Sponsorship sets out various aspects of the role of a legal advisor both in the U.K. and India. There is then the following statement in relation to salary (page 265) “Gross salary including any allowances and guaranteed bonuses (in pounds sterling …): 40000.00”.

[59]In order to understand his argument that for the agreement to be for him to receive anything less than £40,000.00 gross per annum would be illegal, it is necessary to set out some details of the scheme under which he was sponsored, as it appears from the documents in the bundle. One of the then requirements for Tier 2 sponsorship was that the role should satisfy the minimum earnings requirement. There was some discussion before us about whether, had events prior to the offer of sponsorship by the respondent occurred other than then did this would have been a requirement but this, we find, was not relevant to the case before us because both parties accepted that as things turned out the minimum earnings requirement did apply to the sponsorship by the respondent of the claimant. That, as the name suggests, was a requirement that the role for which the sponsor was being engaged should provide a minimum income, presumably to ensure that the immigrant would not be dependent upon the public purse. This is why the claimant argues that, were the agreement for him to be paid anything less than £40,000 gross p.a., that would put both him and the respondent in breach of immigration law and so a basic salary must have been agreed. Following our decision on the claimant’s application to amend his claim, this is an evidential point relied upon by the claimant as a reason for us to conclude that his evidence about what was agreed should be preferred.

[60]The claimant exchanged emails with the Home Office in March 2014, after the start of his sponsorship by the respondent, which included an explanation by the Home Office that a Tier 2 sponsor did not need to be a PAYE employer, provided that they were following the rules which included that the Certificate of Sponsorship (hereafter CoS) must include a statement by the sponsor of an amount that the migrant would definitely be paid which must be at least the minimum set out in the relevant Code of Practice. The Home Office stated (page 288) “If the sponsor cannot guarantee a minimum payment of at least the minimum set out in Code of Practice then they will be unable to complete a CoS”.

[61]The respondent’s case is that relevant terms of the agreement between the parties can be found in the written agreement dated 16 May 2013 (page 276) which bears the signature of the claimant and Mr Bajoori (page 281). This describes the claimant as an associate and the terms as to remuneration are found at clause 4, “4.1 The Associate will be engaged in the Firm on self-employment basis and he shall register with HM Revenue and Customs as a self-employed and comply with all Tax regulations. 4.2. Subject to Clause 4.3 below he shall bill minimum £40,000 per annum or any other amount the Firm agrees with him time to time. 4.3. The Associate will be paid following percentage of fee from each file, upon completion of the relevant file and upon invoiced and settled by the client, after deduction of disbursements, referral fee and taxes: 4.3.1. 40% of the fee from the work/file introduced by the Associate to the Firm where the Associate responsible for conduct of whole file. 4.3.2. 30% of the fee from the work/file allocated by the Firm to the Associate where the Associate responsible for the conduct of whole file. 4.3.3. 10% of the fee from the work/file introduced by the Associate to the Firm and not responsible for conduct of file. This amount is only entitled upon completion of the file and settlement of full fee by the client; 4.3.4. Any other agreed percentage, between the Firm and the Associate, of the fee from the work/file allocated by the Firm to the Associate where the Associate responsible for conduct of part of file. 4.4. The Associate shall invoice the Firm only upon completion of each file and invoiced money settled by the client. …”

[62]So the dispute between the parties in this respect is whether, on the one hand, the claimant was guaranteed a minimum of £40,000 gross p.a. regardless of the fees which he generated for the firm or, on the other hand, whether he was to be paid on a commission basis on receipt of invoice and had agreed that he would bill the respondent for commission of a minimum of £40,000 per annum.

[63]The written agreement also includes the following term, “3.2 The Associate will work such additional hours outside his normal hours of employment if it is necessary to meet the needs of the clients and the business or the Firm considers necessary to protect the best interest of the clients.”

[64]Some of the findings made by EJ McNeill QC are extremely relevant to the findings which it is necessary for us to make in order to decide the issues in the case. In the section of her judgment headed “Facts” (paragraphs 4 to 21) it is clear that she set out the findings of fact which led to the conclusions at paragraphs 31 to 42. Those included findings about the time and circumstances in which some documents which were central to her conclusions on the nature of the relationship between the parties were produced.

[65]In relation to the written agreement (pages 276 to 281) at paragraph 16 (page 71) EJ McNeill found, “I weighed up the evidence in order to determine whose account was more probable and concluded that the claimant did sign the contract in around May 2013. It may not have been as early as the respondent said but I concluded that it was close to when he started working for the respondent.”

[66]Other relevant findings of EJ McNeill QC include the following, 66.1. At para. 33 “the respondent never paid the claimant a salary and the claimant never asked for a salary.” 66.2. At para.32 “There was a written contract … which provided that the claimant would be self-employed.” 66.3. At para.34 “the claimant had a high degree of autonomy, both in relation to marketing and to the hours that he worked.” 66.4. At para.31 “I could not imply a contract from the Certificate of Sponsorship.” See also her findings about the lack of ability in the online form to say if the job was going to be on a self-employed basis (para.12 at page 70) 66.5. At para.36 the employment judge rejected the claimant’s submission that a particular email indicated that he was paid under a contract of employment and found that he had been self-employed with a reference to the claimant billing £40,000 each year.

[67]At paragraphs 13 & 14 of her judgment, EJ Mc Neill QC decided that the document which is in the bundle for the final hearing at page 274 was probably produced in May 2013. This is a document in which the claimant set out three options for the basis upon which he might be engaged by the respondent: option 1 (self-employment), option 2 (payroll with a yearly salary) and option 3 (payroll with a monthly salary). It was clear from the claimant’s handwriting on page 274 and EJ McNeill QC held that the claimant himself preferred the option of being self-employed. On page 274 he set out the advantages for himself and for the respondent of that arrangement and also stated that three documents had to maintained for the Border Agency: a contract of employment, proof of payment “as per SOC code”, attendance and other reporting documents.

[68]The Tier 2 occupational codes of practice valid from April 2011 (page 254) explained that the appropriate salary rate for solicitors depended upon the level of qualification and, at the relevant time, for a newly qualified solicitor in the Greater London area was £39,000.

[69]The parties agree that, as a matter of fact, the claimant was paid on a commission basis rather than the same amount every month or year. He seems to have told EJ McNeill QC that he was only due to be paid at the end of each year (para.33 page 73) but she found that he had not asked for his salary. He accepted before us that he had not made any written requests for a guaranteed minimum income during his engagement.

