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Employment Dispute Ruling: Unlawful Deductions, Contract Breach, and Expense Reimbursement, Study notes of Law

Ulster UniversityLaw

A judgment from The Employment Tribunals in the UK regarding a dispute between a claimant, Miss S Bukhari, and her former employer, MPR Solicitors LLP. The case involved unlawful deductions from the claimant's wages, breach of contract for failure to give notice and reimburse expenses, and dismissal for alleged gross misconduct. details of the hearing, the parties involved, the issues in dispute, and the tribunal's findings and orders.

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Case No: 2300739/2017
1
Reserved judgment
THE EMPLOYMENT TRIBUNALS
Between:
Claimant: Miss S Bukhari
Respondent: MPR Solicitors LLP
Hearing at London South on 25 January 2018 before Employment Judge
Baron
Appearances
For Claimant: The Claimant was present in person
For Respondent: Gregory Burke - Counsel
JUDGMENT AT A PRELIMINARY HEARING
It is the judgment of the Tribunal as follows:
1 The Tribunal declares that the Respondent made unlawful deductions from
the Claimant’s wages and the Respondent is ordered to pay to the
Claimant salary for the period from 1 to 25 November 2016 inclusive
together with the further sum of £90 subject in each case to statutory
deductions;
2 That the Respondent was in breach of contract in not giving the Claimant
notice to terminate her employment and the Respondent is ordered to pay
to the Claimant such net sum as she would have received as salary for the
period from 27 November 2016 to 2 January 2017 inclusive;
3 That the Respondent was in breach of contract in not reimbursing
expenses to the Claimant in the sum of £533.71 and the Respondent is
ordered to pay that sum to the Claimant;
4 That any claim for leave pay be dismissed;
5 That the parties have liberty to apply to the Tribunal for a detailed
calculation of the sums due to the Claimant.
REASONS
1 The Claimant was employed by the Respondent as a Duty Solicitor and
Higher Court Advocate from 1 April to 25 November 2016. The Respondent
is a small law firm specialising in criminal defence work. The Claimant’s
employment was ended by the Respondent on the grounds of alleged
gross misconduct. The Claimant made claims in these proceedings for
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Reserved judgment

THE EMPLOYMENT TRIBUNALS

Between: Claimant: Miss S Bukhari Respondent: MPR Solicitors LLP Hearing at London South on 25 January 2018 before Employment Judge Baron Appearances For Claimant: The Claimant was present in person For Respondent: Gregory Burke - Counsel

JUDGMENT AT A PRELIMINARY HEARING

It is the judgment of the Tribunal as follows: 1 The Tribunal declares that the Respondent made unlawful deductions from the Claimant’s wages and the Respondent is ordered to pay to the Claimant salary for the period from 1 to 25 November 2016 inclusive together with the further sum of £90 subject in each case to statutory deductions; 2 That the Respondent was in breach of contract in not giving the Claimant notice to terminate her employment and the Respondent is ordered to pay to the Claimant such net sum as she would have received as salary for the period from 27 November 2016 to 2 January 2017 inclusive; 3 That the Respondent was in breach of contract in not reimbursing expenses to the Claimant in the sum of £533.71 and the Respondent is ordered to pay that sum to the Claimant; 4 That any claim for leave pay be dismissed; 5 That the parties have liberty to apply to the Tribunal for a detailed calculation of the sums due to the Claimant.

REASONS

1 The Claimant was employed by the Respondent as a Duty Solicitor and Higher Court Advocate from 1 April to 25 November 2016. The Respondent is a small law firm specialising in criminal defence work. The Claimant’s employment was ended by the Respondent on the grounds of alleged gross misconduct. The Claimant made claims in these proceedings for

notice pay, holiday pay and arrears of pay. There was also a claim for travel expenses. 2 There were two issues as to notice pay. The first was whether the Claimant had lost the right to receive notice by virtue of having committed an act, or acts, of gross misconduct. The second issue was the length of notice to which the Claimant was entitled. The Claimant originally maintained that she was entitled to damages equivalent to three months’ net pay, and the Respondent maintained that the entitlement was four weeks’ pay. The Claimant accepted that any entitlement ceased as of 3 January 2017 because she was re-employed from that date and her remuneration was slightly higher than she had been receiving from the Respondent. 3 The claim for arrears of pay related to November 2016. Payment was not paid to the Claimant for that part of November 2016 for which she was employed. Agreement was reached between the parties that the Claimant was due to receive £533.71 in travel expenses, and £90 gross for overtime worked. 4 I heard evidence from the Claimant and from Abdullah Al-Yunusi, a partner in the Respondent. Each of the parties provided a bundle, and I have taken into account those documents to which I was referred. I find the facts below from the evidence provided at the hearing. In the circumstances it was agreed that Mr Al-Yunusi should give his evidence first. 5 The Claimant entered into a written contract of employment. Clause 2 provided for a probationary period of three months. Clause 12 contained provisions as to annual leave. Clause 16 provided that during the first four years of employment the Claimant was entitled to four weeks’ notice, subject to having completed the probationary period. However the Claimant had to give 12 weeks’ notice. The Claimant accepted during cross-examination that her notice entitlement was four weeks. 6 Clause 17 provided that the employment could be terminated without notice in certain circumstances. The two sub-clauses relied upon by the Respondent were as follows: (a) commits any act of gross misconduct or gross incompetence or other repudiatory breach of contract; (b) without reasonable excuse and after prior warning, repeats or continues any breach of contract not falling within clause 16.2 above;^1 7 Clause 23 contained the following provision: The Employee agrees that the Employer may at any time deduct and retain from any remuneration due to the Employee, any money that the Employee owes the Employer including, without limitation, any overpayments made to the Employee by the Employer or losses suffered by the Employer as a result of the Employee’s dishonestly or through wilful neglect or negligence of the Employer’s or the Law Society’s or SRA’s rules or through any act or omission which is negligent or an act incompetence. This provision does not affect the right of the Employer to recover any sums or balance of sums owed by the Employee to the Employer by taking legal proceedings against the Employee or another third party. (^1) The reference to clause 16.2 does not make sense because that sub-clause simply sets out the length of notice to be given by the employee.

