McEvoy v John Joseph Rice John J Rice and Company, Solic... [2011] NIIT 01278

THE INDUSTRIAL TRIBUNALS

CASE REF: 1278/11

CLAIMANT: Yvonne Elizabeth McEvoy

RESPONDENTS: 1. John Joseph Rice

2. John J Rice & Company, Solicitors

DECISION

The unanimous decision of the tribunal is that the claims of unlawful victimisation and unfair dismissal are dismissed.

Constitution of Tribunal:

Vice President: Mr N Kelly

Members: Mr B McGuire

Ms T Madden

Appearances:

The claimant was represented by Mr M Potter, Barrister-at-Law, instructed by Savage & Company, Solicitors.

The respondents were represented by Ms N McGrenera, Queen’s Counsel, and Mr M Wolfe, Barrister-at-Law, instructed by Campbell Fitzpatrick, Solicitors.

Background

1. The first-named respondent is a solicitor and was, at all material times the sole equity partner, and therefore the principal, in the second-named respondent (‘the practice’).

2. The claimant is a solicitor who commenced employment with the practice in or about 1991. She became a salaried partner in or about 2000.

3. The claimant was responsible for the conveyancing work within the practice and concentrated on that type of work. She did do some additional work in relation to family law, litigation and other matters. She did not do any criminal work. In particular, she refused to take part in the PACE rota.

4. Criminal law work was, at all relevant times, the major part of the practice’s workload.

5. Following a substantial downturn in conveyancing work towards the end of 2008, the first-named respondent, on several occasions, asked the claimant to undertake criminal work. She refused.

6. Although the claimant and the first-named respondent had previously enjoyed a good working and indeed a good social relationship, their relationship deteriorated between December 2008 and February 2009.

7. On 25 February 2009, the claimant submitted a written grievance to the first-named respondent. The first-named respondent received this grievance on 26 February 2009. The claimant went on sick leave. Her first day of absence was Friday 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.

8. The claimant lodged a tribunal claim on 10 July 2009 (‘the first tribunal claim’) alleging that she had been subjected to discriminatory and detrimental treatment by the respondents because of her sex and age. She also claimed that the first-named 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 deductions from earnings.

9. The claim of unlawful deductions from earnings was subsequently withdrawn by the claimant. The tribunal at the first hearing (‘the first tribunal hearing’) dismissed the claims of sex discrimination and age discrimination. There was no appeal by the claimant against the dismissal of those claims. The tribunal upheld the remaining head of claim; ie the claim of unlawful victimisation in relation to non-payment of full pay and payment of statutory sick pay during the first three months of sick absence.

10. The respondents appealed against that finding of victimisation. The Court of Appeal overturned that latter finding and remitted that part, and only that part, of the first tribunal claim for a complete re-hearing (‘the second tribunal hearing’).

11. Following the second tribunal hearing on 5 – 7 December 2011, the victimisation claim was dismissed in a written decision issued on 8 December 2011 with written reasons delivered on 12 December 2011.

12. The respondents issued a disciplinary letter to the claimant which was dated 11 February 2011. The claimant was dismissed by letter dated 9 March 2011.

13. The claimant lodged another claim (‘the second claim’) in the industrial tribunals on 31 May 2011 She alleged that she had been unfairly dismissed; that the dismissal had been an act of unlawful victimisation contrary to the Order; that the respondents’ failure to act, on her and on her husband’s behalf, in relation to two property purchases was an act of unlawful victimisation contrary to the Sex Discrimination (Northern Ireland) Order 1976; that the respondents’ failure to pay for and renew her Practising Certificate for 2010/2011 was an act of unlawful victimisation contrary to the 1976 Order; that the claimant was owed unpaid wages, holiday pay, notice pay and ‘other unpaid amounts’.

The issues

14. The issues remaining for the tribunal to determine at the present hearing (‘the third hearing’) were:-

(i) Was the dismissal of the claimant unlawful victimisation contrary to the Order?

(ii) Was the respondents’ failure to renew the claimant’s Practising Certificate for 2010/2011 unlawful victimisation for the purposes of the Order?

(iii) Was the respondents’ failure to act for the claimant and for the claimant’s husband in relation to two property purchases unlawful victimisation contrary to the Order?

(iv) Was the dismissal of the claimant an unfair dismissal as:-

(a) an act of unlawful victimisation;

(b) substantively; or

(v) Was the claimant owed holiday pay?

The hearing

15. The third tribunal hearing took place over three days – 12, 13 and 14 December 2011. On the first day, the tribunal read the witness statements which had been exchanged in relation to the second claim. During the previous week, the same tribunal panel, in the second tribunal hearing, had heard and determined the victimisation claim which had been remitted for re-hearing by the Court of Appeal. The panel had therefore read the witness statements which had been exchanged in relation the first tribunal hearing and the second tribunal hearing.

16. On 13 December 2011, the claimant adopted her witness statements, which had been filed for the first, the second and the third hearings as her evidence. She was then cross-examined and re-examined.

17. On 14 December 2011 the first-named respondent adopted his witness statements filed for the first, second and third hearings as his evidence. Mr Potter, on behalf of the claimant, then stated that he had no questions to ask by way of cross-examination. There was therefore no re-examination. The panel had no questions to put to the first-named respondent.

18. On 13 December 2011, during the cross-examination of the claimant by Miss McGrenera, Mr Potter had indicated that he wanted to make an application to call Ms Michelle Savage, his instructing solicitor, to give oral evidence in relation to matters which had been raised in questions put during the cross-examination of the claimant. That application was made, by agreement, at the end of the cross-examination and re-examination of the claimant at approximately 4.20 pm on 13 December 2011. Mr Potter stated that three matters had been raised in the course of the claimant’s cross-examination and that Ms Savage’s evidence was required in rebuttal. Those issues were:-

(i) An issue as to when Ms Savage had contacted the Law Society about a particular point.

(ii) An issue in relation to mediation and whether Ms Savage had failed to follow-up on an offer of mediation put forward by Campbell Fitzpatrick, Solicitors.