[70]In addition to arguing that the terms of the agreement can be inferred from the Certificate of Sponsorship (an argument which EJ McNeill QC rejected) the claimant also alleges that the contract was formed because of a simple offer and acceptance. The respondent advertised for an India Desk Solicitor on 29 January 2013 (page 257) in order to comply with the resident labour market test and in that advertisement mention is made of a salary of £40,000 p.a.. The claimant applied for the job (see page 259) on 18 February 2013. He argues that he was thereby applying for a job which carried a salary of £40,000 gross per annum rather than one where the remuneration was solely commission based. However it is notable that, in his application, he states that “I am confident that I will be billing not less than 100000 GBP in the first year and will be able to manage the India Desk as excellent one in the united kingdom” If he had billed £100,000 a year of work to clients whom he had introduced to the Firm and where he had done 100% of the work on the file, he would (according to the terms of the written agreement) have been entitled to commission at 40% on those billings or £40,000. Having heard both the claimant and Mr Bajoori, it seems to us that the claimant made that representation because both men knew that he needed to bill at that rate in order to generate the level of commission payments which would amount to the minimum income required under Home Office rules. The particular relevance of that is that it is found in a document which the claimant accepts was sent by him and sent prior to the start of the contract.

[71]Chronologically, the next document in the bundle is the application for leave to remain in the U.K. in reliance on the Certificate of Sponsorship (page 263). This was approved on 9 May 2013 (page 270). The Certificate of Sponsorship and permission letter (page 270) both refer to a salary of £40,000. The claimant’s evidence (para 5 page 140) is that there was no offer letter. However, there is a letter bearing the date 15 May 2013 at page 275 in which the claimant, on the face of it, thanks the respondent for the offer of employment and states that he would like to start him employment the following day and declares that he would like his employment to be in the form of self-employment. This is consistent with his expressed preference (page 274). However there is a dispute between the parties about the date when this letter was signed: the respondent says that it was signed at about the same time as the written agreement when the engagement started in May 2013 and the claimant says that it was signed in April 2016.

[72]The starting point for our fact finding in relation to the written agreement is therefore that it was signed in about May 2013, as found by EJ McNeill QC. In our view that finding that the written agreement was signed in around May 2013 is binding upon us. It was a finding which EJ McNeill QC needed to make in order to reach conclusions about the employment status of the claimant because she was considering whether it was a relevant document from which she might make inferences about the nature of the relationship between the parties. This falls within the third limb of the res judicata rule.

[73]However we consider that she did not make concluded findings about all of the terms about remuneration agreed between the parties. Nonetheless, the written agreement is relied upon by the respondent as evidence of it.

[74]The claimant’s oral evidence before us, notwithstanding EJ McNeill’s conclusions, was that the written agreement was signed in April 2016. He also told us that he had no option but to sign it immediately and effectively signed under duress, despite not agreeing with the contents. He also said that he’d signed the final page and that although there had been other pages – he described them as a pile of pages - he didn’t see and didn’t read them. He denied that the terms set out in pages 277 to 280 represented what was genuinely agreed between the parties.

[75]As we say, the claimant also gave evidence that he signed the letter which bears the date of 15 May 2013 in April 2016. This is not an account which he gives in his FH statements of 14 September 2017 and 20 January 2018. In the latter, paragraphs 47 to 49 contain evidence of events in April 2016 but do not include an account of signing page 275 or the written agreement. Instead those paragraphs detail the exchange of certain emails (which are particularized in paragraphs 104 to 108 below) but none of those include a reference to him having signed an acceptance letter or written agreement recently. Nor do they contain complaints about being required to sign a backdated letter.

[76]What the claimant does say in his PH statement, which he adopted at the hearing before us, is that the letter dated 15 May 2013 was provided by him at the time when he discussed with the respondent about registering as self-employed for tax purposes (see para 13 on page 142). His evidence in his FH statement 1 appears to be that the letter bearing the date 15 May 2013 was written in about March 2014. That is repeated in his FH statement 2 at paragraph 37.

[77]This discrepancy between his oral evidence and his witness statements is unexplained. Given EJ Mc Neill’s findings about the handwritten options document (page 274) and the agreement being signed sometime close to May 2013 we reject C’s suggestion that the page 275 letter is not contemporaneous with those documents. He has not explained his inconsistent evidence about that allegation. Furthermore, he is inviting us to draw the conclusion that he, a solicitor, created a document in April 2016 which purported to be a letter signed in May 2013. We find that the letter at page 275 was signed at around the date it bears.

[78]It is clear that the Tier 2 scheme permitted the sponsorship of those who would be classified as self-employed for tax and national insurance purposes. As early as 29 November 2012 (page 246), the claimant (who had been pressing the respondent to sponsor him under Tier 2) wrote to Mr Bajoori to explain that a Tier 2 employee can be self-employed. He included with that letter (page 247) Immigration Rule 536 which says that if a migrant is working on a self-employed basis, there must be a contract which clearly shows “an indication of how much the migrant will be paid”. This information was repeated in an email from the home office to the claimant dated 10 November 2013 at page 284. That email continues that the sponsor (in the present case the respondent) would still be responsible for the individual and for making sure that they meet the reporting duties, “If they feel they are unable to do this with a selfemployed individual then they would not meet their duties and should not offer this arrangement.”

[79]In cross examination, the claimant was taken to a series of emails which the respondent argued provided an opportunity to ask for the balance of the salary or guaranteed income had it then been the claimant’s case that it was owing. The claimant’s general position was that he had been afraid to ask Mr Bajoori for the balance because he was in fear that that would lead to the revocation of his sponsorship and the removal of his family from the U.K.. The claimant made general allegations that he had been subjected to those threats by Mr Lewis and had been afraid that Mr Bajoori would carry out those threats. He did not give evidence about specific threats made on particular dates.

[80]We reject these generalized allegations. That is, in part, because the claimant’s evidence is too unspecific to be tested but mostly because we consider these allegations to be reminiscent of the allegations which the claimant makes that a particular email at page 362 (about which see below at para 112) caused him to fear that Mr Bajoori would have him, the claimant, put in prison, not sponsor him and cause his family to be deported. Although these documents post date the start of the sponsorship and the date by which, as EJ McNeill QC found, the written agreement was signed, they shed light upon the terms of the agreement because, as evidence of what the parties did, they are evidence of what they considered their rights and obligations under the contract to be.

