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COVID-19: Solicitor unfairly dismissed for refusing changes to employment contract during pandemic

In the latest judgment indicating how Tribunals are approaching Covid-19 related claims, an employee has succeeded in demonstrating unfair dismissal.

Andrew Collier
Andrew Collier HR Adviser
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An Employment Tribunal has held that a solicitor was unfairly dismissed for refusing to agree to changes to her employment contract as part of the law firm's response to the COVID-19 pandemic.   Given so many employers acted very quickly (and perhaps out of necessity in many cases) during the early stages of Lockdown 1.0, the judgment is another useful indicator as to how the judiciary may be approaching claims based on the infringement of employment rights during this period. 

In the case of Khatun v Winn Solicitors Ltd the law firm acted very quickly after the first lockdown was announced, fearing that a drastic downturn in work was inevitable.  They required all of their 300 or so staff to agree to a variation to their employment contracts giving it the freedom to place them on furlough or to unilaterally reduce their pay and hours to 80%, potentially for up to nine months. The claimant, who was not among the employees earmarked for immediate furlough, was the only one to refuse. She told the firm that, if it became necessary to furlough her or to reduce her hours at some point in the future, she would consider a variation then but was not prepared to do so at the current time, not least as she was working her full hours and in her case had plenty of work to do.  The claimant was the only one of over 300 employees who refused to sign the contract variation.  After various discussions with her employer over the following two days which did not result in a change of position for either side, the law firm dismissed the claimant citing the fact that she "inflexible and clearly not someone interested in the firm or her colleagues". 
 
The Tribunal accepted that the law firm had "sound, good business reasons" for the variation, and therefore had the potentially fair "some other substantial reason" for dismissing an employee who would not agree to it. However, the tribunal considered the dismissal unfair in the circumstances of this case, due to lack of consultation and failure to reasonably consider solutions other than dismissal.
 
The law firm's directors had decided at the outset that the new terms were non-negotiable and that anyone refusing to sign would be dismissed. The claimant's attempts to discuss the matter had not resulted in any meaningful discussion, simply a re-stating of the firm's position. The firm had acted too quickly in dismissing the claimant only two days after sending her the new terms and a reasonable employer would have taken more time to engage with the claimant to address her concerns.  It had also failed to offer any right of appeal, which might have provided an opportunity for both sides to cool off and reach an agreement. 
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