The Claimant in the Employment Tribunal was a partner conducting legally-aided criminal defence cases. Unsolicited, at the end of a conference, the father of a client left him, and the barrister involved in the case, envelopes containing thank-you cards and cash, in his case, pounds 300. The Claimant sought advice from the firm’s Compliance and Legal Practice partner, who replied ‘I’ll leave it to your conscience’. He also sought advice from the Law Society’s ethics helpline. It referred him to guidance on significant gifts, but, he recorded, did not have a problem with this payment, so long as it was appreciated that it would not affect his work or his impartiality.
Some months later, the Claimant went to a pub with a view to interviewing witnesses, but was unable to do so. As he was leaving, the client’s father, after a discussion in the car park, dropped pounds 150 through his car window. Subsequently, the father told the barrister that he had paid the Claimant something to cover his expenses of getting the statements, to hurry him up. The barrister was concerned that the Claimant may have accepted a ‘top-up payment’ contrary to the Legal Aid Authority’s contract specification, which led to a statement from her being sent to the LAA. They in turn sent her statement to the firm, seeking their comments.
The firm instituted disciplinary process. The disciplinary charges accepted that the first payment was viewed by all concerned as a gift, but charged that the Claimant had not returned the second payment, nor reported it to the COLP, spoken to the ethics helpline about it, or told any other partner about it. The charges asserted that the payment was a top-up, in breach of the LAA contract, putting that contract at risk, as well as being a breach of professional rules; or that, if the Claimant believed it to be a gift, he was negligent as to the risk of how it would be viewed. The Claimant’s case was that the payment was not a top-up, that he genuinely believed it to be another gift, that he did not speak to the COLP or the SRA again, as he had spoken to them before, and in view of their responses on that occasion, and that he had in fact told another partner about it. The Claimant was dismissed and his appeal against dismissal was unsuccessful. The Employment Tribunal found the dismissal to be fair. The Claimant appealed.
The appeal succeeded on two points. First, the gravamen of the primary disciplinary case was that the evidence before the Respondent showed that the payment was plainly a top-up in breach of the LAA contract. But, however strong it was said to be, that case was, in its nature, circumstantial and inferential. In circumstances where the LAA had not expressed a concluded view, the Tribunal needed to consider what evidence it had about the specific reasoning of the two partners who decided the matter at the dismissal and appeal stages, and whether their conclusions, in particular that the Claimant had acted in breach of the LAA contract, were reasonably reached by them, drawing on the evidence before them. However, the Tribunal had wrongly based its decision on its own analysis of that evidence, and its view that it could have reasonably supported a decision to dismiss on that basis. Secondly, the Tribunal did not make sufficient findings to conclude that either of those partners would in fact have dismissed the Claimant (or upheld the dismissal) for negligence alone. Its conclusion that they could have relied on that alternative reason was also not a proper basis to uphold the dismissal as fair.
[2020] UKEAT 0319 – 19 – 0608
Bailii
England and Wales
Updated: 27 October 2021; Ref: scu.653276
