[1]The Claimant was unfairly and wrongfully dismissed.[2]Findings relating to Polkey and Contributory Fault are contained within the reasons below.[3]Within 30 days of the date on which this Judgment is sent to the parties, the claimant must write to the Tribunal, copying in the Respondent. That correspondence must state either a) a remedy hearing is required or b) that remedy has been resolved and no further hearing is required and that the file may be closed.
REASONS
[1]The Claimant, Mr A Billingham brings claims of unfair and wrongful dismissal against his former employer EMKA (UK) Limited. Case No. 1303258/2023 Procedural Matters Procedural Matters[2]Both parties were represented by solicitors and counsel. There was no preBoth parties were represented by solicitors and counsel. There was no pre--agreed agreed list of issues. list of issues.[3]After discusAfter discussion, it was agreed that the issues were as follows:sion, it was agreed that the issues were as follows:a. Dismissal Dismissal –– In order to determine the issue of dismissal, it is necessary to ask In order to determine the issue of dismissal, it is necessary to ask ‘who really terminated the contract of’… employment?‘who really terminated the contract of’… employment?b. If the Claimant was dismissed, is the Respondent able to prove that hIf the Claimant was dismissed, is the Respondent able to prove that he was e was dismissed for a potentially fair reason, namely conduct?dismissed for a potentially fair reason, namely conduct?c. Did the Respondent hold a belief in the guilt of the Claimant and hold that Did the Respondent hold a belief in the guilt of the Claimant and hold that belief on reasonable grounds?belief on reasonable grounds?d. Did the Respondent undertake such investigation as was reasonable in all the Did the Respondent undertake such investigation as was reasonable in all the circumstancircumstances of the case, ces of the case,e. Was the decision to dismiss within the range of reasonable responses open to Was the decision to dismiss within the range of reasonable responses open to the Respondent?the Respondent?[4]In respect of wrongful dismissal, the issues were agreed as follows: In respect of wrongful dismissal, the issues were agreed as follows:a. Is the Claimant able to prove that he was dismissed?Is the Claimant able to prove that he was dismissed?b. If the Claimant If the Claimant was dismissed, is the Respondent able to prove that the was dismissed, is the Respondent able to prove that the Claimant committed an act of gross misconduct so as to be in repudiatory Claimant committed an act of gross misconduct so as to be in repudiatory breach of the contract of employment?breach of the contract of employment?[5]The parties also agreed that the Tribunal would consider Polkey and Contribution, if The parties also agreed that the Tribunal would consider Polkey and Contribution, if appropriate. appropriate.[6]During the course of the hearing, I raised with the parties the applicability of s.111A During the course of the hearing, I raised with the parties the applicability of s.111A Employment Rights Act 1996 and the associated ACAS Code. This gave tEmployment Rights Act 1996 and the associated ACAS Code. This gave the parties he parties Case No. 1303258/2023 the opportunity to make submissions on its applicability. It was common ground that the opportunity to make submissions on its applicability. It was common ground that the issue affected the unfair dismissal claim only, not the wrongful dismissal claim. I the issue affected the unfair dismissal claim only, not the wrongful dismissal claim. I have therefore made my findings of fact and will deal with admissibility have therefore made my findings of fact and will deal with admissibility as part of my as part of my conclusions. conclusions.[7]As dismissal was in issue, it was agreed that the Claimant would give evidence first. As dismissal was in issue, it was agreed that the Claimant would give evidence first.[8]The hearing took place by way of CVP. During the course of the hearing on day one, The hearing took place by way of CVP. During the course of the hearing on day one, there were some sound problems and on each occasion extrthere were some sound problems and on each occasion extra time was taken to a time was taken to ensure that matters were repeated properly so that all could hear. ensure that matters were repeated properly so that all could hear.[9]There was an agreed bundle of documents. The Claimant called himself as a There was an agreed bundle of documents. The Claimant called himself as a witness. The Respondent called Mr Borgewitness. The Respondent called Mr Borge--Sanchez, Mr Tigges and Mr Hunn. All Sanchez, Mr Tigges and Mr Hunn. All witnesses providewitnesses provided witness statements and were crossd witness statements and were cross--examined. examined. Findings of Fact
Findings of Fact
[10]I made the following findings of fact oI made the following findings of fact on the balance of probabilities. n the balance of probabilities.[11]I begin with the following observations relating to credibility. I begin with the following observations relating to credibility.[12]I found the Claimant to be relatively straightforward in his evidence, generally I found the Claimant to be relatively straightforward in his evidence, generally seeking to answer the question asked. I considered that I could generally seeking to answer the question asked. I considered that I could generally rely on rely on what I was being told, but more so where there was corroboration in some form. what I was being told, but more so where there was corroboration in some form.[13]It is fair to say that the Respondent’s witnesses were naïve as to their obligations It is fair to say that the Respondent’s witnesses were naïve as to their obligations under UK employment law and were not familiar with general processes or concepts under UK employment law and were not familiar with general processes or concepts aand had difficulty in engaging with these points. There were also common problems nd had difficulty in engaging with these points. There were also common problems with key conversations or points omitted entirely from their witness statements, which with key conversations or points omitted entirely from their witness statements, which Case No. 1303258/2023 were then relied upon in oral evidence. Where an internal communication was were then relied upon in oral evidence. Where an internal communication was potentiallypotentially prejudicial to the Respondent’s position, this wasn’t explicitly referred to or prejudicial to the Respondent’s position, this wasn’t explicitly referred to or dealt with. This in turn had the added effect of making the fact finding process more dealt with. This in turn had the added effect of making the fact finding process more laborious. laborious.[14]The Respondent UK Company (EMKA (UK) Limited), is in turn owned by EMKA The Respondent UK Company (EMKA (UK) Limited), is in turn owned by EMKA GmbHGmbH, a German Group Company. The Group sells locks latches hinges and seals , a German Group Company. The Group sells locks latches hinges and seals housed in switch and control cabinets. The Group operates worldwide. I am told that housed in switch and control cabinets. The Group operates worldwide. I am told that there are around 2100 employees worldwide of which around 13 are employed in the there are around 2100 employees worldwide of which around 13 are employed in the UK Company. UK Company.[15]The Claimant commenced employment on 1The Claimant commenced employment on 1stst November 1991 as an External November 1991 as an External Technical Sales Engineer. Through the years, the Claimant was internally promoted Technical Sales Engineer. Through the years, the Claimant was internally promoted on a number of occasions. In March 2005, he became the Manager of the UK on a number of occasions. In March 2005, he became the Manager of the UK Company. Company.[16]The Claimant’s most The Claimant’s most recent contract was entered into in August 2017. That contract recent contract was entered into in August 2017. That contract is in a style more indicative of a German style employment contract. The contract is in a style more indicative of a German style employment contract. The contract contains an express nine month notice pay clause. contains an express nine month notice pay clause.[17]The contract contains an express clause staring that the imThe contract contains an express clause staring that the implantation of the contract plantation of the contract shall be governed by German law. The Jurisdiction clause attaches to the location of shall be governed by German law. The Jurisdiction clause attaches to the location of the Company registered office. No party has sought to raise any question of the Company registered office. No party has sought to raise any question of jurisdiction or interpretation based upon these clauses. jurisdiction or interpretation based upon these clauses.[18]In respeIn respect of the Respondent witnesses, Mr Hunn joined the Group Company in ct of the Respondent witnesses, Mr Hunn joined the Group Company in November 2021 as Sales Director Central and SW Europe. Mr BorgeNovember 2021 as Sales Director Central and SW Europe. Mr Borge--Sanchez Sanchez previously worked for the Group Company between 2008 and 2012, returning in previously worked for the Group Company between 2008 and 2012, returning in Case No. 1303258/2023 March 2018 with the position of Director March 2018 with the position of Director Sales Export. Mr Tigges commenced Sales Export. Mr Tigges commenced employment with the Group Company in January 2020 as Head of Controlling. employment with the Group Company in January 2020 as Head of Controlling.[19]It was the responsibility of Mr Hunn as Sales Director Central and SW Europe to It was the responsibility of Mr Hunn as Sales Director Central and SW Europe to monitor stock levels and sales figures across his designated regimonitor stock levels and sales figures across his designated region. Mr Hunn joined on. Mr Hunn joined in November 2021 and was keen to gain a greater understanding of the business in November 2021 and was keen to gain a greater understanding of the business operations within his region. He began to email the Claimant with general questions. operations within his region. He began to email the Claimant with general questions. He also sent questions to other Managers in his region. Mr Hunn describes He also sent questions to other Managers in his region. Mr Hunn describes ‘ambitious sales targets’ being implemented by the Group and he wanted to ‘ambitious sales targets’ being implemented by the Group and he wanted to understand the strategies that were in place to achieve these targets. understand the strategies that were in place to achieve these targets.[20]Mr Hunn describes himself as concerned with the level of feedback that he received Mr Hunn describes himself as concerned with the level of feedback that he received from the Claimant. He feltfrom the Claimant. He felt that the Claimant could have answered questions more that the Claimant could have answered questions more fully, particularly with regard to stock levels. On the 21st February 2022 and fully, particularly with regard to stock levels. On the 21st February 2022 and thereafter, further emails were sent to the Claimant and further discussions took thereafter, further emails were sent to the Claimant and further discussions took place between the Claimant and Mr Hunn. Iplace between the Claimant and Mr Hunn. It was these further discussions which Mr t was these further discussions which Mr Hunn says the Digitus stock accounted for a large proportion of the Respondent’s Hunn says the Digitus stock accounted for a large proportion of the Respondent’s historical and current stock levels. historical and current stock levels.