Deadline: Firm miscalculated date for filing defence
A conveyancing solicitor has won her unfair dismissal and discrimination claim against a well-known Essex law firm by default after it filed its defence two days late.
Employment Judge Housego in East London told Fisher Jones Greenwood (FJG) that “time limits are not aspirational but are deadlines, and parties are expected to meet them, the more so for respondents who are solicitors”.
He went on: “This is even more so for an employment law solicitor who is also the senior partner of the firm, and a personal respondent.”
Carole Scott was made redundant while on furlough last year and brought a claim for unfair dismissal, age discrimination, disability discrimination, notice pay and holiday pay against the firm, senior partner Tony Fisher, managing partner Paula Cameron and HR manager Anthony Edwards.
The judge said he took “full account” of the fact that to refuse the firm’s application for an extension of time to file its defence “may have more effect” than it would on non-lawyers.
He stressed: “Nothing in this judgment is a finding of fact about the circumstances leading to the claim.”
But Judge Housego had little truck with FJG’s excuse that missing the deadline was a “simple mistake” of miscalculating the date at a time when the Covid-19 pandemic had “caused problems”, which had taken Mr Fisher’s attention.
The firm pointed out that the claim form was received on 18 December 2020, the firm was closed over Christmas, and Mr Fisher returned to work only on 11 January 2021 which was – at the time unknown to him – the last date for filing its reply.
The judge said: “A solicitor faced with a claim of unfair dismissal, and even more so with a claim for unlawful discrimination, is to be expected to give that claim the utmost attention (if for no other reason than that so to discriminate is professional misconduct).”
Mr Fisher “really should have known better than to miss the limitation date in a claim against himself”.
Judge Housego went on: “There was no ‘miscalculation’. He would have been better being candid and owning up immediately to a simple diary mistake. The various explanations offered lack candour.
“It is not acceptable to say, as in effect he said on 13 January 2021 that he had not thought it worth applying because the delay was so short, and he was busy (when he was on three weeks’ holiday, and with remote access to his firm’s computer systems).
“The Covid-related excuse is without merit. In essence it is that the pandemic has caused much work to adapt practice. [Mr Fisher] was able to take a three-week break over the Christmas/New Year period, which makes that reason risible.”
Ms Cameron and Mr Edwards “could have salvaged the position had either of them taken the trouble to check with [Mr Fisher] that he was going to submit the response in time” – but they did not.
The judge added that “the merits of the claim are apparent from reading it” and described as “weighty” the claimant’s criticisms of the defence, none of which were addressed by FJG in its application.
He said he was particularly troubled by the absence of evidence that FJG considered relocating or retraining Ms Scott but did for others, along with a blog from Mr Fisher which trumpeted the “big and unexpected bang” for the property market caused by the stamp duty land tax holiday.
The balance of prejudice, Judge Housego concluded, fell in favour of Ms Scott, who would have faced “great strain” in having to wait a year until a full hearing given her disability.
As she was able to get a new job quickly and at a similar salary, this was “not a case which will result in a huge award”, he added, and so the financial repercussions of the decision would not be “overly harmful” for a business of FJG’s size.
“In so far as this decision results in reputational damage to the respondents, they have brought this on themselves, and it is no reason to permit them to defend the case.”
The respondents will be allowed to engage in the remedy hearing, at which Judge Housego said he would also award Ms Scott her costs of defending the application, given the background to it.
In a statement, Ms Cameron quoted Alexander Pope: “To err is to be human, to forgive divine.”
She added: “It is unfortunate but true that we missed the filing date in these particular proceedings as a result of a diary error. We do feel that the ruling was unusually harsh and are considering an appeal.”
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