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Law firm could sack receptionist who created 'obvious risk' to staff

6 September 2010

The receptionist at a criminal law firm, who allowed two young clients to run through the office and out of the back door, was not unfairly dismissed, the EAT has held.

Judge Serota QC said one of the men had an injured hand, which was bleeding, and the receptionist knew “these men both had the Hepatitis virus and were both rumoured to be HIV positive”.

He said this posed “an obvious risk” to staff at Wilson Devonald in Swansea, where Shirley Suckling had worked since 2001.

Delivering judgment in Suckling v Wilson Devonald (UKEAT/0131/10), Judge Serota said entry to the offices was controlled by a security lock operated by the receptionist.

“Without, in any way, being unkind or patronising, it had a certain class of clientele who probably required a greater degree of caution in dealing with than of an ordinary firm of solicitors dealing with other matters,” the judge said.

The EAT heard that in January 2008, the law firm received complaints that the receptionist had been “extremely rude” to a sign writer, who was carrying out some work at the office.

The following month, two young clients came to the front door of the office “in an anxious state”.

Judge Serota went on: “One of them had an injured hand which was bleeding. They demanded entry. They said they could not go out through the front door and they wanted to be let out through the back door.

“The claimant admitted them and the respondent said they should not have been admitted given their state, nor allowed in to part of the building from which clients were excluded, nor escorted to the back door. This, effectively, enabled them to make an escape from whoever was pursuing them.”

Judge Serota said that Wilson Devonald claimed at the employment tribunal that the men were being pursued by police, but the tribunal decided “they were being pursued by people, possibly the police”.

Later that month, when a representative of a mobile phone company visited the firm on the invitation of one of the managers, the EAT heard that he was refused entry by the receptionist and “treated very rudely”.

Suckling was dismissed for gross misconduct in May 2008. The employment tribunal applied the test in British Home Stores v Burchell [1980] ICR 303, that her dismissal would only be fair if it fell within the range of reasonable responses of an employer, having held a proper investigation.

The tribunal accepted that this was a case of gross misconduct. However, it found that Suckling’s dismissal fell outside the range of reasonable responses, partly because it came “seemingly out of the blue” and a reasonable employer would have sought an explanation before suspending her.

Judge Serota said the tribunal had unfortunately fallen into the “substitution mindset” and had, in effect, “substituted its views as to whether dismissal was a reasonable sanction, for those of the employer.

“In those circumstances, we have come to the conclusion that the employment tribunal, had it properly applied the Burchell test, would have concluded that the dismissal was a fair dismissal.”

The EAT allowed the law firm’s appeal, with a declaration that the claimant’s dismissal was fair.

Stuart Atherton, head of employment at Peter Lynn & Partners in Swansea, said the EAT took into account that the firm was a criminal practice and the nature of its clients.

“The employment tribunal fell into the trap of substituting its own view of what the employer should have done. It said the employer should have given a final warning, but one employer might do this while another opts for dismissal.

“Once you agree this was a case of gross misconduct, you cannot then say it was outside the band of reasonable responses.”

Bob Shaw, partner at King Davies & Partners in Maesteg, acted for Suckling. Shaw said she had worked for the same group of partners for 19 years and gone with them when they founded Wilson Devonald in 2001.

“That persuaded the employment tribunal to help her,” he said. “Instead they imposed their own views on what happened – a classic failure of tribunals when they are trying to help clients.

“It was not as if she offered them shelter,” he added. “They barged their way in, ran through and went out the back way.”

Shaw said the ruling put a lot of responsibility on receptionists, who were often overlooked by law firms.

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