Aman Khan v Novai Limited & Anor

SUMMARY Public Interest Disclosure The Employment Tribunal erred in law in its assessment of protected disclosure complaints. HIS HONOUR JUDGE JAMES TAYLER The issues in the appeal

1. The issue in the main appeal concerns the analysis and assessment of protected disclosure complaints. The judgments appealed

2. The appeal is from a judgment of Employment Judge Gumbiti-Zimuto, sitting with members. The hearing took place on 12, 13, and 14 February 2024 with a discussion in chambers on 21 March 2024. The judgment was sent to the parties on 15 April 2024.

3. The claimant further appeals against a refusal to reconsider the decision in a judgment sent to the parties on 19 June 2025. In the application for reconsideration, the claimant sought to rely on new evidence that he contended went to the date on which the decision to dismiss him was taken. The facts as asserted and found

4. The first respondent (that I shall refer to as the respondent) is a biotechnology business engaged in the development of exploratory retinal biomarker technology. The respondent was incorporated in February 2020. At the time of the incorporation the claimant and Professor Cordeiro were directors.

5. Professor Cordeiro has a medical degree, is a member of the Royal College of Physicians, a Fellow of the Royal College of Ophthalmologists and Professor in Retinal Neuro Degeneration and Glaucoma Studies. Professor Cordeiro has a particular research interest in retinal neuro degeneration and invented a technique known as Detecting Apoptosing Retinal Cells (DARC). The respondent was established by the claimant and Professor Cordeiro to commercially exploit DARC. Professor Cordeiro was the Chief Scientific Officer.

6. The claimant is an accountant. The claimant was initially employed as Chief Financial Officer of the respondent and later also became the Chief Executive Officer.

7. James Rawlingson (the second respondent, whom I shall refer to as Mr Rawlingson) was appointed as chairman and a director of the respondent in July 2021. The Employment Tribunal held that Mr Rawlingson was concerned about the claimant’s suitability for the roles of CFO and CEO and thought that the respondent had poor strategic leadership.

8. The respondent was developing technology that could be used as a biomarker and potentially as a diagnostic tool. The Employment Tribunal held that the claimant wanted to press ahead with the biomarker side of the business because it would generate income. The diagnostic part of the business was at development stage where it was not generating revenue. The Employment Tribunal held that there was a question of strategy as to whether the respondent focussed on the biomarker business or pursued the diagnostic technology.

9. The claimant contended that by 2021 the respondent was seeking funding that relied heavily on test data about using the technology as a diagnostic tool and that in July 2021 Professor Cordeiro presented data to the respondent's shareholders that showed highly promising results for the technology as a diagnostic tool for glaucoma.

10. The Employment Tribunal held that on 10 September 2021 a discussion about strategy took place, at which there was a difference of opinion between the claimant and Mr Rawlingson. Mr Rawlingson described the claimant as having a rant at the meeting. The claimant denied that he behaved inappropriately.

11. Mr Rawlingson arranged for a second strategy day. The Employment Tribunal held that Mr Rawlingson considered the claimant’s conduct to be a “blatant challenge to him as chairperson”.

12. The Employment Tribunal held that the claimant sent an email to members of the board in which he stated of his relationship with Mr Rawlingson that it had “irretrievably broken down” and that he needed to have “trust in the chair and a positive working environment”.

13. The Employment Tribunal held that in December 2021 Mr Rawlingson told the claimant not to pursue fund raising activities until a settled strategy and approach was approved by the board; but that the claimant ignored this instruction and continued to contact potential investors.

14. On 13 December 2021, the claimant wrote to board members criticising Mr Rawlingson in strong terms.

15. In a core finding the Employment Tribunal held:

15. As a result of the email of the 13 December 2021 the board agreed that they would take advice on removing the claimant from his post . A decision to dismiss the claimant appears to have either been made or was being considered subject to advice from lawyers. The claimant was due to be attending a conference in Hawaii in January 2022 and the board decided that the claimant should attend this as planned with any dismissal only taking effect after his return. [emphasis added]

16. The timing is important because it predates any of the claimant’s disclosures. There is no contemporaneous record of this discussion. The Employment Tribunal did not make an explicit finding of fact that a decision had been taken to dismiss the claimant on 13 December 2021 or at around that time.