[21]I find that Mr Hunn was new to his role and that he had an understandable wish to I find that Mr Hunn was new to his role and that he had an understandable wish to gain knowledggain knowledge and get to grips with his area. At the same time, I also find that the e and get to grips with his area. At the same time, I also find that the information regarding the Digitus stock levels were on the Respondent’s systems, information regarding the Digitus stock levels were on the Respondent’s systems, available as part of the monthly report, with this being the case since 2018. These available as part of the monthly report, with this being the case since 2018. These figures were in nofigures were in no way concealed or hidden. I also accept in full the Claimant’s way concealed or hidden. I also accept in full the Claimant’s evidence that he did not hide the stock value on the Respondent’s systems. In both evidence that he did not hide the stock value on the Respondent’s systems. In both written and oral evidence, the Claimant explained how the Respondent’s systems written and oral evidence, the Claimant explained how the Respondent’s systems operated and how information waoperated and how information was available. In contrast, when asked about this, the s available. In contrast, when asked about this, the Respondents witnesses struggled to explain why these matters were being Respondents witnesses struggled to explain why these matters were being Case No. 1303258/2023 discovered at this point in time in 2022 when they had been on the system discovered at this point in time in 2022 when they had been on the system throughout. throughout.[22]Mr Hunn discussed the situation with Mr BorgeMr Hunn discussed the situation with Mr Borge--Sanchez. Mr BorgeSanchez. Mr Borge--Sanchez noted Sanchez noted the high stock across all areas save for Switzerland. He instructed Mr Hunn to the high stock across all areas save for Switzerland. He instructed Mr Hunn to analyse the problem, develop a system to check new orders and to involve the analyse the problem, develop a system to check new orders and to involve the branch countries. He branch countries. He was also clear on the need to reduce high levels of current was also clear on the need to reduce high levels of current stock and the capital that was tied up in that stock. stock and the capital that was tied up in that stock.[23]Mr Hunn continued to look into the high stock levels within the UK Respondent Mr Hunn continued to look into the high stock levels within the UK Respondent company. This was an attempt to understand the situation. It wcompany. This was an attempt to understand the situation. It was not a disciplinary or as not a disciplinary or capability investigation. capability investigation.[24]From 28From 28thth March 2022 to 30March 2022 to 30thth March 2022, Mr Hunn was in the UK for a Sales March 2022, Mr Hunn was in the UK for a Sales Meeting. He raised the issue of Digitus stock with the Claimant and the need to Meeting. He raised the issue of Digitus stock with the Claimant and the need to reduce the high level of stock. reduce the high level of stock.[25]Mr Hunn spoke Mr Hunn spoke with Mr Borgewith Mr Borge--Sanchez, who in turn spoke with Dr Hesse, Managing Sanchez, who in turn spoke with Dr Hesse, Managing Director of the Group Company. Director of the Group Company.[26]In a letter dated 14In a letter dated 14thth July 2022 from Dr Hesse to Mr Hunn, ccing Mr BorgeJuly 2022 from Dr Hesse to Mr Hunn, ccing Mr Borge--Sanchez, Sanchez, Mr Tigges and Mr Rugge Dr Hesse sought via Mr Hunn a ‘final report’ from thMr Tigges and Mr Rugge Dr Hesse sought via Mr Hunn a ‘final report’ from the e Claimant. Claimant.[27]However, the letter also refers to the “now imminent replacement of management at However, the letter also refers to the “now imminent replacement of management at EMKA UK.” It goes on to conclude “In addition, please keep me updated weekly on EMKA UK.” It goes on to conclude “In addition, please keep me updated weekly on the progress of the search for a Managing Director.”the progress of the search for a Managing Director.” Case No. 1303258/2023[28]Based upon the context in this letter, it is clear that it was the Claimant being referred Based upon the context in this letter, it is clear that it was the Claimant being referred to and given the casualness with which the issue of management replacement was to and given the casualness with which the issue of management replacement was being referred to, it is clear that a decision had been taken in to replace the Claimabeing referred to, it is clear that a decision had been taken in to replace the Claimant nt in advance and most likely significantly in advance of this communication. There was in advance and most likely significantly in advance of this communication. There was no reply, seeking clarification or indicating surprise or generating discussion. I no reply, seeking clarification or indicating surprise or generating discussion. I therefore find that all parties in the correspondence were aware of and had resolved therefore find that all parties in the correspondence were aware of and had resolved themselves to the fact that the Claimant’s employment was to be ended. No themselves to the fact that the Claimant’s employment was to be ended. No additional disclosure has been provided by the Respondent relating to this or earlier additional disclosure has been provided by the Respondent relating to this or earlier events leading to this. events leading to this.[29]On the 3On the 3rdrd August 2022, the Claimant received an email from Mr Hunn, wAugust 2022, the Claimant received an email from Mr Hunn, which hich contained the specific questions. Mr Hunn sought information regarding the writing contained the specific questions. Mr Hunn sought information regarding the writing off of stock from Digitus electronic locking systems. off of stock from Digitus electronic locking systems.[30]At Mr Hunn’s request, the Claimant prepared a report. Dated 5At Mr Hunn’s request, the Claimant prepared a report. Dated 5thth August. The August. The Claimant identified that he was resClaimant identified that he was responsible for the purchase of the Digitus stock. ponsible for the purchase of the Digitus stock.[31]The potential loss to the Respondent from the unsold stock was in the region of The potential loss to the Respondent from the unsold stock was in the region of 500,000 Euros. The stock remained unsold and therefore the loss had not formally 500,000 Euros. The stock remained unsold and therefore the loss had not formally crystalised. crystalised.[32]At an unspecified point in AuAt an unspecified point in August 2022, Mr Hunn spoke with Dr Kloth, Group Head of gust 2022, Mr Hunn spoke with Dr Kloth, Group Head of Sales and Marketing. No record of Mr Hunn’s discussions with Dr Kloth are available. Sales and Marketing. No record of Mr Hunn’s discussions with Dr Kloth are available.[33]This led to Mr Hunn becoming aware of an email from Nov 2015 from Dr Kloth to the This led to Mr Hunn becoming aware of an email from Nov 2015 from Dr Kloth to the Claimant in which the claimant isClaimant in which the claimant is told that if he wishes to purchase Digitus Stock then told that if he wishes to purchase Digitus Stock then he must obtain written consent. he must obtain written consent. Case No. 1303258/2023[34]I have not heard from Dr Kloth in these proceedings or been provided with wider I have not heard from Dr Kloth in these proceedings or been provided with wider disclosure regarding this document. In oral evidence, the Claimant stated that he did disclosure regarding this document. In oral evidence, the Claimant stated that he did nnot recall receiving this document. ot recall receiving this document.[35]No one has positively suggested that the email isn’t genuine. It is more likely than not No one has positively suggested that the email isn’t genuine. It is more likely than not that it was sent, but there is little by way of additional context. No formal investigation that it was sent, but there is little by way of additional context. No formal investigation was commenced.was commenced.[36]Because of this vaguenBecause of this vagueness, I have placed limited weight on this document. It would ess, I have placed limited weight on this document. It would have been straightforward enough for the Respondent to call wider witness evidence have been straightforward enough for the Respondent to call wider witness evidence on this point given the source of the discovery of the email and also provide wider on this point given the source of the discovery of the email and also provide wider disclosure or at the very ledisclosure or at the very least attempt to find wider disclosure given the time elapsed. ast attempt to find wider disclosure given the time elapsed. I do not know whether this instruction was later rescinded, I do not know if it applied I do not know whether this instruction was later rescinded, I do not know if it applied to certain types of future stocks, I do not know why this became an issue in 2022 to certain types of future stocks, I do not know why this became an issue in 2022 given the purchasing was given the purchasing was occurring in 2018 and occurring on an open basis. occurring in 2018 and occurring on an open basis.[37]I find that the Respondent had already settled on its position regarding the removal of I find that the Respondent had already settled on its position regarding the removal of the Claimant prior to Mr Hunn becoming aware of the 2015 email. I find that Mr Hunn the Claimant prior to Mr Hunn becoming aware of the 2015 email. I find that Mr Hunn and Mr Borgeand Mr Borge--Sanchez viewed the Sanchez viewed the email as further justifying the position that had email as further justifying the position that had already been reached. already been reached.[38]In an email of 14In an email of 14thth September, drafted by Mr Hunn to Uwe Steinke, ccing Mr BorgeSeptember, drafted by Mr Hunn to Uwe Steinke, ccing Mr Borge--Sanchez and Dr Hesse, a specific way forward was identified. This involved meeting Sanchez and Dr Hesse, a specific way forward was identified. This involved meeting the Claimant on the 29the Claimant on the 29thth September, and “….we inform him and recommend him to September, and “….we inform him and recommend him to submit his termination immediatelsubmit his termination immediately.” Various deadlines and dates were referred to. y.” Various deadlines and dates were referred to. The email concludes “If he does not comply with this recommendation, we will take The email concludes “If he does not comply with this recommendation, we will take appropriate legal steps.”appropriate legal steps.”[39]The email also referred to a number of allegations against the Claimant. The email also referred to a number of allegations against the Claimant. Case No. 1303258/2023[40]On the 28On the 28thth September,September, Mr BorgeMr Borge--Sanchez and Mr Hunn met with the Claimant at the Sanchez and Mr Hunn met with the Claimant at the Crowne Plaza Hotel. Crowne Plaza Hotel.[41]I broadly accept the Claimant’s version of what occurred in this meeting. He gave I broadly accept the Claimant’s version of what occurred in this meeting. He gave relatively straightforward and consistent evidence on the point. relatively straightforward and consistent evidence on the point.[42]Shortly into the discussiShortly into the discussion, I accept that the Claimant was told that management had on, I accept that the Claimant was told that management had decided that his employment was no longer required or words close to this. He was decided that his employment was no longer required or words close to this. He was further told that he could leave amicably or the company had enough evidence to further told that he could leave amicably or the company had enough evidence to dismiss him for gross misconduct Tdismiss him for gross misconduct This finding of fact is consistent with the contents his finding of fact is consistent with the contents of the Respondent’s internal documents, created prior to this meeting. of the Respondent’s internal documents, created prior to this meeting.