Tribunal: Firm should have waited until after solicitor was back from sick leave
A law firm unfairly dismissed an assistant solicitor by failing to follow the correct procedure – even though it was justified in firing him, an employment tribunal has ruled.
Luton firm Spring & Co was ordered to pay Mr EC Oise almost £1,200, which was reduced by nearly half by Judge Davison in Watford because of his conduct.
Mr Oise had been working on two connected personal injury claims that were put on hold pending an investigation by the defendant insurer. In June 2019, he was told to call the clients on a monthly basis to check for an update on the investigation.
In December that year, he became aware of a possible audit of the firm and, reviewing these files, realised some of the usual identity and other documents were missing. In seeking an update on the investigation, he also sought copies of the missing documents.
The client was unhappy at being chased and in a call made clear he no longer wanted the firm’s services.
In a follow-up email, Mr Oise said he was “shocked” at the response and said that, unless there was a response within three days, “we shall end the agreement without further reference to you”.
Mr Oise did not do this but instead wrote again to say that the retainer gave the client 14 days to comply with the requests made, otherwise the agreement would end and he would be liable for costs.
Soon after, the client spoke to the third-party introducer involved “to express his displeasure in the manner his case was being handled”, the judge recorded. The third party then spoke to the firm’s sole owner, Petronilla Aghaeze, to complain, although no formal complaint was lodged.
Ms Aghaeze told Mr Oise that she had asked him to put the matter on hold and that he should not have written to the client without her approval.
Mr Oise told the tribunal that he only sought supervision on matters he did not know how to handle. He had a previous case with a similar issue and Ms Aghaeze had told him to send what was referred to as a ‘cessation letter’. So he did not think he needed her approval to do this again.
Judge Davison held: “I find the claimant had no intention of ending the relationship with the clients. He was using these emails/letters to try and force the client into compliance.” However, the client “may well” have not realised this.
Ms Aghaeze instructed Mr Oise to retract the letter and apologise to the clients for sending them. He refused more than once, saying he had done nothing wrong.
On 3 January 2020, she invited him to a disciplinary hearing a week later. Even though Mr Oise’s GP signed him off work until 16 January, Ms Aghaeze refused to delay the hearing, stating: “I do not consider that you have a genuine illness.”
The hearing proceeded in his absence and he was dismissed for gross misconduct on two grounds: writing and sending the cessation letter, and serious insubordination/refusal to carry out a reasonable management instruction.
Judge Davison held that it would not have been fair to dismiss Mr Oise for sending the cessation letter. “The policy/working practices and instructions to the claimant were vague enough that I find he could reasonably believe that he had authority to send this letter as a pressure tactic to obtain information from the client.
“It is not a cessation letter as described by the respondent but a threat of cessation. I accept that it was the firm’s practice to send such a letter to chase clients and put pressure upon them.”
But dismissal for refusal to carry out a reasonable management instruction was made out. “For understandable business reasons, the respondent was acting reasonably in protecting the firm and the relationship with the client in asking the claimant to retract the letter and apologise for any offence caused (however inadvertently or unintentionally).”
But Judge Davison said the dismissal was procedurally unfair. “To expect him to attend a disciplinary meeting and to find, in the face of medical evidence to the contrary, that he was not ill as claimed, the respondent acted unreasonably.
“Further, given the seriousness of the consequences for any employee but particularly a solicitor of a potential finding of gross misconduct, I find the decision to proceed in absence to be procedurally unfair.”
Had the firm delayed the disciplinary hearing by two weeks, he held, Mr Oise would still have been dismissed and that was a reasonable response by the firm to what had happened.
The judge made a basic award of £1,536 and compensatory award of £512, which he then reduced by 50% to reflect both Mr Oise’s contribution to his dismissal and the unclear working practices. He added a 15% uplift due to the failure to follow ACAS procedures properly.
Leave a Comment