An estate agent in a £500,000 ‘whistleblowing’ case was unfairly sacked by London firm Felicity J Lord, part of Spicerhaart, an employment tribunal has ruled.

Abdul Samad had claimed that the company had tried to boost market share through the use of out-of-date listings ahead of a planned flotation.

He also brought claims of racial and religious discrimination, and victimisation, all of which were thrown out.

The expensive case involved 11 days of hearings with barristers acting for both sides.

The former branch manager at Bow, east London, also had his claims rejected for breach of contract and unauthorised deduction from his wages.

However, the tribunal did find that Spicerhaart had pressured Samad to withdraw his whistleblowing grievance in return for withdrawing disciplinary proceedings against him that were already in process.

The tribunal also found flaws and delays in Spicerhaart’s dealing with disciplinary proceedings.

The tribunal said that as a  result, Samad had been entitled to resign and treat himself as dismissed.

Samad’s solicitor told EYE he will now go on to claim compensation, which he says could be substantial.

The tribunal was critical of both parties. For example, it said that Samad had made his whistleblowing allegation about out-of-date listings as a “tactic”. It also said that Spicerhaart had brought the disciplinary proceedings based on a written policy which did not exist.

By the time Samad made his whistleblowing allegation, he was already the subject of an alleged gross misconduct disciplinary procedure over his commission claims.

The unfair dismissal case was brought by Samad against not just Spicerhaart but three individuals – Michael Whittaker, the area manager who was his line manager; Mariel Roe, who was his earlier line manager and divisional sales director; and Victoria Lowry, the group’s HR director.

Samad – known as Sam – had brought his £500,000 claim against his former employer, claiming he was forced out after ‘whistleblowing’.

In 2013, Samad had started to chase up commission he said was owed on the sale of new-build homes, but which had in fact been made by the on-site sales office. This money was subsequently repaid.

Three months later his commission structure was changed, with a single sales target replaced by separate targets for new homes and secondhand stock.

The tribunal said that Samad was unhappy about this, had not been consulted, and challenged it.

The following year, it was found that sales which had been achieved by negotiators who had since left the company had been switched to Samad’s name. The tribunal said that Spicerhaart managing director Russell Jervis took the view that, if true, this would be fraud and gross misconduct.

Samad would later go on to claim that it was standard practice in the company.

Spicerhaart’s HR department advised that this was a serious matter requiring investigation. In July 2014, during Ramadan, a meeting took place where Samad was shown six screenshots in which the seller negotiator name had been changed in favour of Samad’s, on or about the date of exchange.

However, said the tribunal, notes taken by Michael Whittaker of this meeting were “undoubtedly poor”.

A disciplinary hearing was postponed until the end of Ramadan and took place at the end of July 2014. The tribunal described this as a “difficult” hearing, with the claimant being angry and hostile.

Altogether there were eight allegations of gross misconduct.

In early August 2014, Samad put in writing – with the help of a solicitor – his complaints, including that he had been discriminated against because of race and religion, “where a common practice in the business had been trumped up”.

Samad said he trusted he would not be victimised for complaining about unlawful discrimination at work and/or making protected disclosures about the failure to complain with certain legal obligations.

This was a reference to the continued marketing of properties already sold.

The letter, to Mariel Roe, said: “This potentially misrepresents the public about our stock and market share. Moreover, your conduct also proves a misleading picture of our market share . . . and as a result I believe you may have benefited financially. Can you therefore please clarify whether or not this amounts to ‘deliberate falsification’ for financial gain?”

The employment tribunal judgement says that by “coincidence”, very shortly after this letter was sent, there was a complaint from Rightmove about the continued marketing of properties that had been sold.

The tribunal reports that “Mr [Paul] Smith, the CEO, was very concerned proposing clawbacks of bonus from managers who had obtained them ‘fraudulently’ in his words and identifying a potential trading standards issue”.