(iii) An issue in relation to whether the phrase ‘aide memoire’ had been used by the first-named respondent during a private conversation between the first-named respondent and Mr Wolfe BL and overheard by the claimant during the first tribunal hearing or whether the phrase had been used by the first-named respondent in his cross-examination during the first tribunal hearing.

19. The respondents objected to Mr Potter’s application. In relation to (iii), the tribunal refused the application. If Ms Savage were allowed to give evidence at this late stage, it was probable that Mr Wolfe BL and/or his instructing solicitor would also have to give evidence as to what they would say occurred at the first tribunal hearing. There was also the distinct possibility of the Chairman’s notes from the first tribunal hearing being required by either or both parties. Further instructions would have to be taken on each side of the dispute and the possibility for significant delay was too great. Mr Potter was reminded that he would have a full opportunity to cross-examine the first-named respondent on the following day in relation to this matter, as indeed he would have an opportunity to cross-examine the first-named respondent in relation to all relevant matters in dispute. As noted above, that opportunity for cross-examination was not taken by Mr Potter. In relation to (ii), Ms Savage was asked to indicate what she wanted to produce in evidence, if she were given the opportunity to do so. She indicated that she had sent a letter to the respondents’ solicitors in relation to the offer of mediation but had not received a reply. She was directed to the notify the tribunal by the next day whether the reply to which she referred was already in the (four) bundles before the tribunal and if it were not in the bundles, to produce a copy of that letter. The tribunal indicated that it anticipated that no objection would be made to the production of a letter which had apparently passed between the claimant’s solicitors and the respondents’ solicitors. In the event, the tribunal’s attention was not drawn, on 14 December 2011, to any such document. In relation to (i), this did not seem to be a sufficiently significant issue to require additional evidence and consequent delay. The respondent’s counsel indicated that she would be happy to accept an attendance note from Ms Savage relating to her contact with the Law Society. The tribunal’s attention was not drawn to any such note on 14 December 2011.

20. The parties were directed to lodge final written submissions by 1.00 pm on Friday 16 December 2011. The parties were offered, and declined, an opportunity to exchange written submissions by 6.00 pm on Thursday 15 December 2011 before lodging their final written submissions. The panel met on the afternoon of 16 December 2011 to consider the evidence and the submissions and to reach a decision on the issues before the tribunal.

Relevant law

Victimisation

21. As the Court of Appeal stated in its decision when it remitted the claim of unlawful victimisation for complete re-hearing:-

“In order to establish that discrimination by way of victimisation has occurred –

(a) circumstances relevant for the purposes of the provision of the Order must apply;

(b) the alleged discriminator must have treated the person allegedly victimised less favourably than in those circumstances he treats or would treat other persons in similar circumstances (‘the less favourable treatment issue’); and

(c) he must have done so by reason of the fact that the person victimised has done one of the protected acts (‘the reason why issue’).”

22. In Paragraph 33 of its decision, the Court stated:-

“In determining the reason why issue, it is necessary for the tribunal to consider the employer’s mental processes, conscious and unconscious. If on such consideration it appears that a protected act had a significant influence on the outcome, victimisation is established. (See Lord Nicholls in Nagarajan v London Regional Transport [1999] IRLR 572 at 575, 576.) The question is why did the alleged discriminator act as he did? What consciously or unconsciously was his reason? Unlike causation this is a subjective test.”

23. The burden of proof provisions which apply to other areas of discrimination law also apply to claims of victimisation. Without rehearsing in detail the lengthy case law relating to this area, with which both parties are completely familiar, a claimant in a discrimination claim must prove facts upon which the tribunal could reasonably conclude, in the absence of an adequate explanation, that the respondent had unlawfully discriminated against the claimant (in this case unlawfully victimised the claimant). In other words, the claimant must establish a prima facie case before the burden of proof shifts to the respondent and the respondent then has to provide a satisfactory explanation.

24. In Martin v Devonshire Solicitors [UKEAT/0086/10/DA], the EAT discussed the law relating to victimisation in a judgment which was handed down on 9 December 2010. In that case, a legal secretary, who suffered from a diagnosed mental illness, had made false allegations of discriminatory conduct against her employers, the partners in a solicitors practice. There was medical advice of a risk that these allegations would be repeated. The partners dismissed her from employment and she lodged a tribunal claim alleging unlawful victimisation. The partners accepted that she had acted in good faith for the purposes of the Sex Discrimination Act and the Disability Discrimination Act.

The tribunal, at first instance, dismissed the claim of victimisation and held that the true reason for the claimant’s dismissal was not that the claimant had made allegations of unlawful discrimination but her continuing mental ill-health which was demonstrated by their (unacknowledged) falsity and the consequent risk of further disruption behaviour.

The EAT dismissed an appeal against that decision.

25. Mr Justice Underhill recorded:-

“We should say, by way of anticipation, that it has since been authoritatively established that, while the appellant genuinely believed in the truth of her allegations, the incidents alleged never in fact occurred and that her belief that they did was the result of mental illness.”

Mr Justice Underhill also quoted from the relevant letter of dismissal which ended in the following terms:-

“Whilst I have considered other options, with some reluctance, having regard to the impact of my decision upon you, I have formed the view that it is simply not possible for us to continue to employ you. As such I share Nick Billingham’s view that the relationship between you and Devonshires has irretrievably broken down. After careful consideration I do not believe that there is any option available to me other than to terminate your employment.”

