Rahman Lowe’s client, Ms Marie Herve succeeds in COVID-19 Health and Safety dismissal claim

Ms Herve succeeds in claims for automatic unfair dismissal and detriments for health and safety, whistleblowing detriment, and constructive dismissal arising from her concerns about COVID-19.

The claim was heard at the London Central Employment Tribunal for five days between 3 – 7 October 2022 by Employment Judge Joffe.

Facts

Ms Herve worked as a Personal Assistant for two extremely wealthy businessmen, hedge fund tycoons Abraham Goldstein (also known as Ramy Goldstein) and Vipin Sareen. She initially worked for both individuals through a financial services company, IV Capital who she commenced employment with in 2009. After briefly leaving to join another company for a month in 2012, she re-joined IV Capital. In 2014, IV Capital ceased to exist, and Ms Herve continued to work for both individuals under a single contract in the name of Mr Sareen. She worked for both individuals separately for their respective businesses, with each paying half her salary, NI and tax.

During the Covid-19 pandemic, she worked from home for both individuals, however on 28 September 2020, Mr Goldstein emailed Ms Herve to inform her that he would like to have a discussion about her returning to the workplace for “some” of her days. In response, on 29 September 2020, Ms Herve notified Mr Goldstein that she had been working from home (attending work once a month) since March without any issues and stressed that she would like to keep it that way stating: “We are all living and working in difficult Covid-19 changed times, and I am sure that you appreciate as much as I do that the most important issue is to keep each of our households safe, healthy and virus-free especially since I shall be commuting on the London Underground every time I attend your home”.

Following a meeting on 1 October, Ms Herve agreed to attend the workplace once a week.

On 4 November 2020, Ms Herve emailed Mr Goldstein with a link to the government’s guidance which was to come into effect from 5 November 2020 when a new Covid-19 lockdown was due to commence. She made reference to the fact that people were being requested to “stay at home”, “work from home”, not wanting to “break the law” and “paramount consideration is to keep each of our households safe, healthy and virus-free”.

Mr Goldstein responded on 5 November 2020 stating that he would carry out a risk assessment and that the proposal should carry on as discussed because “the quality of the support we get when you work remotely is lower than when you are on site”. In addition, Mr Goldstein made a veiled threat of reducing her pay if an agreement could not be reached.

Ms Herve subsequently resigned on 12 November 2020 where she raised the fact that to request her to attend the workplace when a Covid-19 lockdown had been imposed, would be requiring her to break the law and commit a crime. On 13 November 2020, Mr Goldstein requested that Ms Herve also resign from her post with Mr Sareen as in his view, she was employed under a contract with Mr Sareen which governed her employment with him. On 18 November 2020, Ms Herve made it clear to Mr Goldstein that she had two separate employment contracts, and that she was only resigning from her post with him. Also on the same date, Mr Goldstein emailed Mr Sareen advising him how to terminate Ms Herve’s employment with him.

On 19 November 2020, Mr Goldstein emailed Ms Herve attacking her professionalism, accusing her of malingering with respect to her sickness absence, and threatening her with causing potential damage and loss to his business.

On her return from sick leave in January 2021, Ms Herve continued to work for Mr Sareen, however and through sheer accident, on 11 May 2021, Ms Herve discovered from HMRC that a P45 had been issued in respect of her employment with Mr Sareen indicating a termination date of 30 November 2020. She only received official confirmation of this termination from Mr Sareen on 8 June 2021.

Ms Herve brought a claim in the London Central Employment Tribunal for detriment and automatic unfair dismissal for health and safety reasons as well as whistleblowing, constructive dismissal, unpaid wages, unpaid notice pay and unpaid holiday pay against Mr Goldstein, and the same claims against Mr Sareen but instead of a constructive dismissal claim, she was pursuing an unfair dismissal claim against him.

Judgment

Against Mr Goldstein:

Employment Status

On the question of employment status, the Tribunal found the written contract “was a ‘sham’ in the sense that it did not reflect the underlying agreement between the parties which is that the claimant had entirely separate obligations to each respondent to perform entirely separate work in return for payment obligations which resided solely with each respondent separately in relation to the work they required the claimant to do” [para 116].

Whistleblowing

The Tribunal found that Ms Herve’s email of 12 November 2020 constituted a protected disclosure. She told the Tribunal that she believed it would be a criminal offence for her to attend work during the Covid-19 lockdown. The Tribunal considered that this was in accordance with general knowledge and advice available at this point during the pandemic – that it could be a criminal offence to leave home during lockdown if an individual did not have a legitimate reason for doing so. The Tribunal also concluded that she had a reasonable belief that her health and safety and that of her partner would be at risk if she travelled to Mr Goldstein’s home during a lockdown – no vaccinations were available at this time. In addition, the number of people potentially affected by individual breaches of the rules was in fact very large. The nature of the interests engaged – the health and safety of the claimant, her partner, and other members of the public – was of the highest importance.

