In the case of Mr D Barrow v Kellog Brown & Root (UK) Ltd (KBR), the Employment Tribunal awarded £2,567,831.97 for unfair dismissal and disability discrimination, the second largest disability discrimination award ever made by the Employment Tribunal.
Mr Barrow, was Head of Programme Management at KBR, a defence and government services contractor ands was dismissed in May 2018 after working at KBR since 1980. Prior to being dismissed, Mr Barrow had commenced treatment in 2017 for skin itchiness and redness around his torso involving steroids, which detrimentally impacted his mental health and caused his behaviour to change, making him “emotionally volatile” and “suffering from sporadic episodes of mania”. In November 2017, Mr Barrow sent some ‘defensive’ emails to his manager and was later called to a meeting and dismissed, Mr Barrow being given no reason for the dismissal, being simply told by his line manager that KBR could no longer employ him.
KBR wrote to its staff members the next day and informed them that Mr Barrow had been let go for poor performance. In January 2018, Mr Barrow was formally diagnosed with post-viral lymphoma, a rare cancer, which had been causing the skin itchiness and redness and informed KBR of his diagnosis. KBR commenced a post-dated dismissal process with Mr Barrow which ended in May 2018 in an attempt to followed a fair procedure, and concluded with Mr Barrow being formally dismissed (again) with KBR cited “a breakdown in the implied term of trust and confidence.” Mr Barrow subsequently brought claims against KBR for unfair dismissal, disability discrimination, harassment, victimisation and failure to make reasonable adjustments.
Mr Barrow’s claims for discrimination, disability discrimination, harassment, victimisation and failure to make reasonable adjustments were successful at Tribunal. The Tribunal looked at the first dismissal in December 2017 and found that KBR had provided little to no evidence in the dismissal letter for the breakdown in trust and confidence. KBR subsequently failed to prove to the Tribunal that this breakdown was the reason for the dismissal. The Tribunal called the second dismissal in May 2018 a ‘sham’ and a ruse to dismiss Mr Barrow and carried out to ‘give the impression that the process of dismissal was fair’ and the “appeal” used by KBR as a messenger for a predetermined decision already made by Mr Barrow’s line manager. The Tribunal concluded that no reasonable employer would have acted in such a way, let alone in dismissing an employee who had spent so long working for the company.
At the time of the December dismissal, Mr Barrow’s claim for failure to make reasonable adjustments was successful, as KBR was aware of the effect of his steroid medication on his mental health and KBR did not take this into consideration in the subsequent May dismissal process as well as citing his inability to attend meetings regarding his dismissal as non-cooperation when he was actually going through chemotherapy at the time.
The Tribunal awarded Mr Barrow £2,567,831.97 – one of the highest damages awards for discrimination and the second largest award for disability discrimination. As Mr Barrow was 60 years of age at the time of dismissal and had worked at KBR for so long, it was Considered that career-long loss should be awarded, with reductions for contingencies. Also awarded was a sum for injury to feelings and £25,000 for pain, suffering and loss of amenity and aggravated damages of £7,500. This is a very rare type of award and was given as a direct reflection of the manner in which KBR treated Mr Barrow. An uplift for KBR’s failure to comply with the ACAS code pursuant to section 207A TULRCA was set at 8%.
(An order for specific disclosure of documents relating to the non-payment of a bonus which Mr Barrow claimed he was entitled to had been made and the Tribunal considered that there were problems with the rKBR response to this disclosure request and the Tribunal made an order that KBR produce an Affidavit of compliance.).
Employers must cannot show that it has followed a fair and open minded dismissal process, or taken the time to fully understand an employee’s mitigating information and must tread carefully when looking at an employee’s alleged misconduct, trying to understand the reason for any behaviour and if they are aware of any health issues, or medication use, paying particular attention to understanding any side effects, preferably taking medical advice on the impact and adjustments that might be needed. A fair dismissal process without predetermining the outcome must be followed. Further, employers should use any further investigations as an opportunity to fully and fairly address any matters which have subsequently been disclosed to them since any initial investigations. As this case shows, failures can be expensive.
