Solicitor unfairly dismissed for refusing Covid variation to contract

Employment: Solicitor was just trying protect her contractual position

A solicitor fired after refusing a demand to vary her contract so her firm could furlough her or reduce her wages to help it cope with the impact of Covid has won a claim for unfair dismissal.

An employment tribunal ruled that leading personal injury firm Winn Solicitors did not act reasonably because it failed to engage with Aysha Khatun over her refusal – the only member of its 365 staff to do so.

While the need to ready the firm for the impact of Covid and the lockdown on its caseload justified her dismissal in principle, the tribunal said it did not act reasonably in dismissing the solicitor for that reason.

Employment Judge Morris said: “I find it surprising, especially in a firm of solicitors, that so little regard should have been had by the respondent throughout this process to the fact that the claimant’s existing terms and conditions were contained in a legally binding contract.

“That is not to suggest that a contract of employment cannot be varied, but only by agreement, or that the respondent could not have dismissed and re-engaged recalcitrant employees on different terms and conditions of employment but it would have been reasonable for due process to be followed and I am not satisfied that that was followed in this case.”

Ms Khatun had worked at Winns for nearly five years when she was dismissed on 26 March 2020. She was “well-regarded as a capable solicitor who earned good fees and achieved her targets with ease”, the judge recorded.

With new instructions falling as the pandemic took hold, on 23 March the firm decided to furlough half of its staff.

The rest, including Ms Khatun, had to agree a variation to their contracts that, on five days’ notice, they could have their hours reduced or be placed on furlough. Refusing to do so would lead to dismissal, they were told.

Retained solicitors were told they were also being assigned a “furloughed buddy’s caseload” to oversee and settle cases where possible but otherwise do the minimum to keep them running.

On 25 March, Ms Khatun refused to agree the variation. She wrote: “I feel that I am continuing to do deliver the job that I am contracted to, if not more as I now have double the work to as I have to cover a ‘buddy’.

“These are uncertain times and I do not feel comfortable allowing Winns to effectively reduce my pay. In the event that I am furloughed or any other unexpected situation arises, I will of course consider a variation at that point.”

She was dismissed the following day and was not given a chance to appeal.

Given the circumstances, Judge Morris said Winns had “sound, good business reasons” for requiring staff to agree to the variation.

But it was “usually important that employees have an opportunity to be involved in the process in a meaningful way” and Winns failed to do this.

While events were moving quickly, the judge said Winns “had available to it more than the 48 hours or so that it allowed within which time a reasonable employer would have been expected to have engaged meaningfully with the claimant in an attempt to address her concerns and reasonably explore all alternatives to dismissal”.

“I did not detect even a hint of any reasonable process being followed [at an initial meeting with Ms Khatun].

“Indeed, when I asked [the head of department] whether his evidence was just that there would be no process before dismissal, he answered, ‘Yes – if they didn’t agree the sanction would be applied’.”

His evidence was also that the business “simply could not spend time negotiating with 300+ individual staff”.

Judge Morris said: “While this might go some way to establishing the ‘some other substantial reason’ for dismissal, I am not satisfied that it sufficiently establishes the reasonableness of the decision.

“In the event, it appears that it would only have been necessary, not necessarily to negotiate, but to engage in a meaningful discussion with the claimant and not the other 300+ staff who accepted the variation.”

He described as “remarkable” the head of department’s evidence that Winns could not have people “causing a fuss” – all Ms Khatun was seeking to do was protect her contractual position, he said.

Noting that the solicitor said twice that she would consider the variation should the need arise in the future, the judge found that the head of department “conducted his conversation with far from the open mind that would have been appropriate in any meaningful discussion”.

Judge Morris rejected the suggestion that an appeal, had it been offered, would have been pointless – by the time any appeal was heard, the management’s anger at Ms Khatun “might have cooled somewhat”, while she might have been “more amenable” to agreeing the variation as the impact of lockdown became clearer.

There will now be a remedies hearing.

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