However, according to the tribunal, Samad’s own complaints were “entirely prompted by the disciplinary process” and “was a tactic decided upon by the claimant of trying to force discontinuance of the case against him by making serious allegations against those bringing it”.

Spicerhaart started investigating whether leavers’ sales were transferred over to other negotiators. It checked a sample of 22 leavers and found that seven had invoices raised after their leave date with a new selling negotiator number. An IT investigation looked in greater detail at the 18 transactions in question, finding four as potentially suspect.

This work was detailed and the report was not produced until December 2014.

Before that, a further meeting was held on October 16, 2014, between Victoria Lowry and Samad.

At this meeting, Lowry told Samad that she could not find a case for either race or religious discrimination.

To this, Samad said he did not want to ‘grass up’ his colleagues but that he had information which he reserved the right to use.

That evening, Lowry rang Roe and advised that the disciplinary process be dropped if, as Samad had asserted, there was no written policy on leavers’ commissions.

The tribunal also found that Lowry was “motivated by a desire to ‘close everything down in a mutually acceptable way’ which implies to us a trade-off where each of the claimant and the respondent withdrew their complaints against each other”.

A second one-to-one meeting was also held before the report was published, this time with Michael Whittaker. The tribunal said that Samad was rude, hostile and disrespectful.

The tribunal notes in its report: “The claimant’s evidence to this tribunal demonstrated a lack of respect for Mr Whittaker, [and] anger at Mr Whittaker’s involvement in what he believed were trumped up disciplinary allegations . . .”

In early November, Whittaker alerted HR to three further cases of managers changing the selling negotiator. This led to an additional four suspicious transactions being identified by IT in its final report.

At the end of October, Lowry wrote to Samad to say that the disciplinary and grievance procedures continued.

A further meeting took place in November, in two parts, with Spicerhaart’s training manager Emma Barber appointed to consider his grievances. The first lasted five hours and considered the complaints of discrimination. The second lasted 23 minutes and considered the whistleblowing issue.

At the first meeting, Samad made a number of serious allegations of discrimination relating to other employees. The meeting ended with Samad saying he could no longer work for Felicity J Lord, and that he had given a proposal to the CEO. “We infer that this proposal related to the terms upon which the claimant was prepared to resign,” said the tribunal.

There were also interviews with other witnesses, including Roe. She described the allegations against her of discrimination as “absolute rubbish”.

She said she was “outraged and appalled at how this has been handled and virtually left in the dark for months while someone who had blatantly stolen from the company can now have me sitting in an investigation about discrimination and race is just totally unacceptable”.

Barber wrote Samad a nine-page letter on December 5, 2014. In it she stated that there was a lack of clarity about the practice for re-allocating leavers’ commission, and recommended the disciplinary action be dropped and a clear policy issued. She found no evidence of discrimination. She also thanked him for raising the market share issue and told him an audit had established some misrepresentations.

The next day, Spicerhaart managing director Russell Jervis told Samad the disciplinary action was discontinued due to insufficient clarity in the policy. He apologised for the delay in providing the outcome, which he attributed to holidays, paternity leave and attempts at informal resolution.

Samad then appealed against the grievance decision. The appeal hearing was chaired by Chris Sherlock in January 2015.

The tribunal said: “In fact, Mr Sherlock dismissed the appeal on 5 February 2015 with very little further investigation.”

Samad regarded the rejection of his appeal as the last straw and resigned with immediate effect on February 12, 2015. He cited his concerns about the disciplinary proceedings, discrimination, rejection of his grievance, lack of notes and proper investigation, failure to pay his commission and lack of apology.

He also said Felicity J Lord had not given him the Bow profit and loss statement for December 2014. The tribunal said this was pure oversight because of a change in line manager and said that even if Samad had received the figures earlier, the Bow branch’s performance had not met its targets.

The tribunal had to consider whistleblowing and ‘protected disclosures’. These are disclosures of information which “in the reasonable belief of the worker” show a criminal offence or failure to comply with legal obligations.

There is a distinction between giving information and making allegations.