26. Mr Justice Underhill stated at Paragraph 22 of the EAT decision:-

“22 We prefer to approach the question first as one of principle, and without reference to the complex case law which has developed in this area. The question in any claim of victimisation is what was the ‘reason’ that the respondent did the act complained of : if it was, wholly or in substantial part, the claimant had done a protected act, he is liable for victimisation; and if not, not. In our view there will in principle be cases where an employer has dismissed an employee (or subjected him to some other detriment) in response of the doing of a protected act (say, a complaint of discrimination) but where he can, as a matter of common sense and common justice, say that the reason for the dismissal was not the complaint as such but some feature of it which can properly be treated as separable. The most straightforward example is where the reason relied on is the manner of the complaint. Take the case of an employee who makes, in good faith, a complaint of discrimination but couches it in terms of violent racial abuse of the manager alleged to be responsible; or who accompanies a genuine complaint with threats of violence, or who insists on making it by ringing the managing director at home at 3 o’clock in the morning. In such cases it is neither artificial nor contrary to the policy of the anti-victimisation provisions for the employer to say ‘I’m taking action against you not because you have complained of discrimination but because of the way in which you did it’. Indeed it would be extraordinary if those provisions gave employees absolute immunity in respect of anything said or done in the context of a protected complaint. (What is essentially this distinction which has been recognised in principle – though rejected on the facts – in two appeals involving the parallel case of claims by employees disciplined for taking part in trade union activities : see Lyon v St James Press Limited [1976] ICR 413 (‘wholly unreasonable, extraneous or malicious acts’), (see Per Philips J at Page 419 C – D) and (Bass Taverns Ltd v Burgess [1995] IRLR 596). Of course, such a line of argument is capable of abuse. Employees who bring complaints often do so in ways that are, viewed objectively, unreasonable. It would certainly be contrary to the policy of the anti-victimisation provisions if employers were able to take steps against employees simply because in making a complaint they had, say, used intemperate language or made inaccurate statements. An employer who purports to object to ‘ordinary’ unreasonable behaviour of that kind should be treated as objecting to the complaint itself, and we would expect tribunals to be slow to recognise a distinction between the complaint and the way it is made save in clear cases. But the fact that the distinction may be illegitimately advanced in some cases does not mean that it is wrong in principle.

23 We accept that the present case is not quite like that. What the tribunal found to be the reason for the appellant’s dismissal was not the unreasonable manner in which her complaints were presented (except perhaps to the extent that Mr Hudson referred to the fact that some of the grievances were repeated). Rather, it identified as the reason a combination of inter-related features – the falseness of the allegations, the fact that the appellant was unable to accept that they were false, the fact that both those features were the result of mental illness and the risk of further disruptive and unmanageable conduct as a result of that illness. But it seems to us that the underlying principle is the same : the reason asserted and found constitutes a series of features and/or consequences of the complaint which were properly and genuinely separable from the making of the complaint itself. Again, no doubt at some circumstance such a line of argument may be abused; but employment tribunals can be trusted to distinguish between features which should and should not be treated as properly separable from the making of the complaint.”

27. Mr Justice Underhill continued at Paragraph 25:-

“25 We conclude, therefore, that the distinction made by the tribunal in reaching its conclusion as to the respondent’s reason for dismissing the appellant ought as a matter of principle to be regarded as legitimate. The distinctions involved may appear subtle, but they are real; and they require to be recognised if the anti-victimisation provisions, important as they are, are to be confined to their proper effect and not to become an instrument of oppression. This is an area of law where, alas, the questions to be answered cannot always be straightforward – not so much because the law is complex as because of the complexities of legislating for the subtleties of human motivation.”

28. Mr Justice Underhill then proceeded to consider whether the principle that he had described was consistent with the recorded authorities in this area.

Firstly, the EAT considered whether the tribunal’s approach was consistent with the decision of Chief Constable of the West Yorkshire Police v Khan [2001] ICR 1065 which referred to the need for a comparative exercise to be conducted between the treatment which had been afforded to the claimant and the treatment which had been or would have been afforded by the respondent to an individual in similar circumstances. The EAT stated at Paragraph 24:-

“A short answer to this ground would be that it does not matter how the tribunal defined the hypothetical comparator if it was right to find that the appellant had not been dismissed by reason of having made a complaint of discrimination …………. since we have held above (though subject to the further points which we consider below) that the tribunal was entitled to make the finding that it did about the respondent’s decision for dismissing the appellant, that is the end of the matter.”

29. The claimant in the Devonshire Solicitors case sought to argue that the tribunal had been wrong not to apply the ‘but for test’ set out in, for example, James v Eastleigh Borough Council [1990] ICR 554. The argument was that the reason for the claimant’s dismissal was that she had made complaints of discrimination, the additional features to which the tribunal had attached importance, eg the falsity of the complaints, the failure of the claimant to acknowledge their falsity, etc were simply matters of motive. On the claimant’s argument, ‘but for’ the making of the complaint, the claimant would have been treated differently. The EAT did not accept that argument. It stated at Paragraph 37:-

“On a proper analysis it was those features, and not the making of the complaint, which were in the relevant sense the reason for the dismissal. It was they, and they alone, which led the respondents to take that step.”

30. The EAT then considered the provisions relating to the shifting burden of proof. The claimant in the Devonshire Solicitors case had argued that the tribunal at first instance had failed to properly apply the guidance given in Igen Ltd v Wong. The EAT stated:-

“This submission portrays a misconception which has become all too common about the role of the burden of proof provisions in discrimination cases. Those provisions are important in circumstances where there is room for doubt as to the facts necessary to establish discrimination – generally that is, facts about the respondent’s motivation (in the sense defined above) because of the notorious difficulty of knowing what goes on inside someone else’s head – ‘the devil himself knoweth not the mind of man’. But they have no bearing where the tribunal is in a position to make positive findings on the evidence one way or the other and still less where there is no real dispute about the respondent’s motivation and what is in issue is its correct characterisation in law. In the present case, once the tribunal had found that the reasons given by Mr Hudson and Mr Buckland in their letters reflected their genuine motivation, the issue was indeed how that was to be characterised and the burden of proof did not come into the equation.”

Unfair dismissal

31. If the claimant had been dismissed as an act of unlawful victimisation, the dismissal would be automatically unfair. In the alternative, the dismissal would be unfair if it were procedurally and/or substantively unfair for the purposes of the Employment Rights (Northern Ireland) Order 1996.

32. Tribunals must approach with particular care any claim that includes not just a claim of unfair dismissal but, in addition a claim of unlawful discrimination. Further problems can occur where there may be an issue of contributory conduct.