[43]The claimant was told that he would not be getting his nine months notice pay but The claimant was told that he would not be getting his nine months notice pay but that the company invited him to propose a sum thathat the company invited him to propose a sum that would be suitable. I also find that t would be suitable. I also find that when the Claimant raised the possibility of changing the mind of his superiors, he when the Claimant raised the possibility of changing the mind of his superiors, he was told “no” and that this was in categorical terms. was told “no” and that this was in categorical terms.[44]On the 29On the 29thth September, the Claimant replied with his settlement sum. The ClaimaSeptember, the Claimant replied with his settlement sum. The Claimant nt did this without seeking legal advice. This was illdid this without seeking legal advice. This was ill--advised. The Claimant was a senior advised. The Claimant was a senior employee on a significant salary and would have been able to access legal advice. employee on a significant salary and would have been able to access legal advice.[45]The figures offered by the Claimant totalled £34,040. I accept the method of The figures offered by the Claimant totalled £34,040. I accept the method of calcucalculation as set out in the Claimant’s witness statement as to how this figure was lation as set out in the Claimant’s witness statement as to how this figure was arrived at. arrived at.[46]On the 30On the 30thth September 2022, Mr BorgeSeptember 2022, Mr Borge--Sanchez replied indicating that the sum was Sanchez replied indicating that the sum was accepted. That same day, a resolution was passed removing the Claimant as a accepted. That same day, a resolution was passed removing the Claimant as a CompaCompany Director effective 31ny Director effective 31stst October 2022. October 2022.[47]Until the 31Until the 31stst October 2022, the Claimant continued to have access to the October 2022, the Claimant continued to have access to the Respondent’s systems, process bank payments for purchase orders, salaries, Respondent’s systems, process bank payments for purchase orders, salaries, Case No. 1303258/2023 expenses and he remained the sole signatory on the UK company ac expenses and he remained the sole signatory on the UK company accounts with counts with HSBC. HSBC.[48]It was around the 19It was around the 19thth October 2022 the Claimant became concerned as to the October 2022 the Claimant became concerned as to the absence of a settlement agreement or at least something akin to that. The onus absence of a settlement agreement or at least something akin to that. The onus appeared to be on him to generate an agreement. appeared to be on him to generate an agreement.[49]On the 26On the 26thth October Mr Hunn in discussion with the Claimant made reference to the October Mr Hunn in discussion with the Claimant made reference to the company possibly seeking to recover losses from the Claimant in respect of the stock company possibly seeking to recover losses from the Claimant in respect of the stock if there was no agreement. if there was no agreement.[50]The parties did not reach agreement on all of the core terms of the Claimant’s The parties did not reach agreement on all of the core terms of the Claimant’s departure. At the heart of the financial point was whether or not the Claimant was to departure. At the heart of the financial point was whether or not the Claimant was to receive the sums gross and who was responsible for any tax. receive the sums gross and who was responsible for any tax.[51]Each party may have made assuEach party may have made assumptions as to the tax position. However, there was mptions as to the tax position. However, there was no settlement agreement to interpret and what had been discussed between the no settlement agreement to interpret and what had been discussed between the parties represented two differing positions without a meeting of minds. parties represented two differing positions without a meeting of minds.[52]I do not accept the position stated by Mr Tigges in hiI do not accept the position stated by Mr Tigges in his witness statement that the s witness statement that the Clamant was seeking to reClamant was seeking to re--negotiate at this point in time, though I do accept that he negotiate at this point in time, though I do accept that he may subsequently have sought more (see para 43 of the Claimant’s witness may subsequently have sought more (see para 43 of the Claimant’s witness statement). No settlement agreement had been drafted and the emails statement). No settlement agreement had been drafted and the emails between the between the parties were sufficiently unclear so as to leave room for genuinely different parties were sufficiently unclear so as to leave room for genuinely different interpretations. This lack of clarity is normally resolved through the parties negotiating interpretations. This lack of clarity is normally resolved through the parties negotiating draft terms of a settlement agreement.draft terms of a settlement agreement.[53]Both parties have treated the 31Both parties have treated the 31stst October 2022 as the end of the Claimant’s October 2022 as the end of the Claimant’s employment. No party has suggested that the employment is ongoing. At no time has employment. No party has suggested that the employment is ongoing. At no time has the Claimant been paid any sum of money on termination beyond his normal salary the Claimant been paid any sum of money on termination beyond his normal salary that was owed. that was owed. Case No. 1303258/2023[54]In his witness statement, Mr TiggesIn his witness statement, Mr Tigges states that the financial package is ‘outstanding states that the financial package is ‘outstanding to the Claimant’ and that “it remains our intention to honour this payment and we to the Claimant’ and that “it remains our intention to honour this payment and we have not sought to retract away from this position.” He adds “whilst however the have not sought to retract away from this position.” He adds “whilst however the Tribunal case remains outstanding, we haveTribunal case remains outstanding, we have withheld from making this payment to withheld from making this payment to the Claimant until this matter is resolved.” I do not find this explanation to be the Claimant until this matter is resolved.” I do not find this explanation to be convincing. Either the Respondent accepts that it has a liability or it does not. If it has convincing. Either the Respondent accepts that it has a liability or it does not. If it has a liability then the sum should be paid. Evea liability then the sum should be paid. Even if it turns out that more is owed, the sum n if it turns out that more is owed, the sum has still been paid. Conversely, the only reasons not to pay is that you do not believe has still been paid. Conversely, the only reasons not to pay is that you do not believe the sum is owed or that your liability is less than the sum. There is unnecessary and the sum is owed or that your liability is less than the sum. There is unnecessary and somewhat confusing ambiguity in the psomewhat confusing ambiguity in the position adopted. osition adopted.[55]The Claimant has not made a contractual claim for this money on the basis that no The Claimant has not made a contractual claim for this money on the basis that no contract has been formed that he would be able to enforce. contract has been formed that he would be able to enforce. The Law
The Law
[56]The Right not to be unfairly dismissed is contained within s.94 EmploymentThe Right not to be unfairly dismissed is contained within s.94 Employment Rights Act Rights Act 1996. 1996.[57]The parties were agreed that the Claimant was an employee and had sufficient The parties were agreed that the Claimant was an employee and had sufficient service to bring a claim. service to bring a claim.[58]It is for the Claimant to prove that he was dismissed. This has been formulated in a It is for the Claimant to prove that he was dismissed. This has been formulated in a number of ways over the years. The parties were agreed thanumber of ways over the years. The parties were agreed that the core question is t the core question is best formulated as ‘who really terminated the contract of employment’. best formulated as ‘who really terminated the contract of employment’.[59]In In Sandhu v Jan de Rijk Transport Limited [2007] ICR 1137Sandhu v Jan de Rijk Transport Limited [2007] ICR 1137 the Court of Appeal the Court of Appeal considered the correct approach to the question of termination. The authority is also considered the correct approach to the question of termination. The authority is also Case No. 1303258/2023 useful because it draws upon a number of previous authorities on the point and useful because it draws upon a number of previous authorities on the point and considers them at Court of Appeal level. The facts of Sandhu are not iconsiders them at Court of Appeal level. The facts of Sandhu are not identical to the dentical to the present case in that in the present case, post the meeting that took place, further present case in that in the present case, post the meeting that took place, further correspondence was entered into. correspondence was entered into.[60]For example, a dismissal occurred in For example, a dismissal occurred in East Sussex County Council v Walker (1972) East Sussex County Council v Walker (1972) ITR 280ITR 280 when an employee was told that shwhen an employee was told that she was no longer required and expressly e was no longer required and expressly invited to resign.invited to resign.[61]In In Sheffield v Oxford Controls Co Ltd [1979] ICR 396Sheffield v Oxford Controls Co Ltd [1979] ICR 396 identified “We find the identified “We find the principle to be one of causation.” Reference is made to a resignation occurring where principle to be one of causation.” Reference is made to a resignation occurring where the employee “…the state of mind othe employee “…the state of mind of the resigning employee, that he is willing and f the resigning employee, that he is willing and content to resign on the terms which he has negotiated and which are satisfactory to content to resign on the terms which he has negotiated and which are satisfactory to him….. In such a case he resigns because he is willing to resign as the result of him….. In such a case he resigns because he is willing to resign as the result of being offered terms which are to him satbeing offered terms which are to him satisfactory terms on which to resign.”isfactory terms on which to resign.”[62]It is for the Respondent to prove that the reason or principal reason for the It is for the Respondent to prove that the reason or principal reason for the dismissal was one of those listed within s.92(b) Employment Rights Act 1996. dismissal was one of those listed within s.92(b) Employment Rights Act 1996. In this particular case, the Respondent relies upon conduct a In this particular case, the Respondent relies upon conduct as the reason for s the reason for dismissal. dismissal.