A solicitor dismissed within days of handing in his notice has lost his claim for three months’ notice pay. Michael Lawless had brought proceedings against south east firm Holden Law Limited (trading as Holden & Co LLP) for wrongful dismissal and a failure to pay holiday entitlement.
But Employment Judge Caiden, sitting at London South tribunal, found that there had been a ‘breach of trust and confidence’ at the heart of the employment contract and the firm was entitled to dismiss Lawless after he failed to pass on complaints and missed out on applying for legal aid funding on cases.
The dispute had arisen after Lawless, a family specialist, had resigned on 31 August 2021. He argued that the firm foreshortened his three-month notice by dismissing him on 3 September.
The firm, who contended that the notice period was actually a month, submitted that Lawless had been put on gardening leave until the outcome of a disciplinary hearing on 24 September at which he was dismissed for gross negligence.
The tribunal found that Lawless had an express contractual term that entitled him to three months’ notice. It was further concluded that the firm had terminated the solicitor’s employment on 3 September and the gardening leave explanation was ‘questionable’.
The only issue remaining was whether the firm was entitled to terminate the contract or find breaches after the termination that would serve as a defence to any wrongful dismissal claim.
Lawless claimed that the firm’s actions were ‘simply retaliation to having handed in his notice’ and an attempt to avoid paying the three months. The judge said the tribunal did not have to make any findings on this: if there was a repudiatory breach which was unknown at the time and later discovered, the motivation for the dismissal was ‘immaterial’.
The firm argued that Lawless had failed to apply for legal aid in respect of four clients who may have been eligible which in effect cost the business money through negligent actions.
Shortly before his resignation, Lawless had also failed to bring two complaints to the attention of the firm, which said in his dismissal letter that he ‘displayed a disregard for instructions and procedures that make it problematic for a high street legal aid practice to safely employ you’.
Before the tribunal, the firm explained that there was ‘no excuse’ for not passing on complaints and that the SRA would issue £400 fines for failing to take action irrespective if the complaint was upheld.
The judge concluded it was ‘at the root of the solicitor employment relationship with a firm’ that complaints are addressed.
‘It is often the case that in cases involving negligence with solicitors and other legal professionals a main issue has been the attempt to ignore or bury a difficult issue or complaint,’ added the judge.
‘Whilst the claimant may have been busy and stressed, or even felt a lack of support, that does not undermine the procedural step required to pass complaints along the chain as it were at the very least.’
The claim of wrongful dismissal failed as Lawless was found responsible for a repudiatory breach. The claim for unused holiday pay was also dismissed, although Lawless successfully claimed back for £75.53 deducted from his final salary to pay for a parking permit.
