Case No 1402556/2022Venue BRISTOLHearing 11 April 2023
Between
Mr O O’ConnorClaimantTendable LtdRespondent
Before
Employment Judge J BaxIn person for claimantDate 11 April 2023
JUDGMENT
[1]The Claimant was unfairly dismissed by the Respondent.[2]The complaint that the Claimant was subjected to detriment because he alleged that the Respondent infringed the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 was well founded. An agreed basic award of £1,713.00.[2]The agreed sum of £22,955.84 net in respect of loss of earnings.[3]The agreed sum of £2,354.15 gross in respect of loss of employer pension contributions.[4]The claim for a payment in respect of share options is dismissed. A total sum of £27,022.99. The Respondent shall pay the Claimant the following sums in respect of the claim of the detriment claim : 5. £7,000 in respect of injury to feelings.[6]Interest of £507.84 in respect of injury to feelings. A total sum of £7,507.84 Uplift for failing to follow the ACAS Code of Practice on disciplinary and Grievance Procedures 2015[7]The Respondent was in breach of the ACAS Code of Practice in respect of grievance procedures and it was just and equitable to increase the award to the Claimant by 10%[8]The total sums due to the Claimant (unfair dismissal and detriment) are £34,530.83 of which 10% is £3,453.08 and is added to the award making a total of £37,983.08. Grossing up and Recoupment[9]The total amount payable to the Claimant is £37,983.08[10]These figures are subject to grossing up.[11]The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 (“the Recoupment Regulations”) apply in this case. Part 2: Grossing up of taxable part of the award[12]By consent, the parties agreed that the awards should be grossed up as follows.[13]The loss of employer pension contributions was calculated gross of tax and is therefore not included in the calculation.[14]The total of the awards in respect of injury to feelings, associated interest, and loss of earnings is £35,628.93. The tax-free amount is £30,000. These are the taxable awards.[15]The taxable amount of the £35,628.93 is as follows: The total of the awards liable to taxation £35,628.93 Less the tax-free amount £30,000.00 Total amount of the award liable to taxation £5,628.93[16]The taxable amount needs to be grossed up to take into account 40% income tax. The gross figure of the taxable amount is £9,381.55 of which £3,752.62 is in respect of the income tax payable.[17]The total amount payable to the Claimant is as follows: £37,983.08 (awards for injury to feelings, interest thereon, loss of earnings, loss of pension contributions and ACAS uplift) + £3,752.62 (additional sum in respect of the taxable part) = £41,735.70 (after grossing up) to be paid by the Respondent to the Claimant
REASONS
[1]In this case the Claimant claimed that he had been unfairly dismissed and subjected to a detriment. The Respondent did not defend the claim in relation to liability but did in respect of remedy. The Claimant requested written reasons of the oral Judgment given on 11 April 2022.
Background
[2]The Claimant brought claims of automatically unfair dismissal, because he had been dismissed for asking for reasons for less favourable treatment due to his part-time worker status, and that he had been subjected to detriments because he had requested written statement of reasons for his less favourable treatment. Those detriments were refusing to allow him to return to work on 24th of May 2022, failing to progress his grievance dated 29th of April 2022 and failing to allow him to appeal against his grievance outcome. The Claimant had also said that his dismissal was a detriment, however it was accepted that a dismissal is specifically excluded as detriment under the Part-time Worker Regulations.[3]The parties agreed that the correct basic award was £1,713. It was further agreed that the Claimant’s loss of earnings was £22,955.84 net and his loss of pension contributions was £2,354.15 gross. Injury to feelings, loss of share options and ACAS uplift remained in dispute.
The evidence
[4]I heard from the Claimant, and from Mr Thornton on behalf of the Respondent. I was also provided with a bundle of 134 pages.
