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Type V
EMPLOYMENT TRIBUNALS
BETWEEN
Claimant AND Respondent Ms F Tsang HRS Family Law Solicitors Limited JUDGMENT OF THE EMPLOYMENT TRIBUNAL HELD AT Birmingham ON 6 September 2021 EMPLOYMENT JUDGE GASKELL Representation For the Claimant: In Person For the Respondent: Mr C Rebbeck (Managing Director) JUDGMENT The Judgement of the tribunal is that: The claimant was wrongfully dismissed by the respondent in breach of her employment contract there is an award of damages to the claimant payable by the respondent in the sum of £6075 (net) calculated as follows: Unpaid notice pay £4048 (net) Loss of holiday pay £ 625 (net) Loss of pension contributions £ 187 (net) Uplift pursuant to Section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 @ 25% £ Total Award £ Note: The sums awarded above have been calculated net of income tax and national insurance contributions on the basis that upon payment thereof the respondent will make an appropriate and corresponding payment to HMRC.
Type V REASONS The reasons for the judgement set out above were given orally at the conclusion of the hearing these written reasons are provided pursuant to a request from the claimant made at the time. Introduction 1 The claimant in this case is Ms Fiona Tsang, a solicitor with 11 years post- qualification experience. The respondent is a firm of family law specialists with nine offices across the West Midlands. The managing director is Mr Clive Rebbeck who appeared before me in that capacity rather than as a professional advocate. The claimant commenced employment with the respondent as a solicitor on 23 March 2020 and was dismissed from that employment on 12 October 2020. She was dismissed summarily without notice: respondent’s case is that the claimant was dismissed for gross misconduct and that accordingly she was not entitled to be paid notice. 2 On 15 February 2021, the claimant presented her ET1 in which she claims two month’s salary in lieu of notice together with the additional holiday entitlement which would have accrued during her notice period; employers pension contributions which would have been paid during the notice period; this holiday pay which she claims was accrued before her dismissal; bonus which she says would have been paid during her notice period; and unpaid pension contributions which she says were unpaid prior to her dismissal. 3 The respondent's case is that holiday and pension up to the date of dismissal were fully paid. The respondent accepts that if the circumstances of the claimant's dismissal was such that she was entitled notice and she would be entitled to her salary for the notice period together with holiday pay and pension contributions subject to her obligation to mitigate her losses. So far as the bonus is concerned, the respondent's case is that the payment of bonus is entirely discretionary and that it would not have been paid to an employee who was working her notice. The respondent says likewise with regard to 5 days of potential accrued holiday pay. The Evidence 4 I heard evidence from two witnesses: the claimant giving evidence on her own account; and Mr Rebbeck on behalf of the respondent. I found both witnesses to be truthful witnesses and indeed there is no real dispute as to the facts of the case. There was however an unpleasant exchange where Mr Rebbeck believed that he was being accused of lying - and he in turn then accused the claimant of lying. My judgement is that this really was an
Type V did not interfere with the trial judge's finding that it was a lawful summary dismissal. The Facts 8 The facts of this case are fairly straightforward. The claimant commenced employment in March 2020 at the respondent's Dudley office. She had deliberately restricted her application for employment to the Dudley office for her own personal reasons There is no nothing to indicate that the respondent would be aware of those reasons. It is clear from the documentation that the respondent had the contractual right to require the claimant to work out of a different office - and that it need not give notice or any particular amount of notice of such a change. 9 On 9 October 2020, the claimant received a telephone call at around 12 noon from Mr Rebbeck advising her that she was to move to the Walsall office with effect from Monday 12 October 2020 (the next working day). There was a second telephone conversation at around 5pm in which the claimant made clear that, for a variety of reasons, she was uncomfortable with having to move office. She mentioned her school run: whilst it may be the case that her home address is nearer to Walsall or at least no further away than Dudley; her case is that the journey from her child's school to Walsall was much more problematic than the journey from school to Dudley. 10 At 5:45pm on 9 October 2020, Mr Rebbeck emailed the claimant telling her that she was required to attend Walsall on the Monday morning. I accept the claimant's evidence that she didn't see that email until Monday morning. But she well knew that Mr Rebbeck was expecting or requiring her to attend Walsall. 11 The claimant did not go to the Walsall office on the Monday morning. She went to the Dudley office where she continued with her existing workload. There was clearly work for her to do at Dudley, and she got on with it. Indeed, the claimant dealt with urgent telephone hearing first thing on the Monday morning. During the course of the morning, Mr Rebbeck sent messages for the claimant to telephone him. The claimant did not telephone Mr Rebbeck, but she did explain by email that she had been very upset by the telephone conversation at 5pm on the Friday and for that reason she hoped that they could continue the dialogue by email rather than by telephone conversation. 12 For the first time the claimant raised what for her might have been a more important reason why sending her to Walsall might not be appropriate. She felt that she lacked the experience to effectively supervise the Walsall office - which is what she was being asked to do. Whilst clearly, the directors of business have the right to run the business as they see fit; the claimant, as a qualified solicitor,
Type V has a professional obligation to ensure that she is properly experienced to undertake work allocated to her. When the claimant stated that she didn't feel she was the right person Walsall; and when she stated that she didn't wish to continue the discussion by telephone - but was willing to continue it by email, the response was for the respondent's practice manager to go to the Dudley office and dismiss the claimant. The claimant's evidence is that she was told that she was dismissed because Mr Rebbeck did not like her emails. The first mention of dismissal for gross misconduct came several days later when the claimant attempted to agree what her final salary payment would be. It matters not what the respondent said at the time; and it doesn't matter what the actual reason for the dismissal was. The issue in this case is whether I am satisfied that by her conduct prior to dismissal the claimant had acted in fundamental breach of employment contract. The Claimant’s Case 13 The claimant accepts that the respondent had the contractual right to move her to Walsall. Her case is that she asked for more time to consider the position and her case is that it was not serious misconduct for her simply to fail to move immediately without further discussion or without proper warning and indeed without a disciplinary meeting. The Respondent’s Case 14 The respondent's case is that the claimant had failed to accept a lawful instruction from the managing director; and that if employees chose not to accept such instructions it would be impossible for him and his co-directors to run the practice efficiently and within SRA guidelines. Accordingly, the claimant’s conduct amounted to a fundamental breach of the employment contract and she could properly be summarily dismissed. Discussion & Conclusions 15 My conclusions are that is a clear contractual right on the respondent to require an employee to move to another office. However, in my judgement, it must be implied that the respondent would act after proper consultation and proper consideration of an employee’s concerns before enforcing that contract. With regard to the refusal to speak to Mr Rebbeck, this was not an outright refusal to speak because it was accompanied by an explanation from the claimant that she had been upset by the telephone conversation at 5pm on Friday. She was willing to continue the engagement but by email. 16 In my judgement, it must be implied into the contract that, faced with the claimant's concerns, the respondent would hold a meeting at which the claimant
Type V 21 I have considered the ACAS Code; and Section 207A and Schedule A to Trade Union and Labour Relations (Consolidation) Act 1992. In this case, the respondent clearly failed at every stage to deal with this matter in accordance with the ACAS Code. This did not become a disciplinary matter at all until such time as the respondent had held a proper meeting with the claimant to explain the need for her to move and listen to her concerns - that didn't happen. If that had happened, and the claimant had still refused to move, under the ACAS Code there would have been a disciplinary meeting and then the claimant would have been entitled to an appeal. Accordingly, I will award a 25% uplift.
Employment Judge Gaskell
1 November 2021