[63]A reason for dismissal is a set of facts or belief held by the employer which A reason for dismissal is a set of facts or belief held by the employer which cause them to dismiss the employee: cause them to dismiss the employee: Abernethy v Mott Hay and Anderson Abernethy v Mott Hay and Anderson [1974] IRLR 213[1974] IRLR 213 per Cairns LJ. This has been subsequently affirmed on per Cairns LJ. This has been subsequently affirmed on numer numerous occasions and has most recently been analysed by the Supreme ous occasions and has most recently been analysed by the Supreme Court in Court in Jhuti v Royal Mail [2019] UKSC 55Jhuti v Royal Mail [2019] UKSC 55.. Case No. 1303258/2023[64]If the Respondent does prove a potentially fair reason for dismissal, then If the Respondent does prove a potentially fair reason for dismissal, then reasonableness under s.98(4) ERA 1996 must be considered. The classic reasonableness under s.98(4) ERA 1996 must be considered. The classic formulation of a conduct case based on formulation of a conduct case based on BHS v Burchell [1978] IRLR 379BHS v Burchell [1978] IRLR 379 requires requires the Tribunal to consider a) whetthe Tribunal to consider a) whether the Respondent formed a belief that the her the Respondent formed a belief that the employee had committed the act of misconduct and whether that belief was held on employee had committed the act of misconduct and whether that belief was held on reasonable grounds b) whether the Respondent had undertaken such investigation reasonable grounds b) whether the Respondent had undertaken such investigation as was reasonable in the circumstances of the case aas was reasonable in the circumstances of the case and c) whether the decision to nd c) whether the decision to dismiss was within the range of reasonable responses open to an employer. dismiss was within the range of reasonable responses open to an employer.[65]It is also necessary to look at whether the employer followed a fair procedure It is also necessary to look at whether the employer followed a fair procedure in dismissing the Claimant. in dismissing the Claimant.[66]The range of reasonable responses test aThe range of reasonable responses test applies throughout the Burchell test. The pplies throughout the Burchell test. The leading authority of leading authority of Sainsbury’s Supermarket v Hitt [2003] IRLR 23Sainsbury’s Supermarket v Hitt [2003] IRLR 23 makes it clear makes it clear that I must apply the range of reasonable responses test to the investigation and not that I must apply the range of reasonable responses test to the investigation and not substitute my own view as to what a reasonable substitute my own view as to what a reasonable investigation would have been. investigation would have been.[67]The burden of proof for the purposes of s.98(4) is neutral. The burden of proof for the purposes of s.98(4) is neutral.[68]Key to understanding the Burchell test is the concept of a range of reasonable Key to understanding the Burchell test is the concept of a range of reasonable responses. It is not for the Tribunal to substitute its own view for that of the responses. It is not for the Tribunal to substitute its own view for that of the Respondent. Rather the Tribunal must answer the questions posed from the Respondent. Rather the Tribunal must answer the questions posed from the perspective of whether or not the actions taken fall within the range of reasonable perspective of whether or not the actions taken fall within the range of reasonable responses open to an employer, having regard to the size of the undertaking and the responses open to an employer, having regard to the size of the undertaking and the administrative administrative resources available to it. resources available to it.[69]On a separate point, section 203 of the Employment Rights Act 1996 contains a clear On a separate point, section 203 of the Employment Rights Act 1996 contains a clear restriction on the ability of an employee to contract out of their employment rights restriction on the ability of an employee to contract out of their employment rights under the Act unless a settlement agreement conforms to theunder the Act unless a settlement agreement conforms to the mandatory elements mandatory elements Case No. 1303258/2023 provided for in the statute. In the present case, there is common ground that there provided for in the statute. In the present case, there is common ground that there was no such agreement in place. was no such agreement in place. Approach to s.111A Employment Rights Act 1996 Approach to s.111A Employment Rights Act 1996[70]During the course of the hearing, the Tribunal raised the applicability oDuring the course of the hearing, the Tribunal raised the applicability of s.111A f s.111A Employment Rights Act 1996. This had not been raised by either party in the Employment Rights Act 1996. This had not been raised by either party in the pleadings or as part of the initial discussion of the case. It is important to note this pleadings or as part of the initial discussion of the case. It is important to note this context because there is a starting position of the wording of the statute yet neicontext because there is a starting position of the wording of the statute yet neither ther party is motivated to ensure its application. Both parties had the opportunity to make party is motivated to ensure its application. Both parties had the opportunity to make submissions on the point. submissions on the point. 111A Confidentiality of negotiations before termination of employment 111A Confidentiality of negotiations before termination of employment(1) Evidence of pre (1) Evidence of pre--termination negotiations is inadmissible in anytermination negotiations is inadmissible in any proceedings on a proceedings on a complaint under section 111.This is subject to subsections (3) to (5).complaint under section 111.This is subject to subsections (3) to (5).(2) In subsection (1) “ pre (2) In subsection (1) “ pre--termination negotiations ” means any offer made or termination negotiations ” means any offer made or discussions held, before the termination of the employment in question, with a view discussions held, before the termination of the employment in question, with a view to ito it being terminated on terms agreed between the employer and the employee.t being terminated on terms agreed between the employer and the employee.(3) Subsection (1) does not apply where, according to the complainant's case, the (3) Subsection (1) does not apply where, according to the complainant's case, the circumstances are such that a provision (whenever made) contained in, or made circumstances are such that a provision (whenever made) contained in, or made under, this or any othunder, this or any other Act requires the complainant to be regarded for the purposes er Act requires the complainant to be regarded for the purposes of this Part as unfairly dismissed.of this Part as unfairly dismissed.(4) In relation to anything said or done which in the tribunal's opinion was improper, (4) In relation to anything said or done which in the tribunal's opinion was improper, or was connected with improper behaviour, subsection (1) or was connected with improper behaviour, subsection (1) applies only to the extent applies only to the extent that the tribunal considers just.that the tribunal considers just.(5) Subsection (1) does not affect the admissibility, on any question as to costs or (5) Subsection (1) does not affect the admissibility, on any question as to costs or expenses, of evidence relating to an offer made on the basis that the right to refer to expenses, of evidence relating to an offer made on the basis that the right to refer to it on any such questioit on any such question is reservedn is reserved Case No. 1303258/2023[71]I also had regard to the ACAS Code on Settlement Agreements, but I do not repeat I also had regard to the ACAS Code on Settlement Agreements, but I do not repeat the contents of that Code in full as part of this Judgment. A failure to follow the code the contents of that Code in full as part of this Judgment. A failure to follow the code does not create liability, but Tribunals take the code into account whendoes not create liability, but Tribunals take the code into account when considering considering relevant cases. relevant cases.[72]Section 111A only affects admissibility in relation to unfair dismissal. Therefore, it Section 111A only affects admissibility in relation to unfair dismissal. Therefore, it does not apply to the claim of wrongful dismissal which is based upon a claim of does not apply to the claim of wrongful dismissal which is based upon a claim of breach of contract as permitted by the Employment Tribunabreach of contract as permitted by the Employment Tribunals Extension of ls Extension of Jurisdiction (England & Wales) Order 1994. Jurisdiction (England & Wales) Order 1994.[73]It is not possible for the parties to waive the applicability of s.111A Employment It is not possible for the parties to waive the applicability of s.111A Employment Rights Act 1996. However, the parties witness statements have been drafted on the Rights Act 1996. However, the parties witness statements have been drafted on the basis that it does not apply.basis that it does not apply. In respect of without prejudice principles (which are In respect of without prejudice principles (which are distinct from s.111A), then admissibility had been waived by the pleaded cases, the distinct from s.111A), then admissibility had been waived by the pleaded cases, the witness statements and inclusion of documents in the bundle. witness statements and inclusion of documents in the bundle.[74]I have decided to admit all of the evidence. I do not I have decided to admit all of the evidence. I do not do so lightly and recognise that do so lightly and recognise that s.111A has a high threshold that is not easily met. s.111A has a high threshold that is not easily met.[75]The first stage is the threshold to admission. Given my findings regarding preThe first stage is the threshold to admission. Given my findings regarding pre--judgment of this situation, I regard that as ‘improper behaviour’ for the purposes of judgment of this situation, I regard that as ‘improper behaviour’ for the purposes of the the statute. The Code makes clear that ‘what constitutes improper behaviour’ is statute. The Code makes clear that ‘what constitutes improper behaviour’ is ultimately for a tribunal to decide on the facts and circumstances of each case.ultimately for a tribunal to decide on the facts and circumstances of each case.[76]Whilst, I accept that the Claimant was invited to effectively put an offer in by return, Whilst, I accept that the Claimant was invited to effectively put an offer in by return, this was this was in the context of him being told that his employment was coming to an end. in the context of him being told that his employment was coming to an end. The preThe pre--meeting documents support the fact that this was the Respondents position. meeting documents support the fact that this was the Respondents position. The findings that I have made above support the conclusion of improper behaviour, The findings that I have made above support the conclusion of improper behaviour, notwithstanding notwithstanding the high bar. the high bar. Case No. 1303258/2023[77]I also note that the Code references parties being given a reasonable time to I also note that the Code references parties being given a reasonable time to consider the proposed settlement agreement. The phrase “written terms” is then consider the proposed settlement agreement. The phrase “written terms” is then subsequently referred to. That did not happen in the present case. It matters in thsubsequently referred to. That did not happen in the present case. It matters in the e present case because the failure to handle these negotiations with competence is present case because the failure to handle these negotiations with competence is ultimately what led to the lack of a meeting of minds. However, I would not have ultimately what led to the lack of a meeting of minds. However, I would not have made the evidence admissible on the basis of the contents of this paragraph in made the evidence admissible on the basis of the contents of this paragraph in isolation. Thisolation. The pree pre--judgement point carries far more weight. judgement point carries far more weight.