The mother of a solicitor who committed suicide five days after being given notice by his law firm can bring an employment tribunal claim out of time, a judge has ruled.
Employment Judge Klimov found that “the balance of prejudice lies firmly in favour of granting the extension” after the claimant was advised that the original claim she had brought in time was a nullity.
This was because she issued it before she had been granted the letters of administration appointing her as administrator of her son’s estate – although the judge questioned whether this was legally correct.
Kristof Fabry was an associate solicitor in the property department of central London law firm Statham Gill Davies from February 2018 until his death on 14 May 2019.
Judge Klimov recounted: “After a short period of sickness absence due to mental health issues in April-May 2019, upon his return to work on 9 May 2019, Mr Fabry was given one month’s notice of termination of his employment by reason of redundancy.
“Tragically, on 14 May 2019, Mr Fabry took his own life by throwing himself in front of a train at Clapham Junction station.”
His mother claims he had a disability by reason of anxiety and depression, and that the law firm and one of its partners discriminated against him on the ground of his disability by dismissing him for the purported reason of redundancy.
The judge continued: “In short, the claimant claims that her son was dismissed… because of his disability, or, in the alternative, because Mr Fabry’s potential future need to take time off, potential requirement to make reasonable adjustments, and/or the respondents’ perception of Mr Fabry’s ability to perform his work, all that is said to be something arising in consequences of Mr Fabry’s disability.”
In the alternative, the claimant contends that, if the reason for the dismissal was redundancy, the way in which the firm went about it – in particular, by giving one month’s notice without any warning – put Mr Fabry at a particular disadvantage as a disabled person.
This also triggered a statutory duty to make reasonable adjustments, which the claimant says the firm failed to meet.
“Finally, the claimant alleges that the manner in which Mr Fabry’s dismissal was done was unwanted conduct related to his disability, which had the effect of violating Mr Fabry’s dignity or creating hostile, humiliating, offensive, etc. environment.”
Statham Gill Davies and partner admit Mr Fabry had a disability but deny that they knew this before notifying him of the dismissal. They also contend the reason for the redundancy was a lack of work in the property department.
Mr Fabry’s long-term partner presented the first claim in the mother’s name in September 2019, before the grant of the letter of administration; it was stayed pending the outcome of the inquest into Mr Fabry’s death.
There was then a very long delay in activity, until June 2021, for which the judge apologised on behalf of London Central Employment Tribunal. He attributed it to the impact of Covid and the closure of the tribunal in December 2020 for several weeks for health and safety reasons.
The stay was lifted but there was a further delay until a case management hearing in March this year, ahead of which the claimant instructed solicitors, London firm didlaw, and presented a second claim largely identical to the first.
This was because of their advice that the first claim was a ‘nullity’ because of the letters of administration issue. The claimant conceded at the hearing that the first claim should be struck out.
Noting that he could not strike out something that was said not to have existed, Judge Klimov commented, “purely as obiter remarks”, that this concession was “somewhat precipitous”.
Nonetheless, he held that it was just and equitable to extend time for the second claim.
“Whilst ‘optically’ the delay might appear significant, this is not a situation where no claim (whether instituted validly or not) has been presented until 3.5 years after the expiry of the primary limitation period.
“The claim was presented in time… It was responded to by the respondents. The respondents understood what was being alleged against them. They comprehensively responded to all the allegations.”
The judge held that Statham Gill Davies was unaware of the procedural deficiency and did not operate on the basis that the first claim was a nullity, concluding that “the balance of prejudice lies firmly in favour of granting the extension”.
He explained: “If the claimant’s second claim is not allowed to proceed, she would be deprived of the opportunity to have the complaints heard and determined despite making every effort to present the claim in time.
“Essentially, her access to justice will be denied by a bizarre combination of an obscure and highly technical legal issue, inefficiencies in the tribunal administrative processes exacerbated by the Covid-19 pandemic, and the health & safety emergency that befell on London Central Employment Tribunal in December 2020.
“None of that can be justly laid at the door of the claimant.”
Further, there was “little, if any, prejudice to the respondents” – they had “preserved sufficient materials to deal with the factual allegations” and the partners who made the decision to dismiss Mr Fabry were able to give evidence.
A statement from DWF, the law firm acting for Statham Gill Davies, said: “Our client acknowledges the tribunal’s judgment relating solely to the limitation issues before it. However, we are not in a position at this time to comment on this case further, due to it being the subject of ongoing litigation.”