In a further case linked to Covid-19 an employment tribunal held that a solicitor had been unfairly dismissed for refusing to agree to changes to her employment contract allowing her employer to reduce her pay and hours to 80% or place her on furlough. Although there was a potentially fair reason for the dismissal, the firm had failed to consider any alternatives or consult with the employee, therefore, the dismissal was unfair.
On Monday 23 March 2020, shortly before the UK government announced the first COVID-19 lockdown, her Head of Department met with the Claimant, Ms Khatun and told her about the firm’s plans to place half the staff on furlough and have the other half continue to work. He said that everyone would need to agree variations to their contracts, which were non-negotiable, or face likely dismissal.
The contract variation was emailed to all staff the following day, instructing them to sign and return it within 24 hours or face likely dismissal. The variation gave the firm the freedom to place an employee on furlough or to unilaterally reduce their hours and pay by up to 20%, on five days’ notice. The power to reduce hours and pay was stated to be effective until 1 October 2020, with the possibility of an extension by a further three months based on business need.
The Claimant refused to agree the variation as she was still working normally, but would consider it if the situation changed later. She was told this was “not acceptable and, as per Directors’ notice, termination is the alternative”. The Head of Department then made a 5-minute telephone call to Ms Khatun, in which she repeated her offer to consider variation should the need arise in future. However, he simply re-iterated the firm’s position that the changes were non-negotiable and that she would be dismissed if she did not agree.
The Claimant was dismissed on Thursday 26 March, immediately with no notice, pay in lieu, or accrued holiday pay. The Claimant’s remote IT access was revoked at 2pm that day. When she queried this with the IT helpdesk, she was directed to contact her Head of Department, who informed her of her immediate dismissal.
The firm later accepted that it had been in breach of contract and paid her notice pay and holiday pay.
Ms Khatun brought a claim for unfair dismissal.
The employment tribunal (Employment Judge Morris, sitting alone) held that the dismissal was unfair.
It accepted that the firm had “sound, good business reasons” for implementing the contractual variation. It had been reasonable and not premature for the firm to want to implement the measures that it did, at the time that it did, given the effects of the pandemic on business.
The question was therefore whether the employer had acted reasonably in treating that as a sufficient reason for dismissal in all the circumstances (in other words, whether it was within the band of reasonable responses of a reasonable employer). The tribunal considered a number of different factors.
The firm argued that Ms Khatun was the only one out of over 300 employees who had refused to sign the variation, and that this was an indication that it had acted reasonably. The tribunal took this factor into account.
The tribunal found that there had been no meaningful consultation. It accepted that consultation is an important but not crucial factor and that the degree of consultation will vary with the circumstances. In this case, the meeting on Monday 23 March was not a consultation; it was a “one-sided” conversation in which the Head of Department explained that the amendments were non-negotiable and anyone not agreeing to them would be dismissed. The subsequent telephone call was “more in the nature of a consultation” but the tribunal was still not satisfied that any meaningful discussion took place. Rather than exploring alternatives, the Head of Department had simply restated the firm’s position. The email correspondence between the claimant and the HR Director had been to the same effect.
The firm argued that the changes had been necessary and that it simply did not have time to negotiate with over 300 staff members. The tribunal noted that, as all other staff had signed, the firm would in fact only have needed a meaningful discussion (not a negotiation) with one staff member, the claimant. The tribunal also found it remarkable that a firm of solicitors should have had “so little regard” for the terms of a binding contract, and that it viewed the claimant as “making a fuss” and “absolutely selfish” for simply seeking to protect her contractual terms, while indicating that she would consider a variation should the need arise in future.
It was also relevant that the firm had not offered any right of appeal (even though the Acas Code of Practice on Disciplinary and Grievance Procedures did not apply in this case). The tribunal did not accept the firm’s argument that this would have been pointless. It observed that both parties’ attitudes may have become more amenable by the time of an appeal hearing, making a resolution possible.
A reasonable employer would have taken more time to engage meaningfully with her to address her concerns and reasonably explore all the alternatives to dismissal.
In view of these factors, the dismissal did not fall within the band of reasonable responses of a reasonable employer and was unfair. The tribunal ordered a separate remedy hearing.
Khatun v Winn Solicitors Ltd ET/2501492/2020 (22 March 2021) (Employment Judge Morris).