17. On 15 December 2021, a board meeting took place that the claimant attended. The Employment Tribunal held that: We were provided with a Teams recording of this board meeting. The Tribunal were unable to draw any conclusions about the competing positions in respect of the issues in the case from viewing this recording. The conduct of the meeting does not betray the intention of the board to dismiss the claimant. [emphasis added]

18. Mr Rawlingson contacted the claimant, before he left for Hawaii, by email on 5 January 2022, instructing him not to speak to shareholders or third parties about funding or to sign contracts that would bind the respondent regarding fund raising.

19. Contrary to those instructions, the claimant contacted investors making clear his intention to seek shareholder approval to remove Mr Rawlingson “in the best interests of the company”. The claimant was extremely critical of Mr Rawlingson.

20. The claimant’s evidence was that on 3 January 2022, he was informed by Dr John Maddison, the Company’s Chief Technology Officer, that the data being relied upon in support of the use of the respondent's technology as a diagnostic tool had failed a review on 30 November 2021. The claimant asserted that this meant that there was insufficient data to support raising further funds on the basis that the technology could be used diagnostically.

21. Professor Cordeiro denied that the data had failed. She contended that the results were based on small numbers and that funding should be sought to obtain more results.

22. The Employment Tribunal did not seek to resolve that dispute, stating: The Tribunal have not attempted to resolve the dispute about data. Our conclusion on the data is that Professor Cordeiro and Mr Rawlingson did not accept as a fact that the dat[a] failed and further the evidence that was given by those with knowledge of the data, other than the claimant did not support a suggestion that the data failed. Only the claimant asserted that the data failed at various times to board members and investors . [emphasis added]

23. The claimant alleged that he made protected disclosures on 7 January 2022 in an email and during a telephone conversation with Chris Keen, the respondent’s corporate governance lawyer, and in emails to various board members on 26, 27 and 31 January 2022. I shall return to the content of the disclosures when considering the analysis of the Employment Tribunal.

24. On 19 January 2022, the claimant sought legal advice about removing Mr Rawlingson as chair of the board. On 26 January 2022, the claimant sought to remove directors’ access to Drop Box and deactivated Professor Cordeiro’s access to the respondent’s LinkedIn account.

25. The Employment Tribunal held that the actions of the claimant were insubordinate and indicated an intention to ignore instructions from the board.

26. The claimant continued to assert that the data had failed the trial. Professor Cordeiro denied that was the case and asserted that the claimant had misunderstood an Association of Research in Vision and Ophthalmology abstract, that led him to the flawed conclusion that the data had failed the external test.

27. On 31 January 2022, Mr Rawlingson sent a letter to the claimant dismissing him with immediate effect.

28. At a board meeting on 9 February 2022, the claimant was declared a bad leaver, and his dismissal was ratified. The core conclusions of the Employment Tribunal

29. The Employment Tribunal concluded that the respondent decided to dismiss the claimant on or about 13 December 2021, prior to any of his disclosures, which were found, in any event, not to be qualifying or protected. As a result, his complaints failed. I shall return to the specific findings when considering the grounds of appeal. To succeed in the appeal the claimant must establish that the Employment Tribunal erred in law in finding that none of the disclosures were protected and that the decision to dismiss the claimant was taken on or around 13 December 2021. The legal principles

30. The term “qualifying disclosure” is defined by section 43B Employment Rights Act 1996 (“ ERA ”), which provides, so far as is relevant: 43B. — Disclosures qualifying for protection. (1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure , is made in the public interest and tends to show one or more of the following— … (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, ... … or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed. [emphasis added]

31. There must be a disclosure of information. A disclosure of information may be made as a part of making an allegation. In Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436 , [2018] ICR 1850 , Sales LJ held that: In order for a communication to be a qualifying disclosure it has to have “sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection (1)”.