[78]The second stage is the extent of the admissibility of the evidence. The extent is The second stage is the extent of the admissibility of the evidence. The extent is what I “consider just.” In this case ‘just’ is allowing everything in because a pick and what I “consider just.” In this case ‘just’ is allowing everything in because a pick and mix exclusion is invidious and unfamix exclusion is invidious and unfair to one party or the other. The parties wish to rely ir to one party or the other. The parties wish to rely on different parts of what occurred in order to make their point. The just conclusion is on different parts of what occurred in order to make their point. The just conclusion is to allow it all in and to make findings of fact. to allow it all in and to make findings of fact.[79]Furthermore, both parties have proceeded in this litigation oFurthermore, both parties have proceeded in this litigation on the basis that all of the n the basis that all of the evidence was admissible ‘just’ in this case allows the parties to rely on their evidence evidence was admissible ‘just’ in this case allows the parties to rely on their evidence as drafted and given in Tribunal. as drafted and given in Tribunal.[80]In the alternative if I am wrong in respect of the above, if evidence regarding the In the alternative if I am wrong in respect of the above, if evidence regarding the negotiations were inegotiations were inadmissible, then the Tribunal would be left with very limited nadmissible, then the Tribunal would be left with very limited evidence to determine the question of dismissal. s.111A renders inadmissible the evidence to determine the question of dismissal. s.111A renders inadmissible the very fact that prevery fact that pre--termination negotiations have taken place, not just the details of the termination negotiations have taken place, not just the details of the negotiations: negotiations: FaithornFaithorn Farrell Timms LLP v Bailey [2016] IRLR 839Farrell Timms LLP v Bailey [2016] IRLR 839. .[81]In this alternative, the evidence regarding the intention to dismiss the Claimant would In this alternative, the evidence regarding the intention to dismiss the Claimant would remain admissible because it was prior to the meeting with the Claimant and did not remain admissible because it was prior to the meeting with the Claimant and did not form part of the negotiations. There would then be the fact of the Claimant leaving form part of the negotiations. There would then be the fact of the Claimant leaving employment. In this alternative scenario. There would be few if any factors remaining employment. In this alternative scenario. There would be few if any factors remaining Case No. 1303258/2023 without the evidence of the negotiations that would support the Respondents without the evidence of the negotiations that would support the Respondents contention of a mutual termination. In this vacuum of evidence, there would be a contention of a mutual termination. In this vacuum of evidence, there would be a dismissal. Thdismissal. The Tribunals conclusion regarding dismissal below remains the same, e Tribunals conclusion regarding dismissal below remains the same, albeit it is based on less evidence, due to less evidence being available. albeit it is based on less evidence, due to less evidence being available. Conclusions
Conclusions
[82]I start with my conclusions in relation to the question of dismissal. The central I start with my conclusions in relation to the question of dismissal. The central question is ‘who really terminated the contract of employment’?question is ‘who really terminated the contract of employment’?[83]It is clear that the idea of and motivation for ending the employment relIt is clear that the idea of and motivation for ending the employment relationship ationship originated with the Respondent. This however, isn’t determinative. In a mutual originated with the Respondent. This however, isn’t determinative. In a mutual decision, the genesis of the idea must still come from somewhere. decision, the genesis of the idea must still come from somewhere.[84]I reject the suggestion in oral evidence that Mr BorgeI reject the suggestion in oral evidence that Mr Borge--Sanchez went into the meeting Sanchez went into the meeting with the Claimwith the Claimant with an open mind. He did not. The Claimant’s employment was to ant with an open mind. He did not. The Claimant’s employment was to come to an end. That is the position as set out in at least two internal documents come to an end. That is the position as set out in at least two internal documents prior to the meeting. It is also consistent with the Claimant not being told the specific prior to the meeting. It is also consistent with the Claimant not being told the specific purpose of the purpose of the meeting in advance. meeting in advance.[85]No notes were taken of the meeting. If the meeting was about finding a way forward, No notes were taken of the meeting. If the meeting was about finding a way forward, some record of the possibilities discussed would be likely. some record of the possibilities discussed would be likely.[86]I also note that the facts as to whether this was a dismissal or a mutual termination I also note that the facts as to whether this was a dismissal or a mutual termination aare not all one way in this case. I must look at all these factors and answer the re not all one way in this case. I must look at all these factors and answer the question of who really terminated the contract of employment?question of who really terminated the contract of employment?[87]It is right to say that the parties agreed on an effective date of termination, albeit led It is right to say that the parties agreed on an effective date of termination, albeit led by the employer. I doby the employer. I do not regard this in isolation as conclusive. Rather, I must look at not regard this in isolation as conclusive. Rather, I must look at Case No. 1303258/2023 all of the circumstances. The wider circumstances include the fact that there wasn’t a all of the circumstances. The wider circumstances include the fact that there wasn’t a meeting of minds regarding the terms of the mutual termination. This matters, meeting of minds regarding the terms of the mutual termination. This matters, because for a terminatibecause for a termination to be mutual, it must be the mutual agreement and consent on to be mutual, it must be the mutual agreement and consent of the parties. Agreement on the basic terms of the mutual termination are essential, of the parties. Agreement on the basic terms of the mutual termination are essential, The key terms would include key financial points. The key terms would include key financial points.[88]I also accept that the Claimant himself was putting forwaI also accept that the Claimant himself was putting forward sums and only he is rd sums and only he is responsible for not taking prompt legal advice immediately after the 28responsible for not taking prompt legal advice immediately after the 28thth September. September.[89]However, the Claimant putting forward sums and on the face of it there being a However, the Claimant putting forward sums and on the face of it there being a measure of agreement as to the termination date aren’t sufficient wmeasure of agreement as to the termination date aren’t sufficient when balanced hen balanced against the other findings of fact regarding what the Claimant was faced with in the against the other findings of fact regarding what the Claimant was faced with in the meeting of the 28meeting of the 28thth September. Those findings of fact point towards the Claimant September. Those findings of fact point towards the Claimant being told that his employment was ending. Everything post that point was abobeing told that his employment was ending. Everything post that point was about ut negotiating terms and ultimately, terms were not agreed. negotiating terms and ultimately, terms were not agreed.[90]I would add that this is not a case whereby the employer acted improperly but then I would add that this is not a case whereby the employer acted improperly but then the conduct of the parties was such that there was still a mutual agreement as to the conduct of the parties was such that there was still a mutual agreement as to dismissal. The Claimant had edismissal. The Claimant had exceptionally long service and basic employment rights. xceptionally long service and basic employment rights. He cannot be deprived of those rights unless he consents to this. He did not. He cannot be deprived of those rights unless he consents to this. He did not.[91]Having taken into account all of the factors, I conclude that this was a dismissal. Having taken into account all of the factors, I conclude that this was a dismissal.[92]I would also record at this point that this was a situation that turned into an I would also record at this point that this was a situation that turned into an unnecessary mess. It was avoidable. If the Respondent wished to go down this route, unnecessary mess. It was avoidable. If the Respondent wished to go down this route, it shit should have sought legal advice about how to go about it and produced draft ould have sought legal advice about how to go about it and produced draft settlement terms in the form of a settlement agreement. At the same time, the settlement terms in the form of a settlement agreement. At the same time, the Claimant was a senior individual on a substantial salary. It was open to him to seek Claimant was a senior individual on a substantial salary. It was open to him to seek proper legal adviceproper legal advice at the earliest stage once he was aware of the Respondent’s at the earliest stage once he was aware of the Respondent’s intentions. Each party subsequently complains as part of their pleadings about the intentions. Each party subsequently complains as part of their pleadings about the Case No. 1303258/2023 other not contacting them and the result is two subsequently professionally other not contacting them and the result is two subsequently professionally represented parties ending up at a frepresented parties ending up at a final hearing. inal hearing.[93]Having found that the Claimant was dismissed, I must turn to the question of the Having found that the Claimant was dismissed, I must turn to the question of the reason for dismissal. reason for dismissal.[94]Utilising the classic formation in Utilising the classic formation in AbernethyAbernethy, I do not find that the reason for dismissal , I do not find that the reason for dismissal was conduct. Firstly, the issue over the writwas conduct. Firstly, the issue over the written instruction from 2015 was not known ten instruction from 2015 was not known to the decision makers at the time at which the decision to dismiss the Claimant had to the decision makers at the time at which the decision to dismiss the Claimant had been taken. It was utilised to bolster that decision. been taken. It was utilised to bolster that decision.[95]Secondly, is clear from the written documents, but also the underlying logiSecondly, is clear from the written documents, but also the underlying logic of what is c of what is being said, that the Respondents lack confidence in the Claimant’s ability to manage being said, that the Respondents lack confidence in the Claimant’s ability to manage and his competence. These are all capability reasons. I find that this was the true and his competence. These are all capability reasons. I find that this was the true reason for the dismissal. This is still a permissible reason for dismissalreason for the dismissal. This is still a permissible reason for dismissal within s.98(2) within s.98(2) Employment Rights Act 1996. Employment Rights Act 1996.[96]This being a capability dismissal, the question then becomes more focussed on This being a capability dismissal, the question then becomes more focussed on whether the Respondent took reasonable steps to manage the capability issue and whether the Respondent took reasonable steps to manage the capability issue and follow a fair procedure in doing so. follow a fair procedure in doing so.