Employment dispute: Partner and fee-earner at odds
A Sussex law firm unfairly dismissed a chartered legal executive as a result of “fundamental unfairness” in the investigation of the charges against her, an employment tribunal has ruled.
ODT Solicitors, based in Brighton, also failed to detail three of the six charges sufficiently and neglected to determine Margaret Lucy-Dundas’s appeal against her dismissal.
However, Employment Judge Dyal found there was a 70% chance that the firm could and would have dismissed her fairly but for the actions it got wrong, reducing her compensation as a result.
Ms Lucy-Dundas, a residential conveyancer, had worked at ODT’s small office in Hurstpierpoint without incident for nearly three years when salaried partner Richard Buckland was relocated to the office to run the conveyancing department.
Having been told just days before that she would be given more marketing and managerial responsibilities, Ms Lucy-Dundas “was upset by this and thought it implied she was not doing her job well,” the tribunal recounted.
Sharing secretarial support immediately caused friction between her and Mr Buckland, and their relationship worsened.
Judge Dyal said: “We do find that the claimant was resentful of Mr Buckland coming to the Hurstpierpoint office. Although she could see the case for a further partner at the office, she wanted to be that partner. Mr Buckland’s arrival made this less likely to happen, at least in the short to medium term.”
He said Ms Lucy-Dundas crossed the line “of what was appropriate workplace dialogue”, such as describing Mr Buckland as a “shit” in a text to one of the secretaries.
“However, this was far from being a one-way street,” the judge went on, with Mr Buckland complaining about her too.
“There was a difficult relationship between the pair and the did both regularly raise concerns about the other. However, in our view it was very much six of one and half a dozen of the other.”
Efforts to mediate between the two failed and the firm called in an external HR company, Cutler & Co, to fact-find and come up with solutions.
Its report blamed Ms Lucy-Dundas for what had happened and suggested she be offered a pay-out to leave. The report then went through some iterations as the partners were not happy with aspects of it.
Soon after, just before Christmas 2018, ODT began disciplinary action on six grounds, mainly over her conduct in relation to Mr Buckland, but also for having shouted at an equity partner and for ‘moonlighting’ at the weekends for another firm by going to clients’ homes and witnessing clients signing equity release documents.
After considerable toing and froing, ODT summarily dismissed Ms Lucy-Dundas in April 2019 after holding a hearing in her absence. She appealed but told the firm that, regardless of the outcome, she would not be returning to work.
Ms Lucy-Dundas started a new job in June 2019 but her representative told ODT that an appeal outcome was still required. She never received one.
Judge Dyal said the unfairness began with the Cutler report. “From the first draft onwards it expressed exceptionally trenchant, wholly one-sided views on a complex employment situation.
“It portrayed the claimant as the sole wrongdoer. Such views could not fairly be formed on such a small body of evidence and such an exceptionally thin investigation.”
Ms Lucy-Dundas had been told that she was to have an “informal chat” with Cutler & Co, for which she did not need to prepare.
“That would have been fine if the report had been limited to some initial exploratory issues. But it was not, it stood as a disciplinary investigation report. As such the claimant simply did not have a fair shot at the meeting with Ms Cutler.”
The Cutler report had “an enduring impact on what was to be the disciplinary process”, Judge Dyal said.
“It profoundly influenced and tainted the remainder of the process”, and the firm’s later investigation as part of the disciplinary process “did not come close to correcting the unfairness”.
Among other failures, the secretary was not interviewed while Mr Buckland refused to answer questions put to him by Ms Lucy-Dundas. “Seemingly [ODT] simply allowed this. That also made the investigation deeply unfair.” There were, the tribunal went on, “huge gaps” in the evidence.
“Overall, there was a deep and fundamental failure on the part of the employer to make reasonable efforts to gather evidence in relation to disciplinary charges.”
A further point of unfairness was the failure to particularise three of the charges, which were just general statements such as that she refused to be managed by Mr Buckland.
However, Judge Dyal found there was a reasonable investigation into whether Ms Lucy-Dundas shouted at the equity partner “and a reasonable belief the allegation was well founded”.
The judge found the same when it came to the moonlighting allegation, even though the tribunal itself came to the opposite conclusion on it.
It found she had discussed the work with an equity partner at the office. “[He] did not express himself very clearly and we can well understand why the claimant interpreted what he said as permission for her to carry out this work.
“The work was of no interest to [ODT], the fees it attracted were minimal and the message was that the claimant could do the work if she wanted to.”
ODT acted unfairly too in not determining the appeal, irrespective of whether Ms Lucy-Dundas would have returned to work:
“If it had been decided in the claimant’s favour in whole or in part, some or all of the stain on her record would have been expunged. That was an important matter of itself that meant an appeal was not futile.”
The tribunal had “no hesitation” in concluding that, overall, the dismissal was unfair, and also amounted to wrongful dismissal.
But in making a Polkey reduction of 70% to the compensatory award, the tribunal held that, even if ODT had not acted unfairly, there was “a strong probability (not a certainty)” that it would have dismissed Ms Lucy-Dundas over the moonlighting finding, with the shouting finding relied upon as a supporting factor.
It further reduced the basic award by 25% and compensatory award by 50% as a result of her own “blameworthy conduct”, specifically the text about Mr Buckland and the shouting, although there was “some mitigation” for the latter “in that the claimant was extremely stressed at the time”.
The tribunal rejected Ms Lucy-Dundas’s complaints of sex discrimination.
Earlier this month, Judge Dyal rejected her request for reconsideration of the ruling and encouraged the parties to try and agree the remedy.
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