As someone trained as a barrister, it never ceases to amaze me that so many solicitors carrying out litigation are aggressive and confrontational and appear just to be the mouthpieces of their clients, says Nick Lockett, one of ADL Solicitors. The Bar always treats another member of the Bar with utter respect and although they may fall out in court, they will be exceedingly courteous in so doing and if they meet you in the street tomorrow, they will both be polite and probably go for a quick coffee. This is not the case for most litigation solicitors and it is a constant fight not to fall into the same poor standards.
In 2015, Coulson J in GSK Project Management -v- Galliford  EWHC 481 (TCC) took the view that solicitors were out of control on costs saying:
- “It is therefore time to say, in the clearest terms, that parties and their solicitors can no longer conduct litigation in a manner which does not keep the proportionality of the costs being incurred at the forefront of their minds at all times.”
I would like to commend HHJ Paul Matthews (sitting as a High Court Judge) (in the case of Crypto Open Patent Alliance v Wright  EWHC 242 (Ch)) where he said castigated the solicitors:
- “The problem is that this case is an example of what I would (unhappily) call bad-tempered litigation, which is regrettably becoming more and more prevalent in the English courts. It somehow seems to have become acceptable for solicitors to become mere mouthpieces for their clients to vent their anger at their opponents. It is not enough for the clients to dislike or even hate each other: the solicitors must do so too. I simply do not understand why in 2022 professional, trained lawyers, who should know how to stand up to their clients, and concentrate instead on what is important in the litigation, think it is appropriate to behave like schoolchildren in the playground …… It is a recurring, but highly undesirable, feature of modern litigation that litigants are willing to argue costs issues: not only the principle (usually the unsuccessful party), but the basis of assessment (usually the successful), and also the actual assessment itself (both sides), as if they were the main issue itself. ….. I am sorry to be old-fashioned, but, when I started in practice, this kind of thing just did not happen. The losing party accepted liability for the costs, and the receiving party only rarely argued for indemnity costs. (Summary assessment had not then been introduced.) Nowadays, it seems, losing parties nearly always argue that they should not pay the costs at all (I do not know when was the last time I heard counsel use the phrase “I cannot resist that”), and winning parties nearly always argue that costs should be on the indemnity basis.
- Yet parties (particularly the unsuccessful, but even the successful, on occasions) persist in arguing minor costs assessment issues, seeking to claw back this or that fraction of costs or small expenditure. This is not cost effective. It is merely disruptive. The costs of the argument must often outweigh even the value of what is in issue.
- I am bound to say that, as an application for costs to be awarded on the indemnity basis, I find all this mud-slinging (on both sides) not only unedifying, but also somewhat underwhelming. Whatever the position forty years ago, the conduct of this litigation is, most regrettably, not out of the norm for these days. Both sides are behaving in an ultra-aggressive and unco-operative way towards each other, which is certainly not conducive to the efficient conduct of the litigation. In all the circumstances of this case, I do not think that it is appropriate to award indemnity costs to one of these two sides against the other. To do so would be to encourage similar behaviour in future.
HHJ Matthews went on to state that “the justice of the case requires that I should make a percentage costs order in favour of the claimant as the successful party overall. This is that the defendant will pay 95% of the claimant’s costs of both applications.”
He went on to remind solicitors about a number of matters that should be easily understood and applied daily in practice:
- the test derived from the rules (see CPR rule 44.3(1), (2)(a)) is whether the costs claimed are not only proportionate, but also both reasonably incurred, and in a reasonable amount.
- there has been insufficient delegation of work down to less expensive fee-earners. The grade A fee-earners have done far too much of the solicitors’ work, especially since specialist counsel was instructed, who has charged appropriately for his input.
- Solicitors spent too much time was spent on reviewing the evidence. Where counsel is instructed, reviewing the evidence is primarily counsel’s function.
