Tribunal: Egregious breach of good employment practice
A litigation PA who worked for a Kent law firm for 25 years has won her claim for constructive unfair dismissal over the “thoughtless and high-handed” way it moved her to the conveyancing department.
The tribunal also heard its senior partner admit that his “apparently contemporaneous” notes of meetings with Ms J Potter were “a sham” and he had “added” material when they were typed up.
Employment Judge Morton said the decision to replace her as litigation PA without consultation was “thoughtless and high-handed”.
She said there was “an attempt” by Mark Hawkridge, senior partner of Gillingham firm Hawkridge & Company, to put across the business case for transferring Ms Potter, but his reasoning was “chaotic and inconsistent”.
The judge said she preferred to see the course of events as “attributable to disorganisation and poor business practice rather than a conspiracy to manoeuvre the claimant out of her job”, as Ms Potter had claimed.
She described the decision to “spring the change on the claimant without prior consultation” as “an egregious breach” of good employment practice.
“This entire dispute might have been avoided if the claimant had been properly involved in the discussions from the outset.”
Judge Morton said: “Part way through his evidence to the tribunal Mr Hawkridge, a solicitor of the senior courts and an officer of the court, admitted that the apparently contemporaneous notes of meetings between him and the claimant in early September 2019 had in fact been typed at a later date, were ‘a sham’ and that he had ‘added’ material to them when they were typed.
“Leaving aside the issues raised by an officer of the court producing evidence to an employment tribunal in that manner, this admission seriously undermined the credibility of Mr Hawkridge’s evidence.”
Delivering judgment, Judge Morton said Ms Potter had been employed by the law firm as a litigation PA for almost 25 years at the time of her resignation in October 2019.
“That is by any standards a remarkable length of service and it is very sad that the claimant’s long period of employment has ended in this dispute.”
Hawkridge & Company was a small firm with five fee-earners and six support staff at the time of Ms Potter’s departure, and its main work streams were conveyancing, private client and litigation.
She had a “high level of responsibility for matters that are important in a solicitor’s practice” beyond secretarial work, including office management and recruitment of support staff, and she was a signatory of the firm’s office and client accounts.
Judge Morton said a secretary in the conveyancing department resigned in July 2019 and the law firm advertised for a new one.
Before any meeting or discussion took place with Ms Potter – who was usually involved in such recruitment – a candidate with two years of experience of working in the court system was offered a job, not as a conveyancing secretary but in the litigation department.
“It evidently and unsurprisingly came as a shock to the claimant to discover that the respondent had in mind that she should move into a role in the conveyancing department and that the new recruit with limited experience should take up a post in litigation, where the claimant had been working for 25 years.”
Ms Potter “continued to feel undermined by the situation”, which she found was affecting her health, and complained to Mr Hawkridge that it was “very difficult” for her to accept.
He referred to the level of her salary and said it was an easier overhead to bear in a more profitable part of the firm – an explanation the tribunal said did not stand up to scrutiny.
She followed this up with a letter saying her health and wellbeing had suffered and she would be “working under protest”.
Judge Morton ruled that depriving Ms Potter of her role was a repudiatory breach of contract.
“This was a small firm, where every role mattered and every role was distinct, perhaps more so than in a large organisation.
“To deprive an individual of their role in these circumstances is in my judgment a repudiatory breach of contract, either because it falls outside the scope of the flexibility provision within the contract, or because to exercise a flexibility provision to bring about such a fundamental change is a breach of the implied term.”
Further, ignoring her grievance letter, which Mr Hawkridge described in his evidence as a “whinge”, “added insult to injury” and was a further repudiatory breach.
The judge said it was “quite clear” from the claimant’s resignation letter that she resigned because of the repudiatory breaches and she succeeded in her claim of constructive dismissal.
She added that, at the remedy hearing, she would consider an uplift of 15% to 20% on the amount awarded to Ms Potter to reflect the law firm’s failure to respond to the grievance letter.