[97]The dismissalThe dismissal is unfair. The Respondent followed very little, if any procedure. The is unfair. The Respondent followed very little, if any procedure. The outcome was preoutcome was pre--judged. The only way of reading the written documentation was judged. The only way of reading the written documentation was that a decision had been taken that the Claimant would be dismissed. that a decision had been taken that the Claimant would be dismissed.[98]If I am wrong in respect of the reasIf I am wrong in respect of the reason for dismissal and it is necessary to consider on for dismissal and it is necessary to consider Burchell in the alternative, then my conclusions would have been as follows. I only Burchell in the alternative, then my conclusions would have been as follows. I only state them briefly as they are in effect alternative conclusions. The dismissal remains state them briefly as they are in effect alternative conclusions. The dismissal remains unfair because no reasonable procedunfair because no reasonable procedure was followed in the form of investigatory or ure was followed in the form of investigatory or Case No. 1303258/2023 disciplinary meetings. Furthermore, the point regarding the Respondent having disciplinary meetings. Furthermore, the point regarding the Respondent having formed a preformed a pre--existing view remains. existing view remains.[99]The investigation was not within the range of reasonable investigations open to the The investigation was not within the range of reasonable investigations open to the RespondRespondent. The Respondent seeks to rely upon the Claimant answering questions ent. The Respondent seeks to rely upon the Claimant answering questions In written format to establish the investigation. To a certain extent it is permissible for In written format to establish the investigation. To a certain extent it is permissible for the Respondent to rely upon this, but given the nature of the issue, the nuance the Respondent to rely upon this, but given the nature of the issue, the nuance surrounding surrounding it, the need to understand detail and the issue of understanding intent it, the need to understand detail and the issue of understanding intent when it comes to conduct issues, the written responses are insufficient to amount to when it comes to conduct issues, the written responses are insufficient to amount to a reasonable investigation. a reasonable investigation.[100]The Respondent did not hold a belief on reasonable grounds. It was awThe Respondent did not hold a belief on reasonable grounds. It was aware of are of a potential problems, but did not have a reasonable basis for believing that it a potential problems, but did not have a reasonable basis for believing that it amounted to misconduct. amounted to misconduct.[101]The decision to dismiss was outside the band of reasonable responses The decision to dismiss was outside the band of reasonable responses because this was a prebecause this was a pre--judged dismissal. judged dismissal.[102]I now turn to consider Polkey. I remind myself that the question in respect of I now turn to consider Polkey. I remind myself that the question in respect of Polkey focuses on what this specific employer would have done had the errors Polkey focuses on what this specific employer would have done had the errors identified above not been made. identified above not been made.[103]From the correspondence, it is clear that the leadership team of tFrom the correspondence, it is clear that the leadership team of the he Respondent had reached the conclusion that it no longer wished to employ the Respondent had reached the conclusion that it no longer wished to employ the Claimant. Claimant.[104]This is a cold, harsh reality. The Claimant was in a senior position and it is This is a cold, harsh reality. The Claimant was in a senior position and it is unrealistic to suggest that his employment would have continued indefinitely without unrealistic to suggest that his employment would have continued indefinitely without the support of the most senior management in the group company. the support of the most senior management in the group company. Case No. 1303258/2023[105]Software 2000 Ltd v AndSoftware 2000 Ltd v Andrews [2007] ICR 825rews [2007] ICR 825 together with a number of together with a number of other appellate authorities require the Tribunal to use common sense, experience other appellate authorities require the Tribunal to use common sense, experience and sense of justice when looking at this question. Whilst some speculation is and sense of justice when looking at this question. Whilst some speculation is involved, there is relevant evidence available. Thinvolved, there is relevant evidence available. The present case is a case where e present case is a case where there is clear evidence as to the Respondents position towards the Claimant. there is clear evidence as to the Respondents position towards the Claimant.[106]The fact that the Claimant is a senior employee provides important context. The fact that the Claimant is a senior employee provides important context. The level of autonomy that person has, the importance of the role to The level of autonomy that person has, the importance of the role to the success of the success of he company are all factors which point to the importance of the board believing that he company are all factors which point to the importance of the board believing that individual can deliver. These are business decisions that can fundamentally affect the individual can deliver. These are business decisions that can fundamentally affect the companies bottom line. companies bottom line.[107]On balance, the most likely outcome would beOn balance, the most likely outcome would be that this Respondent followed that this Respondent followed a fair process, discussing the problems that existed with the Claimant, that would not a fair process, discussing the problems that existed with the Claimant, that would not have resulted in the Group Company having (i.e. regaining) trust & confidence in the have resulted in the Group Company having (i.e. regaining) trust & confidence in the Claimant. The reason for the dismissal would have beeClaimant. The reason for the dismissal would have been capability or SOSR in the n capability or SOSR in the form of loss of trust and confidence in the ability of a senior employee. The form of loss of trust and confidence in the ability of a senior employee. The employment relationship could have been fairly ended by the Respondent as part of employment relationship could have been fairly ended by the Respondent as part of a process concluding around 31a process concluding around 31stst October 2022, with the Claimant beOctober 2022, with the Claimant being lawfully ing lawfully given his notice of nine months to run from that date. If there was garden leave and given his notice of nine months to run from that date. If there was garden leave and no payment in lieu of notice, the effective date of termination would have been 31no payment in lieu of notice, the effective date of termination would have been 31stst July 2023. July 2023.[108]The alternative, namely that a Managing Director remain in pThe alternative, namely that a Managing Director remain in post whilst a ost whilst a Group Company actively try to remove him is not sustainable. Trust and confidence Group Company actively try to remove him is not sustainable. Trust and confidence is fundamental as is a belief in an employees ability to perform. No sensible business is fundamental as is a belief in an employees ability to perform. No sensible business could operate on that basis for a sustained period of time. It would also could operate on that basis for a sustained period of time. It would also be artificial be artificial and removed from reality to so conclude. and removed from reality to so conclude. Case No. 1303258/2023[109]A percentage approach to Polkey is not the best approach to this case. The A percentage approach to Polkey is not the best approach to this case. The seniority of the claimants position, the certainty within the Group as to its position, the seniority of the claimants position, the certainty within the Group as to its position, the entitlement of a business to takentitlement of a business to take clear steps to improve performance, the lack of e clear steps to improve performance, the lack of alternative roles and alternatives to dismissal, means that identifying a period of loss alternative roles and alternatives to dismissal, means that identifying a period of loss is more reliable than simply putting a percentage on what was a settled Group is more reliable than simply putting a percentage on what was a settled Group position. position.[110]Turning to the issue of contributory fault, it is for the Respondent to prove that Turning to the issue of contributory fault, it is for the Respondent to prove that the Cthe Claimant engaged in culpable and blameworthy conduct. laimant engaged in culpable and blameworthy conduct.[111]Notwithstanding the fact that I have found the real reason for the dismissal to Notwithstanding the fact that I have found the real reason for the dismissal to be capability, this does not preclude a finding of contributory fault.be capability, this does not preclude a finding of contributory fault.[112]The fact of the purchase of the stock and the facThe fact of the purchase of the stock and the fact that is has yet to be sold t that is has yet to be sold after many years are proven facts. after many years are proven facts.[113]In respect of the basic award, s.122(2) ERA 1996 requires that I must In respect of the basic award, s.122(2) ERA 1996 requires that I must consider whether it is just and equitable to reduce the basic award and if so, by what consider whether it is just and equitable to reduce the basic award and if so, by what percentage. In respect of the copercentage. In respect of the compensatory award s.123(6) ERA 1996 requires that mpensatory award s.123(6) ERA 1996 requires that where I have found there to be culpable and blameworthy conduct, I shall reduce the where I have found there to be culpable and blameworthy conduct, I shall reduce the compensatory award by such percentage as is just and equitable having regard to compensatory award by such percentage as is just and equitable having regard to that finding. that finding.[114]I have decided that the appI have decided that the appropriate deduction to reflect contributory fault in ropriate deduction to reflect contributory fault in this matter is 25%. I apply the same figure to both the basic and compensatory this matter is 25%. I apply the same figure to both the basic and compensatory awards and see no determinative reason in this case why it should not apply to both. awards and see no determinative reason in this case why it should not apply to both.[115]The level of contribution reflects the findings that the Claimant is responsible The level of contribution reflects the findings that the Claimant is responsible for the purchase of the stock and is responsible for a commercial decision that has for the purchase of the stock and is responsible for a commercial decision that has Case No. 1303258/2023 cost (or at the very least is likely to cost) the Respondent a significant amount of cost (or at the very least is likely to cost) the Respondent a significant amount of moneymoney. I have not reduced by a higher sum because the Respondent has not proven . I have not reduced by a higher sum because the Respondent has not proven malign intent or other, more serious factors. malign intent or other, more serious factors.[116]Wrongful Dismissal Wrongful Dismissal –– This is a separate and distinct claim, This is a separate and distinct claim, I have already concluded that the Claimant was dismissed for the purposes of the I have already concluded that the Claimant was dismissed for the purposes of the unfair dismissal claim. I make the same findingunfair dismissal claim. I make the same finding in respect of wrongful dismissal. The in respect of wrongful dismissal. The core facts remain the same. core facts remain the same.