A law firm found to have unlawfully dismissed a criminal solicitor when he was no longer on the duty rota is considering an appeal against the decision.
Defence practitioner Michael Alexander successfully sued Stockport practice Howards Solicitors for breach of contract after the employment tribunal ruled he was entitled to notice pay for his six-month fixed-term contract.
The firm says the outcome raises questions about how duty solicitors can ever transfer firms when the system appears to make that so difficult.
Alexander was dismissed after two weeks last August once the firm became aware that its application for him to be included on the duty solicitors rota had been rejected. This was because a duplicate application had been made by his former firm.
The tribunal heard that Howards could dismiss Alexander without notice before the end of the six months only in the event of a ‘fundamental breach of contract on the part of the claimant and an actual repudiation by the claimant’. Employment Judge Peck found neither had occurred.
The Gazette understands that the firm is taking advice on a possible appeal amid concerns that the judge misunderstood the nature of being a duty solicitor. Applications to join the duty solicitor rota are made in advance by the employing firm, but without Alexander being authorised and eligible to work for his new employer he was effectively disqualified from the rota.
Howards managing partner Oliver Gardner suggested that the judgment has implications for the employment of duty solicitors.
He told the Gazette: ‘Essentially, this now means that any duty solicitor wishing to change firms must either bear the risk of a short period of unemployment in the event that their current employer decides to terminate their contract early upon finding out that they are soon to be moving their duty solicitor slot to another firm or the new firm must agree to take on the new solicitor well before said solicitor will bring in a duty solicitor slot.
‘As we have found from this ruling, if the new firm makes such an offer then they are automatically prohibited from ever terminating said solicitor’s contract should the duty solicitor slot ever be revoked.’
The concern is then that if firms cannot offer to employ a duty solicitor before their slot starts, then individuals would effectively be unable to ever move firms.
The tribunal had found that the firm did not act for two weeks after finding out about the duty rota issue. The judge said an award of additional pay could be made for failure to provide a written statement of employment particulars. The amount is due to be decided at a forthcoming remedy hearing.
