How the Serious Fraud Office got it wrong

22 Mar 2021

If you want an insight into the workings of the Serious Fraud Office (SFO), the US Department of Justice (DoJ) and the FBI, an interesting starting point would be the Employment Tribunal decision in the case that Tom Martin brought against the Serious Fraud Office.  

The facts

Tom Martin, a Senior Solicitor, was leading the SFO’s high profile probe into oil and gas consultancy, Unaoil. Other law enforcement agencies were also interested in Unaoil and the Ahsani family who owned it, including the DoJ and the FBI. 

In 2018, the investigation had reached the stage of considering extradition proceedings against Saman Ashani to the USA which Tom Martin was resisting. Whilst the SFO wanted to put him on trial, the DoJ and FBI wanted him to help unlock other investigations into companies allegedly paying bribes. 

In July 2018, a FBI Agent raised various complaints about Mr Martin. Mr Martin was suspended, the SFO carried out an investigation and the only complaint that was pursued was one which concerned two comments made by Mr Martin to a FBI agent in a pub in 2016. There was a formal disciplinary meeting following which Mr Martin was summarily dismissed. 

Mr Martin brought two claims in the Employment Tribunal; for wrongful dismissal (being the monies that he would be entitled to if he had received his contractual notice) and unfair dismissal.  

The legal issues to be considered by the Employment Judge…

  • Whether the employer had a genuine belief that the employee was guilty of the alleged misconduct and whether there were reasonable grounds for that belief.
  • Whether a reasonable investigation was carried out.
  • Whether a reasonable employer would have dismissed the employee for that misconduct.

At each stage, the Tribunal must consider whether the employer’s conduct fell within a range of reasonable responses.  Did the employer act in a way in which no reasonable employer could have acted in the circumstances?

The decision

Mr Martin’s claims were upheld. Key factors in the Judge’s decision were as follows:-

  • The pub conversation was the sole survivor of a large number of complaints made against Mr Martin which had been found internally to be without merit, necessarily raising in the Judge’s opinion a question as to why they had been made. 
  • Mr Martin claimed that the complaint brought against him by the DoJ and FBI as well as Mr Ahsani were designed to have him removed from the case, as he was seen as an obstacle preventing Mr Ahsani being extradited to the United States.  The Judge agreed and found it “inescapable that the US Agencies and Mr Ahsani’s defence team had the same reason for raising the complaints, namely that they wanted [Tom Martin] removed so as to prevent difficulty with a joint wish to have Mr Ahsani extradited to the USA.”
  • There was a two year gap between the comments in the pub and a formal complaint being made. A reasonable investigation could only have concluded that the complaints made in 2018 were as part of an attempt to have Mr Martin removed as Case Controller. That being so, a decision to dismiss Mr Martin for using offending words would have been outside the range of reasonable responses.
  • The FBI agent in the pub had not taken offence at the comments at the time. 
  • Mr Martin had not contributed to his dismissal.  

The tactics used by Tom Martin’s Lawyers

Earlier, the SFO had failed in an application for the hearing to be in private. So why did the SFO defend a claim represented by a QC where the costs of a five day hearing would have been considerably more than Mr Martin’s claim?

The answer is probably that Mr Martin claimed reinstatement rather than compensation/damages. This probably forced the SFO to have to defend the claim. Orders for reinstatement are extremely rare (they are made in less than 1% of cases). However, if one is made and the employer refuses to comply with such an order, the Tribunal will make an additional award, as well as making an order of compensation for unfair dismissal.  It is presumed that the SFO found it untenable that in order to achieve this result, a UK law enforcement agency would need to flout a Court ruling.  Better to fight the claims and take its chances.

Conclusion

A remedy hearing will proceed unless a settlement is reached between the parties.  

Susan Hawley, executive director at campaign group Spotlight on Corruption is quoted as saying that it was “absolutely extraordinary and frankly outrageous” that the DoJ “would act in concert with those accused of extensive and egregious corruption to lodge complaints against the SFO.” The organisation says “The fight against global bribery is too important for infighting and inter-agency bullying.”

And finally, who will play the principal characters in the ensuing Hollywood movie? Over to you, Steven Spielberg. 

Further reading

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The Rise and Rise of Fixed Costs in Litigation

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