[81]On 22 March 2014 (page 289), the claimant forwarded to Mr Bajoori the advice received from the HO. In his email, the claimant set out the advantages to him of being self-employed in strikingly similar terms to those at page 274. There is no suggestion that this email was sent under duress. Nor does it require the salary to be paid. The fact that the claimant was writing in those terms in March 2014 suggests that at that time he regarded that to be an advantageous arrangement.

[82]His tax returns for the financial years ending 5 April 2014, 2015 and 2016 (pages 463 to 468) are consistent with his case that he was supposed to be paid £40,000 guaranteed. His evidence, which we accept in this respect, was that they were prepared on an accruals basis. He declared income that on any view he hadn’t received (and was not making written requests for) on three consecutive tax years. So in the year to 5 April 2014 he declared £36,670 gross, in the year to 5 April 2015 he declared £37,508 gross and in the year to 5 April 2016 he declared £37,504 gross. However, the tax returns are equally consistent with an expectation that he would generate enough income for the firm that he would be able to bill the respondent for commission of a minimum of £40,000 per annum. We are mindful that this was the minimum income required for the sponsorship to comply with Home Office rules.

[83]As we say, his explanation for the declared income being more than he had received was that he was paying tax on an accruals basis. The other main element of his money claim is for overtime. The claimant did not, in his witness statements, give evidence of a specific agreement that he should be paid overtime. If his case that he should be paid overtime was based upon an agreement to that effect then he should have accrued his overtime as well as his allegedly guaranteed income whether he had been paid for it or not. Therefore his tax returns are inconsistent with his case that there was an agreement to pay him overtime.

[84]The tax returns are also consistent with the respondent’s case that it was agreed that he should not be paid holiday pay. It is true that the respondent now accepts that the holiday pay is due. The fact that the claimant does not set out accrued income by way of holiday pay supports the respondent’s case that what was agreed was that he shouldn’t, as a self-employed person, be paid holiday pay.

[85]All of this is consistent with the terms of the written document. Indeed, the fact that the claimant declared income of close to £40,000 on an accruals basis is not inconsistent with the written agreement which contained an agreement that the claimant would bill a minimum of £40,000. The tax returns do not therefore point to one parties’ version of what was agreed rather than the other’s.

[86]Three of the alleged protected disclosures relied upon by the claimant were said to have been made some time between January 2015 and January 2016 (see issues 3)b. to d. above).

[87]What he explained about the second disclosure in his particulars of protected disclosures (page 45 at 47) was that he discovered in about January 2015 that the respondent’s computer was being accessed from abroad by Mr Edwin Lewis. His evidence was that “I cautioned Mr Sunil Bajoori that unless there is proper safeguards there is every chance of data’s misuse.” He explained that he was particularly concerned because the computer was being accessed from Malaysia which is a nonEEA country and that clients’ data was being transferred to a non-EEA country without their consent. This, he argues, he reasonably believed to be in breach of the Data Protection Act 1997. He alleges that he was subjected to unreasonable criticism and bullying by Mr Lewis because he warned Mr Bajoori against this practice (see disclosures and detriments document attached to the claimant’s witness statement).

[88]Mr Bajoori’s evidence about this (his paragraph 39(ii)) is that the software used by Mr Lewis when working remotely from Malaysia does not permit the data to be transferred off the computer and server which are in the respondent’s premises in London. According to Mr Bajoori, this was not raised by the claimant until his email of 2 June 2016 (page 403) after the conclusion of the contract and had the claimant raised it sooner, Mr Bajoori could have reassured him that his concerns about the treatment of clients’ data were groundless. We have not been taken to an earlier written complaint.

[89]In relation to protected disclosure 3 the claimant states that files were transferred from Srinivasan solicitors to the respondent without the consent from a client and that money payable to Srinivasan solicitors had been transferred to the personal account of Mr Srinivasan which caused his firm to be in breach of a duty to account for the funds. The claimant says that he was bullied and harassment by Mr Lewis because he had drawn attention to this failure.

[90]In cross-examination he was taken to page 529 and it was put to him that it was an agreement on file transfer between Mr Srinivasan and Mr Lewis which includes at paragraph 1 the statement that “The parties hereby agree that as at 31st March 2013 as the respective client(s) have agreed to follow Edwin Lewis to Messrs Acculegal Solicitors, the following files will be transferred” and a list of 17 files one of which shows Mr Lewis to be the client.

[91]Page 531 is, on the face of it, a letter on the headed notepaper of Srinivasans enclosing two cheques in favour of the respondent in respect of the only credit balances shown on the client accounts on page 529. A further agreement in respect of a different client is at page 536. Then at page 537 there is a letter and copy cheque which appears to indicate that fees paid by one of the clients transferred to Acculegal were being shared with Srinivasan, the client’s former solicitors. The letter, which is dated 27 January 2015, has a cheque attached to it which is made payable to Mr Srinivasan personally.

[92]When asked about the apparent file transfer the claimant denied that he had been aware of it and denied that it was valid because, he said, Mr Lewis was not working in the firm as at 31 March 2013. When it was put to the claimant that he had never raised this as a concern he said that his concern had been about the risk in the file and fact that the payment was made to Mr Srinivasan personally. However we are satisfied from Mr Bajoori’s evidence (and from the face of the File Transfer Agreements) that Mr Srinivasan was a sole trader and there was no reasonable basis for the claimant to conclude that in paying money by a cheque made out to Mr Srinivasan personally, the respondent was acting in breach of any legal obligation to account for that money to the firm of Srinivasans solicitors. The apparent consent of the clients to having their files transferred to the respondent would have been readily explained had the claimant asked for confirmation of it. We find that he did not seek that explanation. Therefore even if, which we doubt, he believed that the clients had not consented to their files being transferred, that believe was not a reasonable one.

[93]Finally, in relation to protected disclosure 4 the claimant refers to litigation between Mr Lewis and his previous firm “Dotcom Solicitors” in which Mr Lewis was a party and the respondent firm was on record as acting but Mr Lewis was the solicitor with conduct. What the claimant says about a disclosure in relation to this matter is “I raised the risk with the sunil. If the cost implications or any other breach including money laundering regulations violations are there the firm will become responsible and there is every change of SRA Intervening and public interest is at risk.”

