SDT rejects employment tribunal finding of solicitor’s discrimination

Bhatia: Solicitor did not genuinely believe paralegal was guilty of benefit fraud, tribunal said

The Solicitors Disciplinary Tribunal (SDT) has cleared a leading solicitor of pregnancy discrimination against a paralegal despite an employment tribunal finding him guilty of it.

The SDT decided that, although Ash Bhatia had treated Elaina Brown unfavourably and wrongly accused her of benefit fraud, this was mainly because of performance issues, of which her pregnancy was only a minor factor.

The panel decided that Mr Bhatia, managing director of leading Nottingham-based firm Bhatia Best and former president of Nottingham Law Society, would have done what he did even if she had not been pregnant.

The SDT ruling has finally been published, more than six months after the hearing at which the bare decision was announced.

In 2019, Employment Judge Ahmed held that Mr Bhatia’s belief that Ms Brown was guilty of fraud “was neither a reasonable belief nor an honest belief” and she was the victim of pregnancy and maternity discrimination.

The SDT ruling revealed that the firm settled the case for £50,000 plus costs of £30,000.

SDT rules say that, while the judgment of any civil court or tribunal exercising a professional or disciplinary jurisdiction is admissible as evidence, it is not “conclusive proof” of the facts therein.

The panel decided that the employment tribunal did not meet the test – even though both parties accepted that it was a ‘court’ for these purposes – and so its ruling was not admissible.

Either way, it said, this did not matter because of the conclusive proof caveat. Similarly, criticism of the judge’s ruling by Mr Bhatia’s counsel was irrelevant as the SDT had to make its own mind up on the facts.

“The burden of proof in these proceedings remained on the SRA throughout. Mr Bhatia did not have to prove anything,” it said.

Ms Brown had a pregnancy check-up at hospital on 7 August 2017 which overran, and another director of Bhatia Best took a client meeting for Ms Brown in her absence.

Later that day, there was an email exchange between Ms Brown and Mr Bhatia in which he related his concerns about her perceived unreliability to her personal circumstances, including her pregnancy.

This was followed by a meeting the next day between the pair, after which Mr Bhatia telephoned the Department for Work and Pensions’ fraud hotline. Ms Brown was dismissed the following day for alleged fraud on the basis that she had claimed benefits using her maiden, rather than married, name.

The SDT said it “completely rejected” the characterisation of Mr Bhatia’s role at the meeting as that of a ‘fairly godmother’.

“The meeting may have included some supportive comments, but overall it amounted to a robust telling-off of Ms Brown, with the clear message being that if she did not improve her reliability she risked being dismissed.

“The tribunal was satisfied on the balance of probabilities that Mr Bhatia had treated Ms Brown unfavourably at the meeting.”

But it did not accept that this was because of her pregnancy and upcoming maternity leave. “The tribunal noted that pregnancy and maternity were clearly discussed in the meeting. However, other issues were also raised, including wider health and family issues and Ms Brown’s study plans.”

The panel said Ms Brown would have been treated unfavourably even if she had not been pregnant.

“Mr Bhatia had raised numerous issues with Ms Brown and taken her to task on them in relation to how it impacted on the business. That included pregnancy and maternity but that was not wholly or mainly the focus of his concerns.

“In his email of 7 August 2017, he had referred to the pregnancy issues exacerbating his concerns, which was evidence that Mr Bhatia had a series of concerns and this was just one of them. The main reason for the unfavourable treatment was Ms Brown’s absences from work.

“The reason for those absences were multiple and varied and included, on occasion, pregnancy-related matters.”

The SDT did not accept that Mr Bhatia genuinely believed Ms Brown had committed benefit fraud. “At most he may have had some suspicions. His enquiries, undertaken that morning, had been cursory and no conclusion had been reached.”

The focus on Ms Brown’s title during the SDT hearing was “surprising” in circumstances where she, like anyone else, was “perfectly entitled to be referred to by whatever title and name she chose”. The issue was whether she had made all the appropriate notifications to the authorities, not the title she used.

The SDT continued: “Rather, having lacked a reason to dismiss her the day before, [Mr Bhatia] had latched on to this issue as a pretext for dismissing her. The tribunal found that Mr Bhatia was motivated to dismiss Ms Brown by the performance issues.”

But again, the SDT held that Mr Bhatia would still have dismissed Ms Brown if she had not been pregnant.

The SDT did reprimand Mr Bhatia for failing to report the employment tribunal ruling to the SRA; he “was aware that an adverse finding against the firm of discrimination was the sort of matter that ought to be reported to the SRA”.

However, there was no harm caused by the failure to report – the SRA had found out about the matter via a local newspaper – and it was “a single episode in a previously unblemished career”.

The SRA sought costs of £19,390 but the SDT only awarded £1,000, whilst acknowledging that the case had been properly brought.

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