32. In the reasonable belief of the worker making the disclosure, the information must tend to show one of the matters set out in sub-sections 43B(1)(a) to (f) ERA : in Chesterton Global Ltd v Nurmohamed [2017] EWCA Civ 979 , [2018] ICR 731 , Lord Justice Underhill described this as “wrongdoing”. I shall adopt that useful shorthand in the rest of this judgment.

33. In the reasonable belief of the worker making the disclosure, it must be made in the public interest. The worker must believe, at the time of making it, that the disclosure is made in the public interest, and that belief must be reasonable.

34. In Williams v Brown UKEAT/0044/19/OO, His Honour Judge Auerbach said of the analysis of section 43B ERA :

9. It is worth restating, as the authorities have done many times, that this definition breaks down into a number of elements. First, there must be a disclosure of information. Secondly, the worker must believe that the disclosure is made in the public interest. Thirdly, if the worker does hold such a belief, it must be reasonably held. Fourthly, the worker must believe that the disclosure tends to show one or more of the matters listed in sub-paragraphs (a) to (f). Fifthly, if the worker does hold such a belief, it must be reasonably held.

10. Unless all five conditions are satisfied there will be not be a qualifying disclosure. In a given case any one or more of them may be in dispute, but in every case, it is a good idea for the Tribunal to work through all five. That is for two reasons. First, it will identify to the reader unambiguously which, if any, of the five conditions are accepted as having been fulfilled in the given case, and which of them are in dispute. Secondly, it may assist the Tribunal to ensure, and to demonstrate, that it has not confused or elided any of the elements , by addressing each in turn, setting out in turn … its reasoning and conclusions in relation to those which are in dispute. [emphasis added]

35. As HHJ Auerbach noted, it is not always necessary to determine all of the questions. It is not necessary to determine them in the order he suggested. It is not of itself an error of law not to expressly apply the structured approach suggested by HHJ Auerbach. But a failure to do so may mean that it cannot be demonstrated that the necessary questions in the particular case were asked and answered.

36. A protected disclosure can be made in a number of documents considered together, depending on the facts of the case: Simpson v Cantor Fitzgerald Europe [2020] EWCA Civ 1601 , [2020] ICR 236 .

37. A “protected disclosure” is one that is made in accordance with section 43A ERA . A qualifying disclosure becomes a protected disclosure because of whom it is made to. The most common examples are the employer of the person who makes the disclosure or some other person who is responsible. This is provided for by section 43C ERA .

38. Workers are protected against being subject to detriment done on the ground that they made protected disclosures by section 47B ERA .

39. Employees are protected against being dismissed for making protected disclosures by section 103A ERA : 103A. Protected disclosure. An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.

40. In British Telecommunications Plc v Sheridan [1990] IRLR 27 , the Master of the Rolls held:

34. … Any court with the experience of the members of the Employment Appeal Tribunal, and in particular that of the industrial members, will in the nature of things from time to time find themselves disagreeing with or having grave doubts about the decisions of Industrial Tribunals. When that happens, they should proceed with great care. To start with, they do not have the benefit of seeing and hearing the witnesses, but, quite apart from that, Parliament has given the Employment Appeal Tribunal only a limited role. Its jurisdiction is limited to a consideration of questions of law.

35. On all questions of fact, the Industrial Tribunal is the final and only judge, and to that extent it is like an industrial jury. The Employment Appeal Tribunal can indeed interfere if it is satisfied that the Tribunal has misdirected itself as to the applicable law, or if there is no evidence to support a particular finding of fact, since the absence of evidence to support a finding of fact has always been regarded as a pure question of law. It can also interfere if the decision is perverse, in the sense explained by Lord Justice May in Neale v Hereford & Worcester County Council [1986] ICR 471 at 483.

