Employment: Contractual right to terminate after 26 weeks’ absence
A law firm unfairly dismissed an assistant solicitor who was recovering from cancer, an employment tribunal has ruled.
However, Employment Judge Bedeau found that Luton firm Rodman Pearce would have validly terminated the employment of Elona Onibere two months later had it followed the correct procedures.
Ms Onibere had been a housing solicitor at the firm since 2014. Under her contract, she could be dismissed if she was absent for work for more than 26 weeks in a year as a result of incapacity but had to be given a month’s notice.
Her absence from illness in early 2019 came at a time when the housing department was seriously underperforming. Its supervising solicitor then left, meaning the firm could not continue carrying out legally aided housing work and the department was later closed.
Ademola Akilo, Rodman Pearce’s sole proprietor and managing partner, claimed that he sent Ms Onibere a notice of termination letter on 29 July 2019 because of her absence.
However, the tribunal noted that the actual termination letter dated 30 August used a different font to the notice letter and made no reference to having sent the notice.
It concluded that Mr Akilo did not send the notice letter – rather he drafted it later “in order to cover himself, possibly after taking legal advice”, once Ms Onibere said in September that she had not received it.
Judge Bedeau said: “The claimant was clear in evidence that she never received the notice of termination letter and we accepted her evidence.”
He further found that the termination letter was not sent on the day it was dated; rather, it was sent as an attachment to an email from Mr Akilo to Ms Onibere on 12 September.
Ms Onibere then unsuccessfully challenged the dismissal. They agreed a self-employed consultancy for her but the relationship broke down after a month. The solicitor found a housing job at another firm in Luton on 1 June 2020.
Mr Akilo told the tribunal he did not know at the time that the cancer diagnosis made Ms Onibere disabled under the Equality Act 2010.
“He acknowledged that with hindsight he should have taken specialist employment advice and apologised to her for any distress he may have caused.
“He accepted that he should not have taken the decision to terminate her employment without entering into a period of consultation with her. The consultation would have discussed her health at the time and specifically the fact that the housing department had closed, consequently, there was no role for her to undertake.”
Nonetheless, Mr Akilo argued that the dismissal was unfair on procedural grounds only and asserted that, had he consulted with her, it would still have resulted in termination and that it was a proportionate means of achieving a legitimate aim, as her continued employment was no longer sustainable.
The tribunal concluded that Mr Aliko’s failures were “substantive” rather than just procedural, however.
Ms Onibere only received the dismissal letter nearly two weeks after it took effect and there was no hearing after she submitted an appeal.
However, Judge Bedeau found that, by the time the solicitor was able to return to work in mid-September, there was no position for her to occupy as a housing law assistant solicitor.
There would have been a two-week consultation period and then a month’s notice, the judge said, as there were no alternative roles in the firm she could take. This meant she would have been dismissed on 31 October.
The tribunal found also there was discrimination arising in consequence of a disability – “summary dismissal was not a proportionate means of achieving a legitimate aim” – indirect disability discrimination and a failure to make reasonable adjustments, but all in the context that Ms Onibere would have been dismissed by 31 October
A remedy hearing is scheduled for next month.
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