Employment: Solicitors are generally on three months’ notice, tribunal holds
A law firm does not have to pay outstanding salary owed to a solicitor it fired for gross misconduct discovered after he resigned, an employment tribunal has ruled.
He failed to pass on complaints from clients and did not apply for legal aid in four cases where he could have done.
Employment Judge Caiden said it did not matter whether Hastings-based Holden & Co had tried to find a reason not to pay Michael Lawless his notice and made no finding on the allegation.
The tribunal heard that the solicitor, a family law specialist, joined the firm in May 2020. He handed in his notice on 31 August 2021 and was told that 3 September would be his last day.
This was the date on which the solicitor’s employment was terminated, the tribunal held.
In response to his claim for wrongful dismissal, the firm argued that Mr Lawless was only on one month’s notice but the tribunal found that it was three, rejecting the submission that his contract said three by mistake.
Even if the contract was not relied on, Judge Caiden said, Mr Lawless would be entitled to an implied term of reasonable notice, which on the facts would be three months, in part because that was the “standard” period for solicitors.
In mid-September, boss Jolyon Holden told Mr Lawless that he was on gardening leave until the end of the month. Further, having reviewed the solicitor’s files, Mr Holden had “concerns about the quality of your work” and invited him to attend a disciplinary hearing to discuss nine specific instances of alleged misconduct.
Mr Lawless refused on the grounds he was no longer employed by the firm.
On 27 September, Mr Holden informed him that his employment had been terminated for “gross negligence” and he was paid up to the date of the hearing.
The tribunal accepted the “factual basis and assertions” of the allegations upheld at the disciplinary hearing. Two of them concerned Mr Lawless’s failure to pass on complaints from clients.
Mr Holden said in evidence that the Solicitors Regulation Authority would issue a £400 fine over a complaints officer’s failure to respond to a complaint (he was the firm’s complaints officer) and that repeated failures could lead to greater regulatory problems.
The other significant failures were not applying for legal aid in four cases, leading to the firm missing out on at least £4,000 in fees.
Judge Caiden held that these amounted to repudiatory breaches, rather than capability issues that should have led to dismissal with notice.
He said: “Stepping back and regarding to the totality of the ‘negligence’ found, the tribunal concludes that objectively speaking there has been a breach of the trust and confidence at the heart of the employment contract.”
It was “at the root of the solicitor employment relationship with a firm that complaints are addressed”, even if they eventually proved unjustified.
“It is often the case that in cases involving negligence with solicitors and other legal professionals a main issue has been the attempt to ignore or bury a difficult issue or complaint,” the judge observed.
The financial losses were gross misconduct and also destroyed trust and confidence. “For the respondent, losses of some £4,000 or so were significant and appeared to all be avoidable.
“It does not seem to the tribunal to be an answer that the claimant may have generated work, the respondent needs to be able to have trust and confidence that repeated losses are not occurring.”
This meant the wrongful dismissal claim failed: “The claimant was responsible for a repudiatory breach that the respondent was unaware of at the time but can rely upon to defeat his claim for any outstanding notice monies.”
Mr Lawless’s counsel has argued that the law firm’s actions were simply “retaliation” for Mr Lawless resigning and a way to “avoid having to pay”.
Judge Caiden said: “This can be shortly dealt with: it does not matter and so the tribunal does not have to make any such findings.
“In law, if there was a repudiatory breach which was unknown at the time and later discovered it can be relied upon and the motivation for looking for it is immaterial.”
Mr Lawless also failed in a claim for payment in lieu of outstanding holiday but the tribunal said Holden & Co was wrong to deduct £73.53 from his final wage slip for a parking permit.
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