In London Ambulance Service NHS Trust v Small [2009] EWCA Civ 220 the Court of Appeal stated at Paragraph 46:-

“Mr Marsh spoke of his experience that employment tribunals often structure their reasons by setting out all their findings of fact in one place and then drawing on the findings at the later stage of applying the law to the relevant facts. It is not the function of appeal courts to tell trial tribunals and courts how to write their judgments. As a general rule, however, it might be better practice in an unfair dismissal case for an employment tribunal to keep its findings on that particular issue separate from its findings of disputed facts that are only relevant to other issues, such as contributory fault, constructive dismissal and increasingly, discrimination and victimisation claims. Of course some facts would be relevant to more than one issue, but the legal elements of the different issues, the role of the employment tribunal and the relevant facts are not necessarily all the same. Separate and sequential findings of fact on discrete issues may help to avoid errors of law, such as substitution, even if it may lead to some duplication.”

33. The proper approach for an industrial tribunal to take when considering the fairness of a misconduct dismissal is well settled and was recently considered by the Court of Appeal in Rogan v South Eastern Health & Social Care Trust [2009] NICA 47.

34. Article 130 of the Employment Rights (Northern Ireland) Order 1996 provides:-

“130-(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –

(a) the reason (or if more than one, the principal reason) for the dismissal and

(b) that is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) a reason falls within this paragraph if it –

(b) relates to the conduct of the employee,

(4) where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –

(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and

(b) shall be determined in accordance with equity and the substantial merits of the case.”

35. The Court of Appeal in Rogan approved the earlier decision of Court in Dobbin v Citybus Ltd [2008] NICA 42 where the Court held:-

“(49) The correct approach to [equivalent GB legislation] was settled in two principal cases – British Home Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1983] ICR 17 and explained and refined, principally in the judgements of Mummery LJ, in two further cases Foley v Post Office and HSBC Bank Plc (formerly Midland Bank) –v- Madden reported at [2000] ICR 1283 (two appeals heard together) and J Sainsbury v Hitt [2003] ICR111.

(50) In Iceland Frozen Foods, Browne-Wilkinson J offered the following guidance:-

“Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law. We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by [equivalent GB legislation] is as follows:-

(1) the starting point should always be the words of [equivalent GB legislation] themselves;

(2) in applying the section an industrial tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;

(3) in judging the reasonableness of the employer’s conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

(4) in many, though not all, cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, and another quite reasonably take another;

(5) the function of an industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair; if the dismissal falls outside the band it is unfair.”

(51) To that may be added the remarks of Arnold J in British Home Stores where in the context of a misconduct case he stated:-

“What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, it must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further. It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances. It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being “sure”, as it is now said more normally in a criminal context, or, to use the more old fashioned term such as to put the matter beyond reasonable doubt. The test, and the test all the way through is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion.”

36. In Bowater v North West London Hospitals NHS Trust [2011] EWCA Civ 63, the Court of Appeal considered a decision of the Employment Appeal Tribunal which had set aside a decision of an employment tribunal. The employment tribunal had determined that a remark made by a nurse in an Accident & Emergency Department was not a sufficient basis for a fair dismissal. Lord Justice Longmore stated at Paragraph 18 of the decision that:-

“I agree with Stanley Burnton LJ that dismissal of the appellant for her lewd comment was outside the range of reasonable responses open to a reasonable employer in the circumstances of the case. The EAT decided that the ET had substituted its own judgment for that of the judgment to which the employer had come. But the employer cannot be the final arbiter of its own conduct in dismissing an employee. It is for the ET to make its judgment always bearing in mind that the test is whether dismissal is within the range of reasonable options open to a reasonable employer.”

He continued at Paragraph 19:-

“It is important that, in cases of this kind, the EAT pays proper respect to the decision of the ET. It is the ET to whom Parliament has entrusted the responsibility of making what are, no doubt, sometimes, difficult and borderline decisions in relation to the fairness of dismissal.”

37. In Fuller v London Borough at Brent [2011] EWCA Civ 267, the Court of Appeal again considered a decision of the Employment Appeal Tribunal which had set aside the decision of an employment tribunal on the basis that the employment tribunal had substituted its view for the decision of an objective reasonable employer. Lord Justice Mummery stated at Paragraph 7 of the decision that:-

“In brief the counsel’s case on appeal that the ET erred in law. It did not apply to the circumstances existing at the time of Mrs Fuller’s dismissal the objective standard encapsulated in the concept of the ‘range or band of reasonable responses’. That favourite form of words is not statutory or mandatory. Its appearance in most ET judgments in unfair dismissal is a reassurance of objectivity.”

At Paragraph 38 of the decision, he continued:-

“On a proper self-direction of law I accept that a reasonable ET could properly conclude that the council’s dismissal was outside the band or range of reasonable responses and that it was unfair. If, as I hold, the ET applied the objective test, it did not err in law and there was no ground on which the EAT was entitled to set it aside or to dismiss Mrs Fuller’s claim.”

38. In Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721, the Court of Appeal again considered a decision of an Employment Appeal Tribunal which set aside the decision of an employment tribunal on the ground that they had substituted their judgment of what was a fair dismissal for that of a reasonable employer. At Paragraph 13 of the judgment, Lord Justice Elias stated:-

“Section 98(4) focuses on the need for an employer to act reasonably in all the circumstances. In A v B [2003] IRLR 405, the EAT (Elias J presiding) held that the relevant circumstances include the gravity of the charge and their potential effect upon the employee. So it is particularly important that employers take seriously their responsibilities to conduct a fair investigation where, as on the facts of that case, the employee’s reputation or ability to work in his or her chosen field of employment is potentially apposite”

39. In Harvey on Industrial Relations and Employment Law (Division 1 – 195) it provides that:-

“In a suitable case, the employer may rely upon breakdown in trust and confidence as the substantial reason justifying the dismissal.”

Findings of fact

40. In light of the decision in London Ambulance Service NHS Trust v Small [2009] EWCA Civ 220, the tribunal will deal with the issues of unlawful victimisation and unfair dismissal separately.

Unlawful victimisation

41. As can be seen from the background of to this case, as set out above, the claim of unlawful victimisation emerged against the background of a substantial decline in conveyancing work and a series of meetings between the first-named respondent and the claimant between December 2008 and February 2009. The claimant’s allegations of age and sex discrimination were actively pursued by her through to the first tribunal hearing and, in relation to the claim of unlawful victimisation actively pursued by the claimant up to the second tribunal hearing.