[94]His oral evidence was to the effect that he had advised Mr Bajoori not to take on Mr Lewis because, he alleged, the latter was corrupt. It seems to be the case that allegations made against Mr Lewis by his former employer within litigation between them included allegations of fraud made against Mr Lewis, which he denied.

[95]However, this is not how the protected disclosure 4 was put in the particulars provided on 11 October 2016 (page 48). There the claimant says that what he warned Mr Bajoori about was that Mr Lewis was conducting a personal matter and that risk assessments to the respondent could not be carried out independently. In our view, as originally pleaded, this does not raise any matter which could amount to a qualified disclosure within s.43B of the ERA.

[96]Mr Bajoori’s evidence was that the claimant had not warned him against taking Mr Lewis on because Mr Lewis had been working for him before the claimant was sponsored. He also explained that the allegations against Mr Lewis had been historic from a time when Mr Lewis worked in Malaysia and had been brought up by the former employers within the litigation that had been disposed of by the High Court in 2016 with no adverse findings against him. He, Mr Bajoori, considered that Mr Lewis had been open with him about the allegations.

[97]We accept Mr Bajoori’s evidence about the lack of warning about employing by Mr Lewis by the claimant. The claimant has fundamentally changed the nature of the warning he alleges that he gave to Mr Bajoori.

[98]As to the alleged detriments which the claimant claims to have been subjected to, he asserts that as a result of the disclosures the respondent did not provide him with the opportunity to be interviewed for a post which they had advertised and which he, the claimant, was qualified for; they refused to renew his contract; refused to pay salary and overtime due; refused to pay holiday pay and sick pay, refused to repay £10,000 which the claimant had advanced to Mr Bajoori; forced him to work late in cold weather and on Sundays and holidays; threatened to withdraw the sponsorship and deport the claimant and his family and withheld his reference letter which was given very late.

[99]The allegation in relation to the interview concerns the application for a vacancy as a Litigation Solicitor by Jayachandran Pillai in March 2016 (pages 563 & 564). Ultimately, he was appointed with effect from 1 May 2016 and he was also sponsored under Tier 2. The claimant argues that this was a job for which he could have applied. We accept Mr Bajoori’s evidence that the two posts did not involve similar areas of expertise and that that was the reason why the claimant was not interviewed. The application made by Mr Pillai was clearly for someone involved in Corporate, Shipping and Insurance Litigation (page 563). The attendance note of the interview with Mr Pillai (page 560) sets out his relevant experience with previous firms whereas the claimant’s experience was in immigration and a number of other fields set out in his c.v. and covering letter from July 2011 (pages 152 to 154). He did not profess to have experience in shipping and insurance. Furthermore, the respondent had an allocation for 2 unused CoS’s (page 567) so, had the claimant satisfied Mr Bajoori’s requirements that he finalise his billing (page 338), then the respondent would have been able to sponsor both men.

[100]The claimant alleges that the respondent delayed in providing him with a reference. His evidence was that he had asked for a reference on 22 April 2016 (page 351) but, in fact, that email simply asked for time off to attend an interview and did not ask for a reference. He then said that he could not remember when he had asked for the reference. It may have been requested orally because it was provided by Mr Bajoori on 25 April 2016 (pages 352 & 353). There was no delay in providing this reference.

[101]On 17 February 2016 (page 318), Mr Bajoori wrote to the claimant expressing dissatisfaction with his failure to attend work without explanation and alleging that he did very low or limited work in the office. He stated that the claimant had not opened a file since 3 October 2015 and warned “I fear any further continuance of this relationship would affect the firm in two ways noncompliance with regulatory requirements and failure to comply with sponsor duties as you are a Tier 2 sponsored employee of the firm.” Our conclusion is that Mr Bajoori was, by that email, expressing concern that low fees generated by the claimant would mean low billings of commission which would mean that the firm was not able to certify that the claimant’s income would be above the minimum required amount. It appears that he had probably, by then, been reminded by the Home Office that the CoS would expire soon if no application was made to renew (see email dated 22 March 2016 at page 565 which states that it is the third time the Home Office have written to notify Acculegal that they could renew the CoS).

[102]The claimant’s responded to this letter (page 319) saying that he had forgotten his key and been unable to access the office and then had had an attack of cold and fever which meant that he could not come to work. Although the claimant says “I am also in need of money”, he does not complain that he has not been paid the guaranteed income which he now says was due.

[103]In late March 2016 (28 and 29), the claimant emailed Mr Bajoori to complain that the locks to the office had been changed and he did not have a key (page 321 and 322). He adds (page 321) “as I my leave [sic] is ending in may [sic] I like to know about my extension and assignement of certificate of sponsorship also.” Mr Bajoori replied to these emails on 1 April 2016 (page 327) refuting the allegation that he had discriminated against the claimant by not giving him a key to the office and again complaining of erratic attendance. He did not respond to the question about the extension of the claimant’s sponsorship. These emails show increasing frustration on part of Mr Bajooli about the claimant’s attendance (pages 332 and 336). The claimant responded (page 337) on 15 April 2016 asking for a reply about his request for a “further extension and assignment of CoS” and raising his payments, which appears to be a reference back to page 335 when the claimant asked that Mr Bajoori “end my billing this week” because he had certain sums to pay.

[104]Mr Bajoori’s substantive response is at page 338. In that email dated 18 April 2016 (approximately a month before the sponsorship was due to expire on 21 May 2016) Mr Bajoori told the claimant, 104.1. That he, Mr Bajoori, had been asking for the claimant to complete his billing since before Christmas 2015 so that the files could be audited “and [I can] plan how to proceed with your extension” but although it was now after Easter the claimant had not provided his billing 104.2. That he, Mr Bajoori, “have already told you clearly on 31st March and 4th April that I do not have any intension to request for the renewal of CoS until your current billing is finalised.”; 104.3. “I have always been lenient on your engagement with the firm and your billing for any year since you were sponsored in May 2013 was far less than £40,000 per year (as stated in your CoS).” Mr Bajoori complained that the work and billing in the office do not match the time apparently spent by the claimant in marketing. 104.4. That he had frequently reminded the claimant about “your billing and meeting Tier 2 criteria” and been reassured by the claimant that he had contacts and would reach his billing before extension time.