The facts
[5]I found the following facts proven on the balance of probabilities after considering the whole of the evidence, both oral and documentary, and after listening to the factual and legal submissions made by and on behalf of the respective parties.[6]The Respondent employed the Claimant from 1 October 2019 to 31 May 2022 as Chief Product Officer. The Claimant worked part-time from 1 January 2022.[7]The Claimant was offered a share option, to which he agreed on 1 October 2019. The Claimant’s contract of employment was amended to include clauses 5.2 to 5.4 of the Share Option agreement.[8]When the Claimant went part time, a negotiation took place as to his share options. The Respondent bought back a third of his share options at 50%, which it paid as a bonus. The Claimant relinquished a further third and retained the final third of the options. The Claimant then held 10,000 share options. The Claimant’s employment did not end. His pay was reduced to take into account his part time status and became £80,000 per annum.[9]The Share Option agreement in force at the time of the termination of the Claimant’s employment provided:5.1 The Optionholder and the Grantor which employs the Optionholder hereby agrees that clauses5.2 to 5.4 shall form part of the employment contract of the Optionholder and that the definitions in clauses 5.2 to 5.4 shall have the same meaning as in the Plan. 5.2 The Optionholder shall not form part of any past, current or future entitlement to remuneration or benefits which the Optionholder may have under any contract of employment with the Company or Group Company nor form part of any such contract of employment. Moreover, neither the Option nor the existence of such contract of employment between any person and the Company or any present or past Group Company shall give such person any right or expectation to have an Option granted to him in respect of any number of shares in the capital of the Company either subject to any condition or at all.5.3 The rights and obligations of the Optionholder under the terms of his office or employment with the Company or any other past or present Group Company shall not be affected by his participation in the Plan. In particular, no benefits under the Plan shall be pensionable.5.4 The Optionholder shall have no rights to seek equitable relief or to receive compensation or damages for any loss or potential loss which the Optionholder may suffer in connection with the Option or any rights or entitlements under the Plan which loss or potential loss arises in consequence of the Optionholder being unable to work or as a result of the loss or termination of his office or employment with the Company or any Group Company for any reason whatsoever and however that termination may be occasioned (including, without limitation, wrongful or unfair dismissal).[10]Appendix 1 provided that the exercise price was £1.22 per share. It further provided that appendix 2 set out how and when the option could be exercised.[11]Appendix 2 provided: 5. NATURE OF PARTICIPATION5.1 An Option shall not form part of any Eligible Employee’s or Optionholder’s entitlement to remuneration, benefits or entitlements pursuant to his contract of employment with any Group Company. Moreover, the existence of a contract of employment between any person and any present or past Group Company shall not give such person any right to have an Option granted to him in respect of any number of Shares either subject to any condition or at all.5.2 Except as otherwise provided for in this Rule 5, the rights and obligations of any Eligible Employee or an Optionholder under the terms of his office or employment with the Company or any other present or past Group Company shall not be affected by his participation in this Plan. In particular, no benefits under this Plan shall be pensionable.5.3 An Optionholder shall have no rights to seek equitable relief or to receive compensation or damages for any loss or potential loss which the Optionholder may suffer in connection with any Options or any rights or entitlements under the Plan which loss or potential loss arises in consequence of the loss or termination of his office or employment with any Group Company for any reason whatsoever and however that termination may be occasioned (including, without limitation, wrongful, unfair or otherwise unlawful termination). 