Update 10: Employment Tribunal Hearing (14 – 18 March 2022) update #3 – Judgment

At last the long awaited Judgment and Reasons in relation to the above hearing has been published.

The 54-page Judgment and Reasons document can be downloaded by clicking here – main hearing Judgment and Reasons

The reserved judgment summary is set out below.

The complaint of wrongful dismissal is well founded and succeeds
The complaint of a failure to pay a redundancy payment is well founded and succeeds.
The complaint of unfair dismissal fails and is dismissed.“
The complaints of discrimination arising from disability in respect of allegations that the Respondent refused to provide the Claimant with a comprehensive response to his data subject access request; made unfounded allegations of misconduct against him and failed to correct comments made by a Mr. Roger Cockle in an email of 26th August 2020 are dismissed on withdrawal.
The remainder of the complaints of discrimination arising from disability fail and are dismissed.
The complaints of a failure to make reasonable adjustments fail and are dismissed.“
The complaints of unlawful harassment related to the protected characteristic of disability fail and are dismissed.“
The complaints of victimisation fail and are dismissed.

In typical style the subsequent members update issued by the directors to members — we quite reasonably assume all communications from the committee to have been drafted by the chairman, Gawain Briars — is, unsurprisingly given their historical record, deliberately misrepresentative in attempting to portray themselves as having been vindicated in their actions and of having done little wrong.

Dear Members
The Reserved Judgment on this claim has now been received. The Club accepted at the beginning of the Tribunal, held in March 2022, that the Complainant’s redundancy pay was incorrectly calculated, and this would need to be made good.
Subsequently, the Club’s position has been successfully defended and the Tribunal dismissed all the contested claims made by the Claimant…”

NSRC committe to members
(27 June 2022)

Of course the communication fails to mention the rather significant finding of wrongful dismissal and, amongst other negative findings detailed in a previous post Employment Tribunal Hearing Update #2, the quite despicable denial by the directors of knowledge of Noah Duckworth’s disabilities, eventually conceding knowledge of his disabilities at the beginning of the hearing.

The reality is that whilst the directors appear to have dodged a fatal bullet in respect of financial liability, i.e. potential damages — though by their own admission £10,000 was set aside to cover legal fees not covered by insurance — the reputational damage to them and the club continues to escalate as a consequence of their damaging activities as illustrated by Judge Heap’s summary:

However, the Respondent should not take the conclusions that we have reached as an endorsement that their treatment of the Claimant was at all times fair and reasonable. Far from it.
We consider the content and tone of the email that Mr. Cockle was permitted to send without redress and calling for the suspension of the Claimant to be extraordinary and it is plain that he became an unfortunate casualty in that regard of the faction between the then Committee and the membership. It would be damaging to anyone but particularly to the Claimant given his disabilities and history of having been bullied in his earlier years.
Instead of the Respondent dealing with matters as they should have via the Committee, members inexplicably became involved in considering matters such as the Claimant’s contract of employment and the wages that he received, all of which should have been kept confidential.”

Employment Judge Heap
Employment Tribunal Hearing
(14 – 18 March 2022)

As with all legal proceedings of this nature hearings tend to shine a light upon peripheral matters revealing the reality of previously murky and unclear areas as the below perfectly illustrates.

Obtaining and disclosure of personal data

In his email (26 August 2020) “sent to all members” (click here to view/download the Cockle email) — which pretty much kick-started the sequence of events leading to the ousting of the then Nick Duckworth-led committee and now described by Judge Heap as “frankly astonishing” & “extraordinary” — current committee member, Roger Cockle, disclosed Noah Duckworth’s salary payment for the month of July 2020.

That begged the question of how did an ordinary club member obtain such confidential information to enable its disclosure. Unsurprisingly that question remains unanswered by this, and previous, partisan committees.