41. The types of error of law that relate to factual findings were summarised by Lady Haldane in Granger v Scottish Fire & Rescue Service [2025] EAT 90 :

29. As to the role of the EAT in appeals such as the present one, under section 21 of the Employment Tribunals Act 1996 an appeal to the Employment Appeal Tribunal lies only on a question of law. Useful guidance as to the proper approach is found in the judgment of the Court of Appeal in R (Iran) v SSHD [2005] EWCA Civ 982 at [9], where examples of errors of law are given and include: i) making perverse or irrational findings on a matter or matters that were material to the outcome (“material matters”); ii) failing to give reasons or any adequate reasons for findings on material matters; iii) failing to take into account and/or resolve conflicts of fact or opinion on material matters; iv) giving weight to immaterial matters; and, v) making a material misdirection of law on any material matter.

42. I have reminded myself of the limited scope for challenges to factual findings of an Employment Tribunal as emphasised by the Court of Appeal in DPP Law Ltd v Greenberg [2021] EWCA Civ 672 , [2021] IRLR 1016 . The appeal

43. Three grounds of appeal were permitted to proceed against the liability judgment. I shall deal with them in turn. Ground 2, protected disclosures

44. By ground 2 the claimant asserts that the Employment Tribunal erred in law “in its analysis of the protected disclosures at §45 ET Reasons”

45. The claimant described the disclosures in his claim form: 11.The Claimant was extremely concerned to learn of Mr Rawlingson's approach to the matter. He was concerned that this course of action would place the First Respondent in breach of its legal duty to inform its investors and shareholders of material matters in relation to the First Respondent's strategy which would affect the value of their investments, and further that Mr Rawlingson intended to take deliberate action to conceal those matters from the investors and shareholders. He was further concerned that were he to acquiesce with Mr Rawlingson's intended course of action, this would amount to breach of his directors duties and further that each board member would be similarly in breach of their legal obligations.

12. By emails sent to Natalie Pankova and Karl Keegan, non executive directors of the First Respondent between 27 - 31 January 2022 the Claimant set out information in relation to the concerns that he had . In an email sent to Mr Keegan at 13.43 on 31 January 2022 the Claimant stated: The persistent unfairness from my perspective has taken its toll along with the who diagnostic issue - the data is the wrong way round and people think serious investors will not check this? ... and in addition the information presented to investors in June 2021 was incorrect as it was over trained. You can't use the biomarker data, for the diagnostic as this excludes the control patients …

22. The matters set out at paragraphs 11 and 12 amount to protected disclosures since they amounted to a disclosure of information which in the Claimant's reasonable belief tended to show that the First Respondent, and its statutory directors (including Mr Rawlingson) had failed, were failing and were likely to fail to comply with a legal obligation to which they was subject , being: a. A breach of their legal obligations to inform investors and shareholders of material matters in relation to the First Respondent's strategy affect the value of their which would investments and that Mr Rawlingson intended to take deliberate action to conceal those matters from the investors and shareholders; b. A breach of their statutory directors duties notably to promote the success of the First Respondent, and to exercise reasonable care, skill and diligence; c. A breach of their common law duties including a fiduciary duty which arises in relation to those same matters set out at paragraph 24 (a)

46. The grounds of appeal challenge the analysis of each asserted disclosure.

47. The Employment Tribunal stated of the claimant’s general approach to the disclosures: 45.The claimant’s contentions of what the protected disclosures were that he relied upon was a developing concept during the hearing. Towards the end of his evidence the claimant was asked to identify the matters that he relied on as the qualifying disclosures.

48. The claimant was represented when he submitted the claim. He represented himself at the hearing. It appears that he became focussed on trying to persuade the Employment Tribunal that he was correct in asserting that the test data had failed and was less adept at explaining the protected disclosures. However, it was incumbent on the Employment Tribunal to have regard to the way in which the protected disclosures were pleaded.

49. The Employment Tribunal said of the first asserted protected disclosure: a. On 17 January 2022 email to Mr Keegan (p364): There is no disclosure of information tending to show one of the matters specified in section 43B (1) ERA. In this email the claimant set out his opinion of Mr Rawlingson.

50. The problem with this assessment is that it is not clear whether the Employment Tribunal considered that there was no disclosure of information or whether if there was a disclosure of such information it did not tend to show a breach of a legal obligation, the only wrongdoing relied on by the claimant. There is no assessment of the other components of the legal test for a protected disclosure, or of the wording of the email.

