G Pearson v Mace Consult Ltd: 2202085/2024
JUDGMENT
[1]The Claimant’s claim of wrongful dismissal is well founded for which the Claimant is awarded a gross sum of £11,251.[2]The Claimant’s claims for breach of contract and unpaid holidays are not well founded. _____________________________ Employment Judge Date: 1 September 2024REASONS
[1]The hearing in this matter took place via CVP on 12 June 2024.[2]The Tribunal heard evidence from the Claimant and from Noelia Fernandez, the Associate Director, Human Resources for the Respondent and was referred to a number of documents in an agreed bundle.[3]The Judgment, with reasons was given at the hearing on 12 June 2024, and sent to the parties on 6th September 2024. These written reasons have been requested by the Respondent.Issues
[4]The Claimant pursues complaints of wrongful dismissal and breach of contract.[5]The Claimant was informed on 20 October 2023 that he would be dismissed on 2 November 2023 with three months’ notice. However, it was agreed that that notice of dismissal would be revoked if he found alternative employment with the Respondent. The Claimant argues that he did and that is what should have happened with any subsequent termination process re-starting from the beginning with a further three months of notice to start after a further period of consultation.[6]The Respondent’s position is that the Claimant’s original date of dismissal (2 February 2024) remained in place as he had not secured “definitive” alternative employment with the Respondent within the agreed timescale, that being that he had not secured the right to work in the USA where the role was based.[7]The Claimant was dismissed with effect from 2 February 2024 and now pursues this claim for additional payments for notice pay and breach of contract. The Claimant asserts that had the Respondent complied with its commitment in its original termination letter the original termination date of 2 February 2024 should have been revoked and that he is Case No: 2202085/2024 2 entitled to compensation for the period between 2 February 2024 and the later date that he would have been dismissed on .Facts
[8]The Claimant was dismissed by a letter from the Respondent dated 20 October 2023. That letter stated the following: “Having carefully considered the evidence presented and taken your responses into account, I have decided to terminate your employment with notice by reason of Some Other Substantial Reason. This is as a result of not being able to find any alternative role for you following a client request to remove you from HPC Project. Your employment will terminate on 2 November 2023, but should you manage to secure definitive employment at Mace on or prior to this date, this termination will be revoked. In line with the terms of your contract you are entitled to 3 months notice. You will not be required to attend work after the 2 November 2023 and will instead receive your normal pay in lieu of this period. This payment will be subject to deductions for tax and NI. A final salary payment will be credited to your bank account in the November pay-run, unless your employment circumstances change between now and the 2 November 2023”.[9]The Claimant searched for alternative employment and received an offer letter for the position of Senior Cost Manager from the Respondent (“MACE”) dated 8 November 2023 (Page 489). The offer was expressed to be “subject to satisfactory security/background and reference checks”.[10]The Claimant accepted that offer the following day on 9 November 2024 by email and on the same day forwarded a copy of this to the Respondent stating that “I therefore assume my termination notice is now to be withdrawn as previous advised during the consultation period, Can tis (sic) be confirmed?”[11]Whilst the offer of new employment and the Claimant’s acceptance of it postdated the original deadline of 2 November 2023 in the original dismissal letter of 20 October 2023, the Respondent had agreed on 27 October 2023 for the Claimant to remain in employment to 10 November 2023 (on garden leave) rather than dismiss on 2 November 2023 with a payment in lieu of notice for that period. This was to allow the Claimant some additional time to finalize the application process for this new role. On the Claimant accepting the offer of employment this was further varied so that the Claimant would remain employed, albeit to the original termination date of 2 February 2024. In response the Claimant agreed to waive his appeal against dismissal.[12]This was captured in a communication from the Respondent on 13 November 2023 to confirm that he would: “remain in employment with Mace during your notice period and work this period to give you an opportunity to complete the Visa/Immigration process for the US and successfully take on your new role. As your original dismissal date was the 2 November and your notice period entitlement is 3 months, your new dismissal date is now the 2 February 2024”.[13]The Claimant maintained the position in correspondence that having accepted the new role the original notice of termination should be revoked. In response the Respondent wrote to the Claimant on 15 December 2023 saying the following: “I believe when you had the consultation meetings, the focus on redeployment may have been around redeployment in the UK. You have now applied for a role abroad in the US and been offered the role conditional upon meeting all the preemployment criteria. The notice and termination of your UK employment will only be revoked once you have accepted and completed all the conditional checks to be able to carry out the role and for the US this includes securing the correct right to work and live in the US as you cannot do the role and relocate without it.” Case No: 2202085/2024 3[14]Over this period the Claimant had in fact started this role but as his immigration status had yet to be confirmed that work was done in the UK via the Respondent, with his services being recharged by the Respondent to the US entity. There was no suggestion that he would have difficult securing that immigration status and in fact the Respondent was supporting him with that process. The Respondent had also indicated that it was supporting the Claimant with his “redeployment to the US as soon as possible.”[15]On 20th December 2023 the Respondent was informed that the Claimant’s new role was to be withdrawn for cost cutting reasons. The reasons were not related to the Claimant’s immigration status to work in the US.