The tribunal found that it was a matter of fact that Samad was alleged to have committed an act of serious gross misconduct and that Spicerhaart relied on a policy to do with leavers which turned out not to exist.

The tribunal found that there was no evidence of discrimination. The disciplinary proceedings had “nothing at all to do with the claimant’s race and/or religion”. Other alleged discrimination on the grounds of race, religion or belief was also dismissed.

Turning to the whistleblowing on old listings, the tribunal said that Barber had not investigated Samad’s allegations about market share manipulation “in any meaningful way”. However, the tribunal said this was because the issue was already being investigated by Rightmove, and she had not wanted to trespass on that.

The tribunal said that the misrepresentation of available stock and market share was potentially a breach of the Property Ombudsman’s code of conduct: “We accept there was a disclosure of information which the claimant reasonably believed tended to show a breach of a legal obligation. As the disclosure involved misrepresentation to the public, we also accept that the public interest element of this disclosure is satisfied . . . The disclosure was made to the employer and as such is protected”.

However, the tribunal went on to say that the disclosure was not the “effective or material cause” of any detriment to the claimant.

However, there was a delay in dealing with the disciplinary proceedings and Samad had been pressured into withdrawing his grievance as an incentive to discontinuing disciplinary issues.

The tribunal concluded: “The whistleblowing detriment claims in respect of all other issues fail.”

The tribunal criticised Spicerhaart for introducing a new bonus scheme without consulting Samad; it said there was good reason not to pay the full new homes commission claimed but that this had been poorly communicated; bringing in Whittaker to become Samad’s new line manager was again done without consultation and it was predictable that Samad would be unhappy about the decision.

There was also criticism of failure to provide notes; failure to produce a copy of the policy relied on; of the way the meeting in October 2014 had been conducted; and of delays in resolving the disciplinary process.

The tribunal said: “It was apparent to Ms Lowry on 16 October 2014 that if there was no written policy, there were no grounds to discipline the claimant for gross misconduct. Her recommendation to Ms Roe and Mr Jervis was not accepted. It should have been. To accuse an employee of dishonesty and potentially subject to summary dismissal is conduct which is likely seriously to damage the relationship of trust and confidence.

“Whilst initially there was [a] case to make and investigate the allegations, on Ms Lowry’s own evidence this was no longer the case from October 2014.”

The tribunal concluded that Samad “has succeeded in his unfair dismissal claim and his whistle-blowing detriment claim for the delay between 16 October 2014 and 5 December 2014″.

It ruled that Samad will now be entitled a remedy. A remedy hearing is expected to last two days.

Spicerhaart CEO Paul Smith said in a statement after the tribunal: “I have been deeply concerned about the allegations made by Sam Samad and following a thorough internal investigation and subsequent employment tribunal, which determined that there was no evidence to support such allegations.

“It’s important to note that while the tribunal found that the claimant had been unfairly dismissed, he lost on all other major counts.

“The tribunal found that Sam Samad was not discriminated against because of either race or religion or because he whistleblew; nor was he subject to any detrimental treatment because of this.

“In this instance, we regrettably failed to fully follow dismissal procedure which was the only reason why Sam Samad was found to have been unfairly dismissed.

“His claims that we were guilty of market manipulation in order to boost a potential float were again summarily dismissed by the tribunal and found to be untrue.

“We are a private, independent company that values ethical behaviour and upholds the highest business standards.”

Samad’s solicitor Jahad Rahman, of Rahman Lowe Solicitors, said: “This is a victory for common sense.

“The tribunal not only found that my client was unfairly dismissed but he was also victimised for whistleblowing at work.

“It is shocking that the company tried to cover up the market manipulation concerns by asking my client to drop his grievance. This is one of the most disturbing aspects of the case.

“We are now preparing for the remedy hearing and are confident that the tribunal will award my client substantial damages for financial loss and injury to feelings.”

Samad is now managing director of Estateology in London’s Docklands.