[117]Therefore the remaining issue to determine is whether or not the Respondent Therefore the remaining issue to determine is whether or not the Respondent can prove that the Claimant committed an act that amounted to gross misconduct. can prove that the Claimant committed an act that amounted to gross misconduct.[118]There are known facts of theThere are known facts of the goods having been purchased, the goods goods having been purchased, the goods remaining on stock and the goods having yet to be sold. The size/amount of the remaining on stock and the goods having yet to be sold. The size/amount of the goods is also known.goods is also known.[119]The Respondent has also failed to prove that the Claimant deliberately went The Respondent has also failed to prove that the Claimant deliberately went outside the correct purchasing process.outside the correct purchasing process. I accept the Claimant’s evidence that he has I accept the Claimant’s evidence that he has followed the same purchasing processes throughout the last decade or so. I also followed the same purchasing processes throughout the last decade or so. I also accept that the information regarding his purchases were reported to management accept that the information regarding his purchases were reported to management and that the relevant data was available to manageand that the relevant data was available to management. ment.[120]I find that the Respondent has failed to prove that the Claimant committed I find that the Respondent has failed to prove that the Claimant committed gross misconduct. The Respondent was clearly dissatisfied with the Claimant. Gross gross misconduct. The Respondent was clearly dissatisfied with the Claimant. Gross misconduct is conduct sufficiently serious that it amounts to a fundamental breach. misconduct is conduct sufficiently serious that it amounts to a fundamental breach. i.e. ai.e. a party demonstrating that they no longer intend to be bound by the core terms of party demonstrating that they no longer intend to be bound by the core terms of the contract. Here, the Claimant has made a commercial decision, that as things the contract. Here, the Claimant has made a commercial decision, that as things stand has cost the Respondent a substantial sum of money. stand has cost the Respondent a substantial sum of money. Case No. 1303258/2023[121]The Respondent put its case squarelThe Respondent put its case squarely on the question of conduct. It did not y on the question of conduct. It did not put its case on the basis of gross negligence. put its case on the basis of gross negligence.[122]This dismissal should have been on notice. The Claimant was therefore This dismissal should have been on notice. The Claimant was therefore wrongfully dismissed. wrongfully dismissed. Further Directions Further Directions[123]I direct that within 30 days of the date on which this JudgmeI direct that within 30 days of the date on which this Judgment is sent to the nt is sent to the parties, the claimant must write to the Tribunal, copying in the Respondent. That parties, the claimant must write to the Tribunal, copying in the Respondent. That correspondence must state either a) a remedy hearing is required or b) that remedy correspondence must state either a) a remedy hearing is required or b) that remedy has been resolved and no further hearing is required and that the file mahas been resolved and no further hearing is required and that the file may be closed. y be closed.[124]If a remedy hearing is required, parties must inform the Tribunal immediately If a remedy hearing is required, parties must inform the Tribunal immediately of any dates to avoid as the Tribunal will then seek to liaise with me to set a date of any dates to avoid as the Tribunal will then seek to liaise with me to set a date when I am available. Mywhen I am available. My current estimate is that 1 day should be put aside for current estimate is that 1 day should be put aside for remedy. It may take less time than this, but given the difficulties that the parties have remedy. It may take less time than this, but given the difficulties that the parties have had agreeing to date, I would presume that a remedy hearing is needed because had agreeing to date, I would presume that a remedy hearing is needed because there remains core disagreement there remains core disagreement and therefore time is needed to resolve that. and therefore time is needed to resolve that.[125]The Claimant has already confirmed that reinstatement/reThe Claimant has already confirmed that reinstatement/re--engagement is not engagement is not sought as a remedy. sought as a remedy.[126]The issues for determination at the remedy hearing will be:The issues for determination at the remedy hearing will be:a. What is the Claimant entitled to by way of What is the Claimant entitled to by way of basic award?basic award?b. What are the Claimant’s losses?What are the Claimant’s losses? Case No. 1303258/2023c. Mitigation Mitigation –– is the Respondent able to prove that the Claimant has failed to is the Respondent able to prove that the Claimant has failed to take reasonable steps to mitigate his loss? If yes, by what date could the take reasonable steps to mitigate his loss? If yes, by what date could the Claimant acting reasonably have obtained employment?Claimant acting reasonably have obtained employment?d. ACAS ACAS Code Code –– Did the Respondent unreasonably fail to follow the ACAS Did the Respondent unreasonably fail to follow the ACAS Code? If so, by what percentage is any award to be increased?Code? If so, by what percentage is any award to be increased?e. Wrongful dismissal Wrongful dismissal –– what sum is payable by way of damages for wrongful what sum is payable by way of damages for wrongful dismissal? Does the Income Tax (Earnings and Pensions Act) dismissal? Does the Income Tax (Earnings and Pensions Act) 2003 as 2003 as amended require that this calculation is performed first?amended require that this calculation is performed first?f. Is it appropriate to make an award of two to four weeks pay under s.38 of the Is it appropriate to make an award of two to four weeks pay under s.38 of the Employment Rights Act 1996?Employment Rights Act 1996?g. To what extent must any awards be adjusted to cover taxation? If so, by how To what extent must any awards be adjusted to cover taxation? If so, by how much?much?h. InIn what order are the calculations applied?what order are the calculations applied?i. Application of the statutory caps (if appropriate)Application of the statutory caps (if appropriate)[127]If any party disagrees with the above list of issues, this can be raised with the If any party disagrees with the above list of issues, this can be raised with the Tribunal on the day of the remedy hearing. However, any party wishing to raise aTribunal on the day of the remedy hearing. However, any party wishing to raise a point regarding the list of issues should ensure that they have given sufficient notice point regarding the list of issues should ensure that they have given sufficient notice of the point to the other side. of the point to the other side. Employment Judge Anderson 14th November 2023 Case No. 1303258/2023 EMPLOYMENT TRIBUNALS Claimant: Mr A Billingham Respondent: EMKA UK Limited HELD AT: Birmingham (via CVP) ON: 19th September 2024 BEFORE: Employment Judge Anderson REPRESENTATION: Claimant: Respondent: Mr Ross (Counsel) Mr Rozycki (Counsel)
Conclusions
[1]Following previous findings of unfair and wrongful dismissal, the Respondent is ordered to pay to the Claimant, the following sums:a. A Basic Award of £12,205.14b. A Compensatory Award of £24,420.68c. Damages in respect of wrongful dismissal in the sum of £25,000.00[2]The Recoupment Regulations do not apply. _____________________________ Signed by: Employment Judge Anderson Signed on: 19th September 2024 Case No. 1303258/2023 Notes 1. Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. 2. Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case. Case No. 1303258/2023 1 EMPLOYMENT TRIBUNALS Claimant: Mr A Billingham Respondent: EMKA UK Limited HELD AT: Birmingham (via CVP) ON: 19th September 2024 BEFORE: Employment Judge Anderson REPRESENTATION: Claimant: Respondent: Mr Ross (Counsel) Mr Rozycki (Counsel) JUDGMENT having been sent to the parties on 20th September 2024 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
Introduction
[1]These are my written reasons in respect of the remedy hearing that took place on the 19th September 2024.[2]Previously, in my reserved Judgment, I found that the Claimant had been unfairly and wrongfully dismissed. I found that there was contributory fault which would reduce the basic and compensatory awards at a level of 25%. In respect of Polkey, I declined to make a percentage reduction and instead set a period of loss. Case No. 1303258/2023 2[3]At the conclusion of my Reserved Judgment on liability, I proposed the following list of issues:a. What is the Claimant entitled to by way of basic award?b. What are the Claimant’s losses?c. Mitigation – is the Respondent able to prove that the Claimant has failed to take reasonable steps to mitigate his loss? If yes, by what date could the Claimant acting reasonably have obtained employment?d. ACAS Code – Did the Respondent unreasonably fail to follow the ACAS Code? If so, by what percentage is any award to be increased?e. Wrongful dismissal – what sum is payable by way of damages for wrongful dismissal? Does the Income Tax (Earnings and Pensions Act) 2003 as amended require that this calculation is performed first?f. Is it appropriate to make an award of two to four weeks pay under s.38 of the Employment Rights Act 1996?g. To what extent must any awards be adjusted to cover taxation? If so, by how much?h. In what order are the calculations applied?i. Application of the statutory caps (if appropriate)[4]I directed that if either party wished to alter the above list then they could do so provided they gave reasonable notice to the other side. I was informed at the outset today that neither party disagreed with the above list.[5]The vast majority of points were already agreed between the parties or were arrived at by agreement during the course of the hearing.[6]It was previously agreed that reinstatement or re-engagement was not sought.[7].At the outset of the hearing today, it was accepted by the Respondent that it was not suggesting that the Claimant had failed to mitigate his losses. The Respondent also accepted the Claimant’s position that there had been an unreasonable failure to follow the ACAS Code and that the appropriate level of uplift was 25%.[8]Some points of disagreement arose during the hearing which required a decision from me. These were as follows:a. In light of the authority of Burlo & Langley v Carter [2007] ICR 390, the extent to which, when determining compensation under s.123 Employment Rights Act 1996, the Tribunal takes into account the income the Claimant has received by way of mitigation during the period of his notice.b. Whether, when looking at the principle of totality, how the uplift of 25% would be applied to the wrongful dismissal award, whether prior to or post grossing up. Case No. 1303258/2023 3[9]Whilst I determined the above points during the course of the hearing, for practical purposes it would appear that these points had little or no effect on the overall award.[10]The main complicating factor before me today was that notwithstanding my raising tax in the list of issues at the end of the last hearing and also the significance of the tax issue to the parties at the last hearing given the reason why the re was no mutual termination, there was uncertainty regarding the tax position. It was apparent that neither party had correctly addressed the approach to taxation for the purposes of todays hearing in advance of the hearing. I deal with this further in the facts section and calculations below.
