Solicitor constructively dismissed over return to work after giving birth

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Tribunal: Trust and confidence broke down

An associate solicitor has won her claim for unfair dismissal over the way her then law firm employer handled her return to work after maternity leave.

However, an employment tribunal did not uphold the majority of the allegations made against central London firm Gannons, including of pregnancy discrimination.

Jennifer Wall joined the firm as a company commercial associate solicitor in November 2020. At an appraisal in July 2021, she was told that she was performing well and given a £10,000 pay rise, increasing her salary to £75,000.

She had notified the firm in March that she was pregnant and went into labour while working on 16 September 2021.

In May 2022, Ms Wall submitted a formal flexible working request, which was rejected by founder Catherine Gannon. She admitted in cross-examination that she had already decided in advance to refuse it.

There were continuing discussions about ways Ms Wall could return to work, as well as a dispute about the date of Ms Wall’s return and various other matters, which led her to resign in September 2022.

The tribunal identified five instances where Gannons’ conduct seriously damaged the relationship of trust and confidence between employer and employee.

The first was the firm’s suggestions that Ms Wall give notice and/or had resigned and its stated intention to assume she had resigned if she did not return to work on a date prior to 12 months’ maternity leave, and that her job would only remain open until a date before the end of her maternity leave.

The second was Gannons reneging on an agreement that Ms Wall would return to work in December 2022.

“The respondent had in the most abrupt and unsympathetic way reneged on an effective agreement that the claimant could return in December if she wanted to,” the tribunal said.

“It set a deadline for return of 19 September, then 31 August, then back to 19 September, then 16 November 2022, all accompanied by talk of termination and notice if the claimant did not return.

“This was all in the context that Ms Gannon had never held a face-to-face meeting with the claimant to discuss her flexible working request.

“Even if the reason was incompetence on the part of the respondent or only a partial understanding of how to treat maternity leave under the law, this was not ‘reasonable and proper cause’.

“The respondent is a firm of solicitors and while not specialising in employment law, it should have handled this correctly. Nor does it excuse the abrupt and hostile tone.”

The third issue were the “baseless criticisms” of Ms Wall’s work in the reply to her flexible working request.

The tribunal said: “The timing when the claimant was on maternity leave and when she had just asked to return on a flexible basis, the lack of any substantial foundation for such allegations, and the heavy-handed approach was in itself likely to seriously damage trust and confidence.

“It also contributed to the overall breach of trust and confidence we have identified here.”

The fourth issue was the “gratuitous” manner in which Gannons reminded Ms Wall in September 2022 that she had no right to appeal the flexible working request after it withdrew a later job offer.

The fifth issue was Gannons’ failure to pay Ms Wall’s pension contribution for the year ending May 2022, despite her chasing it several times. This was eventually done in January 2023 and the tribunal held that this was also discrimination because she was exercising her right to statutory maternity leave.

It concluded that Ms Wall was constructively dismissed and was entitled to be given notice. “She resigned because of the totality of the way she had been treated…

“The final straw was [the practice director’s] email of 12 September 2022 including its tone which included an unnecessary reminder that she had no right to appeal the refusal of her flexible working request and repeatedly in that email demanding she ‘particularise’ and cite authorities for her contentions. The tone and approach added to the feeling which she already had that she was not wanted.”

The dismissal was not discriminatory, though. At the time Ms Wall resigned, the failure to make the pension payment was “a peripheral matter” and did not do “very much at all to the breach of trust and confidence”.

The detriments were also not carried out in response to the flexible working application. “Ms Gannon’s actions, to the extent that they related to flexible working, were simply because she did not believe it was feasible to employ a corporate lawyer on a part-time remote basis in her small firm.”

Similarly, the firm proved that its requirement for full-time working in the office was a proportionate means of achieving its legitimate aims and so was not indirect sex discrimination.

There will now be a remedy hearing in April, although the tribunal noted that Ms Wall was entitled to three months’ notice, which would have taken her to 13 December 2022.

Her unpaid maternity leave would have finished on 15 November. “Further, it was clear from the claimant’s position and what she had said in correspondence, that she would not have been willing or able to work full-time in the London office during that notice period.”