[105]The claimant’s first response to this detailed explanation of Mr Bajoori’s concerns (page 341) was on 18 April 2016 and asks for a meeting. The following day (page 342) at 07:36 the claimant sent an email which he alleges contains a protected disclosure. By that email the claimant denied that he had not provide the closed files and goes on to say, “Please note that the website of the firm was developed very recently. It took more than one year to provide business cards. There is no software or no library. There is no proper heating systems and even wash rooms in the office. There is not even a single paralegal or receptionist available”. Essentially, he complained that the lack of infrastructure means that the firm is unable to get business and corporate clients, rather than that being due to him not converting his contacts into clients.

[106]The claimant also complained in his email of 19 April 2016 that “Unfortunately I heard the words like stupid, bastard, Non Sense etc regularly in the office.” He gave evidence to us of similar comments being made but gave no details of dates or anything from which it could be inferred that the reason for those comments was his alleged protected disclosures.

[107]It is agreed between the parties that there is no central heating in the office but Mr Bajoori’s evidence was that there is a small heater under each desk. The claimant’s evidence was that there were only small heaters for the partner and Mr Bajoori and not for him. However he did accept that, by the time he wrote his email complaining about the washroom on 19 April 2016, improvements had already been made to it. He was therefore complaining to Mr Bajoori about a state of affairs which had already been rectified.

[108]The claimant’s responses to these emails of concern from Mr Bajoori did not include any requests for payment of salary. His explanation for that omission was that he was in fear that, were he to do so, the respondent would terminate the CoS. However that is not a logical response to the respondent’s emails which link their reluctance to renew the CoS with the claimant’s low billings to them of commission owed because that would mean non-compliance with the Tier 2 sponsorship requirements. The emails at pages 318 and 338 clearly ask the claimant to explain how he is going to overcome the issue with low billings in order to justify the renewal of his CoS. The claimant replied to the effect that it is not his fault that he has been unable to generate sufficient work. He does not reply to the effect that the respondent is obliged to pay him £40,000 per annum in any event.

[109]Then, on 19 April 2016 at 12:51 Mr Bajoori wrote “further to our conversation this afternoon” and confirmed the termination of the claimant’s contract with the firm in accordance with clause 10.1 (which provided for termination on expiry of 3 years). After that, the claimant continually tried to persuade Mr Bajoori to extend the CoS. He did asked Mr Bajoori in writing “to release the payments” but did not, in terms, demand £40,000 let alone the balance of £120,000 which is the subject of this claim. The claimant said that he was afraid to ask for the money because he thought that it would lead to revocation of sponsorship but this could not be the case after the clear notice of termination of the engagement. Furthermore, the concerns expressed by Mr Bajoori about the risk that the low billings would not cover the minimum earnings (see, for example, at page 318) only make sense if the claimant was only to be paid on a commission basis that the total commission was not likely to be more than £40,000 per annum. Mr Bajoori’s emails are entirely consistent with the respondent’s pleaded position on what was agreed whereas the claimant’s are not.

[110]It is not until after Mr Bajoori’s email terminating the sponsorship, that the claimant emailed (page 347) to say that he suspects that someone is accessing the system from outside the premises and is reassured by Mr Bajoori (page 349). This is not relied upon by the claimant as a protected disclosure, but we note that he does not refer in that email to having raised this issue as a problem the previous year which is what he has alleged before us.

[111]After the notice of termination, Mr Bajoori worked through the files that he had and asked for other specific files to be handed over (page 355 and 359 dated 6 and 9 May 2016). The claimant still did not reply with a demand for the balance of £40,000 per annum. In his email of 9 May (page 360) he made no reference to any sums owed and asked “Please inform me finally whether you are going to sponsor and extend my visa or not willing”.

[112]In oral evidence he explained that the reason for this omission was “unless I hand over the files, he had already sent an email saying they were missing. He would complain I had stolen them.” This is with reference to a detailed email sent by Mr Bajoori on 10 May 2016 (page 362) in which he set out what information he has about a list of 24 files which he had previously asked to be handed over and also detailed of “all the files for which your share of fee has been transferred to your account”. In the course of that email he said “Please note that the files are the firm’s property. The clients can obtain a copy of the files or request the firm to transfer to the files to other firms however you cannot personally remove the files physically away from the firm.” Mr Bajoori also described the claimant as “reluctant” to give his invoices to the respondent.

[113]In his response to this very detailed letter on 11 May 2016, the claimant didn’t ask for the balance of his salary but accused Mr Bajoori of accusing him of theft (see last paragraph on page 366). We consider this to have been a provocative act if, as he claims, he was trying to appease Mr Bajoori. In his oral evidence he explained that he made that accusation in response to the statements “I could not find the following files” and “please note they are the firm’s property” (page 362). There was nothing in that from which it was reasonable to infer that the claimant could not demand his lawfully due salary for fear of being accused of theft. Indeed in the email at page 367 he said, in relation to the billings, that he will have to consult his accountant before billing. That is an inexplicable statement except in the context of a commission based agreement. In our view, the claimant’s credibility as a witness is adversely affected by such an extreme reading of the respondent’s email because it suggests a man who puts forward a conclusion which is not supported by the evidence on which he relies.

[114]On 14 May 2016 (page 374), 16 May 2016 (page 376) and 18 May 2016 (page 378) the claimant asked again about whether the respondent would extend the CoS but then, for the second time, on 19 May 2016 he accused Mr Bajoori of discrimination in relation to the failure to extend his sponsorship. However, he still did not demand the money which he now says was owing (see page 379). The tone of that last email is completely at odds with the picture which he now seeks to paint of a worker who is in fear of his employer and we reject that assertion. We do not think that that was the reason why he did not make written demands to be paid £40,000 per annum in each of the three years 2013 to 2016 at the time.

[115]Our conclusion is that the correspondence between February and May 2016 supports the respondent’s case on the basis upon which it had been agreed remuneration would be calculated for the following reasons: 115.1. Their concern that they could not satisfy the requirements of the CoS is only consistent with them believing that they were not obliged to pay the claimant £40,000 per annum unless he had earned commission of at least that sum and that he had undertaken to be in a position to bill that amount; 115.2. Mr Bajoori’s emails during that period are only consistent with it being his understanding that there was no minimum guaranteed income, regardless of the claimant’s billings; 115.3. The claimant did not, despite ideal opportunities to do so, request in writing that the respondent pay him the allegedly guaranteed sum of £40,000 per annum until 26 May 2016 and his emails are therefore not consistent with his present adopted position; 115.4. The claimant’s explanations for not demanding the sums he now claims were due are not credible and not consistent with the tone of his challenges and responses to Mr Bajoori.

