The Employment Appeal Tribunal has overturned a ruling that a law firm was entitled to fire a partner who was accused of ‘topping up’ legal aid fees with cash from a client’s father.
But His Honour Judge Auerbach said the original employment tribunal’s decision was not fundamentally flawed; rather, it took a “wrong turn” at the end and should be reheard.
He said the tribunal failed to make “more specific and detailed findings” about the reasons behind the decision to sack Paul Greenberg, and then to draw on these when coming to its final conclusion about whether it was fair or not.
As we reported last year, Mr Greenberg and Charlotte Surley, an advocate from the Public Defender Service, were handed envelopes containing thank-you cards and £300 and £480 respectively in cash by the father of a teenager charged with GBH, but released on bail in time to go home for Christmas.
Ms Surley emailed Mr Greenberg to tell him she had been told that the “surprise gift” should be returned to the father.
Mr Greenberg emailed Stuart Nolan, DPP Law’s managing director and COLP, who replied: “I’ll leave it to your conscience!”
The solicitor later called the Law Society’s ethics helpline, which referred to the then code of conduct’s recommendation that a solicitor should refuse to act in the case of gifts of “significant value” unless the client has independent legal advice.
Mr Greenberg was given more cash by the father several months later, after he had been attempting to take witness statements in a Kent pub.
He said he could not do because of a funeral wake in the pub. While sitting in his car in the car park, the father dropped £150 through the open window before walking off. Mr Greenberg said he considered this simply another show of gratitude.
Subsequently, the father told Ms Surley he had paid Mr Greenberg something to cover his expenses of getting the statements, to hurry him up.
The Legal Aid Agency emailed the chief executive of DPP, enclosing a statement from Ms Surley expressing concern that Mr Greenberg was “topping up” his fees.
Mr Nolan launched a formal disciplinary investigation in October 2017, and though the first payment was accepted to be a gift, the second was seen as a top-up, in breach of Legal Aid Agency rules.
Mr Greenberg was dismissed without notice and reported to the Solicitors Regulation Authority.
The regulator eventually decided to take no further action in the case, partly on the grounds that the Law Society guidance on the issue of gifts suggested “significant value” meant £500 or more.
The Legal Aid Agency ultimately found no breach of its contract with DPP and lifted a suspension on Mr Greenberg handling legal aid work, as well as retracting a previous criticism of him.
The agency was also criticised by the Parliamentary and Health Service Ombudsman for its handling of the matter, and has apologised to him for that.
Mr Greenberg contended that the reason for his dismissal was the other partners’ personal animosity towards him and their wish to remove him in order to take his shares and profit share entitlement.
This was rejected by the original tribunal, which accepted that he was dismissed because of his conduct in relation to the second payment. This was not challenged on appeal.
But HHJ Auerbach decided that the tribunal’s conclusion that DPP fairly found Mr Greenberg had knowingly accepted a top-up payment in breach of the legal aid contract “was not sufficiently rooted in findings about what [DPP], drawing on the evidence before it, had decided and why, but amounted to a conclusion about what the tribunal itself made of that evidence, and therefore considered that the [firm] could, properly, have made of it”.
The tribunal also held, in the alternative, that it was reasonable to conclude that accepting the payment was “reckless to the extent of gross negligence” and at the very least “a serious error of judgment”, making dismissal a reasonable response.
This too could not stand, HHJ Auerbach held, because the tribunal did not find that DPP had actually reached its decision on this basis.
As a result, he decided that he had to remit the case for rehearing before a different judge.
He added: “I do not agree with [counsel for Mr Greenberg] that this was a fundamentally flawed decision. While the judge did take a wrong turn in the last section, as I have stated, the decision was, overall, well-structured and, up that that point, well-reasoned. Most of the points of challenge on appeal have failed.”