Tribunal: No repudiatory breach
A solicitor who was fired two weeks into a six-month contract was wrongly dismissed and entitled to be paid for the full six months, an employment tribunal has ruled.
Cheshire criminal defence firm Howards Solicitors will also have to pay Michael Alexander at least two more weeks’ pay because it did not provide him with a written statement of employment particulars.
Mr Alexander began working at the firm on 8 August 2022 after being offered terms in an email from managing partner Oliver Gardner in May. These included being paid £32,500 for the first six months.
The email went on: “We have agreed that you will commit to us for a minimum period of 6 months and thereafter, subject to some other lawful reason to end your employment early, we will increase your salary to… £35,000 thereafter.”
Applications for a solicitor to join the duty solicitor rota are made in advance by their employing firm. Howards applied in May 2022 for its solicitors to join the three-month duty rota running from 1 October.
Within a day of Mr Alexander joining, Howards became aware that its application for him to be included on the rota had been rejected, because his previous firm had already made one of its own.
But Howards did not take any action until 24 August, when it told Mr Alexander that it was not economically viable to continue to employ him if he was not on the rota. He received his pay for the fortnight and one week’s notice pay.
Employment Judge Peck in Manchester determined that the wording of the May email meant that Howards could only terminate the solicitor’s employment without notice and prior to the expiry of the fixed term if there had been “a fundamental breach of contract on the part of the claimant and an actual repudiation by the claimant”.
She held that this had not occurred. The email said Mr Alexander’s “continuing status” as a duty solicitor was “central” to his employment, but the judge found that “this does not mean that not having such status amounted to a repudiatory breach of contract by the claimant”.
This was because Mr Alexander had been able to work for two weeks without being a duty solicitor and the firm did not act immediately when it discovered the rota issue. Further, Howards accepted in its evidence “that it was willing and able to employ the claimant for the period from 8 August 2022 – 1 October 2022 without him having duty status”.
That Mr Alexander “did not embrace the use of technology in performing his duties and was not proactive in addressing training needs” so he could use the firm’s case management system also did not amount to an actual repudiation of the contract by him, Judge Peck said.
As a result, he was entitled to notice pay for the period up to the end of the initial six-month fixed-term contract.
The May email only contained some of the employment particulars and so was in breach of the Employment Rights Act 1996.
This meant the judge had to award an additional two weeks’ pay and may order the firm to pay an additional four weeks “if I consider it just and equitable in all the circumstances” when she considers it at the remedy hearing.
The hearing will also put a figure on the unauthorised deduction from wages by failing to pay Mr Alexander in lieu of accrued but untaken annual leave on termination.
Leave a Comment