A solicitor has been awarded more than £17,000 at an employment tribunal after she was unfairly dismissed while recovering from cancer.
Assistant solicitor Ms Onibere also successfully brought claims for indirect disability discrimination and for breach of contract against Luton-based Rodman Pearce Solicitors, but her claim for direct disability discrimination was thrown out.
The law firm claimed she had been dismissed on grounds of capability as she had been absent due to sickness for 26 weeks within a year – a clause that was included in her employment contract.
Onibere, who had been employed by the firm since December 2014, specialised in housing law. She was a fee earner and had to bring in a certain amount of new business each year, but had fallen below her targets between 2017 and 2019, when she left the firm. She was also required to open a minimum of seven new files per month, but some months no new files were opened by the claimant. Mr Akilo, the firm’s managing partner, raised serious concerns about this.
The firm, concerned about the diminishing business in the housing department, indicated that Onibere may be placed in a selection pool for redundancy.
Onibere became ill in February 2019 and was unable to work. In March 2019 she was diagnosed with a yolk sac tumour, which is a type of cancer. She informed her employer of her treatment plan and provided sick notes.
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The housing department had to close in April 2019 because a colleague had left and a qualified supervisor was needed at all times to undertake Legal Aid work.
A fit note sent to Akilo in July 2019 declared the claimant unfit for work until 12 August 2019. In her email accompanying the note, she said she had not received her salary.
Contract terminated
Akilo asked whether she had received a letter that had been sent via recorded delivery. The claimant said she had not as she had been in and out of hospital and had stayed with family and friends while recovering from chemotherapy. Akilo claimed that the letter informed her that her employment had been terminated because she had been absent for work for more than 26 weeks and that there was no work for her to do because the housing department had closed.
A letter presented to the tribunal, dated 29 July 2019, said: “I write to provide you with one month’s notice of termination of employment. In view of your inability to return to work due to illness from 14 February 2019, your entitlement to statutory sick pay will cease on 29 August 2019. In the event that you are unable to return to work prior to 29 August 2019, your contract of employment will terminate. Kindly let me know whether you will be in a position to return to work.”
The claimant told the tribunal she had not received the letter.
Around this time, Akilo claimed she had seen the claimant in a shopping centre and she told him she had been “cured” and that she would be returning to work. Onibere denied saying that she had been “cured”.
‘Inability to return’
Onibere sent Akilo another sick note on 29 August 2019. The following day, Akilo sent her a letter confirming that her employment contract had been terminated, stating: “After careful consideration, I think this is the best decision, because of your inability to return to work due to long term illness”.
Akilo told the tribunal that he had not been aware at that time that Onibere had been diagnosed with cancer and that this meant she was considered disabled under the Equality Act 2010.
He acknowledged that with hindsight he should have taken specialist employment advice and apologised to her for any distress he may have caused. He accepted that he should not have decided to terminate her employment without entering into a period of consultation with her.
In its judgment in Ms E Onibere v Rodman Pearce Solicitors Ltd, the the tribunal found that Akilo had failed to follow the correct procedures when dismissing Onibere, but acknowledged that the lack of housing work coming into the firm meant her employment would have likely terminated in October 2019, following the consultation period.
Onibere also claimed that she had not received her notice pay.
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At a remedy hearing before the Watford employment tribunal last month, Rodman Pearce Solicitors was ordered to pay Onibere £17,007.59, including awards for injury to feelings, two weeks’ lost pay, unfair dismissal and wrongful dismissal.
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