Nigel Midgley, a former employee with Vossloh Cognifer, a private contractor to Network Rail, who was dismissed after he reported rail safety issues to the Health and Safety Executive, today got a £10,000 costs order quashed by a judge at an Employment Appeal Tribunal.

VCUKL is a wholly owned subsidiary company of Vossloh Cogifer a French managed but German owned global company. VCUKL’s Managing Director is Mrs Wendy Anne Preston and its main customer is Network Rail.

The judge ruled that the UK based company had been wrong to with hold from an employment tribunal, part of a email sent by Edward Flanaghan, head of Gosschalks Solicitors in Hull, to Mr Midgley offering to settle the case without going to a tribunal.

Instead it left the first and last two paragraphs out of the letter, sending a redacted version to the tribunal omitting the offer but painting a nasty picture of Mr Midgeley as a failed probationary employee who was sacked but used whistleblowing complaints to explain his dismissal. It told the tribunal that these had no merit and Mr Midgley had no chance of winning his case.

Judge Martyn Barklem however ruled that the omission of the offer by the employer to settle the case changed the whole picture presented to the tribunal and would have not led to the award of costs. He also saw it as an attempt to stop a litigant in person, who was not a qualified lawyer, to abandon the case. He pointed out that no judge had decided that Mr Midgley did not have a case. The company also tried to argue that Mr Midgeley should not have disclosed the unredacted letter to the employment appeal tribunal because it was covered under legal privilege. This was rejected by the judge.

Mr Midgley’s case was taken up by an advocate, David Stephenson from Doughty Chambers, whom the judge praised for his succinct presentation of the issues. The company did not employ a lawyer in person to present their case but gave a written submission. The judge revealed their non appearance was for commercial reasons as it would have cost them more than £10,000 to be represented. This highlights what is wrong with public authorities like the NHS and Sellafield which have access to unlimited sums of taxpayer’s money to pursue whistleblowers like cardiologist Usha Prasad and human resources consultant, Alison McDermott, through the tribunal system, while a commercial company would cut its losses.

More disturbing stuff about NDA’s

There is more disturbing stuff about the way lawyers from Gosschalks and the private rail company behaved in Mr Midgeley’s case. He was strongly supported by his wife, Keely Midgley, over his whistleblowing claims and treatment by the company. She sent a large volume of emails to directors of the company and posts were put up on Linked in. The company then threatened Mr Midgley with harassment proceedings unless it stopped.

But the most disturbing part of the proceedings was the COT3 agreement which the company wanted him to sign written up by their lawyers.

Among the provisions were: “The Claimant will not publish, cause, assist or knowingly permit to be published (including but not limited to by his wife) in any media whatsoever, any article or comment relating to his employment with the Respondent, or its termination, or the existence or terms of this agreement.  The Claimant will not contact by any means any customer, supplier, employee, consultant, advisor or other organisation with which the Respondent has a professional relationship in respect of any matter whatsoever.”

It also banned him from approaching the Information Commissioner or making any data subject request. ” The Claimant will not make any further Data Subject Access Request under the General Data Protection Regulations ((EU) 2016/679) (GDPR) or the Data Protection Act 2018 or other legislation and agrees that any existing or ongoing such request should be treated as withdrawn. The Claimant will not make any complaint to the Information Commissioners Office in respect of Subject Access Requests and further waives any civil claim for damages in respect of breaches of data protection legislation.”

The proposed agreement led a firm of lawyers, Marjon Law, to disagree on Mr Midgley’s behalf.

“We would contend that Mr Midgley is entitled to use all documents that were read to or by the court, or referred to, at a hearing which has been held in public. To that end, we do not believe that the draft undertaking for him is reasonable or appropriate. In any event, Mr Midgley should be able to disclose documents from the Claim for the purpose of:
(a) reporting a suspected criminal offence to the police or any law enforcement agency or cooperating with the police or any law enforcement agency regarding a criminal investigation or prosecution;
(b) doing or saying anything that is required by HMRC or a regulator, ombudsman or supervisory authority;
(c) whether required to or not, making a disclosure to, or co-operating with any investigation by, HMRC or a regulator, ombudsman or supervisory authority regarding any misconduct, wrongdoing or serious breach of regulatory requirements (including giving evidence at ahearing);
(d) complying with an order from a court or tribunal to disclose or give evidence;
(e) disclosing information to HMRC for the purposes of establishing and paying (or recouping)
tax and National Insurance liabilities arising from his employment or its termination; or
(f) making any other disclosure as required by law.”

The company’s lawyer’s disagree and said this was only guidance and could be ignored.

If I take this with moves to silence whistleblowers at Sellafield through non disclosure agreements this suggests that lawyers seem to think they can force litigants in person to shut up about matters that affect public safety whether in the NHS, Sellafield or on Network Rail.