However what we now know, following publication of the Judgment & Reasons, is that the then ordinary member now chairman, Gawain Briars, simply requested a copy of Noah Duckworth’s Human Resources file from the manager, Nick Hargreaves, who duly obliged. Further, as has been previously stated, it is our suspicion that Gawain Briars had a significant hand in the drafting of that Cockle email.

As part of his initial involvement Mr. Briars had requested a copy of the Human Resources (“HR”) file from Nick Hargreaves, although we are not entirely clear why he needed to do that to assist in restoring a sense of harmony but nevertheless he did so and was provided with a copy.
It has to be said that it is somewhat concerning that Mr. Briars was afforded access to what should have been confidential information given that at that stage he was only a member of the Club but was not a member of the Committee.”

Employment Judge Heap
Employment Tribunal Hearing
(14 – 18 March 2022)

Judge Heap’s expression of concern with respect to the obtaining and disclosure of such “confidential information” by ordinary members and management is well founded as such actions, undertaken without the consent of ‘the controller’, are classed by the Crown Prosecution Service as criminal offences (CPS: Data Protection Act 2018 – Section 170).

You would like to think that any registered solicitor, practising or not, would be acutely aware of this and the potential consequences. Then again, certain individuals actually believe themselves to be above the law and untouchable.

Given that those actions were undertaken covertly, without the knowledge of the company directors at that time, it’s reasonable to assume that the obtaining and disclosure of Noah Duckworth’s personal data was done without the controller’s consent thereby rendering those actions illegal.

Setting aside the illegality, or otherwise, of those actions we’re quite certain that everyone of you who is an employee would be absolutely outraged at having your human resources file handed out by your employer to anyone who asked for it. Further for your salary to then be disclosed to hundreds of people who know you in a deliberate attempt to discredit you.

In relation to the number of people to whom disclosure of Noah Duckworth’s personal data was made Judge Heap made the following comment:

On 26th August 2020 he [Roger Cockle] sent a frankly astonishing email to Nick Duckworth and the Committee members and he also appears to have sent that to a number of the members of the Club although we understand from the evidence of the Respondent that to have been a distribution list that he himself created and such we have no way of knowing how many of the membership it in fact went to.“

Employment Judge Heap
Employment Tribunal Hearing
(14 – 18 March 2022)

The reality is that, contrary to the evidence given to the Judge by the directors, we do know to how many members of the club the Cockle email was sent — all of them. That’s because the email itself states that to have been the case as confirmed by the below quoted final sentences of the Cockle email.

…We look forward to your reply.
Please note that this message has been sent to all members.
We invite comments from members on the probability and support for an EGM.
Regards,
Roger Cockle, Steve Payne, David Clarke, Mike Gardiner, Rick Lowe, Eamonn Harrison, Don Crosland, Sanjeev Sharma, George Thunecke, Kevin Gibbin, Sue Vickery, Sue Shaw

Roger Cockle (Ordinary member)
Email sent to all members co-signed by former secretary
Steve Payne & current directors Sanjeev Sharma,
Kevin Gibbin & Joerg Thuneke
(26 August 2020)

How this most glaring of inconsistencies wasn’t picked up, and an explanation demanded, by any of the parties to the hearing we find quite extraordinary. Rest assured that we will be far more diligent when we bring these directors to court to account for the catalogue of their further damaging actions.

On the basis of the above it would appear, then, that the several Briars-led committee’s were/are comfortable with not only misleading members but also with misleading external parties too.

Given that the Judgment and Reasons categorically establishes the manner by which Noah Duckworth’s personal data came into the posession of an ordinary member it would be reasonable to conclude that the email addresses of all members were similarly disclosed to an ordinary member to facilitate and enable the sending of the Cockle email to all members.

On a side note Gawain Briars’ apparent casual disregard for the confidentiality of others’ personal information and his apparent belief in the legitimacy of his procuring of such information when it suits his purposes sits in stark contrast to his contrary stance when it doesn’t suit his purposes, as will be demonstrated below.