42. The claims raised by the claimant included the following:-

(i) that the first-named respondent had systematically and arbitrarily entered the claimant’s office (an office in the practice in which the first-named respondent was the principal);

(ii) that the first-named respondent used threatening and derogatory comments to the claimant;

(iii) that the first-named respondent removed the claimant from the role of money laundering officer for the practice;

(iv) that the first-named respondent undermined and demoralised the claimant;

(v) that the first-named respondent discriminated against her by allowing a male employee, Hugh Leslie, six and a half weeks’ leave;

(vi) that the first-named respondent used the fees generated by the claimant to ‘determine her worth within the firm’;

(vii) that the first-named respondent was abusive, offensive and insulting to the claimant;

(viii) that the first-named respondent indulged in bullying and harassing behaviour towards the claimant;

(ix) that the first-named respondent asked the claimant to undertake criminal law work;

(x) that the first-named respondent threatened the claimant with redundancy; and

(xi) that the first-named respondent victimised the claimant by placing her on statutory sick pay.

43. The tribunal panel has listened carefully to the claimant giving evidence in both the second and third tribunal hearings and has reached the firm conclusion that the claimant’s complaints were, in many respects, manifestly unreasonable:-

(i) The claimant was apparently incapable of recognising that the combination of a significant downturn on conveyancing and her position as the sole conveyancer in the practice raised issues which were unique to her. Her position as the solicitor responsible for conveyancing work within the practice was in difficulty and that needed to be addressed by the first-named respondent as the sole equity partner in the practice. It was, to say the least, illogical and irrational for the claimant to take the view, because similar attention was not paid by the first-named respondent to the criminal law practitioners within the firm, whose work had not suffered a downturn, that that meant that gender and age discrimination was ‘obvious’. It is clear to this tribunal and would have been equally clear to the first-named respondent that the claimant had reached this view without any evidence or any rational basis to support it.

(ii) The first meeting in the series of meetings which led to this claim was a meeting in which the claimant pressed for a pay rise. Given that this occurred in December 2008 when the conveyancing was already in difficulty, such a request can only suggest a level of unreality on the part of the claimant which is surprising in a solicitor of many years standing.

(iii) The claimant saw the fact that the first-named respondent had entered her office on perhaps four occasions without a prior appointment as a proper matter for a complaint to an industrial tribunal and as an instance of unlawful discrimination. The fact that the first-named respondent was the sole equity partner in the practice and therefore perfectly entitled to enter any part of the practice premises and to speak to his employees, was, or should have been, obvious to the claimant. The claimant did not, and for that matter, still does not, see anything wrong in her entering the first-named respondent’s office covertly to search for and to remove documents for photocopying. This contradiction does not apparently trouble the claimant. When pressed under cross-examination to explain the different way in which she viewed these matters, she was unable to provide a proper explanation. When further pressed and asked to explain what her reaction would have been if the first-named respondent had covertly entered her office and had removed and photocopied notes which she had made in the context of this case, her response was eventually clear; she stated that she would have been ‘angry’.

(iv) The claimant made much of her allegation that she had been removed from her post as the money laundering officer. It was however made plain to the claimant in the unchallenged evidence of the first-named respondent at an early stage in these proceedings that the first-named respondent’s decision to remove her from that position was because he was following advice from a recognised expert in this area and that that advice was that individuals holding that particular post should, and for what appeared to the tribunal to be perfectly obviously reasons, be rotated. Again the claimant failed to recognise a perfectly obvious explanation for an incident and preferred instead to doggedly hold to her fixed view of discrimination and unfair treatment.

(v) The claimant made an allegation that Kalena McCann had told her in a conversation on or about 20 February 2009, that another solicitor in the firm, Doris Sherlock, had received full pay while on sick leave for a period of between 8 and 10 weeks. As the tribunal found, following the second tribunal hearing, Ms McCann did not tell the claimant that Ms Sherlock had received full pay during a period of sick leave. It was instead the claimant who told Kalena McCann that Ms Sherlock had received full pay during this period. The tribunal has concluded that the claimant has simply chosen to prefer whatever version of events suits her underlying view that she was being discriminated against and that any evidence to the contrary is disregarded by her.

(vi) The claimant maintained, until the very last, that Ms Sherlock had in fact been paid full pay while on sick leave. She did not have any evidence or logical basis on which to make this assertion in any context, much less to make that assertion in the context of tribunal proceedings. She did not check whether Ms Sherlock had been paid full pay while on sick leave before making the allegation, eg by submitting a statutory questionnaire to the first-named respondent, or by simply asking the first-named respondent, Ms Sherlock or her friend, Ms McCann, for confirmation of what apparently was her fixed belief.

(vii) The claimant alleged, again without any evidence and without checking the necessary facts as she could easily have done, that Mr Leslie had received excess holiday entitlement. It is no small thing to issue tribunal proceedings and to make serious allegations of unlawful discriminatory behaviour against a practising lawyer. It is entirely inappropriate to do so on unsupported assertions without checking the basis for those assertions and without any apparent care for accuracy.

(viii) The claimant maintained throughout; and maintains to this day, 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. When pressed to explain why that had been done, her only response was that it had been done ‘on advice’. There is nothing wrong in doing something on advice; quite the reverse. However the tribunal would have expected the claimant to be able to explain the basis for her action rather than simply saying it was taken ‘on advice’. The tribunal panel in the second tribunal hearing has determined that the proposition to which the claimant still clings that she is or was contractually entitled to three months sick pay was misconceived.

(ix) The claimant regarded, as a proper matter for a discrimination claim in a tribunal, the fact that the first-named respondent ‘used the fees generated by her to determine her worth within the firm’. In the collective experience of this tribunal, it is precisely and inevitably the level of fees generated by individual professionals within a professional practice that determines their worth to that practice. The tribunal cannot understand how the claimant regarded or chose to regard this as an issue of unlawful discrimination when it was, or should have been, clear that she was the only conveyancer in the practice and equally clear that conveyancing was suffering a severe downturn.

