The Covid-19 pandemic has led to a myriad of issues for both employers and employees, not least in the challenge of balancing the needs of a business navigating unchartered waters with the rights of employees. The case of Ms Khatun is an interesting and timely reminder of the need to get the balance right.

Ms Khatun was a solicitor who had worked for a firm called Winn Solicitors Ltd since 2015. She was well regarded and met her targets with ease. As the Covid-19 pandemic began in March 2020, the firm, concerned about the amount of new work that they might receive, took the decision to furlough 50% of their staff, and require the remainder to work from home.

Ms Khatun, as a more experienced member of staff, informed that she would be expected to manage her own caseload and that of one of her furloughed colleagues. However, she was given 24 hours to agree to a contract variation that permitted her employer to either furlough her or reduce her hours (and therefore her pay) depending on the needs of the business.

Ms Khatun did not feel that she could agree to the variation, particularly when she actually had more work to do than usual but made clear that she was willing to consider such a variation if the situation changed. She also noted that, given the very tight timeframes, she had not been able to seek legal advice.

The firm took the view that anyone who did not accept the contract variation should be dismissed. Ms Khatun was therefore dismissed the following day; she was not offered an appeal. She was the only solicitor who had not signed the variation and was considered by management to have acted ‘selfishly’.

Ms Khatun brought a claim to the employment tribunal of unfair dismissal. The first job for the tribunal was to consider what the reason for dismissal was, and whether it was a potentially fair reason. Potentially fair reasons can include conduct, capability, redundancy, or – as relied on here- ‘some other substantial reason’.

The firm argued that the contractual variation was required to allow them to operate flexibly and plan for the worst, in circumstances where their main sources of work were likely to significantly reduce. The tribunal, taking account of the situation in March 2020, accepted that a failure to sign the contract variation was a potentially fair reason for dismissal.

However, once a potentially fair reason is established, the tribunal needs to go on to consider whether the firm acted reasonably in dismissing Ms Khatun for that reason.

The tribunal found that there was no meaningful consultation with Ms Khatun before her dismissal. She was given less than 48 hours in total to consider the matter and was essentially told that if she did not agree, she would be dismissed. There was no attempt to address her concerns or look for alternatives to dismissal (such as placing her on furlough).

The argument that there was ‘no time’ to engage with more than 300 employees was rejected where there was in fact only one employee who had not agreed; it was unreasonable not to have engaged with her. Agreeing to a contractual change was no small matter, and that the firm had not placed appropriate weight on the significance of this.

They had simply concluded that she was ‘selfish’. Finally, although an appeal might not have been mandatory, it could well have been useful here, as it would have allowed both parties more time to reflect, and Ms Khatun may well have been willing to reconsider her position as the significance of the pandemic became apparent. Therefore, the tribunal found that the decision to dismiss was not a reasonable one, and the dismissal was therefore unfair.

This is one of the first pandemic related dismissals considered by the employment tribunal. The tribunal was careful to recognise the very real difficulties faced by employers, particularly at the outset, when there was so much uncertainty, and acknowledged that significant contractual changes were not unreasonable.

However, the key message from this case is that an employer still needs to ensure that it follows a fair process, engaging with an employee and ensuring that all other options have been considered before deciding to dismiss.

Safia Tharoo
Barrister, 40 Bedford Row, London