[16]The Respondent proceeded to dismiss the Claimant on 2 February 2024 and the Claimant continued to protest that the notice of dismissal should have been revoked in early November when he accepted the new role and that any process of dismissal should have restarted from this point including any consultation and support to look for alternative employment and a restart of the notice period if he was to be dismissed. Legal arguments[17]The Tribunal heard arguments from the Respondent that the position as set out to the Claimant at the point he was notified of his dismissal on 20 October 2023 was clear, that he needed to “secure definitive employment” at Mace on or before a particular date for the notice of dismissal to be revoked.[18]The Respondent’s position was that any offer of employment that was subject to conditions was not “secured” or “definitive” and that the Claimant failed to meet this threshold, which it argued was necessary for the notice of his dismissal to be revoked. It argued that absent any agreement to vary the terms in the correspondence of 20 October 2023 the position as set out in that letter remained intact, and the various agreements to allow the Claimant to continue in employment on garden leave and then work during his notice period to support his search for alternative employment made no difference to that.[19]The Respondent’s position was that whilst the Claimant did some work over that period was not the same as him working under a contract of employment, where he had yet to meet all of the conditions of that employment contract.[20]The Claimant’s position was that he had been offered a new role, had accepted it and was undertaking work under that contract. In his view he had met the condition in the letter of 20 October 2023 and that the Respondent had then failed to meet the agreement it had with him – instead applying an additional requirement, after the event, that he meet immigration requirements before it would consider revoking the termination date.[21]For the Claimant the terms of the original termination letter of 20 October 2024 were clear, and that his notice of dismissal should have been revoked on 9 November 2023 as and when he informed the Respondent that he has been offered and accepted new employment with the Respondent in the USA and that the Respondent had no right to vary, delay or suspend that agreement.[22]If there was any ambiguity in the Respondent’s position in the letter of 20 October 2024 it should be construed against the Respondent, as the author of that document.[23]It was clear that the letter of 20 October 2024 was very much the focus for both parties and it is the terms of this letter that the Tribunal should examine. The Tribunal must exercise caution when presented with extrinsic information or events that postdate that letter to interpret the meaning of the content. Conclusions Case No: 2202085/2024 4Conclusions
[24]This case very much turns on whether the Claimant “secured definitive employment at Mace on or prior to” this date (2 November 2023 but subsequently altered to 10 November 2023).[25]It is clear from the evidence presented to the Tribunal that the Claimant had secured such employment. He had been offered and accepted a role before the deadline of 10 November 2023 and confirmed this to the Respondent. He had started to work on this contract, under his existing contract with the Respondent and steps were being taken to assist the Claimant with his visa requirements.[26]The offer letter for that alternative role suggested that the offer was subject only to “satisfactory security/background and reference checks.” There was no evidence to suggest that the Claimant failed to meet these checks.[27]The offer letter did not state that meeting immigration requirements was a condition of employment, although it is reasonable to assume that this would be a formality that had to be addressed. The offer letter indicated that formalities would be completed within three days of his employment starting and the Claimant would be supported with this process.[28]In any event there were no indication that the Claimant would not meet the visa requirements and in the end the Claimant was not able proceed with this opportunity as it had been withdrawn for cost cutting reasons, not for any issues related to the Claimant’s immigration status or application.[29]The Respondent had agreed to revoke the Claimant’s notice as at the point he had accepted and started working on new employment with Mace, yet it failed to do so. At that point the Respondent did not say that the Claimant had failed to meet the condition that he secure “definitive employment”. In fact, the Claimant had actually started his new work at this point, albeit via his employment with the UK entity of the Respondent and the notice of dismissal for 2 February 2024 should have been revoked.[30]The Respondent’s relies on its correspondence of 13 November and 15 December 2023 to say that its position was clear. This correspondence seeks to apply new and different conditions to those set out in the Respondent’s original letter of 20 October 2023 after the Claimant had already informed the Respondent of the new role on 9 November 2023.[31]There is no evidence to support the Claimant’s argument that the Respondent was under any contractual obligation to restart a redundancy consultation process or follow any contractual processes in relation to redundancy as and when it was informed that the Claimant’s new role no longer existed. The Claimant’s breach of contract of claim fails. The Respondent was entitled to dismiss the Claimant with contractual notice or a payment in lieu of that notice at this stage.[32]Under his contract of employment the Claimant was entitled to three months’ notice from 21 December 2023, the date from which he was advised the new role (which he had accepted and already started) would come to an end because of cost cutting. The Respondent has failed to justify why it is entitled to reduce that 3 month notice period whether by reference to the content of its letter of 20 October 2023, its subsequent correspondence or otherwise. On this basis the Claimant’s wrongful dismissal claim is successful.[33]The Claimant is entitled to 3 months’ contractual notice from 21 December 2023 to 21 March 2024,a total sum of £20,899.50 (gross). After giving credit for the 6 weeks of notice pay already paid up to 2 February 2024, the balance due to the Claimant for the period (2 February 2024 to 21 March 2024) is a gross sum of £11,251. This sum represents the award for the Claimant’s wrongful dismissal.[34]The Claimant is not entitled to any holiday pay or benefits over this period as the Respondent dismissed the Claimant with a payment of basic pay in lieu of notice, as it was entitled to do under the Claimant’s contract. In other words, it was entitled to dismiss the Case No: 2202085/2024 5 Claimant on 21 December 2023 with a payment representing three months’ basic pay under his contract of employment. The Respondent is under no contractual obligation to restart a consultation or redundancy process or retain the Claimant in employment for any additional period or his notice period.