7. EXERCISE EVENTS7.1 Subject to Rules 7.2, 7.3, 8, 11 and 13, an Option may be exercised in full:7.1.1 at any time after a Listing;7.1.2 for a period of 30 days following a Change of Control;7.1.3 after the Board serves notice on every Optionholder that a Change of Control is likely to occur or that the Company proposes to pass a resolution for voluntary winding up, but such exercise shall only take effect immediately prior to the Change of Control occurring or the passing of the resolution; by the court between the Company and its members under sections 895 to 901 of the Companies Act 2006 (power of company to compromise with creditors and members) and ending on the date it becomes7.1.4 during the period commencing immediately following the sanctioning of a compromise or arrangement by the court between the Company and its members under sections 895 to 901 of the Companies Act 2006 (power of company to compromise with creditors and members) and ending on the date it becomes effective;7.1.5 for a period of 30 days following an Asset Sale.7.2 If an Optionholder dies, his Option may only be exercised by his personal representatives, heirs or legatees on the happening of an event specified in Rule 7.1 but not otherwise and only to the extent Vested on the date of death.7.3 If any Optionholder ceases to be a director or employee of a Group Company:7.3.1 by reason of injury, disability or ill health his Option may only be exercised on the happening of an event specified in Rule 7.1 but not otherwise and only to the extent Vested on the date of cessation; and7.3.2 for a reason not specified in Rule 7.2 or 7.3.1, the Option may only be exercised on the happening of an event specified in Rule 7.1 and then only to the extent permitted (if any) by the Board or any other Grantor with the prior consent of the Board. 9. LAPSE OF OPTIONS 9.1 Subject to Rules 6 and 13, an Option shall lapse and cease to be exercisable on the earliest to occur of:9.1.1 the expiry of any period specified for exercise in Rule 7.1.2, 7.1.4 or 7.1.5 (or any extended period);9.1.2 immediately following a Change of Control or on the passing of a resolution if the Board has served a notice pursuant to Rule 7.1.3;9.1.3 the tenth anniversary of the Date of Grant;9.1.4 the first anniversary of the death of an Optionholder;9.1.5 immediately upon the Optionholder ceasing to be a director or employee of a Group Company in circumstances where Rules 7.2 or 7.3.1 do not apply and the Board has not exercised its discretion pursuant to Rule 7.3.2;[12]On 25 March 2022 the Claimant was advised that the Respondent had hired a replacement for his role and his services were required to hand over only.[13]The Claimant requested reasons for the decision, however none were provided.[14]On 26 April 2022 the Claimant began a period of absence from work due to stress and anxiety.[15]On 29 April 2022 the Claimant submitted a formal grievance in which he complained about being asked to move back to full-time and about the decision to replace him as chief financial officer.[16]He received informal response that he had been asked to return to work full-time and had not been replaced. He was not invited to a formal meeting to discuss the grievance.[17]On 11 May 2022, the Claimant sent a second formal letter of grievance.[18]The Claimant suggested that he returned to work from 24 May 2022, however the Respondent requested he remained away.[19]The Claimant’s employment was terminated on 31 May 2022 and he was paid in lieu of notice.[20]On 1 June 2022, the Claimant was sent the outcome of his grievance, which was partially upheld. He was not offered a right of appeal.[21]An event enabling the Claimant to exercise his share option had not occurred by the time of his dismissal. No such event had occurred by the time the Tribunal Hearing took place.[22]After termination of his employment, the Claimant applied for a large number of jobs.[23]The Claimant started a new job on 23 January 2023. He was paid 12 weeks’ pay in lieu of notice. He was therefore out of work for 21.86 weeks.[24]The Claimant valued the share options at £6.50 per share, as of 31 May 2022. This was based on the agreement to buy back some of the share options in December 2021, which he formally entered into in January 2022. I accepted the evidence of Mr Thornton that the apparent increased value to £8.09 related to preferential A shares and not ordinary shares, to which the options attached. The investors were investing to protect their investments and were trying to refinance the Respondent.[25]I accepted the Claimant’s evidence that he had worked hard for the Respondent and had been part of the reason for growth of the company. I also accepted that the way in which his grievance had been handled and not allowing him to return significantly affected his confidence and that he worked hard to find a new job because he had a family to support and a mortgage to pay. I accepted that the events had caused him stress and difficulties at home.