51. Mr Kohanzad, for the claimant, relied on the following extracts from the email: However if the message James sent was incorrect from both a legal and governance perspective this is very worrying. …You cannot just impose rules and things without having these agreed in accordance with legal agreements - this is basic stuff… …There is a strong likelihood of litigation looming, which I would like to avoid but investors would be furious if James was making decisions that are not in the companies best interest. Clearly fund raising is and cash flow are critical to a company therefore this is very clear cut position. …I agree we need to improve governance but the board cannot act negligently and as a shareholder myself the below is totally unacceptable… [James] has sent a number of very aggressive emails which breaches the companies code of conduct in my opinion… James has had a negative impact on the company… potentially breaching the companies agreements which is a very serious matter, and he may not be covered by the D&O policy as a result. Key items for directors related to companies Act • To act in good faith and in the best interests of the company (section 131). • To act with reasonable care, diligence and skill when exercising powers or performing duties as a director (section 137). • To exercise powers for a proper purpose (section 133).

52. This demonstrates that there was material that required assessment even if it was not so clearly explained at the Employment Tribunal hearing. If the Employment Tribunal had adopted the approach suggested by HHJ Auerbach in Williams v Brown to assessing whether a qualifying disclosure had been made, it might have demonstrated that it had considered (using my preferred order for the questions) the “qualifying disclosure questions”: (1) was there a disclosure of information? (2) did the claimant believe that the disclosure tended to show wrongdoing? (3) if the claimant did believe that the disclosure tended to show wrongdoing, was that belief reasonable? (4) did the claimant believe that the disclosure was made in the public interest? (5) if so, was such a belief reasonable?

53. The Employment Tribunal said of the second asserted protected disclosure: b. On 26 January 2022 an email to Mr Keegan (p750): In this email the claimant set out a number of matters which reflect his dissatisfaction with the approach taken by Mr Rawlingson there is no qualifying disclosure contained in this email.

54. There was no assessment of the qualifying disclosure questions. It is simply not possible to understand on what basis the disclosure was found not to be qualifying.

55. The claimant relied on the statement in the email that “we don’t have this data” which has to be seen in the context of his earlier disclosures. The Employment Tribunal was required to assess whether there was a protected disclosure on the basis asserted in his pleadings.

56. The Employment Tribunal said of the third asserted protected disclosure: c. On 27 January 2022 email to Mr Rawlingson copied to other members of the board and employees of the respondent (p693): This was the claimant’s response to the direction given to him by Mr Rawlingson on 5 January 2022. There is no disclosure of information here, there is set out by the claimant his perspective of matters, an indication of how he intends to act and an assertion that Mr Rawlingson “had no authority to make some of those interactions in email dated 5th January”.

57. The assessment of the Employment Tribunal was that there was “no disclosure of information.” It would be unusual for an email to disclose no information; that is generally the point of sending an email. It may be that the Employment Tribunal considered that the disclosure failed on the application of some of the other qualifying disclosure questions, but it did not say so.

58. The claimant relied on the following extract from the email This is quite a serious situation from your perspective as you had no authority to make some of those interactions in your email dated the 5th of January based on the legal framework that this company operates under

59. That demonstrates that there was material worthy of assessment by application of the qualifying disclosure questions.

60. The Employment Tribunal said of the fourth asserted protected disclosure: d. On 27 and 28 January 2022 emails to Mr Keegan (p685): In the email of 27 January the claimant says: “We don’t have the data it does not exist. I cannot raise on this abstract. We do not have any possibility of proper publication to support the planned raise. So we need to pivot back to the biomarker and collect data to enable a further raise on the diagnostics via two sponsored trials.” In the email of the 28 January the claimant asks: “do you this think data set is sufficient to raise £6m plus raise – would be interested to get both your views on this”. There is no disclosure of information tending to show one of the matters specified in section 43B(1) ERA.

