Tribunal: Delay in progressing claim not fatal
The former chief executive of listed London law firm Rosenblatt used a highly offensive racial term at a dinner attended by a Black lawyer, an employment tribunal has revealed.
Nicola Foulston was sacked by RBG Holdings – the firm’s listed entity, of which she was also chief executive – just last week, in part because of “culture concerns”. It is not known whether the two events are connected.
The decision was handed down on 20 January but only published yesterday.
Employment Judge Brown in London was ruling on an unsuccessful attempt by the firm to strike out a claim brought by former head of employment Noel Deans.
Mr Deans launched proceedings in February 2020 claiming unfair dismissal, race discrimination, whistleblowing protection, victimisation, harassment and failure to provide a safe place of work.
He is suing the law firm, Ms Foulston, founder and senior partner Ian Rosenblatt, and director and compliance officer Anthony Field.
Judge Brown said the respondents admitted that Ms Foulston “used at a dinner (in front of the claimant) the phrase ‘n***er in the woodpile’”.
They also admitted that, after Mr Deans alleged in his resignation letter that he had suffered race discrimination, Mr Rosenblatt said to him that he was “just a f***ing anti-Semite”. Mr Rosenblatt then raised a grievance against Mr Deans because he thought Mr Deans’ “suggestion that he was racist was untrue”.
Speaking to Legal Futures, Mr Rosenblatt said he had called out Ms Foulston’s language at the dinner and spoke the words in response to something Mr Deans had said.
We have approached both Ms Foulston and Mr Deans for comment.
Mr Rosenblatt said they were strongly contesting the claim – which he said was at its core a constructive dismissal dispute – and noted that Mr Deans had been in another job since 2020.
Judge Brown said the respondents denied Mr Deans was constructively dismissed and that he was subject to detriments or discrimination. They contended that “the dismissal was fair for a reason that related to the capability of the claimant”.
There was no activity on the case between June 2020 and October 2022, when, following a change in representation, Mr Deans’ newly instructed solicitors came on the record. He made an application for a case management hearing at the same time.
The strike-out application was on the basis that the claim had not been actively pursued. Judge Brown said the delay had to be seen in the context of the pandemic, “certainly during 2020 and for much of 2021”.
“It was difficult to see how inactivity in a period of national disruption which affected the tribunals could be categorised as intentional and contumelious.”
But the further delay during late 2021 and into 2022, once the tribunals were running normally again, was “less understandable” and Mr Deans had acted “unreasonably” by delaying.
“However, I did not accept that the delay was such as gave rise to a substantial risk that it was not possible to have a fair trial of the issues in the action, or was likely to cause or to have caused serious prejudice to the defendants,” the judge said.
Though memories may have faded, Mr Deans had set out his claim very fully at the outset and the respondents presented a detailed response, while there had also been an interim relief hearing in April 2020 which required the respondents to prepare witness statements.
“The respondents are therefore in an unusually good position in that that evidence was prepared at a very early stage. That provides a significant amelioration of the risk of memories having faded.”
Judge Brown concluded: “Ultimately this is a case where ‘orderly preparation’ for trial can still be made in the usual manner. It would not be proportionate simply to strike it out.”
The full hearing is listed for 14 days in October.
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