The law
[26]I considered section 98 (4) of the Employment Rights Act 1996 (“ERA”). I also considered section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992, and in particular section 207A(2), (referred to as “s. 207A(2)”) and the ACAS Code of Practice 1 on Disciplinary and Grievance Procedures 2015 (“the ACAS Code”).[27]Compensation for unfair dismissal is dealt with in sections 118 to 126 ERA. The compensatory award is dealt with in section 123. Under section 123(1) "the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer".[28]The Part-time Workers (Prevention of Less Favourable Treatment) Regulations provide: 7 Unfair dismissal and the right not to be subjected to detriment(1) An employee who is dismissed shall be regarded as unfairly dismissed for the purposes of Part X of the 1996 Act if the reason (or, if more than one, the principal reason) for the dismissal is a reason specified in paragraph (3).(2) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on a ground specified in paragraph (3).(3) The reasons or, as the case may be, grounds are— (a) that the worker has— (i) brought proceedings against the employer under these Regulations; (ii) requested from his employer a written statement of reasons under regulation 6; (iii) given evidence or information in connection with such proceedings brought by any worker; (iv) otherwise done anything under these Regulations in relation to the employer or any other person; (v) alleged that the employer had infringed these Regulations; or (vi) refused (or proposed to refuse) to forgo a right conferred on him by these Regulations, or (b) that the employer believes or suspects that the worker has done or intends to do any of the things mentioned in sub-paragraph (a).(4) Where the reason or principal reason for dismissal or, as the case may be, ground for subjection to any act or deliberate failure to act, is that mentioned in paragraph (3)(a)(v), or (b) so far as it relates thereto, neither paragraph (1) nor paragraph (2) applies if the allegation made by the worker is false and not made in good faith.(5) Paragraph (2) does not apply where the detriment in question amounts to the dismissal of an employee within the meaning of Part X of the 1996 Act. 8 Complaints to employment tribunals etc … (7) Where an employment tribunal finds that a complaint presented to it under this regulation is well founded, it shall take such of the following steps as it considers just and equitable— (a) making a declaration as to the rights of the complainant and the employer in relation to the matters to which the complaint relates; (b) ordering the employer to pay compensation to the complainant; (c) recommending that the employer take, within a specified period, action appearing to the tribunal to be reasonable, in all the circumstances of the case, for the purpose of obviating or reducing the adverse effect on the complainant of any matter to which the complaint relates. (8) … (9) Where a tribunal orders compensation under paragraph (7)(b), the amount of the compensation awarded shall be such as the tribunal considers just and equitable in all the circumstances … having regard to— (a) the infringement to which the complaint relates, and (b) any loss which is attributable to the infringement having regard, in the case of an infringement of the right conferred by regulation 5, to the pro rata principle except where it is inappropriate to do so. (10) The loss shall be taken to include— (a) any expenses reasonably incurred by the complainant in consequence of the infringement, and (b) loss of any benefit which he might reasonably be expected to have had but for the infringement. (11) Compensation in respect of treating a worker in a manner which infringes the right conferred on him by regulation 5 shall not include compensation for injury to feelings.[29]I had to assess the injury to the Claimant's feelings. I considered the original bands of awards set by the case of Vento-v-Chief Constable of West Yorkshire Police [2003] IRLR 102 CA, as uplifted by the case of Da’Bell-vNSPCC [2010] IRLR 19 EAT and then the further case of Simmons-v-Castle [2013] 1 WLR 1239 (an uplift on all awards of general damages of 10% which has been held to have applied to Tribunal litigation (see for example De Souza-v-Vinci Construction (UK) Ltd EWCA Civ 879). Since then, in the Presidential Guidance issued on 28 March 2022, the following bands were said to apply in respect of claims issued on or after 6 April 2022; £990 to £9.900 in respect of less serious cases, £9,900 to £29,600 the cases which did not merit in awarding the upper band and £29,600 to £49,300 for the most serious cases, with the most exceptional cases capable of exceeding £44,000.[30]When reaching a figure for injury to feelings, I remained aware that the award had to be compensatory and just to both parties. It should have been neither too low nor too high, so as to avoid demeaning the respect for the policy underlying the legislation. I also tried to bear in mind the value in everyday life of the particular sum that I chose to award. I had an eye on the range of awards made in personal injury cases. I also took into account the guidance at paragraph 36 of the EAT’s decision in Base Childrenswear Limited v Otshudi UKEAT/0267/18.