[116]We also rely upon the binding finding of EJ McNeill QC first as to the dates on which the written agreement and the options negotiation document were signed or written and also that it was not possible to infer a contract of employment from the CoS. The evidence, in particular from the last 3 months of the engagement, suggests that, in practice, the claimant’s income was generated on a commission basis alone. This is consistent with the written agreement relied upon by the respondent. In any event, it has been held that this was signed by both parties at about the time it came into effect. We therefore conclude that the written agreement does set out the terms which had been agreed between the parties about remuneration including those about payment of overtime.

[117]Mr Bajoori wrote to refute the claimant’s allegations on 26 May 2016 (page 390). In that email he states that the reason why he had decided not to sponsor the claimant further was “due to your failings and to avoid your further exploitation of this firm … it was never a promise from me that I would give you work. In fact it was you who promised that if I sponsor you, you assure me that your strong client base and Indian corporate contacts would generate sufficient billing to meet the Tier 2 earning criteria.”

[118]The claimant replied by email (page 394) later the same day (26 May 2016). In it, among other things, the claimant complained about bullying and alleged that it was only after he had complained about the heating and washroom facilities that the respondent had refused to extend his job. It was later the same day (page 395) that the claimant first alleged in writing that the respondent should pay him £120,000 in total for the previous three years’ service.

[119]Final relevant correspondence is at page 411 in which Mr Bajoori provided another list of commission due to the claimant upon provision of invoices. The claimant asked for payment but said (as he has maintained before us) on 1 July 2016 that this was not the balance owing (page 413). However he has not provided any different calculations to those done by Mr Bajoori, either in the 2016 correspondence or in his evidence to the Tribunal. Nor did he challenge the detail of the calculations made by Mr Bajoori in his cross examination of him.

[120]By contrast, Mr Bajoori sets out in paragraph 24 of his witness statement the payments which he says were made to the claimant. In his paragraph 37 he set out the hours which he says he estimates the claimant worked in the two years immediately before the termination of his engagement on the basis of the work carried out on particular files. The claimant’s attendance has been described as “erratic” by EJ McNeill QC (her paragraph 18) and he did not work a regular 5 day week with normal office hours. Mr Bajoori estimates that the claimant worked 307 hours in the year 22 May 2014 to 21 May 2015 and 75 hours during the year 22 May 2015 to 21 May 2016.

[121]The claimant makes a generalized allegation that this is inaccurate and underestimates the hours which he worked. However, to the extent that he has explained his activities on behalf of the respondent as marketing and developing contacts there is no evidence that he was able to convert those into fee earning opportunities.

[122]As late as 18 September 2017 (page 451) the claimant wrote to the respondent making an open offer that if they are willing to re-instate him then he will withdraw the unfair dismissal claim. We conclude that he must be exaggerating the extent to which he suffered bullying and unreasonable pressure on account of his immigration status since he was clearly willing to return into the respondent’s employment. Conclusions on the issues (1) remuneration and overtime

[123]In his closing submissions the claimant argued: 123.1. that we, as the tribunal at the final hearing, could, under the Rules of Procedure 2013 rule 70 & 71 reconsider the finding of EJ McNeill QC that the written agreement was signed in May 2013 and that it was not possible to infer a contract from the Certificate of Sponsorship. 123.2. that the offer of the job had been as advertised at a salary of £40,000 per annum (page 257). He described that as the offer. He argued that he had, with his application (page 257), made a counter offer which the respondent had accepted. As he put it “there the contract concludes”. This, he argued, created a binding contract for the respondent to pay a guaranteed rate of £40,000 per annum. The documents at pages 274 and 275 dated from March or April 2016, were provided under threat of revocation of his sponsorship and should not be considered relevant to the terms agreed in May 2013. 123.3. He relied upon the exchange of emails set out at page 288 where the Home Office informed him that the requirements for a Tier 2 migrant included that the sponsor should state on the Certificate of Sponsorship an amount that the migrant will definitely be paid. This, argued the claimant, meant that the CoS should be taken as a representation by the respondent that he would definitely be paid £40,000.

[124]The claimant continued to argue that the written agreement at page 276 had not been read by him before signing, that he had only seen the final page, that it did not represent the agreement between him and the respondent and that it was presented to him when he had applied for another job. His case was that he had no option but to sign it and then Mr Bajoori had immediately send him the notice of termination of employment.

[125]As we have explained above, EJ Mc Neill QC made binding findings that the written agreement was signed in about May 2013 and she considered that a contract could not be inferred from the Certificate of Sponsorship. Even were those not binding conclusions, they are ones with which we agree.

[126]We reject the claimant’s argument that a binding agreement to pay him £40,000 p.a. was formed from the advertisement and application. The advertisement had apparently been drafted by the claimant, and it is not the only evidence of the arrangements for payment. It must be set alongside all the other relevant evidence, including the written agreement. It would be an unacceptable stretch of construction to view the advertisement as an offer. It is in the nature of an advertisement that it is directed towards the world at large, even if the expectation was that the claimant would be the only applicant, and it did not have the effect of offering the job to the claimant at a specific rate of pay because it should not be taken in isolation. We take into account the representation made by the claimant within his application letter and our conclusions on it (see para 70 above). We reject the argument that a binding agreement to pay the claimant £40,000 p.a. was formed by him applying for the job in response to the advertisement. There was no written offer by the respondent and the claimant’s letter of 15 May 2013 accepting the post is consistent with the written terms which we accept were signed at about the date which they bear.

[127]As to the claimant’s argument that rules 70 and 71 allow us to reconsider the facts found by EJ McNeill QC in our view, a challenge to the facts found by an employment judge cannot be made by an application for reconsideration. In the first place the claimant has already applied to EJ McNeill QC herself for her to reconsider her decision (pages 77 - 85) and she declined for the reasons she gave. That was the appropriate procedure for a reconsideration. Secondly, the Rules of Procedure 2013 make plain that the application should be heard, where practicable by the employment judge who made the original decision. Another judge can carry out a reconsideration where directed to do so by the regional employment judge (rule 72(3)) and that is only where it is not practicable for the original judge to preside. Finally, the limited circumstances in which a decision can be reconsidered do not include a challenge to a finding of fact. That can only be done by appeal on the basis that the finding was perverse, such as where there was no evidential basis for it.

