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Jean-Yves Gilg

Editor, Solicitors Journal

Solicitor wins unfair dismissal and indirect sex discrimination claims

Solicitor wins unfair dismissal and indirect sex discrimination claims


Tribunal finds 'serious and fundamental shortcomings' in Switalskis' disciplinary process

A 'highly regarded' court of protection solicitor with 22 years of experience has been awarded more than £90,000 after being unfairly dismissed by Switalskis.

From 2009 to 2014 Susan McKendry had been employed at Langley's '“ eventually becoming a partner '“ until the firm lost a legal aid contract. This resulted in its court of protection team being acquired by the York branch of Switalskis.

Switalskis were keen to acquire McKendry and she became a director of the firm and was made joint head of its CoP team, Leeds Employment Tribunal was told.

The tribunal heard that McKendry was 'highly regarded' by lawyers. Her performance with her new employers was described as 'phenomenal' and she had 'smashed' her billing target. As a result she was given a £3,000 pay rise in July 2015.

However, McKendry, a mother of two, later made claims for unfair dismissal and sex discrimination against Switalskis, accusing the firm of 'infringing her right under the transfer to continue with her previous contractual terms and conditions'.

The tribunal heard that McKendry had a longstanding arrangement with Langleys that she worked full-time hours but compressed over four days. She did not work Wednesdays, due to childcare commitments, but she would work that day if required to do so.

At one meeting with McKendry, the firm's managing director, John Durkan, told her that he did not mind what she did on Wednesdays and could 'have her nails painted for all he cared', just as long as she worked Monday to Friday.

McKendry also complained she was removed from her directorship and accused the respondents of 'failing to respond to her data protection subject access request' in the course of the disciplinary proceedings.

Switalskis, however, raised 'serious issues' about McKendry's conduct, alleging that, among other complaints, 'the claimant caused relationships within the team and with the directors to break down'. This led to her eventual suspension and, later, dismissal for 'gross misconduct'.

Although denying the allegation, McKendry did say, however, that she had spoken to a colleague about their dress 'because she tended to wear low cut tops and short dresses which were not suitable for court'. Other colleagues had also raised this with her, she said.

In his judgment, Employment Judge Davies criticised Switalskis over the way it conducted its investigation into the matter and said one investigatory meeting with the claimant had been 'fundamentally flawed'.

The tribunal also found that there were 'serious and fundamental shortcomings' in the firm's disciplinary process and that dismissal was 'wholly outside the range of reasonable responses'.

The judge said McKendry's legal claims for unfair dismissal and indirect sex discrimination had been well founded. She was awarded £94,499, including £8,000 for injury to feelings, £578 interest, and £1,000 costs. The total further included the reimbursement of the £1,200 tribunal fee.

The claimant's claims of less favourable treatment under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, direct sex discrimination and victimisation were dismissed.

The tribunal ordered McKendry to pay the respondents costs in the amount of £300.

Peter Swingler is a freelance journalist