Tribunal: Firm’s evidence criticised
A law firm was entitled to summarily dismiss a trainee solicitor who forwarded client-related emails to a private email account, an employment tribunal has ruled.
Employment Judge Sutton KC said Wing Sze Siu’s explanation for why she did this was “equivocal and unconvincing”.
She had worked at City firm Sterling Lawyers from July 2021 until October 2022 and, in her claim, argued that the reason or principal reason for her dismissal was that she had made protected disclosures of alleged misconduct at the firm to the Solicitors Regulation Authority (SRA) and Legal Ombudsman; alternatively, she said, it was because of her pregnancy.
The tribunal recorded that, by late July 2022, the two sides had agreed that Ms Wing’s employment would cease at the end of that year.
“This appears to have coincided with concerns on the respondent’s part that the claimant was falling short of the billing targets which it expected its fee-earning staff, including trainees, to achieve. There were also said to be concerns about the claimant’s personal conduct.”
In August, the firm raised further performance issues and the firm’s compliance manager undertook an investigation, which recovered 106 emails Ms Wing had sent from her work email account to a private email address.
He said these contained data, documents related to clients Ms Wing had introduced to the firm, telephone logs and internal documents.
In early September, Ms Wing was suspended on full pay and soon after she reported the firm to the SRA and ombudsman. A fortnight later, Sterling Lawyers dismissed her for gross misconduct and reported her to the SRA too.
Judge Sutton said the tribunal’s fact-finding task had been “significantly impeded” by Ms Wing not producing a proper witness statement and the compliance manager’s failure to draft an investigation report “with properly collated supporting evidence” to support the disciplinary case.
“Given that the respondent is a law firm with a developed disciplinary policy, the approach that it adopted in its investigation of the claimant’s professional conduct was seriously deficient and unsatisfactory,” he said.
But, even if Ms Wing’s letters to the SRA and ombudsman were protected disclosures, the tribunal did not accept that they had “a material causative influence on the decision to terminate her employment, still less the principal reason”.
The judge said: “The disciplinary concerns which resulted in the decision to dismiss the claimant were clearly identified by the respondent a month prior to the first of the disclosures made to the SRA on 17 September 2022 and were the subject of ongoing investigation.
“There was no evidence to suggest that the gravity of the respondent’s concerns about the claimant’s conduct and performance was significantly aggravated by the respondent’s appreciation that she had referred it to external regulatory bodies: the underlying trust of both parties in the employment relationship had already become substantially and irretrievably damaged by that point.”
The tribunal accepted that the decision to dismiss Ms Wing was made the day before she informed it of her pregnancy, even though the letter of dismissal was dated three days later.
The tribunal said its deliberations about Ms Wing’s complaint of wrongful dismissal and whether the firm had adduced evidence of repudiatory conduct was “impeded” by the lack of a disciplinary investigation report.
But it concluded that sending “a significant number of confidential and client sensitive communications to a private email address” amounted to a fundamental breach of her contract of employment justifying summary dismissal.
“The tribunal found the claimant’s denials when questioned about the criticised conduct to be equivocal and unconvincing.
“The activity that that the tribunal found proved was clearly repudiatory in character, fundamentally breaching the confidentiality requirements set out in the training contract, and the duties of trust and confidence which are integral to the employment relationship.”
The evidence of the other instances of alleged misconduct was “either too sketchy or insufficiently cogent to satisfy it to the requisite standard of proof”, however.
“But the claimant’s breach arising out of the dissemination of emails to a private address was sufficient, viewed as a discrete issue, to rebut the complaint of wrongful dismissal.”
Trainees are meant to be trained not for being cash cows.