It was held by the Tribunal that Mr Goldstein could not reasonably believe it was necessary for her to attend his home during the November 2020 lockdown and that he was prioritising his own convenience over her more significant concerns [124].

The Tribunal found that there was “ample evidence” which showed that Mr Goldstein had mistreated Ms Herve because of her protected disclosure. He gave evidence that he was angry about the ‘trap’ he felt Ms Herve was putting him into and he was looking to scare her off from bringing any claims, including claims connected with her protected disclosure [134 and 138], which the Tribunal concluded played a material role in Mr Goldstein causing Ms Herve to suffer the following detriments:

• Demanding Ms Herve to also resign from her post with Mr Sareen and his encouraging, pressurising and inducing Mr Sareen to terminate Ms Herve’s employment;
• Being accused of unprofessional conduct; malingering with respect to her sickness absence and threatened with causing potential damage and loss to the business;
• Failing to pay her wages, notice pay and holiday pay.

It was, however, held that the protected disclosure occurred in the course of Ms Herve’s resignation email only as earlier ones had been rejected and none of the detriments found predated the resignation. It, therefore, follows as a matter of chronology and causation that the reason or principal reason for her constructive dismissal could not have been the protected disclosure.

Health and Safety

The Tribunal then turned to Ms Herve’s health and safety detriment and automatic unfair dismissal claims. They found that Ms Herve’s emails of 29 September 2020 and 04 November 2020 amounted to a situation where she was bringing to Mr Goldstein’s attention, by reasonable means, circumstances connected with her work which she reasonably believed were harmful or potentially harmful to health or safety [149 – 155]. It was also found that she had refused to return to her place of work, and her refusal to return to her place of work was an appropriate step undertaken in circumstances of danger which she reasonably believed to be serious and imminent to protect herself, her family and the public from the danger [159]. Her partner is of South Asian heritage and suffered from asthma, and therefore was considered to be at high risk of contracting the virus.

As a result of the above actions, the Tribunal found that Mr Goldstein had caused Ms Herve to suffer a detriment with respect to the following:

• Being critical of Ms Herve’s work by referring to the quality of work being “lower” than usual; that they were not getting the “level of support” expected and a veiled threat in the event that she did not comply, as set out in the email of 5 November 2020;
• All the other detriments upheld as part of the whistleblowing claim above.

It was further found that Ms Herve had been automatically unfairly dismissed because of the health and safety actions she took above.

Constructive Dismissal

The Tribunal found that Mr Goldstein’s actions were calculated or likely to destroy the relationship of trust and confidence and therefore amounted to constructive dismissal. They stated:

• It was not in any real sense ‘necessary’ for Ms Herve to come into work during the lockdown because the majority of her work could be done remotely, the lockdown was only anticipated to be for a limited period and there was no evidence that the work was time critical;
• Travelling on the underground at this time clearly exposed the claimant and her family to a heightened risk; such travel was being discouraged by the government unless necessary;
• She was being pressed to attend work during an ongoing public health emergency because it would be more convenient to Mr Goldstein for her to do so;
• Mr Goldstein valued her health and safety less than his own convenience;
• The overall lack of empathy and flexibility;
• He unreasonably raised the concern about the quality of support and suggested that her pay would not be protected unless she continued to attend his premises and that she rightly considered that this was a disrespectful way to treat an employee who had given good service for over a decade.

Against Mr Sareen:

The Tribunal found that Mr Sareen’s dismissal of Ms Herve amounted to unfair dismissal as there was no potentially fair reason for it.

Claims for unpaid wages, holiday pay and notice pay were also upheld against Mr Sareen.

A remedy hearing is listed, in March 2023, to determine the compensation that Ms Herve should be awarded by both Mr Goldstein and Mr Sareen.

Comments

Zillur Rahman, the solicitor acting for the Claimant said:

“I am delighted for Marie. It took real courage for her to stand up to her employers, who are both very wealthy individuals and for that reason alone, many people would be intimidated to do so. It is a complete victory on all fronts”. 

Ms Marie Herve said:

“Zillur Rahman and Jahad Rahman of Rahman Lowe Solicitors were extremely professional, dedicated and supportive; their Employment Law knowledge and experience stood out at every stage of my complex and multi-faceted employment claim. My employment barrister, Louise Mankau of Doughty Street Chambers, was equally impressive and gave me the strength and means to fight against my ex-employers. All of their assistance gave me the opportunity to have a voice, that was heard, which was a victory in and of itself to me. 

I will always be grateful to my lawyers for their expertise and determination and to Judge Joffe, and the rest of the Employment Tribunal Panel, for delivering me justice.”

The Judgment can be found here.

For further information or to discuss a potential employment law or discrimination claim, please contact our specialist employment solicitors on 0207 956 8699 or info@rllaw.co.uk. We are ranked as a ‘Leading Firm’ in the Legal 500 and Chambers and Partners independent guides to the UK Legal Profession.

More media coverage at:

Evening Standard  – Hedge fund boss told PA to break lockdown rules to come to work | Evening Standard

21/12/2022