Contract: Solicitor could not sit on bench as and when he wanted
A solicitor has failed in his claim for unfair dismissal after he refused to accede to his firm’s request to stop sitting as a deputy district judge (DDJ).
An employment tribunal held that the “dismissal fell within the range of reasonable responses of a reasonable employer”.
Roger Lowe, a criminal law specialist based in Oldham, qualified in 1977. He sits as a deputy district judge (crime) in the magistrates’ court with a commitment of between 15 and 50 days a year.
He joined Garratts as an assistant in 2015 after it bought the firm where he was one of the two partners. The full-time and commitment clause in his employment contract was amended to allow him to sit as a DDJ.
For two years, Mr Lowe only sat on days where his absence was approved by the partner in charge, or he took sitting days as leave.
This continued even after he was told he would not be able to sit as often because of a decline in work and pressure on profitability in the firm’s criminal department that led to a redundancy exercise and meant he would have to work in the office more than before.
The partner in charge still approved some of his requests for absence, until the other partners discovered this and how much time he had taken (27 days between January and May 2017).
Managing partner Stephen Garratt told Mr Lowe that he would no longer be able to sit as a DDJ because his “whole time and attention” was required at the firm.
The tribunal recorded that Mr Lowe disagreed with the view that there was a need to have present two full-time advocates five days a week to drum up work, and asserted that he had a contractual right to sit as and when he chose.
After sitting for a day in July 2017 that he had been told he could not have off, Mr Lowe was accused of breaching his contract.
The tribunal said: “At the disciplinary hearing on 2 August 2017, the claimant confirmed that he did not believe he needed the respondent’s consent to sit, although he sought it out of courtesy. He accepted that his absences caused some difficulties to the respondent which he did not however consider to be insurmountable.
“He stated he was aware of the direction given to him not to sit, which he called unlawful. He asserted that the firm benefitted, as he benefitted, from his appointment as DDJ, which was a congenial engagement from his perspective and he asserted again the right to sit as and when he chose because it was written into his contract.
“The respondent did not accept that and explained the reasoning for the dismissal in its letter… as being gross insubordination, an unwillingness to obey the demands of the partners not to sit on dates that had been refused to him.”
Judge T Vincent Ryan ruled that the employment contract was “permissive” and did not allow Mr Lowe to sit as and when he wished.
“I say that because both parties accepted from the outset that, to give business efficacy to their arrangement, the claimant had to ask permission, the respondent had to grant it and would not be expected to do so in circumstances where the needs of the business militated against it…
“The claimant’s judicial office was seen as being for his, and the public’s, benefit, but that was secondary to the respondent’s requirements.”
As a result of the “crisis” in the criminal department in 2016, Garratts was “entitled to organise its business as it felt its needs dictated, and it is not for me, or indeed Mr Lowe, to run the respondent’s business, not to say whether it was doing it well or doing it badly, right or wrong”.
But the partner in charge “muddied the waters” by allowing Mr Lowe to continue sitting.
Judge Ryan concluded: “The claimant submitted that he had a contractual right to sit as and when he pleased. He had not. The claimant submitted he had a contractual right to sit and only had to notify the respondent; he had not. The claimant breached his contract by sitting as a DDJ on 11 July 2017.”
Given that Mr Lowe had made it clear that he would continue to sit as he wished, the dismissal was reasonable, even though the judge did say that Garratts could have warned Mr Lowe, and there could have been further negotiations.
Mr Lowe, who now works at Platts Solicitors, told Legal Futures: “I was obviously disappointed at the decision and feel that this will make it increasingly difficult for solicitors who are part-time judges like myself to fulfil their role when they are at the whim of their employers who may be inclined to stop them sitting on spurious grounds as happened in my case, notwithstanding previous assurances.
“The Law Society is continually encouraging the profession to apply for judicial appointments and a part-time role is often the precursor to a full-time post, so this ruling does little to enhance the prospects of those solicitors with judicial aspirations.”
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