[31]When interpreting the express terms of a contract, the court or tribunal’s aim is to give effect to what the parties intended. The ‘golden rule’ in ascertaining that intention is that the words of the contract should be interpreted in their grammatical and ordinary sense in context, except to the extent that some modification is necessary to avoid absurdity, inconsistency or ‘repugnancy’ (i.e. an interpretation that is contrary to the contract itself or its unambiguous express terms). The modern approach is that ‘relevant context’ is not necessarily confined to the legal background. In Investors Compensation Scheme Ltd v West Bromwich Building Society (No.1) [1998] 1 WLR 896, HL, Lord Hoffmann emphasised that a contract should be interpreted not according to the subjective view of either party but in line with the meaning it would convey to ‘a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract’. The principles identified may be summarised as follows:(1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.(2) The background was famously referred to by Lord Wilberforce as the “matrix of fact,” but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man.(3) The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification. The law makes this distinction for reasons of practical policy and, in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life.(4) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax: see Mannai Investments Co. Ltd. v. Eagle Star Life Assurance Co. Ltd. [1997] A.C. 749.(5) The “rule” that words should be given their “natural and ordinary meaning” reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had. Lord Diplock made this point more vigorously when he said in Antaios Compania Naviera S.A. v. Salen Rederierna A.B. [1985] A.C. 191, 201: “if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business common sense, it must be made to yield to business common sense.”[32]In Cosmos Holidays plc v Dhanjal Investments Ltd [2009] EWCA Civ 316, CA, Sir Anthony Clarke MR summarised Lord Hoffmann’s approach as requiring that ‘the particular provision must be construed in the context of the clause as a whole, and the clause itself must be construed in the context of the contract as a whole, which must in turn be considered in its factual matrix or against the circumstances surrounding it’.[33]An implied term cannot override an express term in the contract.[34]Share options were considered by High Court in Micklefield v SAC Technology Limited [1990] IRLR 218. In Micklefield the Court considered whether on a true construction of the contract of employment and share option scheme, on the assumption that he was wrongfully dismissed, that he was entitled to recover damages for his loss of his option to buy shares. The Scheme which provided ‘Save as provided in rules 4.4 and 4.5, an option granted hereunder shall be exercisable in whole or in part only after the third anniversary of the date of grant and not later than the expiry of the option period'. Clause 4.3B read: 'If an option holder ceases to be employed within the SAC Technology group for any reason whatsoever, then the option granted to him shall, save as provided in rule 4.4, lapse and not be exercisable'. Paragraph 9 headed 'Loss of office' provided: 'If any option holder ceases to be an executive for any reason he shall not be entitled, and by applying for an option an executive shall be deemed irrevocably to have waived any entitlement by way of compensation for loss of office or otherwise howsoever to any sum or other benefit to compensate him for the loss of any rights under the scheme'.[35]In Micklefield the Claimant sought to exercise his option, which did not become exercisable until after his employment ended. It was considered that clause 4.3B related to the status or relationship between the parties and not the contract. Clause 9 was an exemption clause which exempted the Company from part of the damages it would otherwise have to pay for wrongful dismissal and it was clear and decisive. Further it did not fall foul of the Unfair Contract Terms Act 1977, in particular the Act did not apply to the creation or transfer of securities or of any right or interest in securities and the parts which related to share options fell within the excluded part. It was held Mr Micklefield was not entitled to recover damages for the loss of his option.[36]The Claimant referred me to O’Laoire v Jackel International Limited [1991] ICR 718. In that case the Tribunal had ordered reinstatement of the Claimant and had concluded that he would have been made Managing Director with stock options. The Respondent failed to reinstate the Claimant and the compensatory award was reduced to the statutory cap. The Claimant brought proceedings in the High Court for wrongful dismissal. The High Court held that there was not an issue estoppel and the Claimant had no right to stock options. On appeal the Court of Appeal held that the Tribunal had jurisdiction to award compensation for loss of stock options if satisfied that the plaintiff would have in fact have obtained the options if he had been made managing director. In computing damages the plaintiff either had to show he had a right to the options or had lost the hope of obtaining them.[37]I was also referred to Casey v Texas Homecare Ltd EAT 632/87. Neither party was able to provide a copy of the authority and a transcript could not be found online. The IDS Handbook provided the following commentary: “Tribunals are used to making informed guesses when calculating the compensatory award and will place a value even on those benefits that are very difficult to quantify. In Casey v Texas Homecare Ltd the EAT held that an employment tribunal was wrong to decline to estimate the value to the employee of a share option scheme on the ground that it was too ‘speculative and indefinite’ a matter. Having sufficient evidence on which to rely, the EAT arrived at a figure of £1,000 after making deductions from its original figure to take account of the possibility that share prices might fall and the fact that the employee had received accelerated payment of the benefit through the compensatory award.”