Tribunal: New evidence was not of primary fact
An employment tribunal has refused to reconsider rulings that went against a former law firm managing partner despite new evidence that undermined a key finding about his honesty.
This included a decision of the Solicitors Regulation Authority (SRA) not to take action against him over it.
Michael Willis sued Sheffield-based GWBHarthills for disability discrimination in two claims. Though he succeeded [1] with the first, which related to a short period of time, he failed [1] with the more substantial second claim.
At the remedy hearing, which considered both findings, the tribunal rejected his claim [2] for £80,000 in damages for personal injury, injury to feelings and special damages in relation to the first case.
A key element of the second case was a precondition of the income protection benefit (IPB) he received under permanent health insurance provided by Aviva and paid for by the firm, which was paid on the basis that he was ‘totally’ unable to work.
But he continued to claim a profit share and the second tribunal found he concealed the truth from Aviva about the work he was doing and his income from the firm because it would have affected the IPB.
Employment Judge Rogerson found in the second claim: “His case was fundamentally contrary to the evidence and his evidence at this hearing was untruthful and was misleading. The claimant’s assertion that he was being ‘completely transparent’ with the Aviva and had disclosed all the information they requested was also untrue.”
In now seeking reconsiderations of the rulings in the second claim and over costs and remedy, Mr Willis said the new evidence would have had an “important substantial influence” on the tribunal’s findings had it been available.
First was a letter from Aviva’s solicitors, Mills & Reeve, setting out the insurer’s “considered position” that, although Mr Willis had not been entitled to be paid IPB when continuing to receive profit share and as a result had to repay it some £282,000, “the overpayments had resulted from a misunderstanding about the claimant’s circumstances regarding profit share”.
Second, an investigation officer at the SRA decided that Mr Willis had believed he was entitled to receive profit share and IPB at the same time if the benefits were paid into his pension fund.
There was insufficient evidence to prove, to the required standard, a breach of the SRA’s rules. Therefore, the regulator would not be taking action against him.
Regional Employment Judge Robertson – sitting in place of Judge Rogerson, who was ill – noted that there were “additional grounds” for the findings about Mr Willis’s honesty.
He continued: “The new evidence on which the claimant relies is not evidence of primary fact. It consists of after-the-event assessments by an insurance company and a regulatory body, reached without formal judicial process or taking evidence at a hearing in the way the tribunal did.
“I accept that those carrying out the assessments in the new evidence have taken a more benign view of the claimant’s conduct than did the tribunal.
“But having regard to the tribunal having made its findings after a full and comprehensive judicial process, there is no reasonable prospect that the tribunal will vary or revoke its judgments because of this new evidence. I therefore refuse the claimant’s applications.”