61. Once again it is unclear whether the Employment Tribunal concluded that there was no disclosure of information or that the information disclosed did not tend to show a breach of a legal obligation, the only wrongdoing relied on by the claimant. The Employment Tribunal did not assess the disclosure in the context of the other emails.

62. The Employment Tribunal said of the fifth asserted protected disclosure: e. On 30 January 2022 email to Ms Pankova (p441-443): In this email to Ms Pankova, a member of the board, the claimant says that he is being asked to “raise money on data which does not agree to the hypothesis”. In this the claimant’s understanding of the data is set out. It is not an understanding shared by Professor Cordeiro. We are satisfied that there is no disclosure of information here at all. This email is part of a discussion about strategy for the respondent which at this stage was not agreed upon and the claimant is expressing his position to a member of the board. This discussion is at the heart of the dispute between the claimant and Mr Rawlingson, the claimant has an understanding of the data which he uses in his argument against Mr Rawlingson.

63. The only assessment of the Employment Tribunal was that there was “no disclosure of information here at all”.

64. Mr Kohanzad, for the claimant, relied on the following extracts from the email: The email that James sent was clearly wrong and he had no authority as non executive chairman to make those statements and demands. You can't start making things up and ignoring legal agreements because he wants to do… We have data that shows the biomarker works, we do not have the same as a diagnostic… …We cannot raise money on the diagnostic as if people review data below the paper it does not work (hopefully in time it can, but right now it does not). There cannot be a diagnostic investment raise with the data we have now - how can I make this clear so you both understand? … The only investment strategy is the biomarker as the diagnostic will fail due diligence

65. It is hard to see how the Employment Tribunal concluded that there was not disclosure of information, whatsoever. Again, it may be that the Employment Tribunal considered that the disclosure failed on the application of some of the other qualifying disclosure questions, but it did not say so.

66. The Employment Tribunal concluded:

46. The conclusion of the Tribunal is that there is no qualifying disclosure made by the claimant. There was no protected disclosure.

47. The claimant has not made a protected disclosure and so could not have been dismissed because of making a protected disclosure. The claimant could not have been subjected to a detriment because of making a protected disclosure.

67. Unfortunately, I have concluded that the assessment of the Employment Tribunal was wholly insufficient to support that analysis. There was also no overall assessment of the emails in their proper context. Ground 3, timing of the decision to dismiss

68. The Employment Tribunal held of the timing of the decision to dismiss:

48. Had we concluded that there was a protected disclosure we would in any event have concluded that the protected disclosure was not the reason for the claimant’s dismissal. The decision to dismiss the claimant was made before the 15 December 2021 board meeting. The board then sought legal advice and had prepared a draft letter of dismissal. All of which occurred well before the claimant’ supposed discovery about the data and any alleged disclosures in January 2022 . [emphasis added]

69. The claimant raises two arguments in this ground of appeal. The first is that the Employment Tribunal failed to give sufficient reasons for the conclusion. The second is that it failed to address the claimant’s case as to why the decision to dismiss could not have been made on or about 13 December 2021.

70. I have concluded that the ground is made out. In its findings of fact the Employment Tribunal did not find that a decision to dismiss had been made before the board meeting on 15 December 2021. There is simply no explanation of how the Employment Tribunal changed from the statement in the findings of fact that a “decision to dismiss the claimant appears to have either been made or was being considered subject to advice from lawyers” to a firm conclusion that a decision to dismiss had been taken.

