Solicitor’s overcharging warning to firm was a protected disclosure

Tribunal: Rehearing

A solicitor’s warnings to his law firm that it was overcharging a client were protected disclosures under employment law, a tribunal has ruled.

Employment Judge Gordon Walker in London said disclosing a possible breach of solicitors’ professional rules was in the public interest.

The hearing was held after the Employment Appeal Tribunal last year overturned a decision that Alastair Dobbie, who worked under a consultancy agreement with London firm Feltons Solicitors, did not believe that his emails were in the public interest.

It said the first tribunal had applied the wrong test and ordered that the case be reheard.

Mr Dobbie was heavily involved in work for ‘Client A’, which Judge Walker described as “by far” Feltons’ biggest client. It was a group of insurance companies behind a lead insurer, one of the largest companies in the world.

The solicitor contended that he made two protected disclosures by email to his supervisor to the effect that Client A had been overcharged in the course of litigation the firm was acting in.

He claimed he was then subject to a number of detriments, the most significant of which was the termination of his consultancy agreement.

There has been no finding that Feltons did, in fact, overcharge Client A – the question was what Mr Dobbie reasonably believed.

The original tribunal found that his was a reasonable belief but that the emails instead concerned a private matter, warning about the risk to the firm when a costs assessment came around.

Judge Walker held that Mr Dobbie believed the first disclosure was made in the public interest and was not about a purely private or personal matter.

“A disclosure of information about a possible breach of the Solicitors Accounts Rules is a very serious matter, which can result in breach of regulatory requirements and disciplinary proceedings. The regulations are in place to protect the public.

“A disclosure of their potential breach is a subject that is likely, by its nature, to be made in the public interest.”

He rejected the submission that Mr Dobbie’s aim was to protect the firm’s fees from challenge by Client A: “The claimant’s suggestion in the first disclosure that ‘an honest and frank discussion with [Client A2] be held imminently on costs’ indicates that the claimant was trying to rectify the alleged wrongdoing,” the judge said.

While Mr Dobbie may also have been motivated by a desire to increase his fees – he received 40% of what he billed – the case law said a belief that a disclosure was in the public interest did not have to be the predominant motive in making it, he continued.

Further, the belief was reasonable. A “large number of people had interests that were potentially served by the disclosure”, Judge Walker said, including Client A, its opponent in the litigation and Feltons’ potential clients.

Though the alleged overcharging of up to £37,500 would not have had a significant impact on a business the size of Client A, it was still a large sum of money.

Another reason was that the alleged wrongdoer was a solicitor. “Solicitors, as officers of the court, are held to high standards of conduct, including requirements of honesty and integrity. This is in the public interest. It is important for the public to have trust in the profession.”

As regards the second disclosure, Mr Dobbie “made a clear statement alleging that the [firm] had subjected him to detriments for blowing the whistle.

“Given the purpose of the legislation is to protect whistleblowers, this is a subject that is likely, by its nature, to be a matter in the public interest”.

Again, the belief was reasonable, the judge said. The disclosure served not only Mr Dobbie’s interests but also all of Feltons’ workers, “who could potentially be subjected to the same alleged wrongdoing”.

Judge Walker went on: “The disclosure concerned serious allegations of detrimental treatment at work, on grounds of making protected disclosures. This included an allegation that the claimant was being removed and sidelined from working for Client A (which was his main or sole source of income from the respondent), and that he had not been paid for the work he had done.

“The nature of the alleged wrongdoing is against the very purpose of the whistleblowing legislation. It is serious and alleged to be deliberate.

“[Further] the identity of the alleged wrongdoer is a solicitor. It is in the public interest that she is held to high standards of conduct.”

The next stage will be to determine whether Mr Dobbie suffered a detriment because of the protected disclosures. The original tribunal found he did not as his contract would have been terminated anyway.

In a separate strand of the proceedings last year, another tribunal ruled that Feltons was not entitled to make deductions from Mr Dobbie’s pay because it was unhappy with the quality of his work.

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