A recent claim brought by a criminal solicitor, Michael Alexander, whose contract with Howard Solicitors was terminated after just two weeks demonstrates to employers how important it is to follow correct procedures.

Background

Mr Alexander was employed on a 6 month fixed-term contract as a criminal solicitor.  Criminal solicitors are often required to act as a ‘duty solicitor’.  A duty solicitor is someone who attends the police station to represent people who have been arrested.  At the time of his employment with Howard Solicitors, Mr Alexander was still on the duty rota for his previous firm.  Mr Alexander’s case was that Howard Solicitors knew this and assured him that this wouldn’t be an issue.

Mr Alexander began his employment, but the firm failed to issue him with an employment contract.  In his first two weeks Mr Alexander turned out to be a less-than-model employee.  Incidents in his first two weeks of his employment included:

1. Failing to turn up to his induction;

2. Refusing to take his laptop to court;

3. Refusing to use the firm’s case management system; and

4. Refusing to attend training in the office because it was “too hot” (clearly this took place last summer and not in July 2023 where being too hot is a distant memory...).

The firm was then informed that Mr Alexander could not act as a duty solicitor for them because he remained on his previous firm’s rota.

After only two weeks’ employment, the firm wrote to Mr Alexander terminating his employment with immediate effect.  They cited the various issues above, and said that it was not ‘commercially viable’ to retain him if he couldn’t be on the duty rota for the firm.

The claim

Mr Alexander sued for breach of contract, stating that he had not been paid proper notice.  The firm argued that Mr Alexander had breached his contract and no notice was required.

Usually notice will be payable unless the employee has repudiated the contract i.e. committed a fundamental breach.  This is almost always an act of gross misconduct.

The tribunal decided the case in favour of Mr Alexander. They found that none of Mr Alexander’s shortcomings amounted to a fundamental breach of his contract and the firm were not entitled to dismiss without notice.  They also decided that being able to act as a duty solicitor was not a condition of the contract so the firm was not entitled to end the contract for that reason either.

The tribunal found that Mr Alexander was entitled to compensation for breach of contract (the amount of which will be decided at a further hearing).  He is also entitled to additional compensation because the firm failed to issue him with a contract of employment at the start of his employment.

What should the firm have done?

The decision seems harsh against the firm.  It became apparent within the first two weeks of Mr Alexander’s employment that he did not follow instructions and could not do a fundamental part of the job.  However, had the firm followed proper procedures, all the pain could have been avoided.  If I had been advising Howard Solicitors, I would have suggested:

• An conditions attached to someone’s employment (e.g. being a duty solicitor, holding a valid driving licence, or a particular qualification) should be clearly expressed in writing before the employment commences;

• A contract of employment should be issued on or before the first day of employment (ideally it should be sent with the offer letter);

• Mr Alexander’s employment should have been subject to a probationary period in which he could be quickly dismissed if conduct issues arose; and

• Any dismissal should have been with the proper notice being paid.

Should you have any questions about issuing or terminating contracts, please contact Arvin Sandhu by email or on 01494 521301.