Worthingtons Commercial Solicitors in Belfast have agreed to write an email every two months exclusively for Legal-Island email subscribers. These emails cover what, in the opinion of the writers, are the recent Northern Ireland employment cases that will most interest employment law practitioners. Today's article relates to a complex case involving a partner in a firm of solicitors and a claim for £600 000.

The case concerned today is Yvonne Elizabeth McEvoy v John J Rice & Company Solicitors
Case Ref: 1278/11

This case was listed and heard on 12-14 December 2011.

The Claimant in this case, Mrs McEvoy had been employed as a Solicitor by John J Rice & Company Solicitors in and around 1991 and became a salaried Partner in or around 2000. She was responsible for the conveyance work within the practice. She did not do any criminal work. In particular, she refused to take part in the PACE rota.

In February 2009 the Claimant submitted a written grievance to the principal of John J Rice & Company Solicitors, Mr Rice. The grievance was received on 26 February 2009 and the Claimant went on sick leave on 27 February 2009. The Claimant was paid full pay for the first week of her sick absence and was then placed on statutory sick pay. The Claimant lodged a Tribunal claim on 10 July 2009 alleging that she had been subjected to discriminatory and detrimental treatment by the Respondent because of her sex and age. She also claimed that the Respondent had victimised her by refusing to pay her full pay rather than statutory sick pay during her sick absence and that she had therefore suffered unlawful deduction from wages.

The claim for unlawful deduction from wages for earnings was subsequently withdrawn by the Claimant. The Tribunal in the case dismissed the Claimant’s claim of sex discrimination and age discrimination. However it upheld the Claimant’s complaint that she had suffered victimisation in relation to the non-payment of full pay and payment of statutory sick pay during the first three months of her sick absence. The Tribunal awarded the Claimant £11,019.00 and this decision was appealed to the Court of Appeal.

The decision of the Court of Appeal was that the Tribunal had “failed to show in clear terms that it rejected the appellant’s explanation and why and has expressed itself in terms suggesting the application of an inappropriate reasonableness test we conclude that the victimisation claim must be remitted for rehearing by a freshly constituted tribunal”.

That rehearing took place on 5-7 December 2011 and the victimisation claim was dismissed. There clearly was a misunderstanding or confusion of the evidence and the facts before the Tribunal in December 2011 were clear that it was not custom and practice for all Solicitors to be paid during sick leave. The Tribunal also said that “there was a lack of employee records. There was no written or formalised sick pay scheme for professional staff. Professional staff appeared to operate without written contracts”.

The Tribunal noted that other members of staff did not receive sick pay and indeed the Claimant originally sought to rely on an actual comparator however at the rehearing she referred to a hypothetical comparator. The Tribunal specifically stated “the manner in which the Claimant approached the issue of a comparator is perhaps illustrative of the manner in which she has approached this litigation. It is clear that the Claimant, had decided that Miss Sherlock had received full pay when she was off on sick leave and that she had done so without any evidence to support that conclusion.

Once it was made clear to the Claimant that Miss Sherlock had not received full pay throughout her sick absence but had in fact, and exactly like the Claimant, received full pay for the first week for absence and then statutory sick pay thereafter, the Claimant did not withdraw her claim but pursued the matter citing a hypothetical comparator”.

The Tribunal was critical of the Claimant’s case and critical of the Claimant citing a comparator who had left the organisation some eight years prior to the current position and therefore could not properly be a comparator.

The Claimant also brought Unfair Dismissal and Victimisation Proceedings as a result of her dismissal. This dismissal arose from evidence that the Claimant had given in her very first claim to the Tribunal. The Claimant in her evidence at the first hearing admitted that she had entered the office of Mr John J Rice and had searched it, had removed and photocopied documents and had then failed to disclose that she had done so until the first Tribunal hearing. It was this action that had led to the Respondent writing to the Claimant in February 2011 to request the Claimant attend a disciplinary meeting to discuss “your admission during the course of the Tribunal that, without permission you entered my office to remove, copy and replace a set of confidential notes which compromised the trust that is so necessary between senior colleagues”. The Claimant did not attend for any disciplinary hearing and the Claimant was dismissed by letter dated 1 March 2011 for her actions and on the basis that there was “clearly a breakdown in trust and confidence between us and I regard such trust and confidence as necessary in any working relationship”.

The Claimant’s proceedings argued that the decision to dismiss her was an act of unlawful victimisation and unfair dismissal. She failed in her claim. The Claimant maintained throughout and maintained at all hearings that she was contractually entitled to three months' sick pay. Despite that fixed idea on the Claimant’s part the Claimant withdrew her claim for unauthorised deduction of wages in that respect at the first Tribunal hearing. The Tribunal held that her claim of her contractual entitlement to three months sick pay was misconceived.

The Claimant stated in evidence to the Tribunal that she believed that she had “every right” to take the documents from the Respondent’s office. The Tribunal held that the decision to dismiss was well within the band of reasonable responses open to a reasonable employer and that the reason for the dismissal was “some other substantial reason”.

Specifically the Tribunal stated, “the Claimant was the most senior employed Solicitor within the practice” - she had entered the office of the First Named Respondent covertly, had searched that office, had located documentation which related, not to her but to her colleagues, had removed that documentation, photocopied it and replaced it. She had not disclosed what she had done until it emerged in the course of the first Tribunal hearing.”

The Tribunal was very critical of the Claimant as she had submitted a schedule of loss for over £600,000 without submitting any medical evidence to support her claim for injury to feelings or loss of earnings and further that she did not indicate any real attempt to mitigate loss on her part. The Tribunal specifically stated that to present a schedule of loss as its value given the lack of mitigation and the medical evidence was unreasonable.

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The main content of this email was provided by Maxine Orr of Worthingtons Commercial Solicitors in Belfast. Maxine works exclusively in employment law and should anyone have any queries she may be contacted on 028 90 434015. Maxine is an accredited mediator

Website:
http://bit.ly/9NE0Ia

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Legal-Island
31 January 2012

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