71. In his skeleton argument Mr Kohanzad, for the claimant, asserted that the Employment Tribunal failed to address the claimant’s assertions that the decision to dismiss him could not have been taken on or about 13 December 2021, before the board meeting on 15 December 2021: (i) when Board Meetings here held there were minutes; however, there were, remarkably, no minutes of the supposed meeting on 13 December 2021; (ii) the Respondent’s ET3 [CB34] did not suggest that a decision was taken at the 13 December 2021 meeting, suggesting that it was taken in January 2022. §10 & §11 ET3 show that the decision could not have been taken in 2021. Repeated at CB42 it suggests late January 2022. That position was maintained at the January 2023 Preliminary Hearing; (iii) the ET3, §11, suggests that part of the reason for dismissing the Claimant was that he had sought to restrict the Director’s access to the business. That took place on 26 January 2022, suggesting that the decision to dismiss him must have taken place on or after 26 January 2022; (iv) SMT Meeting minutes of 3 February 2022 [SB93] suggest that the reason for the Claimant’s dismissal was his attempted “Coup d’etat”. That is a reference to the Claimant seeking to add three people to the Board, which took place between 29 and 31 January 2022, suggesting that the decision to dismiss was taken at the end of January 2022; (v) the script read out at the 21 February 2022 Extraordinary General Meeting [SB103-106] stated that a decision to terminate the Claimant’s employment was made at end of January 2022 and legal advice taken in January 2022. It continues “the decision to dismiss the CEO was made by the Board at the end of January and that timing was provoked by Aman’s actions. The decision to terminate was then ratified at the Board Meeting on 9th February, to which Aman was invited but did not attend” [p106 supplementary bundle]. (vi) the 9 February 2022 Board minutes state “the ratification of the decision of the board to terminate the employment of Aman Khan (“AK”) with immediate effect from 31 January 2022, pursuant to a letter sent by the Company on the same date” [SB106]. (vii) in April 2023, the Respondent emailed the Claimant stating that the reason for his dismissal was his “attempt to remove James Rawlingson, from his position as Chairman, because you disagreed with him about strategy”. The Claimant’s attempt to remove Mr Rawlingson was discovered by the Respondent on 28 January 2022. His previous attempt to do so in December 2021 had been amicably resolved and so reference to attempting to remove Mr Rawlingson could only have referred to his attempt on 28 January 2020; (viii) the Claimant was dismissed by text message on 31 January 2022 saying “[t]he board and key shareholders have lost confidence in you as a result of your recent conduct”. The Claimant’s recent conduct appeared to refer to the Claimant’s conduct in January 2022; (ix) the fact that the Claimant was dismissed by text appeared to undermine the fact that the decision had been taken some six weeks earlier, for which legal advice was subsequently sought; (x) it would have been illogical to the Claimant to attend the Hawaii conference, the largest client event of the year, if a decision to dismiss him had already been made; (xi) a WhatsApp group of Board Members, which the Claimant was not part of, made no mention of a decision to dismiss the Claimant prior to 15 December 2021; and (xii) the Respondent relied upon the breakdown of the relationship between the Claimant and the Second Respondent as being the reason for dismissal; however, neither the ET3 nor the dismissal letters proffer that as the reason for dismissal. Respondent’s position on the reason for dismissal appeared to constantly change.

72. While there was some dispute as to precisely which of these points were raised by the claimant at the Employment Tribunal, taking account of his oral evidence (including cross-examination), written submissions and oral submissions, I accept that the majority were raised and required consideration by the Employment Tribunal. In circumstances in which the determination of the date of the decision to dismiss the claimant was not properly reasoned, these matters will have to be considered on remission. Ground 5 and the second appeal – the new evidence

73. By ground 5 and in the second appeal against the reconsideration judgment, the claimant seeks to rely on a transcript of a recording of a discussion on 3 February 2022 which it is contended supports the contention that the decision to dismiss was not made until 2022. The respondent contends that it does not add anything of substance to the minutes of the meeting on that day that were before the Employment Tribunal. There is some force in that argument. However, as the issue of when the decision to dismiss must be remitted I have concluded that the question of whether the transcript of the recoding can be relied upon at the remitted hearing will be a matter for the Employment Tribunal, although if, as the respondent suggests, it adds nothing of substance to the official minutes it is hard to see why the respondent would object to the introduction of the transcript. Disposal

74. I have concluded that, having regard to the principles in Sinclair Roche & Temperley v Heard [2004] IRLR 763 , the remission should be to a differently constituted Employment Tribunal. The errors in the judgment were fundamental to the decision taken. The matter will have to be considered entirely afresh and so there would be no saving in time or expense in remitting to the same Employment Tribunal. Indeed, there could be delay as a result of convening the same panel. Remission to a new panel is proportionate in those circumstances.