[1]Email: letter was openly sent
A paralegal’s claim of disability discrimination after he was sacked by a law firm was wrongly struck out, the Employment Appeal Tribunal has ruled.
However, HHJ David Richardson said that Leicester firm Bond Adams had a strong case.
Shewar Sajid was employed as an assistant to Rafique Patel, the firm’s senior partner and sole equity partner – he had undertaken the legal practice course but had not secured a training contract.
Mr Sajid was suspended in 2014 after nearly three years of working for the firm on the grounds of gross misconduct. The investigation into his conduct was carried out by a barrister who was instructed and paid to carry out the disciplinary hearing.
At the hearing the barrister dismissed some of the charges but found most of them proved and concluded that summary dismissal was appropriate. An appeal, also heard by an external person, was dismissed.
The key allegation related to a letter sent by Mr Sajid on behalf of a client to the Border Agency, which Mr Patel said was written without his knowledge or authority.
According to the EAT ruling, Mr Sajid accepted that he had written the letter. “He said he had been told by Mr Patel to bring in fresh work. He had written an initial letter without charge to bring the client in. He anticipated that the reply to the letter would generate work. He, therefore, admitted sending the letter.
“He did not admit that it amounted to misconduct, still less gross misconduct. He said there was no need for authority since Mr Patel said he needed to bring in clients. He said there was nothing dishonest in what he did; the letter sent by email was in his ‘sent’ mail box and the reply came to the firm.”
Another allegation related to letters sent on behalf of a client on a professional negligence matter. According to Mr Patel these too were unauthorised, which Mr Sajid disputed.
The judge recorded: “Further allegations related to the finding on an investigation of the claimant’s computer that the claimant accessed pornographic material on the computer. This allegation the claimant vehemently denied.
“It was also said that the claimant had communicated with people during working time on Facebook. The claimant said he had done this but it was common to do so and other employees would have a more significant history of doing so than he did. There was, he said, no policy prohibiting it and the firm had its own Facebook profile.”
The judge said that “on issue after issue”, the barrister preferred Mr Patel’s evidence to Mr Sajid’s – in particular that the work the latter had carried out had not been authorised by Mr Patel.
After his dismissal, Mr Sajid brought proceedings alleging disability discrimination – the disability being alleged was a speech impediment – and unfair dismissal.
A preliminary hearing was ordered to determine whether the claim should be struck out or a deposit ordered. Employment Judge Caborn made a distinction between the claims of disability discrimination during employment on the one hand and the claims of unfair dismissal and disability discrimination by dismissal on the other. The former claims were not struck out; the latter were.
HHJ Richardson ruled [2] that Judge Caborn misdirected himself in striking out the claims. He said: “There was a crucial core of disputed fact at the heart of the case. For the purposes of unfair dismissal it was for the firm to establish the reason for dismissal. On this question there was a wholesale dispute of facts between the claimant and Mr Patel.
“On the claimant’s case he had done nothing to justify dismissal. His dismissal followed upon an issue relating to a new contract and may have been influenced by a dispute between Mr Patel and a client or by Mr Patel’s attitude to his speech impediment. On his case the reason for dismissal was not genuine.
“On Mr Patel’s evidence, however, the claimant had committed gross misconduct and this was the genuine reason for dismissal…
“To my mind this was not a dispute which could be resolved simply by looking at documents. It depended on an assessment of credibility… If the employment judge had approached the matter correctly in law, he would have appreciated that it was not a case for striking out.”
Though HHJ Richardson agreed that Mr Patel’s case was “a strong one”, this was not the test for striking out. “If there is a crucial core of disputed fact then something quite exceptional is required before a claim can be struck out… It may well have been a case for a deposit and the matter will be remitted for consideration of the question of a deposit.”