Legal rep slammed for hijacking racism claim with “agenda”

Wednesday 02 October 2019

A legal representative has been blasted for using a restaurant worker’s racial discrimination case to pursue his own “agenda” against the industry.

The criticism levelled at former St. Helier Deputy Nick Le Cornu came in a judgment handed down last week by the Employment and Discrimination Tribunal’s Deputy Chair, Advocate Ian Jones.

One of the claims at the heart of the matter was that the former Indian and Bangladeshi restuaurants employee had been racially abused and discriminated against by his ex-boss - despite the two men having the same nationality.

The claim was thrown out on the basis of being “vexatious”, with Advocate Jones noting that the claimant may not have even understood the representations being made on his behalf by Mr Le Cornu.

Pictured: Advocate Ian Jones struck out the discrimination and unfair dismissal claims.

In his judgment, Advocate Jones explained that the tribunal had ordered the employee to clarify his claims in March but that he had instead complicated the case by simply adding more. 

This, Advocate Jones mused, did not appear to be the result of “wilful disobedience or contumelious conduct”, with each claim seemingly having a basis in law if one “looked hard”.

However, the Deputy Chair said that he began to doubt the truthfulness of the allegations following the involvement of Mr Le Cornu, who disclosed a “financial interest in the outcome of the case”. 

It also emerged that he did not have any professional indemnity insurance, which meant if he was negligent in his dealings with the restaurant worker or caused him loss or damage, he would have limited prospects of making a claim against Mr Le Cornu. 

In further criticism, Advocate Jones said that Mr Le Cornu’s approach may not have been “endorsed or even completely understood by his client”.

Pictured: The Deputy Chairman said Mr Le Cornu was using the case as a "platform".

One of the most concerning aspects of the case, according to the Deputy Chair, was that Mr Le Cornu was unclear as to whether the claimant needed a translator. 

Describing a “seemingly incoherent situation”, Advocate Jones said Mr Le Cornu had not been able to provide “any sort of satisfactory or unequivocal answer” to why an interpreter had been necessary to “clarify a number of things” after he had been comfortable taking instructions from his client without one.  

The Deputy Chairman also noted that Mr Le Cornu had made a number of comments about the restaurant industry in general, which were not focused on the restaurant worker’s claim. 

He wrote that Mr Le Cornu had given the impression of pursuing “a much wider agenda” against the restaurant industry regarding the way staff are treated, which in his view is “poorly”. 

The use of his client’s discrimination claim as a “platform” to air his views was described as “concerning and puzzling”.

Pictured: Mr Le Cornu gave the impression of pursuing “a much wider agenda” against the restaurant industry, Advocate Jones said.

Advocate Jones went on to refer to the specific racial allegations as “serious”, particularly given that the majority of employees at the establishments involved were from the same country as the claimant.

He added that the simple fact the allegation had been made against his boss was both “embarrassing personally and may have already had an effect on his business and thereby indirectly his family”. 

In the end, Advocate Jones allowed the employee’s wage and holiday pay claims to proceed, but threw out his discrimination and unfair dismissal allegations, explaining: “…The bar that the Respondent were seeking to clear was in my view a high one and until I had heard from Mr Le Cornu I was not persuaded that the Respondents had discharged their heavy burden.

"However, having taken into account the comments made by Mr Le Cornu regarding his own views of the restaurant trade, and having considered the quandary that arose vis-à-vis the interpreter and the seeming ambiguity over Mr Le Cornu's instructions, the matter became less clear cut. Moreover, having then also considered Mr Le Cornu's own personal, financial interest in the outcome of the claim, the Respondents' arguments that the way the claim had been put was vexatious became far more persuasive.”

Pictured: The tribunal recommended that Mr Le Cornu reviews his financial interest in the case, which he said may come in the form of a share of any compensation award made.

He continued: “Having considered the submissions of both parties, and the particular circumstances of this case I was persuaded that the real reason the claim had been put in the way that it had, in the first instance without proper or clear instructions, was to place the Respondent under as much pressure as possible with a view to extracting a settlement / settlement offer as quickly as possible.”

In his conclusions, Advocate Jones noted this was not the first time Mr Le Cornu had been in such a situation.

He said that there had been another case involving a claim against an Indian restaurant in which Mr Le Cornu had been challenged over the way he had conducted the proceedings. 

“In my view, the 'rough justice' of this case requires that I make a decision which not only allows the Claimant to dissociate himself from the conduct of Mr Le Cornu, but which also recognises the prejudice that has accrued to the Respondents in having to respond to and address the Claims and in particular the way in which they have been made, in part contrary to the CMM Order,” Advocate Jones wrote in his judgment.

He shared hopes that Mr Cornu would ensure his client “fully understands the force, effect and rationale” of his decision and would “reflect on the nature of his financial interest” in the case and modify it, “if he sees fit”.