[128]On the other hand, the evidence which points towards a commission-based agreement with no guaranteed minimum includes, 128.1. The terms of the agreement which was signed in about May 2013; 128.2. The terms include not only the breakdown of commission in clause 4 but at clause 2.1.19 a statement that the claimant understood the requirement for annual earnings requirement and that he guaranteed that he would meet that requirement; 128.3. The fact that payments were made in accordance with the written agreement; 128.4. The absence of written requests made by the claimant for payments to bring him up to the alleged guaranteed minimum either at end of each year or when he had been told that the sponsorship was to end; 128.5. The representation in the claimant’s application for the role (which he accepted was contemporaneous) about the expected level of his billings which would, if achieved, have entitled him to be paid £40,000. In our view this was because both men knew that in order to meet the requirements of the Home Office the claimant would need to be generating the sort of income which would make the respondent’s statement that his income would be £40,000 true; 128.6. The fact that all of the respondent’s other caseworkers were self-employed and paid by commission.

[129]We have concluded that the terms of remuneration were as set out in clause 4 of the written agreement. We have considered the evidence provided by Mr Bajoori in his witness statement about the fees generated by the claimant and the commission payable on those fees and accept it. The claimant has been paid everything which he was due by way of commission under the terms of his engagement. The respondent is not liable to pay him anything by way of unpaid remuneration or commission.

[130]Our conclusion that the written agreement does represent the terms which were actually agreed between the parties means that the claimant was not entitled to be paid for any overtime worked: clause 3.2 is entirely clear.

[131]The unauthorized deduction from wages claim is therefore dismissed insofar as it relates to basic remuneration and overtime. Conclusions on the issues (2) detriment on grounds of protected disclosure

[132]As for the claim of detriment on grounds of protected disclosure we first consider whether any of the 4 alleged disclosures were protected under s.43C of the ERA.

[133]In relation to alleged disclosure 1, that there was no proper heating in the firm and no proper washroom facilities, the claimant relies upon a complaint about the washrooms made on 19 April 2016 when the washrooms had already been refurbished in March 2014 (see receipts for the work done at pages 611-613). In our view, this does not amount to a disclosure of information that the health and safety of any individual has been endangered or that any legal obligation had not been complied with because it did not convey sufficient facts. Furthermore, it is not made in the public interest when the alleged failing has already been rectified. Therefore this was not a qualifying disclosure. So far as the heaters are concerned, to the extent that there is a conflict between the evidence of Mr Bajoori and the claimant about this we prefer the former. We accept that there were fan heaters under each desk and even if that did not provide the level of heating which one normally expects in a modern office we do not consider that the complaint about the heaters provides information that the health and safety of a person was being endangered and the disclosure was not made in public interest. The claimant did not have a reasonable belief in the asserted facts which are also too vague to tend to suggest any of the breaches specified in s.43B ERA. The email of 19 April 2016 did not amount to a protected disclosure.

[134]In relation to alleged disclosure 2, The statement in the email of 2 June 2016 that “a computer was working without a person” is similar to the claimant’s evidence that this was what had alerted him to Mr Lewis working remotely. In this instance we accept that the claimant may have mentioned this to Mr Bajoori orally on an earlier occasion despite his failure to reference it in the later email. However, in our view, this statement does not amount to a disclosure of information that a person is failing to comply with a legal obligation, which is the construction which the claimant now seeks to put upon it. We consider this to be another example of the claimant drawing a conclusion from his observations which are not objectively merited by the facts. We are therefore of the view that the alleged second protected disclosure is not protected because the information conveyed does not tend to suggest a relevant breach and because the claimant’s belief that he was informing the respondent about a failure to comply with a legal obligation was not a reasonable one. There is nothing to substantiate the claimant’s allegation that data was being transferred out of the EEA (as protected disclosure 2 is described at page 47) nor that the respondent’s software licences were not up to date (which is what this allegation developed into). If he had made that allegation, the respondent could have just shown the claimant the licences and therefore, even if the claimant believed and made those statements they were not reasonable beliefs to hold.

[135]In relation to alleged disclosure 3, if the claimant had questioned whether clients which had come to the firm from Srinivasans had consented to the transfer, he could have asked and would been shown the transfer dated 31 Marcy 2013 which contained a statement to that effect (pages 529 and 536). His case is that he expressed those concerns in 2015 which was approximately 2 years after the transfer. We do not find it credible that 2 years after the event the claimant would have been expressing concerns about whether the clients had consented or not and we therefore find that he did not make the alleged disclosure. Furthermore, he made no reasonable enquiries about whether they had or had not consented and therefore if, contrary to our finding, he did express concern about whether they had consented, he did not have a reasonable belief in what he was stating.

[136]The height of the claimant’s case in relation to alleged protected disclosure 4 is that he advised Mr Bajoori that there was a risk to the respondent firm because Mr Lewis was accused of corruption in litigation in which he personally was involved. He did not say when he raised these concerns and said that he did so orally. The statutory test requires more than that an allegation should be raised; it requires that there has been a disclosure of information which, in the reasonable belief of the person making the disclosure, is made in the public interest and tends to show that (for example) a criminal offence has been committed (or is or is likely to be committed but in the context of this alleged disclosure the claimant was informing about an allegation about past conduct). In any event we reject the claimant’s account that he warned about the allegations of corruption against Mr Lewis (see paragraph 93 to 97 above).

[137]Notwithstanding the findings we have made about the alleged protected disclosures, we next set out our conclusions about the alleged detriments. The claimant’s allegation that he had not been repaid £10,000 related to loans which Mr Savanandran made to Mr Bajoori when he had had to travel urgently to India because his father was seriously ill. Both parties agreed that £9,000 had been advanced by the claimant to Mr Bajoori. The claimant alleged in his ET1 that the money had not been repaid. However, in cross examination, he accepted that he was, in fact, repaid £10,000 in three installments of £3,000 (on 12 November 2014 page 622), £2,000 (on 24 November 2014 page 623) and £5,000 (part of the £8,420 paid on 18 December 2014 page 624). Lest there be concern that there is any double counting here and confusing between commission payments and repayment of the loan, the balance of the payment of £8,420, namely £3,420, is credited to the claimant as commission (see paragraph 24 of SB’s statement for the FH and also the letter from the respondent’s accountants at p.511 paragraph 2).

