Fine for senior partner who “accidentally” discriminated against colleague on grounds of age and religion

SRA: only allowed half of its costs

A senior partner who was found by an employment tribunal to have discriminated against, harassed and victimised a former equity partner at his firm, has been fined £2,000 by the Solicitors Disciplinary Tribunal (SDT), which found his culpability to be “low” as his behaviour had “just crossed the line into discrimination”.

The SDT said that Anup Shah “had not intended to discriminate or victimise” his colleague, “although this had been the outcome”.

Rather, “the misconduct had arisen from a dispute between two people who had been friends but whose relationship had become rancorous”.

Mr Shah, 54, was admitted in 1986 and was senior partner of central London firm CVS Law. The SDT said the case concerned an employment tribunal claim brought by a NVDB, a former equity partner who had retired in 2006, but was to remain a consultant for a further five years.

It said the relationship between the pair deteriorated over various issues. Mr Shah became senior partner in 2008 and the following year NVDB said he wanted to end the consultancy. Mr Shah refused and instead NVDB said he would reduce his hours.

With relations worsening, Mr Shah sent NVDB an email two days before Christmas 2009 which included the comments, “What all this hatred? Maybe you need to seek help”, and “I thought Catholic Christians would know better than to spread such hatredness (sic) especially during Christmas”. The email was sent to others at the firm.

At the employment tribunal, Mr Shah accepted that the email could be seen as humiliating.

The situation continued to deteriorate, with NVDB complaining that he was being victimised in various ways, including making him work in the server room, two floors away from the office.

In an email to NVDB in September 2010, among other things Mr Shah described him as “a bitter old man who has lost his marbles”, “selfish”, a “parasite” and “long past your sell-by date”. He later accepted that some of his comments were offensive.

The SDT recorded that Mr Shah had also told the employment tribunal that he was “in effect calling NVDB a hypocrite because he acted in a way that was inconsistent with his religious beliefs”.

The following month, Mr Shah demanded £5,615 from NVDB to repay previous practising certificate fees which the firm had not been required to pay under his consultancy agreement. These were eventually deducted from NVDB’s consultancy fees, but a similar request was not made of another former partner who was also a consultant.

The employment tribunal found the December 2009 email to be unlawful harassment by the firm of NVDB on grounds of religion, a March 2010 email calling him a “bitter old man” to be unlawful harassment on grounds of age, the September 2010 email to be direct discrimination on grounds of age and religion, alternatively unlawful harassment on grounds of religion and age, and the November demand for repayment to be age victimisation.

Mr Shah and the firm were ordered to pay compensation of £18,509 for injury to feelings on a joint and several basis.

In mitigation, Mr Shah told the SDT that his comments about NVDB being a “bitter old man” were plainly discriminatory “but were not motivated by discriminatory feelings. [He] did not believe that people were less deserving of respect due to age or religion”.

He also submitted that exchanges between two men who had known each other for 30 years were different to a situation where a managing partner used such language to a fee-earner.

The solicitor accepted that his language had been “intemperate and had crossed the line”, but that the conduct had taken place many years ago, was exceptional and had not been, “nor would it be”, repeated.

Saying the language “just crossed the line into discrimination”, the SDT concluded that it was “neither planned nor spontaneous but it was reactive to the situation in which [Mr Shah] found himself”. Given NVDB’s level of experience, “this was not a case of [him] sending such emails to a subordinate. The tribunal concluded that [Mr Shah’s] culpability was low”.

The SDT said the harm to the profession was “limited”, but the misconduct was aggravated by the fact that it was repeated and took place over a period of time. At the same time, this was mitigated by the “insight” Mr Shah had shown into his conduct, his “genuine” apology and his clean disciplinary record.

The “appropriate and proportionate sanction” was £2,000, the SDT concluded.

The SDT only awarded the Solicitors Regulation Authority (SRA) half of the £32,000 in costs that it sought, saying that by initially alleging dishonesty against Mr Shah – a charge it later dropped – the proceedings had become far more intense than they would have done had the regulator restricted its case to the findings of the employment tribunal.

It also noted that the SRA had the power to impose a £2,000 fine itself, which would have led to Mr Shah paying costs of just £600.

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