Tribunal: Appraisal was effectively a forgery
A law firm that electronically signed an inaccurate probation review document on behalf of a recently qualified solicitor without her approval wrongfully dismissed her, an employment tribunal has ruled.
Judge Holmes said it was “hard to imagine anything more likely to seriously damage the relationship of trust and confidence between employer and employee than forging internal documents to give a misleading impression of what was agreed in a meeting to consider extending the probationary period”.
That this should be done by a firm of solicitors, “from whom the claimant would be entitled to expect the highest standards of probity… rather reinforces how damaging this was for the employment relationship”.
This was despite the likelihood that the “forgery” was done by an HR assistant.
The decision of wrongful constructive dismissal against Manchester firm Optimal Solicitors was issued last year but came to light last week after Ms L Singh’s application for costs was rejected because it was made out of time.
Ms Singh qualified in August 2020 and joined Optimal’s family law team in September 2021. It did not go well.
She complained to the tribunal of a course of conduct from the start of her employment that she argued cumulatively constituted a fundamental breach of contract.
This included not allowing her to work from the firm’s office, “where she would be better placed to have appropriate training, supervision and support”; being allocated complex and/or high-value cases beyond her level of experience; and the firm “grossly under-billing” her clients, making it impossible for her to reach her billing target of £8,000 a month.
Ms Singh said she felt she had to work long hours to make up for the written-off hours, which left her feeling “very disheartened, undermined and upset”.
Judge Holmes described these as “unfortunate if disappointing aspects of the reality of the job that she had successfully applied for”.
“New employment is always something of a leap in the dark, and it does not amount to a breach of the implied term of trust and confidence that the job, or the conditions in which it is carried out , are not quite what the employee expected, or even that they may have been led to expect.”
Having few colleagues in the office, for example, “was not without reasonable and probable cause (given the impact of Covid on working practices), even if it disappointed the claimant and hampered her development in her new role”.
All of this would not have been enough to establish a fundamental breach of the implied term of trust and confidence.
Ms Singh attended her three-month probation appraisal meeting on 1 December. The firm subsequently accepted, in response to the solicitor’s grievance, that this was the first time her line manager raised various performance concerns.
The HR assistant then sent a copy of the probation review form to Ms Singh “for her records”. But, the judge said, this “did not accurately represent what was discussed at the appraisal meeting and contained statements which were untrue”.
For example, it stated that, because of a complaint made against her by a particular client, the client terminated his retainer; in fact that decision had nothing to do with the complaint.
The letter also stated that “we have mutually agreed” to extend the probation period by a further three months when Ms Singh had not agreed to this.
Further, her name had been entered on the form as if she had signed it. “This was, in effect a forgery, albeit an electronic one,” the judge said.
As a result, Ms Singh began to look for a new job and secured one quickly, handing in her notice on 13 December.
Her outstanding pay was withheld on the basis that her contract allowed Optimal to recover the cost of the fee paid to recruitment consultants if she left within a year, as well as the cost of her practising certificate.
In response to the tribunal claim, Optimal sought the £2,402 of these costs that were outstanding.
But Judge Holmes held that the signing of the appraisal form “would have been enough in itself to constitute a fundamental breach of the implied term of trust and confidence”; when “coupled with the unfair appraisal by ambush”, it was “certainly more than enough of a last straw”.
Ms Singh was awarded damages for breach of contract, in the form of notice pay, of £1,315. Optimal was also ordered to pay £1,218 in unlawful deductions from her wages, while its contract claim was dismissed.
Optimal’s application for reconsideration was rejected last August, as was its application for permission to appeal last October.
Ms Singh applied for costs soon after the reconsideration decision, but Judge Holmes held it should have been made within 28 days of the original ruling.
The judge took into account the fact that she was a solicitor and was seeking costs at solicitor rates, not as a litigant in person, in deciding not to exercise the discretion to extend the time limit.
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