A solicitor - Ms Aysha Khatun - has won her claim for unfair dismissal from personal injury firm, Winn Solicitors.

Ms Khatun refused to vary her contract - the only member of its 365 staff to do this - so that her employers, Winn Solicitors, could furlough her or reduce her wages to help it cope with the impact of Covid.  The consequence of this was dismissal from her job, in which she had been employed since April 2015.  Her dismissal was in March 2020.

Ms Khatun worked in a team handling contested Road Traffic Accidents and was well-regarded as a capable solicitor who earned good fees and achieved her targets with ease.  The head of the team was Mr Dewar, who - along with three other members of management - was called as a witness for Winn Solicitors.

In view of the continuing problems caused by the pandemic, Winn Solicitors established a steering committee to monitor developments and to propose solutions.  Staff were kept up to date, with the first update informing them that the company were reviewing capabilities for an increased number of staff to work remotely from home. Mr Dewar proposed 20 persons from his team to do this.

The Director and Chief Operating Officer (another tribunal witness) and Mr Winn called a meeting of all managers - its purpose being to discuss emergency measures to deal with the coronavirus.  The first measure was to aim to furlough 50 per cent of staff from 30 March 2020 - the reason being that there had been a reduction in new work and a further deterioration was envisaged.

The remainder of the staff - including Ms Khatun - had to agree a variation to their contracts.  With five days’ notice, they could have their hours reduced or be placed on furlough. They were informed that anyone not agreeing would have their contract terminated.

In addition, solicitors being retained were told they were being assigned a ‘furloughed buddy’s caseload’ to settle other cases where possible, but otherwise to do the minimum to keep them running.

Ms Khatun was a staff member who was not furloughed but she refused to agree to this variation and wrote:

“I feel that I am continuing to deliver the job that I am contracted to - if not more - as I now have double the work as I have to cover a ‘buddy’.  These are uncertain times and I do not feel comfortable allowing Winn’s to effectively reduce my pay. In the event that I am furloughed, or any other unexpected situation arises, I will of course consider a variation at that point.”

HR were then instructed to dismiss Ms Khatun the following day - without giving any chance to appeal.

Judge Morris remarked that the company had ‘sound, good business reasons’ for needing its staff to agree to the variation, but it was important that the staff have an opportunity to be involved in the process in a meaningful way, which Winn’s had failed to do.

He stated that Winn’s “had available to it more than the 48 hours or so that it allowed, within which time a reasonable employer would have been expected to have engaged meaningfully with the claimant in an attempt to address her concerns and reasonably explore all alternatives to dismissal.”

He added:

“I did not detect even a hint of any reasonable process being followed. Indeed, when I asked (the head of department} whether his evidence was just that there would be no process before dismissal, he answered, ‘Yes – if they didn’t agree the sanction would be applied’. His evidence was also that the business ‘simply could not spend time negotiating with 300+ individual staff’.”

Judge Morris went on to say:

“While this might go some way to establishing the ‘some other substantial reason’ for dismissal, I am not satisfied that it sufficiently establishes the reasonableness of the decision.

In the event, it appears that it would only have been necessary, not necessarily to negotiate, but to engage in a meaningful discussion with the claimant and not the other 300+ staff who accepted the variation.”

The judge discarded the suggestion that an appeal would have been pointless as by the time it was heard, management’s anger at Ms Khatun may have cooled and she might have been more open to agreeing to the variation.