[138]Mr Bajoori stated in paragraph 29 of his statement that he repaid £10,000 (rather than the £9,000 which had been lent) out of gratitude. The claimant alleges that this was simply to pay his salary but we are satisfied by the detailed accounts prepared by Mr Bajoori and his accountant that they accounted for the commission which was owed separately. We are quite satisfied that the money lent by the claimant has been repaid and this allegation is false. The claimant did not suffer this detriment, let along on grounds of any protected disclosure. In fact, on exploration, it appeared that the claimant’s case boiled down to the payments having been made by the firm account (which at the time was a sole trader) rather than by Mr Bajoori personally. We are satisfied that the payments we have listed were made to repay the claimant’s loan.

[139]The reference letter was provided by Mr Bajoori within a sensible time after the request (no more than 3 days) and we find that there was no detriment to the claimant in relation to this.

[140]Furthermore, we reject the claimant’s assertion that the respondent did not pay him the salary and overtime due or pay holiday pay and sick pay because of any protected disclosures which he made. The terms of the agreement were for him to be paid commission and he was paid in accordance with it. He was not paid overtime because he was not entitled to be paid for it. Although he should have been paid holiday pay, the reason why he was not paid it was entirely due to what the respondent believed his rights to be and not because of any protected disclosure. The terms of the written agreement at clause 5.1 and 6.2 stated that the claimant was not entitled to holiday pay or sick pay.

[141]We are also satisfied that the reason why the claimant was not interviewed for the Litigation Solicitor: Corporate, Shipping and Insurance position and Mr Pillai had nothing to do with any protected disclosure. It was entirely due to the fact that Mr Pillai had relevant experience for the role which the claimant did not have.

[142]The final detriments alleged by the claimant are that he was forced to work late in cold weather, was threatened with withdrawal of his sponsorship and ultimately the contract was not renewed because he, the claimant, had made the alleged protected disclosures. We accept Mr Bajoori’s evidence, which is supported by the emails complaining about the claimant’s irregular attendance at work and by the limited file activity, that the claimant did not work long hours. The only specific complaint made by the claimant about the weather was an occasion when he complained that, because he had been unable to get into the office, he had taken cold. We find that this alleged detriment did not happen as a matter of fact.

[143]We find that the reason why the respondent terminated the contract was that the CoS needed to be renewed and the claimant was not going to bill enough to comply with the minimum income (see email of 18 April 2016 at page 338). The respondent’s warnings about the consequences of low billings predate the claimant’s email of 19 April 2016 (which he relies upon as a protected disclosure). The termination had nothing to do with the email.

[144]We also find that the most that the respondent did was warn the claimant that if his billings were not at a level which meant that his commission met the minimum earnings requirement then his sponsorship would not continue (for example on 17 February 2016 at page 318). This is very far from the claimant’s allegation of threats to deport him and was quite appropriate, given the risk to the respondent’s ability to sponsor other employees if they gave a false or misleading certification to the Home Office. There was no detriment to the claimant in relation to these warnings and the reason for them was the claimant’s low billings. Conclusions on the issues (3) - Holiday Pay

[145]The respondent’s submissions on the quantification of holiday pay are contained in their written submissions. The claimant did not make submissions about how much the quantum of the claim should be.

[146]The respondent’s approach was 146.1. that there should be a long stop of two years from the date of presentation of the claim; 146.2. that the claimant is only entitled to holiday pay under the Working Time Directive (2003/88/EC) and therefore only to 20 days’ leave and not the additional leave under reg.13A of the Working Time Regulations 1998; 146.3. A rate for a day’s work can be calculated by dividing the total paid to the claimant in the last two years of employment by the total number of available working days (see paragraph 13)c) of Mr Aamodt’s written submissions). Mr Aamodt suggested a daily rate of £37.05 and therefore that the amount payable for (what he argued were) 35.8 days’ holiday pay owing was £1,342.50; 146.4. It was also argued on behalf of the respondent that there had been an overpayment of £1,000 to the claimant and that credit should be given for that under s.25(3) ERA.

[147]The £1,000 alleged overpayment is set out in paragraph 28 of Mr Bajoori’s witness statement. However the reason for it appears to be explained in paragraph 29 where he said, in relation to the repayment of the loan advanced at the time when his father in India was ill “I repaid him a total of £10,000 in gratitude for his assistance during my family emergency.” It seems to us that at the time when Mr Bajoori paid the additional £1,000 (back in December 2014) he did not expect to have it returned to him and it was in the nature of an ex gratia payment. We are therefore of the view that it should not be deducted from any sums due by the respondent to the claimant now.

[148]According to the written agreement, the claimant’s normal hours of work were 9.30 am to 5.30 pm Monday to Friday (clause 3.1). Given our findings that the claimant was remunerated solely by way of commission, the claimant’s situation is materially indistinguishable from that of Mr Lock and the value of a week’s pay falls to be calculated with reference to s.221(2) ERA. He is entitled to that element of his holiday which derives from EU Law in accordance with the decision of the Court of Appeal in Lock v British Gas Trading Ltd

[2016] IRLR 946

. That is the 20 days’ leave which has been transferred into domestic law in reg.13 WTR.

[149]He brings his application for a payment in lieu of annual leave accrued but not taken on termination of employment under s.23 ERA and therefore the two year long stop set out in s.23(4A) applies. We then need to calculate a week’s pay. Although someone in the claimant’s position falls within s.221(2) as a person whose remuneration does not vary with the amount of work done, but with the results of that work, the standard situation under that subsection is an employee who is paid a basic salary. It might be tempting to consider taking a 12 week reference period, as if it were a s.221(3) case, however, that is a little difficult in the present case. This is because the work and the billings are not generated evenly over the period of the engagement. Indeed, to judge by paragraph 37 of Mr Bajoori’s statement, only two files were opened in the last 6 months of the contract. We do not have the information about when the fees were collected.

[150]In those circumstances we adopt Mr Aamodt’s suggestion that an appropriate way to calculate a weeks’ pay is to take the total number of possible working days in the two years preceding the presentation of the claim and divide that into the total commission earned. The total number of work days is 207 days from 24 July 2014 to 21 May 2015 (less weekends and 8 bank holidays) plus 253 days from 22 May 2015 to 21 May 2016 (less weekends and 8 bank holidays). The total paid to the claimant in that period was £17,263.02. His remuneration for a days’ work was therefore £17,263.02/460 or £37.53.

[151]There are a total of 666 days between 24 July 2014 and 21 May 2016. The annual leave which would have accrued under reg.13 WTR would be 666/365 multiplied by 20. That is 36.49 days. Therefore the value of the claimant’s holiday pay accrued but not taken on termination of employment is £1,369.47.