Following an employee’s refusal to agree contractual changes during the COVID-19 pandemic, her dismissal found to be unfair in Khatun v Winn Solicitors Ltd.
Ms Khatun was a solicitor at Winn Solicitors Ltd from 2015. On 23 March 2020, Ms Khatun was called into a meeting where she was informed that 50% of staff would be furloughed but that she would be asked to continue working. Like all retained solicitors at the firm, she was required to vary her contract of employment, agreeing “to go into furlough or reduced hours as needed by the business”. However, the only immediate change was that she would be asked to work from home. Ms Khatun was told that the position was non-negotiable and a failure to agree was likely to result in dismissal.
On 24 March, Ms Khatun and her colleagues received an e-mail from the firm’s HR Director, instructing her to sign an attached contract variation and return it within 24 hours. The e-mail explained that “if the variation is not granted it is highly likely that your employment would be terminated as we need the flexibility to meet this challenge moving forward”.
Ms Khatun responded the following morning, refusing to agree to the variation. She explained that if she was “furloughed or any other unexpected situation arises” she would consider a variation at that point. The HR Director responded, encouraging her to instead agree to the variation, but “take a view” on any changes when they were introduced.
After Ms Khatun refused, she received a brief call from her Head of Department, Mr Dewar. Mr Dewar simply confirmed that Ms Khatun needed to agree the changes or she would be dismissed.
On 26 March, Ms Khatun was summarily dismissed. The firm’s Chief Operating Officer described her as “inflexible and clearly not someone interested in the firm or her colleagues”.
The firm subsequently recognised that it was in breach of contract, and paid Ms Khatun notice and holiday pay.
Ms Khatun claimed that she had been unfairly dismissed. The Employment Tribunal agreed.
The firm was able to establish that it had a potentially fair reason for dismissing Ms Khatun, namely some other substantial reason. The Tribunal accepted that the firm had the requisite “sound, good business reasons” for requiring the contractual change. COVID-19 developments had made it “increasingly clear” to the firm that the way it worked “could dramatically change in the very near future and, as such, it was looking to adopt agile and flexible working practices to minimise disruption”. The firm’s monthly figures had shown a reduction in business, and “it was reasonable and not premature for the respondent to plan for the worst and take the steps that it did when it did”.
However, the Tribunal found that the firm’s decision to dismiss Ms Khatun for this potentially fair reason was not reasonable in the circumstances. In reaching this conclusion, the Tribunal considered:
- that the firm had over 300 employees, but only Ms Khatun refused the variation;
- the absence of any meaningful consultation;
- the firm’s failure to reasonably explore all alternatives to dismissal; and
- that the firm failed to offer Ms Khatun the opportunity to appeal against her dismissal.
