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Senior partner fined £2,000 for religious and age discrimination

Tribunal finds misconduct ‘had just crossed the line’

4 April 2017

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The senior partner at a Mayfair firm who was found to have discriminated against a former partner turned consultant on grounds of religion and age has been fined £2,000 by the Solicitors Disciplinary Tribunal.

CVS Law’s Anup Shah sent Nicholas van der Borgh a series of emails accusing him of undermining the firm’s morale. In one, dated September 2010, 54-year-old Shah called van der Borgh ‘a bitter old man who has lost his marbles’.

An earlier message, sent on 23 December 2009, said: ‘You call yourself a Christian and instead of spreading goodwill during Christmas, you write comments which were clearly designed to spread bad will.’

In 2011 the employment tribunal found in favour of van der Borgh on four counts of discrimination, harassment, and victimisation. Shah and the firm were ordered to pay £18,509 compensation for injury to feelings.

Looking at its new guidance notes on sanctions, the SDT held that Shah’s ‘intemperate language had just crossed the line into discrimination’ and that his culpability was ‘low’. A £2,000 fine was deemed the appropriate sanction in the circumstances.

The fine sits at the top end of the lowest of five tiers of misconduct, level 1, which covers conduct assessed as sufficiently serious to justify a fine rather than a reprimand. The next level up, level 2, covers ‘moderately serious’ misconduct and justifies fines of up to £7,500.

In November 2015, the SDT fined two solicitors £5,000 and one £4,000 for email exchanges that were ‘crass, offensive, puerile, and inappropriate’ and contained material ‘which may be seen as sexist, racist, and/or homophobic’. The tribunal said the men had engaged in ‘inane and unpleasant email exchanges’ but accepted that ‘their conduct was thoughtless rather than planned and each of the exchanges was spontaneous’.

Last July, DLA Piper’s Nicholas West was fined £15,000 for ‘quite clearly sexist and offensive emails’. West’s motivation, the tribunal had found, was ‘continuing an email exchange between friends and not with an intention of causing offence. To that extent the emails were spontaneous rather than planned.’

Van der Borgh had been an equity partner at CVS until he retired in 2006. It was agreed that he would stay on for five years as a consultant. At the time, under Shah’s direction, the firm was beginning to focus on high-value commercial property work.

Following the departure of two other partners in 2008, van der Borgh sought to leave the firm before the term in the consultancy agreement. This was refused.

In December 2009, van der Borgh indicated that he would not be coming into the office as regularly as he had been. In a separate Christmas card to one of the secretaries, he wrote: ‘CVS is disintegrating! [M, another solicitor] has been made “redundant”! Dreadful.’

In response, Shah emailed van der Borgh: ‘Why all this hatred? Maybe you need to seek help. I thought Catholic Christians would know better than to spread such hatredness especially during Christmas.’

In its ruling, the SDT found that the references to van der Borgh being a ‘bitter old man’ were ‘plainly discriminatory but were not motivated by discriminatory feelings’.

The two men had known each other for 30 years and ‘got on very well until 2002’. This was not a situation where a managing partner used such language with a fee-earner. Shah ‘would never have made those comments to a subordinate,’ the tribunal stated.

Shah’s motivation had been anger, the tribunal said. ‘He had not intended to discriminate or victimise NVDB, although this had been the outcome.’

Although Shah’s misconduct had been aggravated by the fact that it was ‘repeated and took place over a period of time’, it was mitigated by the insight he had demonstrated in his witness statement. ‘His apology was genuine,’ according to the SDT.

In the employment tribunal, Shah accepted that some of his comments had been offensive. They included saying that van der Borgh was ‘long past your sell by date and we should have got rid of you years ago. The only reason I kept you on was loyalty but I should have realised you were just a parasite.’

The tribunal also cut the SRA’s costs down from £32,121 to £16,000, saying the regulator investigated additional allegations, including dishonesty, when it should have stuck to the factual matrix set out in the employment proceedings.

Shah had never disputed the factual findings of the employment tribunal, and framing additional allegations ‘led to the matter being fought to a level of intensity far above that which would have been the case if the matter had been restricted to submissions based on facts which were never in dispute.’

This approach ‘had greatly increased the costs on both sides’, the SDT said, adding that the £2,000 fine would have been within the Solicitors Regulation Authority’s jurisdiction to impose. Instead, the costs to the regulator would have been £600, according to the tribunal.

Similarly, instead of spending £9,486 on representation at the hearing, the SRA could have used its in-house advocates ‘at much more modest expenses’.

The Central London Employment Tribunal made its initial discrimination findings in August 2011. Judge Wade said van der Borgh had been an ‘employee’ of the firm, who was protected under age and religious discrimination rules.

On appeal, the Employment Appeal Tribunal found the tribunal judge had not sufficiently justified her findings and remitted the case to her on the point of whether the relationship had been one of subordination and control.

In a second judgment, Wade J said that while direction had been light touch, van der Borgh was not an independent contractor. ‘He may not have been an employee as defined in the Employment Rights Act but he was in employment in the extended sense of the definition.’

A second appeal was dismissed.

Jean-Yves Gilg is editor in chief at Solicitors Journal

jean-yves.gilg@solicitorsjournal.co.uk | @jeanyvesgilg

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