(x) The claimant also regarded it as a proper matter for a discrimination claim in the tribunal that the first-named respondent had asked her to undertake criminal law work. In such circumstances, asking a conveyancer to undertake criminal law work and, it has to be noted, not forcing her to do so, seems entirely reasonable and it was simply irrational for the claimant to approach this issue in the manner in which she has approached it.

44.	(i)	The employment relationship between the claimant and the respondents had irretrievably broken down by the time disciplinary proceedings issued. The claimant entered the first-named respondent’s office covertly to search for documents relating to meetings which she understood had occurred between the first-named respondent and other employed solicitors within the practice. She had no entitlement to see these documents. She was not at that stage, or ever, an equity partner and was not at that stage, or ever, the employer of those other solicitors. She was a fellow employed solicitor and a colleague. The claimant sought, under cross-examination at the third hearing, to assert that she had been entitled ‘as of right’ to have those documents and indeed to have attended the meetings at which those documents were complied. The notes relating to these meetings had been a particular issue in the first tribunal hearing during the claimant’s cross-examination. She did not assert at that time, according to her evidence, and did not assert at any stage in her witness statements or in her response to the disciplinary charge that she had had ‘every right’ to have those documents and that therefore the disciplinary charge of removing those documents was completely unfounded. When asked to explain why she had put forward this argument for the first time during cross-examination in the third tribunal hearing, she was unable to give a satisfactory response. In any event, having covertly entered the first-named respondent’s office, she searched the first-named respondent’s desk until she found the documents that she was looking for. Those documents did not relate to her, they related to fellow employees. She removed those documents and photocopied them. She did not disclose to the first or second-named respondents that she had done so until shortly before the first tribunal hearing, when she released documents on discovery. It was only in the course of the first tribunal hearing that it became clear that the claimant had removed and photocopied these documents covertly.

	(ii)	The claimant did not trust the first-named respondent to deal with either her disciplinary hearing or disciplinary appeal hearing impartially or properly and said so in terms.

	(iii)	The claimant submitted sick notes to the practice for approximately the first six months of her absence. After the initial six month period, the claimant did not contact the first or second-named respondents and did not feel that it was necessary for her to contact the respondents as her employer to prove, or to even explain, that she was still unfit for work. Her response under cross-examination at the third tribunal hearing was that the first-named respondent could have contacted her if he wished to do so after August 2009. This, to the tribunal, appears to be an extraordinary attitude for an employee to take while absent from work, on what was apparently sick leave, for a lengthy period.

45. On 11 February 2011, the first-named respondent wrote to the claimant in the following terms:-

“I refer to the above matter and write to request your attendance at the disciplinary meeting at 10.00 am on Thursday 17^th of February 2011 at the High Court in Belfast.

The purpose of the meeting is 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.

I regard this as potentially gross misconduct.

Furthermore, I believe it would be appropriate to discuss what I regard as a irretrievable breakdown in trust and confidence between us. I also want to consider the impact on me and my relationship with you of your untruthful and hurtful allegations of sex and age discrimination which you will appreciate were completely rejected by the tribunal.

I also want to discuss the impact of other allegations you made about the other members of staff.

The purpose of the meeting will be enable you to put your case and for that to be considered.

One potential outcome of the meeting may be your dismissal.”

46. At about the same time, the claimant wrote to the first-named respondent on 10 February 2011 indicating that she wished to return to work. The claimant regarded this coincidence in timing as suspicious and concluded that disciplinary action had only been contemplated because she had indicated a desire to return to work.

47. The unchallenged evidence of the first-named respondent was as follows:-

“I do not accept the claimant’s Paragraph 9. I had no knowledge of the claimant’s desire to return to work. Towards the end of 2010 and the beginning of 2011 I had formed the opinion that the working relationship between the claimant and I had become untenable. There had clearly been a breakdown in trust and confidence between us and I regard such trust and confidence as a necessity in any working relationship not only between the claimant and myself but also between the claimant and other members of staff. Also the claimant admitted at the previous tribunal that she had gone into my office and retrieved and photocopied private papers. I regarded this action as dishonest.

In December 2010/January 2011 I had various consultations with my solicitors and on 19^th of January 2011 we had a consultation with counsel to address the claimant’s conduct and continued employment within my office.

On 10^th of February 2011 and having consulted with my solicitor on an almost daily basis for a few days prior to that I took the decision to instigate disciplinary proceedings against the claimant and a disciplinary letter was prepared on 10^th of February, ie in advance of receiving a handwritten letter from the claimant on 11^th of February 2011.

Accordingly while Paragraph 10 of the claimant’s statement is correct I wish to reiterate that the letter in relation to the disciplinary hearing was composed prior to my receipt of her letter of 10^th of February 2011.”

48. Mr Potter failed to cross-examine the first-named respondent on the timing of the issuing of the disciplinary letter, presumably on his client’s instructions, and therefore the tribunal must prefer, in the absence of any indication to the contrary, the sworn evidence of the first-named respondent, ie that he had formed a clear view that his working relationship with the claimant was now untenable and that the decision to issue disciplinary proceedings predated the sudden indication on the claimant’s part that she intended to return to work. The tribunal is strengthened in this view by the reference in that sworn evidence to consultations with both his counsel and his solicitor. Senior and junior counsel and solicitor were present during the third tribunal hearing and the tribunal can safely assume, would not have been so present and would not have taken part in the putting forward of this evidence as sworn testimony if it had not been true.

49. The claimant refused to attend a disciplinary hearing unless she was allowed to be accompanied by her solicitor or by a officer of the Law Society or if the meeting were recorded. The first-named respondent declined to accept these conditions and repeated that the claimant was entitled, in accordance with employment legislation, to be accompanied by a work colleague.

50. On 1 March 2011 the first-named respondent wrote to the claimant in the following terms:-

“I have tried to deal with your grievance hearing and also the disciplinary hearing pursuant to the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 and I note that you have refused to attend on three occasions.

Accordingly, and with regret, I now advise you that I am terminating your contract of employment with the office of John J Rice & Company.

The reasons for terminating your contract are the following:-

1. Your admission that you entered my office to remove, copy and replace a set of confidential notes and I regard this as gross misconduct.

2. The irretrievable breakdown and trust and confidence between us which has arisen as a result of untruthful and hurtful allegations of sex and age discrimination against me.