where it was said that there had been omissions or errors by the Claimant. Three of them involved letters to the clients not having been sent. Two were said to be deficient in that the next hearing date of the case was not in the diary. 16 There was an appraisal meeting between the Claimant and Mr Al-Yunusi on 19 October 2016. A summary of the meeting was sent to the Claimant by email on 24 October 2016.^2 There were various general criticisms of the Claimant, such as punctuality and time management being poor. She was also referred to as being rude and arrogant. There were specific criticisms of her in connection with particular cases. There was a general criticism of her billing cases outside of time limits causing losses to the firm. Although no details were set out of what is alleged to have occurred previously the Claimant was warned that ‘any future contemptuous remarks to any Partner / Associate would result in immediate dismissal due to gross misconduct.’ Finally it was said that there would be a further review in six weeks’ time. That would have been 30 November 2016. 17 It is apparent that by 19 October 2016 relationships were beginning to break down. There were some discussions about the length of notice to be given by the Claimant being reduced. In an email of 25 November 2016 from the Claimant to Mr Al-Yunusi she mentioned that he had said that she could leave if she did not agree with the firm’s rules and procedures, to which she said that she would do so if the Respondent agreed to reduce her notice period. I accept that as an accurate record of part of the discussion. 18 The Claimant lodged a grievance against Mr Al-Yunusi on 9 November 2016 which Mr Al-Yunusi did not mention in his witness statement. The grievance is of over three pages of closely printed script. The Claimant complained about the behaviour of Mr Al-Yunusi and in particular the appraisal meeting of 19 October 2016. She also complained about her workload and what she said was pressure to ask clients to pay privately. 19 The Respondent placed reliance on a letter from the Claimant on behalf of the firm to the Legal Aid Agency dated 16 November 2016. It was written in reply to a letter of 6 November 2016 which was not before me. There had clearly been a query about a lack of attendance notes. The Claimant said: Please note that we are unable to provide attendance notes for other times indicated on the list as the fee earners have now left the firm. Please make your assessment accordingly. 20 Mr Al-Yunusi met the Claimant on 25 November 2016. There is a material difference in the evidence as to that meeting, save that it is agreed that the Claimant was dismissed. Mr Al-Yunusi said that the letter of 16 November 2016 was the proximate cause of the meeting, but the Claimant says that it was never mentioned. Mr Al-Yunusi says that the Claimant referred to him as running the ‘firm like a fucking Asian shopkeeper.’ I do not accept the evidence of Mr Al-Yunusi on these points. It is notable that there was no specific mention of either point in the reasons for the dismissal set out (^2) I was told that there was an audio recording of this meeting but it was not made available.

below. The phrase alleged to have been used by the Claimant does not easily fall under the meaning of ‘belligerent’, and ‘extremely abusive’ would have been more appropriate. 21 The letter to the Claimant confirming the termination of her employment was dated 1 December 2016. It quoted the sub-clauses from clause 17 of the contract of employment set out above. Four reasons were given for the dismissal, as follows:

  1. Your failure to bill completed cases within the firms and the LAA time limits for billing and thereby causing financial losses to MPR.
  2. Despite numerous warnings and reminders to you that you are not authorised nor able to sign LF1/AF1 claims communicate with the LAA on behalf of the firm in respect of billing matters – you continue to do so and most recently wrote to the LAA on the case of [X] informing them that the firm does not retain attendance notes for the fee earners who have left the firm. This is completely incorrect and if true would be a serious breach of contractual obligations to the LAA putting our contract at risk and is also serious breach our obligations under the SRA rules.
  3. Despite numerous warnings your attitude remains belligerent towards senior members of the firm.
  4. Constant disregard of the firm’s policies and procedures despite warnings. 22 I now turn to the submissions and my conclusions. The basic contractual position is clear. An employee is entitled to be given notice save in the case of a repudiatory breach of contract. That involves a ‘wilful and deliberate contravention of an essential term of the contract or gross negligence.’^3 23 Mr Burke submitted that mutual trust is critical in the employment relationship, and that I entirely accept. He further submitted that it was apparent from the manner in which the Claimant replied to answers in cross-examination and undertook the cross-examination of Mr Al-Yunusi that she was confrontational. All trust had been destroyed by the letter to the Legal Aid Agency of 16 November 2016. 24 The Claimant said that for a dismissal to be justified for gross misconduct then there had to be something which went to the heart of the contract of employment, and that was not the case here. 25 As mentioned I accept the submission by Mr Burke that a relationship of trust is critical. However, that does not mean that where that relationship breaks down then an employer is entitled to dismiss an employee without notice. Such circumstances may be a fair reason for dismissal for the purposes of the unfair dismissal legislation, but the right to dismiss without notice is one of common law. 26 I therefore find that the Respondent was in breach of contract in not providing the Claimant with notice. The Claimant will be presumptively entitled to the net pay she would have received for the period from 26 November 2016 to 2 January 2017. (^3) Per HHJ David Richardson in Robert Bates Wrekin Landscapes Ltd v. Knight (UKEAT/0164/13) referring to Sandwell & West Birmingham Hospitals NHS Trust v. Westwood (UKEAT/0032/09)