Involvement of Gawain Briars

Several comments made by Judge Heap concerning the chairman, Gawain Briars, provide an interesting insight by an objective, outside observer into his personality and style of ‘leadership’. We would suggest that those comments also provide an indication as to why so many longstanding members have left the club and why so many extraordinary — for a small squash club — damaging events have occurred since he became chairman in October 2020, as set out in a previous update post Achievements of the several Briars-led committees) and repeated below:

several legal processes being commenced against the club (more are expected) – one of which resulted in a five-day court hearing.
innumerable breaches of the Articles of Association and the Companies Act by the Directors – exposing the club to potential further legal actions.
the expulsion from the club of three (former) longstanding members.
the exclusion from the club of at least two, most probably six, other (former) longstanding members without their knowledge.
the mid-term resignations of four elected Directors.
the attempted dissolution of the club through the misrepresentation to members of the club’s financial standing.

Whilst Mr. Briars told us that he had initially approached this task with the best interests of the Club at heart and wanting to broker some sort of peace deal between the management and the Committee and that he was taking a neutral and independent standpoint, even on his own account that did not last very long and it seems to us that within a week or so that any neutrality had completely evaporated.
Mr. Briars swiftly took the view that the members of management were in the right and that the Committee were in the wrong and fixed his focus on that.
Rather than brokering any peace deal, in essence Mr. Briars involvement ended up pouring petrol onto existing flames..“

Employment Judge Heap
Employment Tribunal Hearing
(14 – 18 March 2022)

Whilst we did not consider his evidence to be untruthful, we did consider that Mr Briars sought to downplay his treatment of the Claimant and given his general blunt and rather forceful demeanour we found it more likely than not that he had not been as polite with the Claimant in, for example, asking him to leave the office or to undertake certain cleaning tasks, in the way that he described…
…We are not saying, objectively, that Mr. Briars did bully the Claimant but we consider that his blunt and direct approach would have been perceived in that way.“

Employment Judge Heap
Employment Tribunal Hearing
(14 – 18 March 2022)

As mentioned above Gawain Briars’ apparent casual disregard for the confidentiality of others’ personal information and his apparent belief in the legitimacy of his procuring of such information when it suits his purposes sits in stark contrast to his contrary stance when it doesn’t suit his purposes.

This is perfectly exemplified by his wholly irrational reaction towards an elected director, Katrin Schwarz, when she openly and legitimately requested a copy of such inoccuous information as the club’s insurance policy and Covid risk assessment to enable her to carry out club business — documents which should actually be made available for any member to access. Gawain Briars response was, quite bizarrely, to vilify her and portray her wholly legitimate request as being somehow underhand, dishonest and unacceptable.

I’ve been informed that you have attempted to obtain information in regard to the club’s insurance and a purported Covid risk assessment…Your actions could appear to seek to undermine fellow directors and management and they breach committee governance protocols…For directors to behave in this manner would lead to a dysfunctional board…
To now send emails as you have done is at best questionable if not subversive. It is not my wish to bring this to the committee’s attention, so kindly desist immediately from any such further activity and ensure you bring any matters of concern to the committee itself.

Gawain Briars (NSRC Chairman) to Katrin Schwarz (Director):
(15 February 2021)

He then continued to abuse his position of power as chairman to, within days, orchestrate Katrin Schwarz’s isolation and disenfranchisement as a director and, within a year, her permanent expulsion from the club. Of course, none of this could have been achieved without the full support of the obsequious, lapdog directors who comprise the committee — full Katrin Schwarz story click here.

In summary Gawain Briars believed it acceptable to obtain, apparently illegally, a club employee’s confidential personal information when he himself was just an ordinary member yet, contrarily, attacked an elected director for openly and legitimately requesting such innocuous information as the club’s insurance policy and Covid risk assessment.

The above is merely one example of the many breathtaking displays of hypocrisy which characterise the administration of the club and the actions of the board of directors under the chairmanship of Gawain Briars.