A paralegal who was fired over allegations that he withheld cheques by hiding them in his desk and solicited clients was unfairly dismissed, a tribunal has ruled.
The East London Employment Tribunal found that personal injury firm Blake-Turner 2 Limited, trading as B-T2 Solicitors, unfairly dismissed Mr S Seyhan when it failed to conduct a proper investigation over allegations of gross misconduct.
However, another claimant, Ms Erbil, who was also accused of gross misconduct for withholding cheques and soliciting clients in conjunction with Seyhan, was not found to be unfairly dismissed.
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Further claims of race discrimination and race harassment brought by Erbil and Seyhan were dismissed.
Seyhan worked as a paralegal at B-T2 from November 2016 until his dismissal in May 2019. The tribunal heard that Erbil, who was also a paralegal, recommended Seyhan for employment at the company’s Green Lanes office in north London in 2016. When Seyhan was given the role, he was not given a written contract of employment.
From late 2018 to early 2019, the firm’s directors discussed the future viability of the Green Lanes office, and both Seyhan and Erbil were invited to the consultation. Following a period of disagreement between the pair and the directors over the profitability and ownership of a set of client files for that part of the business, they were given notice of termination in March 2019, effective in May 2019.
The tribunal heard that while Seyhan and Erbil were working their notice, the directors had concerns about their conduct as they had not received any cheques from the disputed client files in the first two weeks of April.
On 15 April 2019 one of the directors, Ms de Castro, found a letter to a number of these clients that talked about transferring their file to another firm, something that had been discussed but not yet been agreed by B-T2. On the same day Mr Blake-Turner, acting as a solicitor for B-T2, wrote to Erbil and Seyhan informing them of their discovery. In the letter Erbil was asked to stop writing letters to clients, while Seyhan was informed this amounted to gross misconduct.
On 16 April, one of the directors, Mr Ferguson, attended the Green Lanes office but found his key to the front door did not work. After forcing the door he reviewed files on the desk of Erbil and Seyhan and discovered “a number of cheques” made in respect of disputed case files and payable to B-T2, totalling £14,582.59.
Ferguson considered that both Seyhan and Erbil were withholding cheques and soliciting clients, which would amount to gross misconduct. Erbil and Seyhan were suspended that evening on full pay pending an investigation.
Seyhan was invited to an investigatory meeting on 26 April 2019 with Ferguson; however, there had previously been tensions between Ferguson and Erbil, including allegations of racism and sexual harassment, although these were not upheld by the tribunal. Seyhan refused to attend, indicating in an email that “he was not prepared to be interviewed by him [Ferguson]” and would leave the premises if Ferguson conducted the interview.
On 24 April, Ferguson sent Seyhan a list of questions to answer, but Seyhan did not respond. Ferguson completed his investigation report on 8 May and Seyhan was invited to a disciplinary meeting by de Castro on 13 May.
The same day, Seyhan responded to Ferguson’s list of questions, but said he was too ill to attend a disciplinary meeting and “did not want to cause himself further stress”. He was invited to another meeting on 15 May, but he said he would not attend any meeting and await the outcome.
De Castro proceeded with the information before her and concluded that four of the five allegations were established, but did not consider that the allegations relating to deliberately withholding cheques was established. As such, Seyhan was dismissed. He appealed the decision but it was rejected.
Employment judge Burgher concluded that while there was a genuine belief that Seyhan had committed gross misconduct in consort with Erbil, de Castro “did not take any steps to interrogate what he [Seyhan] was saying”. The tribunal found that allegations regarding Seyhan holding on to cheques “were not established” as there was no evidence “supporting what he was alleged to have done”.
It concluded that B-T2 did not undertake a reasonable investigation, suggesting Seyhan’s dismissal was because of his “evident close working relationship with [Erbil] and that as such he must have known about [Erbil’s] misconduct”.
Seyhan was given a basic award and an award of four weeks’ pay for failing to be given a written contract of employment, but a remedy hearing for unfair dismissal will take place on 11 March if necessary.
Alan Lewis, partner at Constantine Law, said the case provides an interesting lesson on the application of the “time-honoured test for unfair dismissal where the reason for dismissal is misconduct”.
“The lesson for all employers is clear – make sure that you carry out a reasonable investigation into the allegations of misconduct before reaching a decision to dismiss. If anything, it is better to err on the side of being thorough, than making assumptions as to guilt,” said Lewis.
B-T2 was contacted for comment, but Erbil and Seyhan could not be reached for comment.