[38]The Claimant also referred me to Leonard v Strathclyde Buses Ltd [1998] IRLR 693 and the decision of the court of Session. In that case the employees were required to sell back they shares to the company at the value as of the date of their dismissal for redundancy. Later the shares were valued at £5.10. The dismissals were unfair. It was held that the Tribunal was entitled to award the difference in value of the shares when assessing what was just an equitable to award.[39]The Claimant referred me to York Trailer Co Ltd v Sparkes [1973] ICR 518, in which the NIRC held that if the employers would have probably increased the salary, if he had remained in employment, it would not be just and equitable to exclude it from the calculation of compensation even if there was not a contractual right to the interest.[40]It was common ground, in respect of the detriment, that the appropriate rate of interest is 8% from the date of the act of detriment. Conclusions Basic award
Conclusions
[41]It was agreed by the parties that the basic award should be £1,713.00. Loss of earnings and loss of pension[42]It was agreed that the Claimant should be awarded £22,955.84 net in respect of loss of earnings and £2,354.15 gross in respect of loss of employer pension contributions. Share options[43]The share option agreement amended the contract of employment to include specific clauses, namely clauses 5.2 to 5.4. The definitions had the same meanings as in the share option plan. The effect of the clauses, read in conjunction with appendix 2, is that the option did not form part of any past, current or future entitlement to remuneration or benefits under the contract of employment and expressly stated that the option did not form part of the contract of employment. The share option therefore did not form part of the Claimant’s pay.[44]It was an option which could be exercised on specified events occurring, as set out in clause 7.1 of Appendix 2, none of which have taken place. Further consent needed to be provided by the board.[45]The agreement provided that the option lapsed immediately on the Claimant ceasing to be an employee. The agreement specifically excluded equitable relief, or the right to compensation for any loss or potential loss in connection with the plan if in consequence of his employment being terminated for any reason and included, without limitation, wrongful and unfair dismissal.[46]The Claimant sought to argue that he was required to sign away a standard employment right contained within the Employment Rights Act 1996 and he was protected by the contracting out provisions in s. 203. The share option agreement did not form part of the contract of employment and the option was not part of the Claimant’s remuneration for his work. Share options are not protected under the Employment Rights Act 1996. The agreement did not contract out of the Claimant’s right not to have wages unlawfully deducted, nor his right not to be unfairly dismissed. The Claimant sought to argue that unfair dismissal was being excluded because of clause 5.4, however that was not the case. The Claimant was not prevented from claiming unfair dismissal by the agreement. The agreement did not fall foul of s. 203 of the Employment Rights Act 1996. The Claimant’s subsidiary argument that he had not received advice in accordance with s. 203(3) fell away as a consequence.[47]The loss of the share option was in consequence of the termination of the Claimant’s employment and his unfair dismissal. Unfair dismissal is not to be regarded as detriment for the purposes of regulation 7 of the Part-time Worker Regulations. As such clause 5.4 of the agreement and 5.3 of Appendix 2 applied. The wording of the clauses is clear, that the option lapses on the event that the relationship between the parties has ended. The clause has the same effect as in Micklefield and is excluded from the provisions in the Unfair Contract Terms Act. It is an exemption clause which applied to the Claimant’s situation. The agreement was entered into on the basis of the clause and the Claimant freely accepted the terms.[48]The Claimant was not assisted by the case of O’Laoire. There was not an exemption clause in that claim and it was further distinguished on the facts, in that it related to a Claimant for whom reinstatement had been ordered and not been carried out by the former employer. Similarly the situation in Leonard was distinguished. There was not an exemption clause and it related to a buy back clause, not the subject of the present claim.[49]There was very little information about the decision in Casey, however it appeared that the appeal related to valuation and not the principle as to whether an award for share options could be recovered in similar circumstances to those of the Claimant. What the case established is that the Tribunal should not shy away from making an assessment on the basis that it was too speculative.[50]The Claimant sought to argue that because he had been bought out of his share options, when he became part-time, that suggested there was a standard approach by the Respondent of recompensing for the withdrawal of share options. I rejected that submission. The clauses must be construed at the time the contract was entered into. The situation when the Claimant went part-time was very different, in that he remained an employee. This was something which formed part of the negotiations when he changed to part-time status. There was no evidence that there was a custom by which the Respondent bought out share options on termination of employment. In any event an implied term cannot override the express terms of the contract. I rejected the submission.