Tayler: Coruscating findings
A former managing partner has failed in his appeal against a £210,000 costs order after trying to mislead an employment tribunal (ET) in a claim against his firm.
His Honour Judge James Tayler, sitting in the Employment Appeal Tribunal, rejected Michael Willis’s contention that the employment tribunal failed to take into account the effect on his wife and children of the award in favour of Sheffield-based GWBHarthills.
The long-running claim followed Mr Willis’s absence due to ill-health from July 2018 – initially due to cancer and later depression and then stress – and he retired from the partnership in March 2021.
He brought two claims against the firm and two of its partners. In the first, the respondents admitted both direct and indirect disability discrimination, as well as a failure to make reasonable adjustments. There was no hearing for this.
The conduct started in November 2019 and stopped on 7 January 2020 following the intervention of Mr Willis’s solicitors and corrective action being taken.
The second claim of disability discrimination and victimisation was rejected, with the ET finding that Mr Willis “was not a truthful witness” and tried to mislead it “in some material aspects by the evidence he gave”.
At the remedy hearing, which considered both findings, the ET rejected his claim for £80,000 in damages for personal injury, injury to feelings and special damages in relation to the first case. This was upheld on reconsideration.
Mr Willis was ordered to pay costs, limited to £210,000, for his unreasonable conduct of the second claim.
As quoted by HHJ Tayler, the ET said: “The nature and extent and scale of the claimant’s deception was extreme because he was attempting to mislead the tribunal to obtain relief knowing he was not entitled to it because he was not telling the truth.
“We agreed that misleading a court or tribunal is one of the most serious findings of unreasonable conduct by a party and particularly egregious for a party who is a solicitor.”
HHJ Tayler observed: “While I appreciate that the claimant still disputes these conclusions, they are not subject to challenge in the grounds of appeal that have been permitted to proceed.”
Mr Willis was allowed to appeal on three grounds, first that the ET failed to have any regard to his ability to pay at all. “This ground is based on a misreading of the judgment,” said the judge, dismissing it.
“The findings against the claimant were extremely serious and go to his honesty and the reliability of his evidence. Notwithstanding these coruscating findings the employment tribunal did consider the claimant’s ability to pay.”
The solicitor said the award made it “materially likely” that he would have to sell his family home and that the tribunal did not take into account the impact of this on his family.
Among other things, he argued, his wife was joint owner of the home and any forced sale would take place at a time she was caring for Mr Willis “in the late stages of stage 4 bowel cancer; if [he] were to pass away the effect of the costs order would fall solely on his wife and children”.
Mr Willis also submitted that the tribunal was also wrong to take into account that he was due an estimated profit share payment from the law firm of £340,000 – which he claimed GWB was disputing and had not paid.
HHJ Tayler said the ET concluded that the claimant was likely to be able to pay the costs award given his half-share in the family home and likely profit share, notwithstanding his other debts.
“While it did not specifically refer to the consequences that a sale of the house would have on his wife and children, I do not consider it was required to do so, particularly because on any valuation this was a very substantial capital asset.
“In taking a realistic view of the claimant’s future ability to pay I do not consider that the employment tribunal erred in law in considering the possibility of some form of equity release, even if it was not specifically canvassed in argument.
“It is obvious that where such a valuable asset is held there are options to release some of the value. The employment tribunal might equally have referred to the possibility of the claimant and his wife selling the property and moving into less valuable accommodation.”
HHJ Tayler also found no error of law in the ET taking the likely profit share into account. The “broad-brush assessment of ability to pay was justified by the specific circumstances of this case.
In a postscript, he said GWB had explained that the costs award had indeed been recouped from the profit share.
“While I did not take that into account in considering the appeal as it was not information available to the employment tribunal it may be of some comfort to the claimant in considering the practical consequences of this appeal being unsuccessful.”
Last year, Mr Willis was separately ordered to pay costs of £32,500 in relation to the first claim he brought.
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