(Reviewing evidence is different from collating, locating and compiling evidence)
- The skeleton argument is a fortiori., as it is a matter largely for the advocate. Of course, the solicitors must review it, but that is a modest part of the job.
- I really do not understand how the solicitors can have thought it appropriate to spend as much as 32.4 hours on research and investigation. There can no doubt be cases where a large amount of time is required, for example because counsel delegates some part of it to the solicitors, but it needs to be justified, and the claimant here does not justify it.
- Plainly there did not need to be five fee-earners at the hearings and meetings. One would have done.
- The preparation of the costs schedules, albeit extensive in this case, cannot reasonably justify 21.1. hours. Something must have gone seriously wrong there. I will allow 5 hours.
Data Protection and the Schrems II case
In its July 2020 Schrems II judgment, the Court of Justice of the European Union (CJEU) declared the European
Commission’s Privacy Shield Decision invalid on account of invasive US surveillance programmes, thereby making
transfers of personal data on the basis of the Privacy Shield Decision illegal.
Furthermore, the Court stipulated:
(I) stricter requirements for the transfer of personal data based on standard contract clauses (SCCs).
(II) Data controllers or processors that intend to transfer data based on SCCs must ensure that the data subject is granted a level of protection essentially equivalent to that guaranteed by the General Data Protection Regulation (GDPR) and the EU Charter of Fundamental Rights (CFR) – if necessary with additional measures to compensate for lacunae in protection of third country legal systems.
(III) Failing to meet the requirements under (ii) , operators must suspend the transfer of personal data outside the EU.
(Editors Note: Suspension of transfer of Personal Data also includes revocation of previous data transfer)
The Privacy Shield framework provided for the possibility of lawful transfer of personal data from the EU to
the United States (US), while ensuring a strong set of data protection requirements and safeguards and on the
basis of this framework EU (and later European Economic Area, EEA) businesses were able to legally transfer
personal data to US-based companies that were listed in the Privacy Shield list.
Admission to this list is administered by the US Department of Commerce, while the US Federal Trade Commission monitors compliance.
While participation is voluntary, companies that have been certified are obliged to comply with the Privacy Shield Principles, as they became enforceable under US law. A case of unjustified noncompliance could trigger a case pursuant to section 5 of the Free Trade Commission Act, or lead to the organisation’s removal from the Privacy Shield list.
The July 2020 ruling is in line with the Court’s persistent strengthening of the level of protection in recent
years. Notably, the CJEU
a) annulled in 2006 the 2004 Passenger Name Record (PNR) Agreement between the EU and the US,
b) objected to the entry into force of the EU-Canada PNR Agreement in its Opinion 1/15 issued
in 2017; and
c) invalidated the Safe Harbour Decision in the Schrems I judgment in 2015.
On 1st August 2016, the Privacy Shield principles became operational as a replacement for the invalidated Safe Harbour principles and although it addressed many of the defects of its predecessor, its remaining privacy lacunae
were repeatedly criticised.
In 2018, a resolution of the European Parliament and by the European Data Protection Board (EDPB) repeated teh criticism.
The European Commission, by contrast, reaffirmed the mechanism by holding that the US level of data protection was adequate in its 2019 third annual review of the Privacy Shield.
In February 2020, the Chair of the Parliament’s Civil Liberties Committee also expressed his concerns after a delegation visit to the United States.
Following the Schrems I judgment, Facebook Ireland explained that it transferred much of the data to its US
parent company based on SCCs.
On 1 December 2015, Max Schrems reformulated his complaint lodged with the IrishData Protection Authority (DPA)to the effect that the SCC Decision was not able to justify the transfer of personal data to the US, since US surveillance programmes interfered with his fundamental rights to privacy, to data protection and to effective judicial protection.
In a draft decision, the DPA shared Schrems’ concerns and brought an action before the Irish High Court, which then made reference to the Court for a preliminary hearing.
In the meantime another transfer mechanism, the Privacy Shield Decision, became pertinent to the case, which prompted the CJEU also to rule on the validity of this instrument.
