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On Friday 2 July, the Employment Tribunal enabled the mother of a former employee of Statham Gill Davies Solicitors, who tragically committed suicide following his redundancy, to bring forth her case against the law firm. This is happening after a late submission by Mrs Fabry, Kristof Fabry’s mother.
This article will detail why the submission was late, what the claim involves, and what the future of the case is looking like.
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Why did the court grant Mrs Fabry’s late submission?
Whilst the Employment Appeal Tribunal is much stricter when it comes to deadlines, The Employment Tribunal is more lenient. They have wider powers to allow cases with late submissions to proceed. In this instance, Judge Pavel Klimov’s ruling asserted that it was “just and equitable” to explore Mrs Fabry’s allegations.
Because of this, Kristof Fabry’s mother can now present her case of discrimination against Statham Gill Davies Solicitors, the law firm that declared her son redundant shortly prior to his suicide. The judge made an allowance for the mother’s delay in presenting her claim, which spanned several years, and cited the understandable circumstances. Furthermore, Judge Klimov dismissed the law firm’s request to abandon the case due to its late submission.
The judge identified a bias towards granting the extension, who stated that “the balance of prejudice lies firmly in favour of granting the extension.” Moreover, he expressed concern that the claimant may not have the opportunity to have her complaints heard and adjudicated if the second claim was not allowed to proceed, despite her exerted efforts to present the claim in a timely manner.
What is Mrs Fabry’s claim?
Mrs Fabry, Kristof Fabry’s mother, alleged that Statham Gill Davies Solicitors enacted her son’s redundancy due to his mental health disability. This is because it required him to take leaves of absence from work during April and May 2019.
She told the tribunal that her son’s redundancy was either a direct consequence of:
- his mental health issues, or;
- the firm’s perceived future needs for Fabry to take leaves of absence, possible adjustments to work, and their evaluation of Fabry’s ability to fulfil his job responsibilities.
The tribunal’s decision was not centred around the discrimination allegations themselves but was focused on whether the delay in bringing the case should prevent Fabry’s mother from making her discrimination arguments.
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What did the Employment Tribunal and judge refute?
The Employment Tribunal London rejected Statham Gill Davies Solicitors’ argument to dismiss the case due to Mrs Fabry’s delayed submission. This rejection was consequential of a mere legal technicality as she had previously brought a claim forward much earlier. However, the court nullified her previous claim as she was not officially an executor of her son’s estate at the time.
During the first claim, the judgement noted that Mrs Fabry received potentially inaccurate legal advice on how to present her claim. This is a key point to take away from this case and article: the lack of clarity from employment solicitors means that any errors made by legal advisors cannot be held against their clients in circumstances such as these.
Furtheremore, administrative proceedings of the Employment Tribunal itself and the COVID-19 pandemic resulted in additional delays. If the judge denies Mrs Fabry an extension of time, the judgement noted that the following reasons would block her access to justice:
- a combination of a complex legal issue,
- inefficiencies in the Employment Tribunal’s administrative processes, he influence of the COVID-19 pandemic and inaccurate advice from her previous legal advisors.
Judge Klimov also dismissed the law firm’s assertions that allowing the claim to proceed would cause them prejudice. He also refuted their claim that the delay in time would hinder their access to relevant evidence due to the passage of time.
Although the judge dismissed this argument on evidence, it is worth remembering that a company must only keep records for 6 years and will likely, in the case of a law firm, delete records after 7 years. This means that the relevant paperwork may not be available, and any witnesses might have moved on to other employments.
Asserting that the firm was not disadvantaged, Judge Klimov stated that:
“The respondents’ evidence is that they had preserved sufficient materials to deal with the factual allegations […] Their defence is that the reason for Mr. Fabry’s dismissal was lack of work, hence a redundancy situation, and in any event the partners who made the decision to dismiss him for that reason did not know that he had a disability at the time of making that decision.”
The judge also noted that the law firm did not claim that the relevant individuals were unable to provide reliable evidence.
Other notes and future of the case.
Sarah Chamberlain, a partner at Statham Gill Davies Solicitors, was also named as a co-defendant. However, there has been no mention of her in the Employment Tribunal’s ruling and it is not known if she is aware of the proceedings or not. Under Employment Law in England and Wales, an employee can bring a claim against the company and also the individuals at the company who the employee says are responsible for the discrimination.
A legal representative for Statham Gill Davies Solicitors shared that their client was aware of the Employment Tribunal’s judgment, which pertained solely to the limitation issues (i.e. that the mother claim was “out of time”). Due to the ongoing nature of the employment litigation, the law firm declined to comment further on the case.
The case is formally known as Mrs. M. Fabry (as Personal Representative of the Estate of Mr. Kristof Fabry) v. Statham Gill Davies Solicitors and another, bearing the case numbers 2204809/2019 and 2203791/2023. It is presently being tried in the Employment Tribunal London Central.
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