Law Society victimisation claim struck out over volunteer status

Khan: Looking to appeal

A solicitor has had her claim for victimisation by the Law Society struck out by an employment tribunal on the basis that, as the chair of a committee, she was not an employee or office-holder.

Ruling on a preliminary issue, Employment Judge Andrew James said that central to his conclusion was that Sophie Khan was not under any contract at all with the Law Society, initially as a member and then chair of its civil justice committee (CJC).

Ms Khan told Legal Futures that she is seeking to appeal, in part because of the Supreme Court’s recent decision in the Uber case.

The solicitor, who runs Leicester firm Sophie Khan & Co, became a member of the CJC in 2009 and twice had her term renewed. She became chair in 2017 on a three-year term.

Nearly four months after she triggered the Acas early conciliation procedure, she was removed from the chair and other posts she held at the society – as a member of the small firms committee and of the joint tribunal panel – following complaints by staff of bullying and discrimination, which she strongly contests.

Ms Khan brought claims of victimisation on grounds of race and/or religion or belief; and/or claims of detriment on grounds of protected disclosures. They only relate to her role on the CJC.

However, the judge decided that she was not in ‘employment’ for the purposes of section 39 of the Equality Act 2010.

Ms Khan was a volunteer who was “not under any obligation to render her services to the Law Society”. She was not paid for it but did receive expenses; these were paid through finance, rather than payroll.

“It is apparent that HMRC does not view there as being any real element of profit in relation to it,” the judge said.

Ms Khan also sat on the Solicitors Regulation Authority’s equality, diversity and inclusion committee, where there was a written agreement.

The tribunal said: “Whilst that is not a role which directly concerns us in this case, the existence of such an agreement stands in stark contrast to her role as chair and member of the CJC. As does clause 3 of the agreement, confirming that a fee is payable for attendance at meetings.”

There was, it went on, no contractual obligation on Ms Khan to carry out her role diligently, although there was “no doubt a moral obligation in that respect”.

There was also a question of whether Ms Khan’s claims were brought in time, but Judge James said he would have needed to hear all the evidence to decide on this, had he not struck out the claims for lack of jurisdiction.

Ms Khan said she has applied for permission to appeal, in part on the basis that “the legal position has changed significantly since this ruling”.

The recent Uber case, she said, involved people who did not have formal contracts with the company but were still found to be working for it.

She added that the ruling, as it stood, meant that any solicitor sitting on Law Society committees could face victimisation but have no remedy. “Staff are protected but members are not,” she argued.

We have approached the Law Society for comment.

The remote hearing was held in Ms Khan’s absence after her requests for it to be adjourned so it could be held in person were rejected.

Judge James said: “As for the firm’s alleged broadband/internet connection issues, I am astonished that nearly one year into the pandemic, proper efforts have not been made to resolve any connection difficulties experienced by the firm.

“I struggle to understand how the firm can properly represent its clients without having an adequate broadband/internet connection, which allows for the use of video link applications such as Microsoft Teams and CVP.

“The firm’s offices are in Leicester, not some remote rural area where there are known broadband/internet issues.”

He said Ms Khan could have made alternative arrangements to join online. “It is hard to escape the conclusion that the claimant is not willing to participate unless the tribunal arranges an in-person hearing.

“It is not for the claimant to dictate how the hearing takes place, if it can be held remotely in a fair manner. I am quite satisfied that is the case.”

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