Your dismissal is with immediate effect and you will be paid 12 weeks pay in lieu of notice together with any outstanding holiday pay and any outstanding bonus.”

51. The claimant was advised of her right of appeal. The claimant refused to attend any appeal hearing because the appeal would be heard by the first-named respondent, as the sole equity partner in the practice.

52. The issue concerning the nature of the notes which had been removed from the first-named respondent’s office covertly by the claimant arose again in the context of the third hearing. The claimant, on oath and in open tribunal, accused the first-named respondent of conspiring to pervert the course of justice by amending those notes. The first-named respondent’s evidence by way of written statement was that those notes were working documents which were to be added to as meetings progressed. The claimant, under cross-examination, refused to accept that proposition. It is a matter of some concern to this tribunal that the claimant having made such a serious accusation, the first-named respondent was denied the opportunity to respond in cross-examination to that serious allegation. For the avoidance of doubt, the tribunal accepts the unchallenged evidence of the first-named respondent and concludes that the allegation made by the claimant in cross-examination was utterly baseless.

53. On two occasions, in November 2010 and January 2011, the claimant attempted to get the second-named respondent to act on her and her husband’s behalf in the purchase of two properties which she had acquired with her husband as a exercise in property development. The first-named respondent sought advice from his solicitor and in turn through that solicitor from the Law Society in relation to the advisability of the second-named respondent acting on behalf of the claimant and her husband. On advice, he reached the conclusion that it would be inappropriate for him to do so. That seems to this tribunal to be a reasonable approach for the first-named respondent to have adopted. If something had gone wrong in either of these two conveyances, the first-named respondent and indeed the second-named respondent would have been open to further accusations of impropriety and victimisation. It was simply not appropriate for the second-named respondent to act on behalf of the claimant and her husband in these matters when there was ongoing litigation. It is somewhat surprising that the request was made in the first place in the circumstances of this case and even more surprising that, having been refused on perfectly reasonable grounds, the request was repeated by the claimant in relation to the second property purchase.

54. The first-named respondent paid for the claimant’s Practising Certificate for the 2009 year which was due on 5 January 2009 and also for the following year which was due on 5 January 2010. He did not pay for or apply for the Practising Certificate on her behalf for the following year. By that point, the claimant had been off work for a considerable period of time and the first-named respondent had received no indication from her that she was ready to return to work or indeed that she would ever return to work. The first-named respondent wrote to the claimant’s solicitors indicating that the claimant could apply for a further Practising Certificate when she was medically fit for work. It is clear that the first and second-named respondents had incurred substantial expense in respect of Practice Certificate fees and professional indemnity insurance in respect of the claimant during the lengthy period when she off sick from 27 February 2009 until her dismissal on 1 March 2011.

Unlawful victimisation decision

55. The issue for the tribunal to determine is the first-named respondent’s motivation in bringing disciplinary proceedings and in dismissing the claimant. On the unchallenged evidence of the first-named respondent, the tribunal is satisfied that the primary issue was the claimant’s admission that she had entered his office covertly, had searched it, had removed and photocopied documents and had then failed to disclose that she had done so until the first tribunal hearing. A further significant issue, in part related to the first, was that the total breakdown in the trust and confidence between the claimant and the first-named respondent. This was a situation where, apart from the incident referred to above, the claimant had made and had maintained allegations which, while made in good faith, were groundless. The claimant had not checked the basis for those allegations and had never had a proper basis for making those allegations. Furthermore, when faced with clear evidence to the contrary, she did not vary her stance but maintained and indeed still maintains to this day that she was discriminated against on grounds of gender and age, and that she was contractually entitled to three months sick pay.

56. The tribunal is satisfied that it is not the fact that the claimant had made complaints of sex and age discrimination, whether by way of grievance or by way of tribunal proceedings, that led to the first-named respondent’s decision to issue disciplinary proceedings or the first-named respondent’s decision to dismiss the claimant. The tribunal is in a position to make that firm finding of fact. It therefore is not necessary for the tribunal to go through the two stages of the provisions relating to the shifting burden of proof. There are no grounds on which a tribunal could reasonably infer that the claimant was unlawfully victimised. The basis for those decisions, in the opinion of the tribunal, is entirely separable from the fact that the complaints were made. The reality was that the claimant’s position as an employee of the first and second-named respondents was no longer tenable given her action in covertly entering his office and removing the documents, and her actions in recklessly pursuing and maintaining allegations which she should have known were false. If the claimant had returned to the employment of the first and second-named respondents, a recurrence, in fact a continuance, of the complaints was inevitable.

57. The rationale for the Devonshire decision is not restricted, as the claimant appears to suggest in her final submissions, to instances where there is a diagnosis of mental illness. The issue is whether the reason for the dismissal is separable from the fact of the protected act.

The tribunal is very conscious of the importance of the victimisation provisions in anti-discrimination legislation. It is vital that individuals are not deterred from pursuing grievances or claims by a fear of dismissal. However, it is also important that the victimisation provisions do not become an instrument of oppression, to use the phrase adopted by Underhill J in Devonshires. It cannot be right that an employer is forced to continue an employment relationship which has irretrievably broken down, as in the present case. The tribunal is satisfied that this is one of those cases where the respondent’s conscious and unconscious reason for dismissal is genuinely separable from the protected act of making a discrimination complaint.

58. In relation to the property purchases, the tribunal has concluded that the attitude taken by the first and second-named respondents was entirely reasonable and was taken on advice. The refusal to act for the claimant and the claimant’s husband in these circumstances was not because the claimant had made and pursued claims of unlawful discrimination. It was because the second-named respondent would have owed a professional duty to the claimant and her husband as clients and not, as the claimant persisted in stating in cross-examination, as an employee. In such circumstances it would have been professionally inappropriate for them to have acted on their behalf where any untoward incident in the conveyance could and, almost certainly, would have resulted in victimisation claims and further difficulties between the claimant and the respondents. Again, facts have not been proved which would establish a prima facie case of victimisation and which would shift the burden of proof.

