
Tribunal: Health and safety claim dismissed
A salaried partner was “unrealistic” in his expectation of joining the equity of his firm given the poor financial performance of his department, an employment tribunal has ruled.
It was also critical of Gerard Airey in dismissing his constructive dismissal claim against Ronald Fletcher Baker (RFB), saying the “inconsistency” in his accounts around certain key facts were central to its findings in favour of the firm, which has offices in London, Manchester and Exeter.
He was also “not aided by what the tribunal describes as his decision to engage in reverse engineering”.
It explained: “What the tribunal found was that the claimant had placed great reliance on establishing a motive of the respondent… for certain steps, ulterior to their open and obvious stated purpose.”
After what it described as “protracted and heavily contested litigation”, the tribunal rejected Mr Airey’s case that 12 factual assertions constituted both individually and cumulatively a fundamental breach of contract sufficient to entitle him to resign in November 2022 and claim constructive dismissal.
Mr Airey joined RFB in July 2019 as a salaried partner and head of employment. The tribunal found that his focus “was largely on his own development, as opposed from the department that he ran”.
He understood that it was important for the department to be profitable “within a reasonable period of time and that the measure of profitability was three times the salaries of its team members”.
But it did not come close to this and so Mr Airey’s expectation that he be promoted to equity partner was “unrealistic”.
“It was only in the last three months of the claimant’s employment that the employment department started to demonstrate that it could achieve the level of financial performance which would satisfy the equity partners.
“By the end of the three and a quarter years, total profitability for the department amounted to no more than £60,000 covering the entire period and was some way significantly short of the three-times salary target reasonably sought by the equity partners.”
Further, given his “inharmonious and confrontational relationship” with then managing partner Rakeebah Rahim, “it was highly unlikely that the claimant would be considered to be a suitable person to promote to equity”.
One of Mr Airey’s complaints was Ms Rahim’s decision to end a £5,400 monthly retainer with a referral company called Employment Claims 4U (EC4U), which he had said could generate 10 times as much in fees.
But eight months into the contract, EC4U had delivered only 43 of the 240 cases promised and Ms Rahim cancelled the contract.
This “did not, and could not, constitute a fundamental breach of the claimant’s employment contract”, the tribunal said.
“It was a sensible, essential and urgent commercial decision for the respondent to cut their losses when the EC4U contract was not making the expected investment returns for the employment department.”
In any event, EC4U was de-registered by the Financial Conduct Authority soon after.
Another assertion was that the promotion of a colleague in the employment department to salaried partner – which Mr Airey had lobbied for – meant that he was effectively demoted to joint head of department.
The tribunal rejected this. It was “plain to all concerned” that Mr Airey had not been demoted – he was still head of department and other departments worked similarly, where one of multiple salaried partners was the head.
Also, just because a pay rise for the new partner meant the department’s financial target increased did not mean Mr Airey was “set up to fail,” as he alleged.
“The increase was £30,000 and while this would have a significant impact given the department’s hitherto lacklustre performance, it was nonetheless a rise that the claimant should have anticipated given his entreaties to the equity partners to promote [his colleague].”
The tribunal also rejected a health and safety claim where Mr Airey said he was subjected to a detriment because he stayed at home after receiving an NHS test and trace alert. It was common ground that RFB did not request or require him to attend work.
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