Facts
[11]Neither party sought to call any additional oral evidence beyond that which was already heard at the liability hearing. Neither party took issue with the other party not calling any additional oral evidence. The Claimant’s Schedule of Loss detailed his earnings in his new employment, which were not the subject of challenge. Some additional documents relating to wages were in the remedy bundle.[12]The liability Judgment was a Reserved Judgment and full reasons were provided. Therefore, these facts are set out in order to enable the reader to understand the conclusions reached in this Judgment.[13]The Claimant commenced employment on 1st November 1991. The effective date of termination was found to be the 31st October 2022. The Claimant had 30 years of continuous employment. The Claimant was born in June 1964 and was 58 years old at the date of termination.[14]The Claimant’s contract of employment contained a 9 month notice clause.[15]With the Respondent, the Claimant earned £1092.85 per week net. This was a slight recalculation from the figure contained within the schedule of loss and was based upon the figures contained within the bundle.[16]During the course of the hearing today, both parties were given breaks in which to perform recalculations. Both parties had calculated the position regarding pension differently. After lunch, I asked Counsel for the Claimant to go through the revised pension figures, which results in the calculation below.[17]It is currently the 2024/2025 tax year. Given it is September, it is presumed that any Judgment will be paid in this tax year. The Claimant through his alternative employment in mitigation will have used his personal allowance and 20% allowance. Any tax payable will be at 40% plus National Insurance. Case No. 1303258/2023 4 The Law General
The Law
[18]I will deal briefly with the basic provisions and cover in more detail points of contention.[19]A Basic Award is calculated in accordance with s.119 Employment Rights Act 1996.[20]A compensatory award is calculated on the basis provided by s.123 Employment Rights Act 1996. Compensation is on a just and equitable basis taking into account all of the circumstances having regard to the loss sustained by the Claimant.[21]In respect of wrongful dismissal, losses are assessed by way of damages and are subject to a total cap of £25,000. The Narrow Norton Tool Principle[22]In Burlo & Langley v Carter [2007] ICR 390 the Court of Appeal refused to depart from a longstanding principle contained within Norton Tool v Tewson [1972] ICR 501 that when assessing damages for dismissal, it was good industrial relations practice for a payment in lieu of notice to be made without deductions made for any earnings that the employee may have in that period.[23]Mr Rozycki having had time to consider the point referred me to the decision of Babcock FATA Ltd v Addison [1987] IRLR 173 which was considered in detail as part of the Burlo decision. In particular, I was taken to para 21, which expressly referenced circumstances, including the length of the notice required whereby it could be shown that a payment of less than the wages due would not offend industrial good practice.[24]In the present case, the Claimant had an exceptionally long period of notice, namely 9 months. He had also taken steps to mitigate his loss.[25]This was a point on which the parties made competing submissions. This was a point about the application of a principle. I was persuaded that the Claimant’s exceptionally long notice period, if applied alongside the Norton Tool principle in full could result in circumstances as envisaged in para 22 of Babcock. I also took the view that such an outcome would be disproportionate and not in accordance with the just and equitable principles contained within s.123 Employment Rights Act 1996.[26]I therefore limited the application of the Norton Tool principle to the first 12 weeks of the Claimant’s losses. This is a perfectly normal notice period for a long serving employee. I saw why no reason in principle whereby if I accepted Case No. 1303258/2023 5 that a 9 month period resulted in an exception to the principle, it was mandatory for me to disapply the entire notice period. That would place an employee with a longer notice period in a worse position than an employee with a shorter notice period. By choosing a period of 12 weeks, the principle as upheld in Burlo was still capable of application. The Relationship Between the ACAS Uplift and the Grossing up of Wrongful Dismissal Damages[27]Given the mandatory requirement (contained in the amended Income Tax (Earnings and Pensions) Act 2003 for Wrongful Dismissal awards to be on a gross basis, the parties were in dispute as to whether or not the ACAS uplift of 25% should be applied to damages on a gross or net basis.[28]I heard submissions from both parties on this point. I determined this point in favour of the Respondent. The 25% should be applied to the net figure and then grossed up for tax purposes.[29]I decided this for the following reasons:a. When considering compensation under s.123 ERA 1996, the grossing up only takes place after the ACAS uplift has been applied. This is consistent with that approach.b. The Claimant will be taxed by HMRC on the gross sum. It is that figure to which the tax regime will be applied. (c.f. Hall v Durham County Council (2015) UKEAT/0256/14/MC para 71 onwards per Langstaff P)c. Even though the parties had agreed that the correct uplift was that of 25%, I still had to have regard to the principle of totality. In my view, uplifting a gross sum in this way results in disproportionate figures. Conclusions & Calculations Basic Award[30]The Calculation of the basic award was agreed between the parties at £12,205.14. This is based on the following calculation.[31]A weeks pay is capped at £571.00. The calculation therefore is as follows:a. 3 years x 1 week x 571 = £1713.00b. 17 years x 1.5 weeks x 571 = £14,560.50c.£1713.00 plus £14,560.50 less 25% contributory fault of £4068.37 =£12,205.14 Case No. 1303258/2023 6 Compensatory Award[32]The first period of loss to calculate is the first twelve weeks, based upon the restricted application of the narrow Norton Tool principle that I have described above. Therefore loss of earnings for a period of 12 weeks from the effective date of termination to the 23rd January 2023 results in a figure of £13,114.20.[33]The next period of loss, less mitigation sums earned by the Claimant to the 31st July 2023. This is the date by which losses cease in the liability Judgment. This results in a figure of £2216.88[34]There is then pension loss to the 23rd January 2023 based upon £178.85 x 12 = £2146.15.[35]There is then pension loss to the 31st July 2023 based upon £178.85 x 24 = £4292.31 which is then reduced by mitigation of £613.20 = £3679.11[36]Loss of statutory rights was awarded in the sum of £500.00 The Claimant’s losses were therefore £21,656.34.[38]This was uplifted by 25% to reflect the failure to follow the ACAS Code, resulting in a sum of £27,070.43.[39]This was then reduced by 25% to reflect the previous finding on contribution, resulting in a sum of £20,302.82.[40]It was agreed that the Respondent was in breach of its obligation to provide a statement of particulars in compliance with s.1 Employment Rights Act 1996. An award under s.38 Employment Act 2002. There were no exceptional circumstances within the meaning of s.38(5). The Claimant sought two weeks of pay and I award this sum. I have included this under the heading of ‘compensatory award’ even though it is a separate award because it does fall to be considered as part of the statutory cap. This award is made on a gross basis and is subject to the cap on a weeks pay. Therefore two weeks gross pay capped is calculated as £571 x 2 = £1142.00 This results in a sum of £21,444.82.[42]The Claimant has a tax free allowance of £30,000.00 provided for in the Income Tax (Earnings and Pensions) Act 2003. The basic award added to the net compensatory award (£12,205.14 plus £21,444.82 = £33,649.95) means that £3,649.95 of the compensatory award must be grossed up for tax purposes.[43]This produces a final compensatory award of £24,420.68. Case No. 1303258/2023 7[44]Therefore the compensatory award was calculated as £24,420.68[45]The recoupment regulations do not apply. Wrongful Dismissal[46]Damages in respect of wrongful dismissal are calculated on a gross basis. The Claimant must account to the revenue in respect of the tax payable. This was following amendments to the Income Tax (Earnings and Pensions) Act 2003 in respect of which parties which required a prioritisation of notice periods and their calculation on a gross basis as parties were failing to do so and the revenue was not receiving sums that it considered were properly owed.[47]The full notice period on a net calculation is £39342.60. Mitigation has occurred over a 27 week period at a rate of £1000.48 p/w net (pay plus pension) reducing the figure by £27012.96 resulting in a figure of £12,329.64.[48]When the ACAS uplift is applied of 25% this results in a figure of £15,412.05. When this figure is grossed up, by 40% and before any National Insurance contributions, the cap is exceeded.[49]The Employment Tribunals (Extension of Jurisdiction) (England & Wales) Order 1994 provides an absolute cap of £25,000 in respect of a claim for breach of contract. The Tribunal does not have jurisdiction to make a higher award.[50]Any additional calculations are otiose. It is the £25,000 figure that the Claimant will be taxed on.[51]Therefore, damages were calculated at the cap of £25,000. Postscript[52]When providing the above reasons, it became apparent that in respect of wrongful dismissal, there is a risk that insufficient credit has been given for the sums received in respect of the compensatory award. I say a risk, because the Claimant’s schedule of loss in the conclusion section has gross notice pay losses of £20,191.29 and that is before any ACAS uplift. At the same time, the Counter Schedule has a nil figure for wrongful dismissal, which does not acknowledge that a reduction of 25% for contribution will apply to the compensatory award that would not apply to the damages for being wrongfully dismissed. Case No. 1303258/2023 8[53]I considered reconsidering my Judgment of my own volition. However, I did not consider that the potential outcome of that reconsideration was only one possible answer. I was also concerned that given the two stark positions in the competing schedules, it was better for the parties to have a say in resolving the point.[54]In respect of wrongful dismissal, there is no deduction for contributory fault. Therefore, the Claimant would appear to be entitled to some damages in respect of the fact that the compensatory award will undercompensate his losses in his notice period. I am also open to any other argument as to what the notice period would need to cover.[55]I am also clear that this figure would need to be uplifted by 25% in respect of the ACAS Code breach and then grossed up.[56]I therefore invite the parties to:a. Seek to resolve the matter between themselves. This would be the most simple and cost-effective way of resolving the point.b. Alternatively, apply for reconsideration. Any application for reconsideration must include the specific calculation that I am being asked to apply. Whilst the Rules do not oblige the other party to reply to such an application, this is a case in which I would be assisted in having both parties positions set out clearly. The application will then be considered under Rule 72(1). If the threshold for reconsideration is met, I am required to hold a further hearing unless both parties consent to the matter being dealt with on paper. Given that this is a point of mathematics, I would hope that it could be dealt with on paper, but each party must take a view. The rules provide for a hearing and if the criteria is met, a party is entitled to a hearing. _____________________________ Signed by: