Mr T Evans v Greenfields Financial Management Ltd: 1402038/2025
EMPLOYMENT TRIBUNALS
Case No 1402038/2025
Between
Mr T EvansClaimantGreenfields Financial Management LtdRespondent
Before
Employment Judge BradfordMs N Gyane (instructed by Counsel) for claimantDate 22 July 2026
JUDGMENT
[1]The Claimant’s complaint of constructive unfair dismissal brought under Part X Employment Rights Act 1996 is not well-founded and is dismissed.[2]The Claimant’s complaint of wrongful dismissal (notice pay) is not wellfounded and is dismissed.[3]The Claimant’s complaints of unlawful deductions from wages (holiday pay and pension contributions) brought under Part II Employment Rights Act 1996 are not well-founded and are dismissed.
REASONS
[1]The Claimant was employed by the Respondent, latterly as an Independent Financial Advisor (IFA), from 16 August 2021 until his resignation, with immediate effect, on 28 March 2025. The Claimant’s case is that he was unfairly constructively dismissed. He also brings claims for wrongful dismissal, holiday pay (accrued annual leave) and employer pension contributions.[2]In view of the dates of early conciliation (2 April – 9 June 2025), and the ET 1 having been filed on 6 August 2025, any act before 26 March 2025 is potentially out of time. The effective date of termination being 28 March 2025 means the claim has been brought in time. The Claimant relies on a course of conduct which, if established, will serve to bring earlier events into the claim.[3]The Claimant gave evidence at the hearing, and called a former colleague Ms Olivia Bowry. For the Respondent I heard from Ms Emma Maitland, the daughter of Mr Ian Maitland, the business owner, and her partner, Mr Alan Cottman.[4]The issues to be determined, as agreed between the parties were: Constructive Unfair Dismissal[1]Did the Respondent breach the implied term of trust and confidence and without reasonable and proper cause, conduct itself in a manner likely to destroy or seriously damage the relationship of trust and confidence?[2]In particular, did the Respondent:a. Fail to deal reasonably with the Claimant’s request for a pay review in January - February 2025?b. Subject the Claimant to heavy criticism in telephone calls with his daughters, which included discussion on terminating the Claimant’s employment?c. Subject the Claimant to monitoring and/or surveillance, including: i. installation of CCTV without consultation; ii. checking his judicial (magistrate) duties; iii. monitoring attendance or movements;d. Subject the Claimant to verbal abuse and/or intimidating conduct during the meeting on 21 March 2025?e. Fail to properly investigate or respond to the Claimant’s grievance?f. Discuss the Claimant’s employment with third parties (including individuals not formally employed)?g. The Claimant’s job role was advertised at the time, further compounding his view that he was going to be dismissed.[3]If so, do those matters, taken individually and/or cumulatively (including any “last straw”), amount to a repudiatory breach of contract?[4]Did the Claimant resign in response to the Respondent’s conduct?[5]Alternatively, did the Claimant resign to avoid disciplinary action?[6]Was the resignation sufficiently prompt following the alleged “last straw” in March 2025? Wrongful Dismissal[7]Was the Claimant entitled to notice pay (3 weeks)? Unlawful Deductions / Holiday Pay / Pension[8]Is the Claimant entitled to:a. accrued but untaken holiday pay (approximately 11 days);b. employer pension contribution (£4627) for March 2025;c. employer pension contributions relating to accrued holiday?[9]Were any such sums unpaid; and unlawfully withheld by the Respondent? Contributory Fault / Polkey[10]Did the Claimant contribute to his dismissal by culpable conduct? ACAS Code[11]Did either party fail to comply with the ACAS Code on Disciplinary and Grievance Procedures?[12]If so, should any compensation be increased or reduced (up to 25%)? 5. Having heard oral evidence and reviewed the documentary evidence, I found the Claimant’s account to lack credibility in a number of respects, and to be wholly unreliable, and indeed dishonest in part. The reasons are set out below. Whilst I must make an assessment as to whether the Respondent breached the implied term of trust and confidence based on its conduct alone, aspects of the Claimant’s conduct during his employment, which were only discovered by the Respondent after termination, provide relevant background and context. 6. I found that the Respondent’s witnesses were genuine and provided honest recollections to the best of their abilities. There were some inaccuracies in the Grounds of Resistance drafted on their behalf. There had, I find, been a level of conflation of what was known (or not) at the time the Claimant’s employment terminated, and what was subsequently discovered when his computer was examined. It was suggested that the Respondent’s witnesses had been dishonest because of this, and, because of the wording in the Grounds of Resistance (GOR) which stated that family members, namely Ms Maitland and Mr Cottman, had initially given their services without payment, and later became paid employees/directors. Ms Maitland was not a director at the time the GOR were served, although she now is. When this was put to her, she accepted that it reads as though she was a director at the time the GOR were drafted. I take into account that she relied on Avensure, who provided HR and legal advice and produced the GOR. Mr Cottman was a paid employee at the time the GOR were drafted. 7. It is unfortunate that Mr Maitland, the owner of the Respondent company, whose conduct or decision-making is the basis of some of the allegations, did not provide a statement or attend to give evidence. I do not know what, if any, advice the Respondent was given in this respect, but I note that the written witness statements of the Respondent’s witnesses appeared to have been drafted without guidance. They were not headed professionally with the parties names and claim number, they far exceeded the word limit and contained much irrelevant information. They read as if they had been prepared by litigants in person. I infer that the Respondent did not receive the advice and guidance that represented parties generally benefit from. 8. Ms Maitland, when asked about her father’s absence, said that the issues between the Claimant and the Respondent company appeared to have arisen after she and her partner, Mr Cottman, became more involved in the running of the family business, so they thought they were best placed to provide witness evidence. I accepted this and I did not draw the inference that Ms Gyane invited, namely that Mr Maitland did not attend because he could not have honestly defended the allegations under oath. Rather, I considered that the Respondent did not appreciate the relevance of his attendance and that Ms Maitland and Mr Cottman considered that they could speak to what took place. 9. Having heard and considered all the oral and written evidence, alongside the submissions of the parties, I found the facts as follows: 10. The Claimant’s employment was, on the evidence presented, without issue prior to late January 2025. He had a hybrid working arrangement, which included some home working. His office was in an out-building on the Respondent’s farm. The Respondent had two small family businesses which were run from his home: a farming business and the financial business which employed the Claimant. 11. The Claimant has raised, with this claim, that the Respondent’s IT infrastructure, namely the Virtual Private Network (VPN) was poor and this impacted on his ability to work remotely. It was, at the hearing, common ground that in 2023 he had emailed, to his personal email, a document containing the names and contact details of many of the Respondent’s clients. That was not known to the Respondent until the Claimant’s computer was analysed after he left. It was considered a data breach and reported to the Information Commissioner’s Office (ICO). The Claimant had never raised with the Respondent any issues with the VPN/IT infrastructure during his employment and this is one example where his explanation for his actions was not plausible. I find that had the VPN been so unstable that the Claimant could not work remotely he would have reported that. Further, as a regulated professional he was, or should have been, aware of his duties with regard to data protection. Indeed, he was seemingly very well aware of his own rights, in view of the grievance and Subject Access Request he made on 21 March 2025, which I come to below. 12. The first matter that the Claimant raises is what he says was a failure by the Respondent to deal reasonably with his request for a pay review in January/February 2025. A meeting had been arranged for 31 January and in advance the Claimant had submitted a document justifying an increase to his salary. The Claimant said that he was told on the morning of the meeting that Ms Emma Maitland would attend. However, Ms Maitland’s evidence was that the Claimant had recorded this meeting in his diary as ‘Emma Meeting’. She provided a screenshot. She was not challenged on that. I accepted Ms Maitland’s evidence. I found her oral evidence reliable because it was consistent with contemporaneous documents, where available, and also because of the unchallenged background context she provided. This was that the Claimant and her father, a few weeks earlier, had together called her and they both asked her to support her father in dealing with an employee, Justin Travers, who was then managed out of the business.[13]It is apparent from the ‘Flock’ chat messages between staff that the Claimant had a sense of frustration with Justin; he had raised concerns with Mr Maitland about Justin over-taking annual leave, and informally, in the chat, had expressed concern about whether Mr Maitland would deal with him appropriately. Ms Maitland’s understanding from her father, after her involvement with Justin at the Claimant’s request, was that the Claimant was content for her to attend his appraisal/pay review meeting. I find that the Claimant was aware beforehand that she would attend, because he had recorded the appointment as ‘Emma Meeting’.[14]The Claimant did not object to Ms Maitland’s attendance at the time. He said in evidence that had he done so it may have influenced the outcome. His evidence was that he considered it inappropriate that someone with no formal role in the company was attending a meeting about his pay and performance. He did not, however, appear to have considered it inappropriate for Ms Maitland to have been involved just weeks previously regarding Justin. I found the Claimant’s position on this to be inconsistent.[15]The agreed evidence was that, prior to these matters, Ms Maitland had attended very few meetings, but there had been one in early 2024 about succession planning, which both she and the Claimant had attended. Ms Maitland’s evidence was that in the event of her father not being able to continue in the business, it would pass to her and her sister Laura Maitland. Ms Maitland’s evidence, which did not in any way appear to be disputed by the Claimant, was that in the event that her father stepped down, she and the Claimant would be working together. As to the pay review meeting, Ms Maitland checked with the Respondent’s advisers, Avensure, whether it would be appropriate for her to attend this meeting and had been informed that this is not unusual in a small family business.[16]Not only did the Claimant not raise, either at the time, or with Mr Maitland subsequently, any issue with Ms Maitland’s attendance, but he stated in evidence that it had been a good meeting. He came out with a good feeling that what would follow would be fair and reasonable. I find that this is inconsistent with the concerns he has subsequently articulated. Indeed, Ms Maitland’s unchallenged evidence was that the Claimant emailed her after the meeting and thanked her for her input. He sent her a second email about a marketing company that the Claimant wanted the business to pay for. I find that, at this time, contrary to his assertions subsequently, the Claimant had no concerns about the involvement of Ms Maitland in the business and had implicitly, if not explicitly, agreed to her involvement in his pay review.[17]The Claimant’s evidence, with regard to his pay review, was that he did not ask for a specific figure. This was inconsistent with the notes made at the time, handwritten on his proposal document, by Ms Maitland. She recorded that the Claimant was asking for his pay (including employer pension contributions) to increase to between £103,000 and £111,000. As there was a contemporaneous note, I preferred Ms Maitland’s evidence. It follows that I found the Claimant’s recollection unreliable.[18]Ms Maitland’s evidence was that this was a 40% increase. She said that she discussed this request with her father after the meeting. The Claimant had asked for a response by 7 February; he had said he needed to get back to head-hunters who were offering him other roles. Ms Maitland’s evidence was that she was in favour of giving the Claimant a pay increase, because of this threat to leave and because the Claimant had said that he had all the high value clients. However, her father, Mr Maitland, had said that the Claimant did not have all the high value clients. Mr Maitland had also said that the Claimant threatening to resign was nothing new. Ms Maitland, having looked into pay-rates considered that the Claimant’s pay was already above average for his experience.[19]The position of the Respondent was that the choice was between giving the Claimant a pay increase along the lines he had requested or hiring a new administrator. Mr Maitland’s decision was that the business needed another administrator. As such, the business could not afford to give the Claimant a pay rise.[20]There was a follow up meeting a week later on 7 February, the date set by the Claimant for a response. Ms Maitland did not attend. The Claimant’s evidence was that Mr Maitland entered the meeting and said words to the effect of “so what’s this all about”. The Claimant’s evidence was that his request was brushed off and Mr Maitland did not engage with the request. I do not accept the Claimant’s evidence here. I find that the Claimant was told that the increase he sought was not something that the business could afford at the time. This is because the Claimant accepted that Mr Maitland may have gone on to say that the business did not have the cash flow. Indeed, when later asked in evidence about Mr Maitland’s plan to recruit another IFA, the Claimant stated that in the discussion about his renumeration, he had been told that the issue with regard to his requested payrise was cashflow. Indeed, he further volunteered that Mr Maitland would informally share the company’s financial position with him, for example, commenting along the lines “we’ve just about got enough money to make payroll”. It follows that the Claimant was aware that in terms of the overall finances of the small company, what he was asking for was significant. I find that the Respondent did indeed engage with the Claimant’s request, and after consideration, decided that a pay rise was unaffordable and that this was communicated to the Claimant at the time.[21]The Claimant attended a CPD event on 6 February 2025. His evidence was that this led him to think about a call with a client about pensions the previous day, and he wanted to re-listen to the call. He explained that when selecting calls, the details that can be seen are the time, the date, the number from which the call originated (if inbound), or the employee’s extension if the call was outbound. His oral evidence was that he had been searching for a call he had made, i.e. an outbound call (although his statement said otherwise). It follows that the call would have shown his extension. The call he selected was dated 6 February, not 5th, and could not have shown his extension, because it was a call between Mr Maitland and his daughter, Laura, which he asserts involved a plot to remove him from the business. I do not find it plausible that the Claimant both selected the wrong date and picked a call that did not show his extension, if he was looking for a call he had made. I note that the Claimant’s statement says the call he was looking for was inbound (meaning that his extension would not have shown). I find that what he said orally is more likely to be accurate because it was within a general explanation of how the system worked and how he came to locate the call he did. In contrast, when writing his statement, he was able to take time to word it so as to try to avoid contradictions.[22]The evidence, after consultation with the Respondent’s IT provider, was that the system was set up so that employees could only access calls they received or made. I find that the Claimant was able to bypass this security measure. I find that as soon as he started listening to the call, the Claimant would have been aware it was not the call he had been looking for. The evidence of Ms Maitland was that the Claimant seemed to know about matters relating to other staff that he was not involved in. She gave an example of the Claimant knowing about an increase to pension contributions made for Justin Travers. I find he had such knowledge, as this was evidenced in ‘Flock’ messages between the Claimant and Olivia Bowry. On 2 September 24 the Claimant wrote “he [Ian Maitland] was questioning how I knew about JT’s pension too”.[23]I find that the Claimant listened to calls that did not involve him, and this was what he knew he was doing on 6 February 2025.[24]The Claimant did not, during or in the aftermath of his employment, raise with the Respondent, including when making his grievance or his Subject Access Request (SAR), the existence of, or his concern about, this call. He made a SAR for all calls referencing him. If the call of 6 February referenced him, he would have been expecting this call to be provided.[25]The ICO was contacted by the Claimant as he was dissatisfied with the time the Respondent was taking to respond to his SAR. Not all of that correspondence, nor the details of precisely what was disclosed in response to the SAR, were included in the Tribunal bundle. This was not necessary, however, it is relevant here because I must make clear that my findings are based on the limited information available, including correspondence that the Tribunal was sent in relation to the Claimant’s subsequent application for specific disclosure.[26]The ICO had been satisfied, by early January 2026, that the Respondent had complied with its disclosure obligations. The Claimant was sent a letter from the ICO on 9 January 2026 confirming this. I am satisfied that the Respondent believed that it had complied with its disclosure obligations in full. Indeed, the evidence of Ms Maitland, which I accepted, was that the Respondent, in September 2025 indicated to the Claimant that it considered it had disclosed everything requested, but if the Claimant disagreed, he should inform the Respondent accordingly. No reply was received. This was an invitation to the Claimant to request this call, and he chose to ignore it.[27]The Respondent is a small business and did not have the resource to review all calls. It therefore outsourced the work to its solicitors who reviewed calls, correspondence, emails, and all relevant data held in relation to the Claimant. It had not been feasible to review every inbound and outbound call. Certain extensions were focussed on, including that of Mr Maitland. I find that if there had been a call in which Mr Maitland had discussed the Claimant, that would have been identified by the solicitors and disclosed.[28]After disclosure had taken place, the Claimant for the first time requested the call he says he listened to on 6 February 2025.[29]The Respondent having re-checked its records says that there was a call between Mr Maitland and Laura Maitland on 6 February 2025. I find that it is likely this was reviewed, but not disclosed, because it did not relate to the Claimant. Ms Maitland’s evidence, which I accepted, was that her father had no concerns with the Claimant at the time. She therefore was very confused by the alleged content of this call.[30]Further, if there was a call in which the Claimant heard what he now asserts, namely a plot to remove him, it would be expected that he would have made a more complete record of it, not least so that he could be precise, should he decide to rely on it at a later date.[31]The Claimant’s note of the alleged call opens with: “Oh yes do you see we’re setting up Toby to give him the chop”. It provides no reference to anything said prior to this or by Laura Maitland and is limited to a handful of phrases which he asserts were said by Mr Maitland including: “He is. But do you see how we’ve got to set him up” and “Do you see the game and we record all these things” However, we only have the Claimant’s evidence for the content of the call. I do not find the Claimant’s evidence reliable because: - He did not mention this call either before or after the termination of his employment; - He had not mentioned it to his solicitors by 26 July 2025 because, on that date, in correspondence to the Respondent’s solicitors, which sets out the matters relied on as breaches of the implied term of trust and confidence, under the heading: ‘Internal Plot to Remove Mr Evans’ the only reference is to a witness (who would appear to be Ms Bowry) overhearing senior personnel discussing a plan to remove the Claimant. - The Claimant was asked by the Respondent, when the SAR was responded to, whether he thought that anything was missing. He did not respond. If the call he now references existed, he would surely have requested it then, as he had filed his claim. - There was no reference in the Claimant’s Particulars of Claim to any call with Mr Maitland’s daughters. What is now allegation 2b in the agreed list of issues, was originally an allegation that the Respondent criticised the Claimant and plotted to terminate his employment with ostensibly unconnected third parties, Mr Maitland’s daughters and Mr Cottman. This would reflect the evidence of Ms Bowry. In contrast, the List of Issues, only provided to the Tribunal at the hearing, specifically makes reference to calls. No reference to calls was made in the Particulars of Claim, drafted by a barrister.[32]I find that the Claimant did not mention any such call to those advising him when he brought his claim. I further find that he had a good awareness of how the call recording system worked, because he was able to listen to calls that the IT provider had not given him access to. The Respondent’s evidence that calls are overwritten when the recording system has reached its data limit was not disputed. There was no suggestion that the Claimant was not aware that this had been the case.[33]It follows that the Claimant was also aware that if he delayed before requesting a specific call, it would not be available, because it would have been overwritten. This, I find, explains why the matter was not raised by the Claimant sooner. Ms Maitland’s evidence, which I have no reason to doubt, was that the first time the Respondent was aware of the Claimant’s position that there was a call allegedly about him on 6 February 2025 was when disclosure took place in January 2026. The Claimant, at that time, provided what he said were typed diary notes which he claims he made at the time of events.[34]I find that there was no call along the lines that the Claimant now alleges, and he has made it up because he knew that the Respondent would not be able to provide a call recording from over a year previously by the date it was first requested, 12 March 2026. The Claimant may well have listened to a call between Mr Maitland and his daughter Laura, which the Respondent accepts took place on that date, but I find that he has lied about the content. Whilst neither Mr Maitland nor Laura Maitland produced witness statements, or gave evidence, the matter had been discussed with Ms Emma Maitland. Her evidence was that neither her father nor her sister had any specific recollection of the call, which is entirely understandable as they were not asked about it until a year later. Ms Maitland’s evidence was that her sister was going through a messy divorce at the time, and further she had extremely limited involvement in the business (far less involvement than Ms Emma Maitland herself). As such, I find that the call was personal and was about Laura’s divorce. There was no evidence that Mr Maitland discussed the business with Laura. The Claimant does not assert she had any involvement in the business. Therefore, it is highly unlikely that in a personal call, at a time when Laura was pre-occupied with her divorce, Mr Maitland would start talking about plans to get rid of a staff member.[35]I find that the Claimant has, relatively recently, made up this allegation in view of the fact that there was no mention of it, even in his Particulars of Claim, and such a call, if it took place as the Claimant asserts, would have been a serious breach of trust and confidence. It would be at the forefront of his mind when bringing a constructive dismissal claim. It is inconceivable that the Claimant forgot to mention this to his solicitor either in instructions, or when reviewing the draft Particulars of Claim prior to filing, particularly if, as he says, he had made a contemporaneous note.[36]As to what he says were his diary notes, it is particularly strange that in relation to other dates, simply set out an event. However, in relation to this call, the Claimant, in his ‘contemporaneous note’, gives a prolonged introduction explaining why and how he accessed the call. This aspect I find, is inconsistent with a diary note to record an event. I find that the diary notes and the asserted content of this call, have been concocted much more recently. This is the only plausible explanation for the Claimant’s failure to mention it, not only to the Respondent, but to his legal team, until a few months before the tribunal hearing.[37]The Claimant has made much of the unavailability of the call between Mr Maitland and Laura since his request for specific disclosure in March 2026. However, I find that he did not in fact want the private call he listened to, disclosed, because if, as is now the case, it were not available, then there would only be his word as to its content. In contrast, if the actual call were located and disclosed, it would not corroborate the Claimant’s version of events and he would be unable to pursue this allegation. I find that there was no call involving Mr Maitland on 6 February 2025 in which he discussed terminating the Claimant’s employment.[38]As to other conversations, Ms Bowry’s evidence was that she frequently overheard conversations that took place in Mr Maitland’s office because it was directly above where she worked. She says she overheard conversations on 24 March 2025, mainly with Emma Maitland, which included discussions about ending the Claimant’s employment. By that date, the parties were working on a settlement agreement and I find that the conversations, of which no detail is provided, were in that context. It is not disputed that there were discussions about a mutual agreement to terminate the Claimant’s employment on that date. I do not find that there was any prior ‘plot’ to terminate the Claimant’s employment.[39]On around 7 March 2025 the Respondent advertised for another IFA. The advert was very similar to, if not the same as, the one that the Claimant had responded to which led to his employment. The Claimant says that this is evidence of a plan to replace him. He did not accept that the Respondent may simply have wished to recruit an additional IFA. Ms Maitland’s evidence was that the company hoped to recruit someone who would bring their own client base, and hence would not be a significant cost to the business. I did not find this inconsistent with the Respondent’s position that it could not afford to give the Claimant the large pay increase he sought.[40]In March 2025 the Respondent decided to install a CCTV camera to cover the entrance to the site, which included the Respondent’s home. It captured the car park used by the business. The building the Claimant worked from was separate from the main building that also contained offices.[41]The CCTV camera was installed above the entrance to the Claimant’s office. He said it had been positioned there to capture his movements. He was concerned that he was not consulted.[42]Mr Cottman installed the CCTV. His evidence was that the camera was placed on the building the Claimant worked from so as to cover the main entrance and the main farm assets, including a tractor. It would record people coming into and leaving the car park. It was not focussed on the Claimant’s office and did not capture his office door. The purpose of the camera was crime prevention. It had nothing to do with any alleged monitoring of the Claimant.[43]Mr Cottman’s evidence was he only really started to become involved in the Respondent’s business in December 2024. He took up a formalised role in March 2025 and on 5 March emailed all staff to inform them. He does not recall getting any questions about that, and nothing was raised by the Claimant.[44]The Claimant’s evidence was that he was told by a colleague, Harry Donoghue, on 20 March 2025, that Harry had heard a conversation between Mr Maitland and Mr Cottman in which Mr Cottman said he was planning to install a camera above the ‘cabin’ (the building where the Claimant’s office was situated) in order to monitor the Claimant’s arrival and departure times. There was a written statement in the bundle to this effect from Mr Donoghue, although he was not called to give evidence. No reason for his absence was given.[45]Mr Cottman gave evidence that no such conversation took place. The Claimant has not satisfied me, on the balance of probabilities that there was such a conversation in which words along these lines were said, because I have found Mr Cottman to be a more reliable witness than the Claimant, and because Mr Donoghue’s evidence in relation to a conversation he was not involved in but overheard, and hence may have misheard, could not be tested at the hearing. The difference between Mr Donoghue’s absence and the absence of Mr Maitland, is that Ms Maitland gave evidence that she, at the time, discussed the matters alleged against her father with him.[46]The Claimant’s oral evidence was that after speaking to Mr Donoghue, he was concerned and raised the matter with Mr Maitland who said words to the effect of “After the Justin saga we need to keep tabs”. This was not referenced in the Claimant’s statement or elsewhere prior to the hearing. It was disputed by the Respondent, but Mr Maitland did not give evidence. I find the Claimant’s account of the conversation with Mr Maitland unreliable because he did not give any detail of it prior to the hearing and because I have found that he made up another conversation involving Mr Maitland. My earlier findings demonstrate that he is an unreliable witness, particularly when it comes to conversations involving Mr Maitland. Further, it is somewhat exaggerated to suggest that his employer would install a CCTV camera specifically to monitor his movements and implausible that Mr Maitland would have readily admitted to doing so.[47]The evidence of Mr Cottman was that there had been concerns about the Claimant’s annual leave and/or sickness and/or time off in lieu (TOIL) when overtime had been worked. Mr Cottman had had a conversation about that with the Claimant on 11 March 2025. I find that the Claimant having been put on notice of these concerns led him to allege he was being monitored. However, I find no evidence to support the Claimant’s assertion. I do not find that the timing of the installation of the CCTV was anything other than co-incidental. The timing is explained by Mr Cottman’s very recent appointment to his role in the business, and his view that security was lacking. The fact that the camera did not capture the Claimant’s entrance door, and did capture everyone entering and leaving the site leads me to conclude that the purpose was site security, and not monitoring the Claimant.[48]The Respondent was, at the time, changing its website provider. The Claimant had previously been involved in the company’s website, and had been copied into an email from the previous provider about terminating the service. Mr Cottman overheard a conversation between two staff members, Olivia Bowry and her colleague Sue, about the new provider. They were also speaking in a derogatory manner about Mr Maitland, commenting along the lines that if you pay for shit you get shit. Mr Cottman considered that the Claimant must have informed them of the change in provider. An ad-hoc meeting was called in which it was put to the Claimant that he had informed other staff about the new website.[49]Mr Cottman’s evidence was that the Claimant initially denied having read the web-provider’s email and then, when challenged, had said he did not understand it. Mr Cottman considered that this could not have been the case, as the Claimant is an intelligent man and had previously managed the website. Mr Cottman therefore spoke bluntly to the Claimant saying “you’re not a fucking idiot”. The Claimant responded by asking Mr Cottman not to swear. The Claimant also alleges that Mr Cottman called him a ‘fucking dick’. This was disputed by Mr Cottman. The Claimant gave no context as to what he says led to that further comment. The context of the admitted swearing was plausibly explained by Mr Cottman. I accepted Mr Cottman’s evidence that he swore once. I do not find that he acted aggressively or slapped the table, as asserted by the Claimant, in light of my findings above as to the witnesses’ respective reliability. I preferred the evidence of Mr Cottman.[50]The Claimant’s evidence was that he had not discussed the new website with anyone and he was not involved in it. Whilst Ms Bowry denied, in the meeting, having knowledge of the new website, I find Mr Cottman’s evidence as to what he heard more reliable, as no meeting would have been called had he not been concerned about what he heard in the conversation between the two women, conducted via loudspeaker, with Sue working from home.[51]There was, however, undisputed evidence that Ms Bowry heard many of Mr Maitland’s conversations. Mr Cottman accepted in evidence that Ms Bowry may have found out about the new web provider from overhearing a conversation involving Mr Maitland. What she knew and how she knew, however, is not relevant here. The issue is that the Claimant claims that he found Mr Cottman’s conduct, in swearing at him, and he says, slapping the desk, intimidating.[52]The evidence was that swearing was commonplace within this workplace. The evidence included a significant volume of internal messages between the Claimant and Ms Bowry in which they both used such language. Further, the Claimant admitted that he swore in the meeting of 31 January, albeit not at any person.[53]His response to the language used on this occasion, namely asking Mr Cottman not to use such language, I find to be inconsistent with the Claimant feeling intimidated, particularly in an environment where swearing was commonplace. If the Claimant genuinely felt intimidated, he is unlikely to have made a direct challenge at the time. I find that the Claimant is exaggerating how he felt. I note that in an undated letter from the Claimant to Mr Maitland, shortly after his resignation, the Claimant referenced this meeting and said he feared for his safety. He no longer says this, and hence his evidence is inconsistent. It, however, serves to show that he does exaggerate, albeit that the level of exaggeration has, on this occasion, somewhat decreased.[54]When going into the meeting on 21 March the Claimant handed Mr Maitland an envelope which was opened later. This was a grievance. The Claimant’s grievance related to how his personal data was being used and processed by the Respondent. He said he believed the Respondent was in breach of data protection legislation, but was vague as to what he said the Respondent should not have done. He referenced unauthorised processing, beyond what he had consented to, without stating what he considered to have been unauthorised. He referenced sharing with third parties, without stating who he believed those third parties to be. He requested a formal investigation, carried out by an independent third party. He appended a SAR, in which he requested all personal data held by the Respondent, as well as all emails (save those he had sent), calls and video footage where his name was mentioned.[55]Ms Maitland’s evidence was that, at around this time, she and her father started to have some concerns about their ability to trust the Claimant. These had been prompted by realising that articles he was writing for a local monthly magazine to advertise the Respondent’s business, and which had been approved and paid for by her father on that basis, contained a QR code which, instead of directing the reader to the Respondent’s website, took readers to the Claimant’s personal LinkedIn Account. The Claimant’s position on that was that the text referenced where he could be contacted. However, in the context that the articles were written, specifically relating to his position as an employee of the Respondent, I find that the Respondent reasonably expected that the QR code would link to its business.[56]That concern, combined with the concern about the Claimant discussing the new web-provider in a negative way with other staff, led to Ms Maitland contacting the Respondent’s HR advisors, Avensure. Avensure’s view was the Respondent may wish to explore a settlement agreement, a mutual agreement which would bring the Claimant’s employment to an end.[57]On 25 March 2025 the Claimant, who sits as a magistrate, received an email from the Court Service to say that they had received a request from his employer to confirm his 2024 sitting days. The Claimant was asked, in the email, to provide his employer with sitting dates going forward. He was also asked to confirm that he had no objection to confirmation of his 2024 sittings being provided to his employer.[58]Mr Cottman gave evidence that he had contacted the Court Service over the weekend on 23 March in the context of a request from HRMC, which was conducting an investigation into the Respondent’s businesses. He said HMRC was asking for lots of very specific evidence, and giving tight timescales for responses. This led him to email the Court Service directly, as the Claimant had annual leave booked the following week. The Claimant’s evidence was that he had put his sitting days into the company calendar. However, he had not provided evidence (nor had he been asked to). Mr Cottman, accepted he could have asked the Claimant for evidence of the dates. He did not think to do so at the time.[59]I find that the Claimant agreed to the dates being provided to the Respondent, as the email to him from the court service asks for confirmation that there is no objection, and the dates were supplied. I find that it is not unreasonable for an employer to seek evidence of dates on which an employee is paid to perform voluntary services for the community. The Respondent’s explanation as to why the Claimant was not asked in the first instance, namely that there was a HMRC investigation and associated time pressure, was not in dispute.[60]As the Claimant had been unable to stay at work on Friday 21 March to have an initial conversation about a settlement agreement, a meeting was held on Monday 24 March. The Claimant arrived prepared, and gave the Respondent a proposal, which included a list of clients he wished to take with him. That was not agreeable to the Respondent, which was not prepared to negotiate the terms of the restrictive covenant in place, which prevented the Claimant from working with any of the company’s clients for 6 months after the termination of his employment. An agreement was not reached that day. The Claimant then had some annual leave booked. He said he needed the matter to be wrapped up by 31 March.[61]It follows that whatever conversations may have been heard by Ms Bowry on 24 March related to the Respondent putting together a settlement proposal which would end the Claimant’s employment by mutual agreement.[62]The Respondent worked on a settlement proposal over the following days when the Claimant was on holiday. However, their proposal could not be put to the Claimant as he resigned without notice on 28 March 2025. He had not returned from annual leave in the meantime. In his resignation letter the Claimant stated that recent events had fundamentally undermined the trust and confidence which should exist between employer and employee. He went on to reference unspecified breaches relating to his personal data, the Respondent contacting the judiciary to verify whether he had performed his civic duties, and his movements being tracked, which he wanted to raise as a further formal grievance.[63]Mr Maitland emailed a letter in response the same day. He said he had been surprised to receive the resignation and considered that the Claimant may have reached the decision in the heat of the moment. He asked the Claimant to reconsider his decision. He went on to invite the Claimant to a grievance meeting on 8 April to discuss both grievances. The meeting would be chaired by Ms Maitland and attended by him. His daughter Laura would take notes. The Claimant was informed of his right to be accompanied and to provide any documents he wished to rely on in support of his grievance.[64]The Claimant replied in an undated letter saying that he would not reconsider his resignation and considered that he had been constructively dismissed. The Respondent confirmed acceptance of his resignation on 10 April 2025.[65]It was not in dispute that the Claimant had a period of annual leave booked which included 8 April, the date of the proposed grievance meeting. I accepted Ms Maitland’s evidence that she was unaware as to whether the Claimant was going to be away, or just taking time off work. The Claimant has said he was on a cruise with limited ability to make contact. Ms Maitland’s evidence was that the advice the Respondent had received was to offer a meeting within a short timeperiod, to demonstrate that they were dealing with the grievance, and the Claimant could suggest an alternative date if he was unable to attend.[66]The Claimant submitted a further grievance on 3 April, which was not received at the time as it was filtered into the Respondent’s junk emails. The company had increased its filtering sensitivity due to receipt of a high volume of emails. After the Claimant re-sent it on 22 April 2025 Mr Maitland acknowledged it on 26 April. On 29 April Mr Maitland suggested that, notwithstanding the Claimant’s assertion of constructive dismissal, the most constructive way forward would be to proceed with a formal grievance meeting. That would allow his concerns to be heard and addressed. The Respondent wished to resolve matters professionally and fairly.[67]The Claimant did not engage with the Respondent’s requests to meet to discuss his grievances. He now says that this was because they needed to be investigated by someone independent of the business, given that the third parties he complained his data had been shared with were family members. However, the identity of the third parties is not at all apparent on an objective reading of the Claimant’s grievance.[68]It subsequently transpired that the Claimant, prior to leaving his employment, had registered a financial services company with Companies House, Toby Evans Financial Planning Limited. He did not make the Respondent aware of that at the time. The date of incorporation was 17 March 2025, some 11 days before his resignation. The Claimant’s evidence was that he did not register with the Financial Conduct Authority until May 2025 and could not trade without such registration. His explanation for the timing of setting up the company was that there was another registered IFA with the same name as him.[69]After both parties had engaged legal representation, the Claimant says he was notified via solicitors that the Respondent’s QR code, which had been displayed in its meeting room during his employment (and continued to be so displayed) was directing clients to his company. He was asked for an explanation. His evidence on this point was that he had been provided with a metallic business card by the Respondent, which had his name on one side, and a QR code on the other. After he had set up his own business, he redirected the QR code to his website. His evidence was that he did not realise that the QR code on his metallic card was the same as the QR code in the Respondent’s meeting room. I did not accept his evidence here because I did not find it plausible that the Claimant believed that the Respondent’s small business, would have different QR codes in its meeting room and on business cards, when both took people to its website. This finding is supported by the Claimant, whilst employed, having sought to have clients make contact with him directly, via a different QR code, to his LinkedIn profile. The Claimant’s technical abilities in changing the destination of the QR code lead me to conclude that he was fully aware of what he was doing.[70]The Respondent’s evidence was that it lost a significant number of clients after the Claimant’s departure. The Claimant accepted in evidence that a number of such clients are now his clients. There was evidence in the bundle of the Claimant making direct email contact with former clients as soon as the 6 month restriction on him contacting former clients had elapsed.
Law
[71]Under section 95(1)(c) of the Employment Rights Act 1996 (“the Act”), an employee is dismissed if he terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.[72]If the claimant’s resignation can be construed to be a dismissal then the issue of the fairness or otherwise of that dismissal is governed by section 98(4) of the Act which provides “…. the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and –(b) shall be determined in accordance with equity and the substantial merits of the case”.[73]The best known summary of the applicable test for a claim of constructive unfair dismissal was provided by Lord Denning MR in Western Excavating (ECC) Limited v Sharp [1978] IRLR 27: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment; or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract; then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of his employer’s conduct. He is constructively dismissed. The employee is entitled in these circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract.”[74]In Tullett Prebon PLC and Ors v BGC Brokers LP and Ors [2011] EWCA Civ 131 Maurice Kay LJ endorsed the following legal test at paragraph 20: “… whether, looking at all the circumstances objectively, that is from the perspective of a reasonable person in the position of the innocent party, the contract breaker has clearly shown an intention to abandon and altogether refuse to perform the contract.”[75]The accepted authority on what amounts to a breach of the implied term of trust and confidence is that set out in Malik v Bank of Credit and Commerce International SA (in compulsory liquidation) 1997 ICR 606, HL, where their Lordships concluded that there was an implied contractual term that an employer “will not, without reasonable and proper cause, conduct his business in a manner likely to destroy or seriously damage the relationship of trust and confidence between employer and employee”.[76]As to whether there has been a breach, Mr Justice Browne-Wilkinson in Woods v WM Car Services (Peterborough) Ltd 1981 ICR 666, EAT put it in the following way: “[T]he tribunal’s function is to look at the employer’s conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it”.[77]It follows that there must be a causal link between the employer’s breach and the employee’s resignation; the employee must have resigned because of the employer’s breach and not for some other reason. It is a factual question: what was the reason for the resignation?[78]The Court of Appeal in Lewis v Motorworld Garages Ltd 1986 ICR 157, CA, held that a course of conduct can cumulatively amount to a fundamental breach of contract entitling an employee to resign and claim constructive dismissal following a ‘last straw’ incident even though that incident by itself does not amount to a breach of contract. In Omilaju v Waltham Forest London Borough Council 2005 ICR 481, CA, Lord Justice Dyson considered that the last straw does not have to be of the same character as the earlier acts in the series, but it must contribute something to the series of acts which are said to amount to a breach of trust and confidence. An entirely innocuous act cannot be a final straw. The test as to whether the employee’s confidence has been undermined is an objective one.[79]Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978, is authority for the proposition that, if the last straw incident is part of a course of conduct that cumulatively amounts to a breach of the implied term of trust and confidence, it does not matter that the employee had affirmed the contract by continuing to work after previous incidents which formed part of the same course of conduct.[80]The court in Kaur suggested that Tribunals ask themselves the following questions:(i) What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation?(ii) Has he or she affirmed the contract since that act?(iii) If not, was that act (or omission) by itself a repudiatory breach of contract?(iv) If not, was it nevertheless a part of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a repudiatory breach of trust and confidence?(v) Did the employee resign in response (or partly in response) to that breach?[81]In addition, it is clear from Leeds Dental Team v Rose EAT0016/13 that whether or not behaviour is said to be calculated or likely to destroy or seriously damage the trust and confidence between the parties is to be objectively assessed, and does not turn on the subjective view of the employee.[82]Where the Claimant is said to be in fundamental breach of contract at the time of the Respondent’s breach, the question of whether he can claim constructive dismissal was dealt with in Tullett Prebon PLC and Ors v BGC Brokers LP and Ors [2011] EWCA Civ 131. The Court of Appeal did not accept the proposition set out by the High Court in RDF Media Group plc and Anor v Clements [2007] EWHC 289 that where an employee is in repudiatory breach he or she could not accept a breach by the employer bringing the contract to an end. Jack J decided that the employee’s breach is just one of the factors relevant to the question whether the employer has breached trust and confidence to the extent required to found a constructive dismissal claim. In Atkinson v Community Gateway Association EAT, UKEAT/0457/12/BA 2014, the EAT adopted the Scottish position set out in McNeill v Aberdeen City Council (No.2) [2014] IRLR 113 CS, namely that the obligation of trust and confidence, which lies upon each party to a contract of employment, is not suspended or put in abeyance because one party has broken that obligation. Thus, if one party commits a fundamental or repudiatory breach and the other does not accept it, whether through ignorance of the breach or otherwise, the contract continues. However, the EAT noted that in the context of an unfair dismissal claim the employee's breach would be relevant to compensation and might lead to a reduction of 100% if the employer can show that the employee’s breach would have led to a fair dismissal. Application of law to the facts Constructive Dismissal[83]The Claimant relies on a course of conduct and said in evidence that the last straw was the Respondent’s failure to revert to him with a settlement proposal by his deadline of 26 March. He said this compounded everything else and was the final straw.[84]Ms Maitland’s evidence, which I accepted as I found her a reliable witness for the reasons already given, was that the Claimant’s settlement proposal had been detailed and that the Respondent wished to seek advice. She had made the Claimant aware that it was unlikely that the Respondent would be in a position to revert within the Claimant’s requested timescale of two days.[85]I do not find that the Respondent’s failure to revert with its proposed terms of settlement within two days, was a breach of trust and confidence, particularly in circumstances where the Claimant had been aware that this was unlikely. The Respondent was seeking to work with the Claimant to produce mutually acceptable terms that would end his employment. I find that this was an entirely innocuous omission, and indeed, was to be expected. The Respondent had been the party to suggest a settlement agreement, and had moved quickly to arrange a first meeting.[86]This last straw which the Claimant relies on therefore cannot be considered to be part of a course of conduct. I do not find that objectively, it was of a nature calculated or likely to destroy trust and confidence, because it was no more than a failure to meet the Claimant’s unreasonable expectations, which the Respondent had tried to manage.[87]Where the cited last straw was not in fact a last straw, in line with Williams v Governing Body of Alderman Davies Church in Wales Primary School 2020 IRLR 589, EAT, a claimant can nevertheless succeed an a claim for constructive dismissal if there had, prior to that, been a course of conduct which cumulatively amounted to a repudiatory breach.[88]I will therefore consider the earlier alleged breaches.[89]I did not find that the Respondent failed to deal reasonably with the Claimant’s request for a pay review in January/February 2025. I find that the Respondent did engage with the request in that two meetings were held. The Claimant, was given the understanding that the reason the rise could not be agreed was affordability or cashflow. Whilst this would undoubtedly have been a disappointment for the Claimant, there was reasonable and proper cause for the Respondent rejecting his request. As such, this was not a breach of the implied term of trust and confidence.[90]As to the alleged criticism in calls and alleged plots to remove the Claimant, I have found as a fact that there was no such call on 6 February 2025. This leaves the only other calls or conversations overheard by Ms Bowry. The Claimant did not rely on any other specific calls. Whatever Ms Bowey may have overheard took place on 24 March, when the parties were looking to negotiate a settlement agreement. She was vague as to what she heard. She could only say she heard discussions about ending the Claimant’s employment. In the circumstances, a settlement proposal having been provided by the Claimant, conversations about his termination could not amount to a breach of the implied term. There was reasonable and proper cause for those conversations. The Claimant has not proved that conversations took place prior to 24 March 2025 about the termination of his employment. There was no breach of the implied term of trust and confidence.[91]The Claimant next relies on the installation of CCTV. He states no basis upon which he says the Respondent had a duty to consult him, and I find that there was no such duty. The Respondent has a right to protect its property. I have found as a fact that the camera was not installed to monitor the Claimant. It did not capture the door to the building from which he worked. As the Claimant has failed to prove facts that could amount to monitoring of his movements, or an intention thereof, it follows that there was no breach of the implied term.[92]As to the Respondent confirming the Claimant’s magistrate sitting dates with the Court Service, I have accepted the Respondent’s explanation as to why the Court Service was contacted. I do not find that this was with a view to monitoring the Claimant; it was to respond to HMRC. The contact was not made because the Respondent did not trust that the Claimant had been performing those duties. Whatever the Claimant’s subjective view, the test is an objective one; whether an objective person in the Claimant’s position, who had not provided evidence of sitting days, but marked them on a calendar which was overwritten each year, would consider that a request to the Court Service, breached the implied term of trust and confidence. I am satisfied that if evidence had been provided by the Claimant, no enquiry would have been made. Mr Cottman accepted that the Claimant could have been asked to provide evidence, but seemingly he thought it would be quicker to contact the Court Service. There was certainly no intention that this act would breach trust and confidence. As to whether it was objectively likely to do so, when the reason was explained, combined with the fact that at no time had the Claimant provided evidence, I do not find that an objective person in the Claimant’s position would have considered that the act of Mr Cottman demonstrated a lack of trust. It was an administrative short-cut in circumstances where the Respondent had reasonable and proper cause for making the enquiry (to respond quickly to HMRC). I do not find that this enquiry was of a nature calculated or likely to destroy or seriously damage mutual trust and confidence.[93]With regard to the 21 March meeting, the Claimant’s case is that he was subjected to verbal abuse and/or intimidating conduct. I have found that the Claimant was not subjected to language which was materially different to that which he has admitted to using. I say materially, as the Claimant’s position was that he did not direct such language towards particular people, and indeed, there was no evidence that he did so. I find that the words used and admitted by Mr Cottman, objectively were capable of amounting to verbal abuse. For the reasons above, I do not find that the Claimant was intimidated. I do not find that this was more than the Claimant could sensibly be expected to put up with, as similar language was frequently used by him, including in the meeting with Mr Maitland on 31 January 2025. Here, the language was directed at him out of frustration because he had denied understanding a simple email. Had the language been limited to “you’re not an idiot”, that would have fallen far short of a breach of implied trust and confidence. The swear word added little to the sentiment, in an environment where that language was by all accounts, commonplace. It was not so serious as to breach mutual trust and confidence.[94]As to the asserted failure to investigate or respond to the Claimant’s grievance, the Respondent was not given opportunity to do so whilst he was employed. The Claimant was on annual leave from 25 March 2025 and did not return to work before he resigned on 28 March. The grievance was made on Friday 21 March. On 24 March the parties were seeking to negotiate a settlement agreement. The Claimant was not available for an investigation meeting, due to annual leave, prior to his resignation. After his resignation the Respondent made clear its wish to hold a meeting to fully understand the grievance, which was a necessary first step due to the lack of specificity in the allegations. However, the contract had by then been terminated. Any breach of trust and confidence causing or contributing to resignation must, by definition, have occurred during the currency of the employment relationship. There was no failure to investigate, and in turn respond, during the Claimant’s employment as there was simply no opportunity. The Claimant chose to resign before investigation was feasible.[95]The Claimant’s next allegation is that his employment was discussed with third parties. The Claimant, for the purpose of his claim, regards Ms Emma Maitland and Mr Cottman as third parties. It is unclear whether he considers that his employment was discussed with Laura Maitland, given that he did not hear a call with her where he was discussed. I find that there was no discussion about the Claimant with Laura, no evidence, other than that which I have wholly rejected, having been provided.[96]I have found as a fact in early 2025, the Claimant was in agreement with Ms Emma Maitland attending his pay review, and indeed, the evidence was that he was in agreement with her supporting her father in running the business. He expected Ms Maitland to attend his pay review (he had diarised it as ‘Emma meeting’), raised no objection at the time and the evidence from the emails in the immediate aftermath leads me to infer that he consented to her attendance. As such, I do not find that Mr Maitland discussing matters relating to him with Ms Maitland was in any way a breach of trust and confidence.[97]Mr Cottman was, by the time of his interactions with the Claimant that form allegations in this claim, employed by the Respondent. The evidence was that he became employed on around 5 March 2025. The first concern of the Claimant related to their conversation on around 11 March about his holiday, sickness and TOIL. As such, Mr Cottman was not a third party. His involvement, whilst viewed negatively by the Claimant, cannot objectively be said to have been a breach of trust and confidence.[98]Finally, I did not find as a fact that the Claimant’s job was advertised. Rather, I accepted the Respondent’s evidence that it was looking to recruit an additional IFA who could bring their own clients. There was no breach of trust and confidence by advertising for an additional staff member.[99]None of the matters relied on by the Claimant, in so far as they in fact took place, were individually such as to amount to a breach of the implied term of trust and confidence. Nor do I find that they did so cumulatively, because the Claimant’s interpretation differs significantly from the way such acts would be viewed by an objective person in his position. He has sought to create a narrative which bears no relation to the reality of the circumstances in which the events occurred. The verbal abuse is the only matter that the Claimant has proved factually which had the potential to be a breach. I have found that in the context of the language routinely used in the business, there was no breach. There was no failure to deal with the pay review, no criticism in calls, no monitoring or surveillance, no failure to investigate the grievance, no discussions with third parties and his job was not advertised. As such, there was no cumulative conduct, and indeed, I have found that the asserted last straw was an entirely innocuous act. There having been no repudiatory breach of contract by the Respondent, the Claimant’s complaint of constructive dismissal fails. He was not constructively dismissed. Wrongful dismissal[100]In view of my finding that the Claimant was not constructively dismissed, but chose to resign without notice, he has no entitlement to notice pay. Unlawful deductions/Holiday Pay/Pension[101]The Respondent’s evidence was that the leave year ran from 1 January to 31 December. It had changed since the Claimant signed his contract in 2021. This did not appear to be disputed. The Respondent calculated that the Claimant’s pro-rata holiday entitlement (1 January to 28 March) was 6 days. He had taken 2 days. The Respondent’s position was that he was paid for 2 further days as he was paid until the end of March 2025, having resigned on 28th. As such he was owed, and paid for, a further 2 days. Those 2 days were paid in April 2025.[102]The Claimant’s position was that he was owed 11 days holiday because he had carried over holiday. There was a screenshot of the HR system, which recorded 11 days left. This was where the Claimant’s figure came from. The text then read that 21 of 32 days had been used, and 31 days booked, for 2025/26. No-one was able to explain this. There was no suggestion from any party that the Claimant had used 21 days of his holiday in just three months. Further, had that been the case, the 11 days ‘left’, namely the difference between 21 and 32 days, would have been the holiday for the remainder of the leave year, not holiday outstanding in March 2025. The screenshot did not provide evidence that the claimant had 11 days holiday outstanding as at the end of March 2025.[103]The Claimant said he had carried over holiday, but there was no evidence of that or how much. He relied on the screenshot referenced, which I cannot accept as accurate evidence for the reasons in the paragraph above.[104]In the absence of the Claimant providing evidence of holiday taken and/or carried over, he has not proved that he had accrued leave upon termination that he was not paid for. There was no evidence of how much holiday the Claimant took in the previous leave year. In this circumstance, I have no option but to accept the Respondent’s evidence that the Claimant had accrued 6 days, taken 2, and was paid for his 4 outstanding holiday days on termination.[105]As to pension, the evidence was that the Claimant’s monthly pension contributions paid by the Respondent were paid at the beginning of the month to which they related. There was evidence of a payment at the beginning of March 2025. The Claimant’s position was that the contributions, paid a the beginning of each month related to the previous month. His position was that the March payment related to February. Ms Maitland’s evidence was that the pension contributions for each month were paid at the beginning of the month, so the Claimant had received his pension contribution for March. She gave evidence that the only way to confirm the position in the face of the Claimant’s dispute on the advance/arrears point, would be to get a full statement from the pension provider AJ Bell, going back to the start of the Claimant’s employment. That had been requested by the Respondent, but as the Claimant was no longer employed, AJ Bell had refused to send a full statement to the Respondent. Ms Maitland’s evidence, which was not challenged, was that the Claimant had been asked to contact the provider and request a full statement, but had not done so. Indeed, the statement in the bundle only went back as far as June 2025.[106]The burden is on the Claimant to prove his loss. As he was able to provide a full pension statement from the pension provider, which would have established the position, and has chosen not to do so, or provide any other evidence to establish that payments were made in arrears, as he asserts, I find that he has failed to prove that pension contributions were paid in arrears and consequently that there is a shortfall. I am satisfied that the Respondent has given a plausible explanation as to why they cannot provide evidence. As such, I find that the Claimant has failed to prove his claim and I cannot therefore make an award in respect of outstanding contributions.