Employment contract: Breach claim well founded
A trainee solicitor whose terms of employment were changed four days before he began work has won his tribunal claim for breach of contract.
Employment Judge Fiona McLaren found that Sussex firm Holden & Co knew Aleksandar Osvald had to work in its Hastings office for childcare reasons and yet, having agreed terms orally, put a clause in his contract that he would have to work at another office if required.
Mr Osvald completed the legal practice course in 2013 but did not pursue a legal career at that time because he was – and remained – his family’s primary child carer and needed flexibility.
Instead, he worked for Royal Mail in a well-paid job he enjoyed and provided him with that flexibility.
Nonetheless, in November 2021, he applied to start as a trainee at Holden & Co. Judge McLaren found that, at a meeting on 13 November with managing partner Jolyon Holden, Mr Osvald explained his need for flexibility. The discussion also included office location and child pick-up arrangements.
The judge said Mr Holden agreed the terms of Mr Osvald’s part-time employment, paying £22,000 pro rata and also paying for a parking space close to the Hastings office so that he could make the school runs.
Holden & Co argued that there was no contract but Judge McLaren held that this was not, as Mr Holden said, an exploratory meeting.
“I find that this conversation set out the parameters for a working relationship which the respondent then took forward in subsequent email.”
That email also required Mr Osvald to undertake four actions, including checking with the Law Society about the impact of a six-year gap between finishing his studies and starting a training contract.
He completed these tasks two days later and the judge held that, as of 15 November, there was an offer of a job with clear terms which Mr Osvald accepted. He told Mr Holden that he was going to resign from Royal Mail.
“As a very experienced solicitor I would have expected Mr Holden to raise some questions about this at the time if he did not consider that a contractual relationship had been formed.
“He did not do so and as already noted none of the correspondence was marked subject to contract, nor did the email chain make any reference to any requirement for a further written contract in place.”
Mr Osvald only received the actual contract of employment four days before his start date of 17 January 2022. He told Mr Holden that he could not commit to starting the role without six issues being addressed, including what he believed to be a change to his place of work and his working hours.
He said reference to work at other offices needed to be removed, as did a clause saying he could be asked to work such additional hours as were reasonable.
Mr Holden said it was essential that Mr Osvald could be required to work at the firm’s Ashford office. Mr Osvald could not accept this and he never started the job.
Judge McLaren held that the office location change was the only term which Mr Osvald regarded as a fundamental breach, as he believed the other points could be agreed with Mr Holden.
“The claimant considers that the respondent’s action in changing his place of work was a breach of the implied term of trust and confidence. He believed, and I have found this to be the case, that the respondent was aware of the reason why he needed to work in one location and chose to disregard this…
“To go to Ashford would be entirely impracticable with a pick-up from school and the respondent was aware of this fact.
“I conclude therefore that sending a written document which changed the place of work, albeit on an occasional basis, and refusing to alter this did amount to a fundamental breach of a term of the contract.
“This was sufficient to allow the claimant to treat the oral contract as at an end and resign.”
This meant the claim for breach of contract was well-founded. The judge did not move on to consider what damages should be awarded but said that, subject to further argument, “it would appear that the loss is attributable to the constructive wrongful dismissal itself”.
She explained: “While the reason for the constructive wrongful dismissal was potentially a breach of an implied term, that is the background to the breach. On these facts the loss here is from the dismissal itself and not from the potential breach of any implied term.”
This is the second employment tribunal ruling involving Holden & Co in less than three months. In the other case, a judge ruled that the firm did not have to pay outstanding salary owed to a solicitor it fired for gross misconduct discovered after he resigned.
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