59. In relation to the Practice Certificate fees and the alleged delay in forwarding related correspondence, the tribunal concludes that the relevant correspondence at that stage was being passed from the first-named respondent through his solicitor to the claimant’s solicitor and that there was no significant delay. Furthermore, the first-named respondent’s decision, as communicated to the claimant, that a Practising Certificate fee would be paid when she was fit to return to work was entirely reasonable and was taken on advice. Significant sums of money had been expended in respect of Practice Certificate fees for periods when the claimant had not been at work, ie for almost all of 2009 and all of 2010, and the decision not to incur any further unnecessary expense was not, in the tribunal’s view, in any way related to the fact of the original claims. The claimant has not discharged the initial burden of proof.

Unfair dismissal

Findings of fact

60. The findings of fact in relation to the unfair dismissal claim are set out in Paragraphs 46, 47 and 49 – 51 above.

61. The claimant’s actions in entering the office of the first-named respondent and removing and photocopying documentation were not in dispute. The first tribunal had determined that the claims of unlawful discrimination was unfounded. The manner in which the claimant had made those claims had been aired in the first tribunal hearing.

Decision – unfair dismissal

62. Given the unchallenged evidence of the first-named respondent and having listened carefully to the claimant’s cross-examination and having examined all the witness statements furnished in this matter, the tribunal concludes that the reason for the dismissal was ‘some other substantial reason’ as defined by the 1996 Order, ie an irretrievable breakdown in trust and confidence.

63. This was potentially a fair reason for the purposes of the 1996 Order. The tribunal concludes that the decision of the first-named respondent to dismiss the claimant was not automatically unfair for the purposes of the Employment (Northern Ireland) Order 2003. The claimant was given three opportunities to attend a disciplinary hearing. She chose not to do so on the basis that she wanted her solicitor to attend, an officer of the Law Society to attend, or failing that, the meetings to be recorded. The claimant is not entitled to insist on any of those requirements as a prerequisite for attending a disciplinary hearing and it is surprising that those requests were made on her behalf. The respondents made it plain to the claimant that she could be accompanied to the disciplinary hearing by a work colleague. Since the claimant failed to co-operate with the disciplinary hearing and to attend that hearing, the respondents were entitled to proceed to determine the disciplinary charges and dismiss the claimant. The claimant also refused to attend the appeal hearing. Her objection in this respect was that the appeal hearing would be heard by the first-named respondent. It is common with small employers for both the disciplinary and the appeal hearings to be determined by the same person. The LRA Code recognises that reality and simply requires that the individual who hears both hearings should attempt to act as impartially as possible. There is no requirement in such circumstances for an employer to engage the services of an independent adjudicator.

The tribunal is satisfied there are no procedural defects in relation to her dismissal.

64. Turning to substantive fairness, this was a professional practice. The claimant was the most senior employed solicitor within that 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. On any reading of events, that was fatal to any proper sense of trust and confidence between the claimant and the first-named respondent. Furthermore, the claimant had made, by way of a grievance, allegations which were irrational and wholly unfounded. She chose to persist with those allegations through to a tribunal hearing and was impervious to any evidence to the contrary. She had approached the entire issue in a wholly unreasonable manner and there was every probability of a recurrence or continuance of these complaints. In any event, there was no possibility of a meaningful employment relationship being re-established in these circumstances. The decision to dismiss was a decision well within the band of reasonable responses open to a reasonable employer.

The tribunal therefore concludes that the dismissal was fair.

Holiday pay

65. No evidence was presented to this tribunal in relation to leave taken, leave untaken or anything which could have supported a claim for holiday pay. It is perhaps notable that counsel for the claimant did not seek to pursue that matter in his final submission. The claim for holiday pay is therefore also dismissed.

Remedy claimed

66. The claimant submitted and argued for a schedule of loss of over £600,000.00. There are two particular aspects of this alleged loss that call for particular comment.

Firstly, the claimant submitted no medical evidence to support her claim for injury to feelings and loss of earnings. The claimant is a lawyer of some 30 years standing who claims to have experience in litigation. She is represented by an experienced litigation solicitor and experienced counsel. For such a claimant to put forward a claim of this magnitude with no significant supporting medical evidence (and documentation from the Social Security Agency is not significant supporting evidence) is unreasonable.

67. Furthermore, the claimant’s evidence in cross-examination was that her doctor had told her that she was to decide herself when she was able to stop taking medication (unidentified) and when she was fit to return to work. In other words, the claimant had been told by her doctor to self-diagnose for fitness for work and to self-prescribe medication. The tribunal concludes that is highly unlikely. The claimant further stated that she had herself, felt well enough to return to work in February 2011 but shortly thereafter in her cross-examination in the third hearing volunteered the information that she was still unwell. None of this sits easily with the claimant’s statement, in a letter dated 11 February 2011, that she had been ‘certified fit for work by my General Practitioner’.

68. The claimant sent several identical letters to solicitors on the same day, 18 July 2011, seeking work and referring only to her experience as a conveyancer. She sought work within her speciality as ‘an experienced conveyancing solicitor’. When it was put to her that she had not referred to litigation or family law with which she claimed to be familiar, the claimant’s response was that if she had received a reply from any of the solicitors, she would have furnished a CV with the relevant details.

The timing of these letters and the restriction of her stated interest to conveyancing in the middle of a conveyancing downturn does not indicate any real attempt to mitigate loss. Furthermore, the claimant has never registered with the Law Society for locum work and has never signed up with employment agencies such as Blueprint who place lawyers in both the public and private sectors.

69. To put forward and maintain a claim for more than £600,000.00, in the absence of supporting medical evidence and in the absence of any effort to mitigate loss is unreasonable.

70. If the claimant had succeeded in her claim of unlawful victimisation or unfair dismissal, compensation for injury to feelings and loss of earning would therefore have been minimal.

Vice President:

Date and place of hearing: 12 – 14 December 2011, Belfast

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McEvoy v John Joseph Rice John J Rice and Company, Solic... [2011] NIIT 01278_11IT (22 December 2011) URL: http://www.bailii.org/nie/cases/NIIT/2011/01278_11IT.html Cite as: [2011] NIIT 01278_11IT, [2011] NIIT 1278_11IT

Industrial Tribunals Northern Ireland Decisions