On 16 July 2020, the CJEU
(i) declared invalid the European Commission’s Privacy Shield Decision and
(ii) affirmed the validity of the SCC Decision while stipulating stricter requirements for SCC-based transfers.
(iii) held that the US does not provide for an essentially equivalent, and therefore sufficient, level of
protection as guaranteed by the GDPR and the CFR, finding also that the legal bases of US surveillance programmes such as PRISM and UPSTREAM are not limited to what is strictly necessary and would be considered a
disproportionate interference with the rights to protection of data and privacy (Article 45(1) GDPR, read in light of Articles 7, 8 and 52(1) CFR), since they do not sufficiently limit the powers conferred upon US authorities and lack actionable rights for EU subjects against US authorities. Contrary to the European Commission’s adequacy findings, the Ombudsman mechanism does not remedy, but rather exacerbates these deficiencies, as the mechanism interferes with the right to effective judicial protection (Article 45(1) GDPR, read in light of Article 47 CFR), due to concerns over the independence of the institution and on the enforceability of its decisions.
(iv)affirmed the validity of the SCC Decision and held that SCCs do not, per se, present
lawful or unlawful grounds for data transfer (no panacea).
(v) stipulated that data controllers or operators that seek to transfer data based on SCCs, must ensure that the data subject is afforded a level of protection essentially equivalent to that guaranteed by the GDPR and CFR – if necessary with additional measures to compensate for lacunae in the protection of third-country legal systems. Failing that, operators must suspend the data transfer. Supervisory authorities must check transfers and are required to prohibit transfers where they find that data subjects are not afforded essentially equivalent protection.
Implications and first reactions
Implications for commercial data transfers
As a result of the Court’s decision, EU companies can no longer legally transfer data to the US based on the
Privacy Shield framework.
Companies that continue to transfer data on the basis of an invalid mechanism risk a penalty of €20 million or 4 % of their global turnover, pursuant to Article 83(5)(c) GDPR.
Some commentators believe that the vast majority of companies can continue using the conventional SCCs, while
others argue that companies should – if at all – only use SCCs for transfers to the US, if (i) they are not subject
to the respective surveillance law, or if (ii) they provide for ‘additional safeguards’.
The DPA of North RhineWestphalia pointed out that any companies using US communication services or transatlantic cables might be subject to US surveillance mechanisms. To salvage SCC-based data transfers, such companies would need to compensate for gaps in protection with – so far undetermined– ‘additional safeguards’.
The Court stressed that protective contract clauses are not binding on third parties or authorities and therefore likely to be ineffective, while cryptanalytic and quantum computing efforts of intelligence agencies raise
concerns about the effectiveness of protective technical measures such as encryption.
According to the EDPB and the Conference of the German Data Protection Authorities (DSK), companies
may transfer data based on binding corporate rules, but will have to, equally, ensure the essential
equivalence. Although the EDPB affirms the possibility of transferring data on the basis of derogations
provided in Article 49(1)(a) GDPR, its guidelines raise doubts on their suitability to legitimise recurrent
transfers. Furthermore, the EDPB announced that it will not suspend enforcement for a regulatory grace
period. The Berlin, Hamburg andDutchDPAs advise halting transfers to the US. The Berlin DPA even advises
to retrieve data from the US. Many DPAs stress the need for further analysis and case-by-case assessments.
Implications for international relations
US Secretary of Commerce Wilbur Ross and US Secretary of State Mike Pompeo expressed their deep
disappointment with the ruling and suggested possible adverse effects on the US$7.1 million transatlantic
economic relationship. Both stressed the importance of data flows for economic growth as well as for the
post-Covid-19 recoveryand pledged to work closely with the EU. European Commission Vice-President Věra
Jourová and Commissioner Didier Reynders committed to joint efforts,and suggestedmodernisingstandard
contract clauses. While DigitalEurope and otherswould welcome a third longer-lasting adequacy agreement,
BusinessEurope advocates an additional intermediate solution to avoid a negative impact on the economy.
Max Schrems and the European Data Protection Supervisor encourage the United States to reform
surveillance laws and meet the requirements of the Court.However, it is reported that senior US officials do
not consider such an overhaul ‘advisable’ or ‘possible’ in the short term. The rationale of this ruling will
particularlyimpactthose third countrieswhich conduct extensive surveillance for national security. This might
become relevant for the United Kingdom, as it will be treated as a third country post-Brexit. Some
commentatorssuggest that this ruling promotes a world fractured into data spheres of influence. Conversely,
the judgment might bolster the European Commission’s objective to ‘promote convergence of data
protection standards at international level, as a way to facilitate data flows and thus trade’.
May 2020 THE FUSEON CASE
In Fuseon Ltd, Gordon-Saker (senior costs master) was asked to assess the sum claimed of £428,000 against the Legal Aid CCU after the Lancashire estate agent Fuseon Limited brought a successful private prosecution against a fraudulent director of the business. It had instructed Central London firm Edmonds Marshall McMahon Limited. More than 1,000 items of disbursements and profit costs were claimed for.
it was initially determined by an LAA case manager in November 2017 that the sum of £180,000 was payable in costs.
This was later increased to £240,000.
It was not accepted by the case manager that Fuseon had no choice but to instruct a London firm.
The claimant continued to appeal this outcome and the matter was eventually remitted to the senior costs master for further directions.
It was not accepted that a London law firm had to be instructed reduced the hourly rate from the £350 claimed for grade A fee earners to £217 per hour accordingly. Accordingly the travelling time and expenses were similarly reduced to those that would have been reasonable for solicitors based in the north-west.
Master Gordon-Saker noted this was not a particularly complex case, but that the work was properly done in London and that Fuseon was entitled to the costs of investigation as well as prosecution. He said the matters elevating the case above guideline rates were the specialism of the solicitors instructed and the passage of time (roughly 18 months from speaking with lawyers to the court conviction).
In any costs case, the master said the guideline hourly rates which informed the case manager’s decision now tended to be ‘used as a starting position rather than as carved in stone’. Master Gordon-Saker allowed some of the time spent travelling from London, but said it was not reasonable for a client to pay a solicitor to travel to him, except for site inspections etc. He stated that the client was expected to travel to their solicitor. The Master also said reasonable time spent in inter-fee discussions was properly allowable, as it was difficult to delegate tasks to junior fee-earners without instructing them what to do.
On the other hand, two fee-earners attending on a witness or the client would rarely be reasonable without a specific reason. Gordon-Saker noted: ‘Lawyers should be reasonably adept, like most people, at speaking or listening and writing at the same time’ and also took the view that ipad recordings etc were entirely possible.
For the same reason, namely that lawyers should be reasonably adept at speaking or listening and writing at the same time, especially when Counsel is present, he disallowed more than one fee-earner attending trial together with counsel.
The master said the investigation of the defendant’s social media presence, the scheduling of outstanding action, the creation of the jury bundle, the drafting of notices of additional evidence and contacting witnesses during trial were all tasks of fee-earners.
Photocopying bundles, however, was not.
The conclusion therefore is that
a) At meetings, fee earners will be expected to record their sessions and this can be later transcribed by support staff. Therefore only one fee earner is chargeable to a client in a meeting.
b) At hearings, fee earners should be adept, like most people, at speaking or listening and writing at the same time (indeed barristers do this all the time) and therefore only one fee earner will usually be allowed for costs purposes at a hearing, especially if counsel is also engaged.
c) Charges for fee earners include:
– the investigation of the defendant’s social media presence,
– the scheduling of outstanding action,
– the creation of bundles,
– the drafting of notices of additional evidence, and
– contacting witnesses.
d) Photocopying is no longer an allowable time charge. (It would appear that disbursements for photocopy costs per page are allowable where charged at cost and that costs is determined with respect to print shop copy costs per page).