[51]The exemption clause applied to the Claimant’s employment. He had agreed that in the event his employment terminated that his share option would lapse, irrespective of whether his dismissal was fair or unfair. In the circumstances, under the agreement and his contract of employment the exemption clause applied, and he was unable to recover compensation in respect of his loss of share options. An event triggering share options has not occurred and there is no evidence as to if and when it would happen. It would not be just and equitable to override what the parties had freely agreed. No award was made in respect of the share options.[52]For completeness, if my decision on share options was incorrect, I considered what the loss of a chance would be. An event triggering share options had not occurred and the Respondent was seeking additional financial investment. There was no evidence as to when an event was likely, if at all. Further there was always a chance that the Claimant would have left the employment of the Respondent in any event. If the Claimant was entitled to an award it would be on the basis of loss of chance. Allowing for the chance that an event did not occur and that the Claimant would have left in any event and taking into account accelerated receipt and doing the best I could on the limited information I assessed that chance at 30%. The best evidence of value of the shares was £6.50, which on the basis of the Claimant’s calculations, allowing for tax and purchase price, he would have been awarded £14,256 for those share options. Injury to feelings[53]The detriments the Claimant complained about were unrelated to his termination of employment and they related to the handling of his complaint. The Claimant suffered a loss of confidence and there was a marked effect on his homelife. The Respondent submitted that an award should be at the bottom of the lower Vento band, whereas the Claimant submitted it should be at the top of the lower or bottom of the middle band.[54]The Claimant accepted that this was either a single event or a closed series of events. He submitted that the effect on him was significant. I took into account that such an award is compensatory and not punitive. The Claimant was able to function as evidenced by his numerous job applications, although I accepted that an element of that was necessity. The appropriate band is the lower band, however the effect of the detriment on the Claimant falls more towards the top. An appropriate award was £7,000.[55]Interest is due on the injury to feelings only, on the basis that the financial losses related to his dismissal. The appropriate rate is 8% and time is assessed to start running from 15 May 2022 (331 days) and £507.84 is awarded as interest on injury to feelings. ACAS uplift[56]The Claimant raised a formal grievance, however the Respondent did not seek to arrange a meeting to discuss it and instead attempted to deal with the matter informally. The Claimant’s second grievance was not addressed until after he had left the Respondent’s employment. There was a breach of the code by failing to arrange the meeting and unreasonably delaying the first grievance. The Claimant contended that an appropriate uplift would be 10%. In the circumstances it was just and equitable to increase the award. In such circumstances the Respondent agreed the uplift should be 10%.[57]It was therefore just and equitable to increase the award by 10% to reflect the breach of the ACAS code of practice.[58]The total award before the ACAS uplift was £34,530.83, 10% of which is £3,453.08.[59]The total award was therefore £37,983.08. Grossing up[60]The total award was greater than the tax free amount that can be awarded and therefore the award needed to be grossed up to allow for the tax due. The loss of pension was a gross figure and therefore the amount which required grossing up was £35,628.93, the first £30,000 of which is tax free.[61]The Claimant pays tax just below the higher rate of tax and the percentage to be used to gross up the amount of the award over £30,000 excluding the pension is 40%.[62]The amount to be grossed up is £5,628.93. The gross amount at 40% is £9,381.55. Therefore the income tax payable is £3,752.62. at the rate of 40% and which needs to be added to the award.[63]The total grossed up amount is £41,735.70. Recoupment of state benefits[64]The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 (“the Recoupment Regulations”) apply in this case.[65]Included in the award which the tribunal has ordered the Respondent to pay to the Claimant there is a sum of £22,955.84 in respect of his pay from the day he was dismissed until to-day. If he keeps the Jobseeker's Allowance he has received up to today, he will be better off than if he had been at work, he will have made a profit as a result of the award. It will not be a surprise to learn that the Government would like its money back. The way the Government gets it back is through the Recoupment Regulations.[66]The Respondent must retain that part of the award which relates to the Claimant's loss of earning up to to-day, it is called the Prescribed Element and is £22,955.84, until the Respondent receives from the Department for Work and Pensions a Notice. The Notice will either require the Respondent to pay all, or part, of the Prescribed Element to the Department, or tell the Respondent that it does not require any payment. When the Respondent receives the Notice the Respondent must pay to the Department for Work and Pensions the sum specified in the Notice and the balance should be paid to the Claimant. The rest of the award today, over and above the Prescribed Element, which amounts to £18,779.86, is due to the Claimant straight away.