Mr C Jamison v Rhino Design (Manchester) Ltd: 2401815/2020

EMPLOYMENT TRIBUNALS

Case No 2401815/2020

Between

Mr C JamisonClaimant

Rhino Design (Manchester) LtdRespondent

Before

Employment Judge Shotter (by CVP)

In person for claimant

Ms S Quinn (instructed by solicitor) for respondent

Date 9 November 2021

JUDGMENT

The judgment of the Tribunal is that the constructive unfair dismissal claim has no reasonable prospect of success and it struck out under the Employment Tribunals Rules of Procedure 2013 rule 37(1).

REASONS

Conclusion

[1]The respondent seeks to strike out the claimant’s claim as an abuse of process, and / or as having no reasonable prospect of success and order the Claimant to pay a deposit in the event of the Tribunal determining that the claim has little reasonable prospect of success.

[2]No oral evidence was heard on the facts in this case, and these were still to be determined by an employment judge sitting alone at a final hearing had the claimant satisfied the Tribunal that his claim of constructive unfair dismissal should proceed to a final hearing. The bundles

[3]The Tribunal has before it a bundle of documents plus additional documents introduced on both hearing dates following the adjournment. The Tribunal has confusing been referred to three bundles of documents in addition to additional documents produced by the claimant. It has not taken into account emails sent by the parties after the 9 November 2020 hearing which included an attempt to introduce additional documents not before the Tribunal or respondent previously.

[4]The preliminary hearing was adjourned part-heard from 3 to the 9 November 2020 with the agreement of both parties, in the interests of justice. The respondent had sent the amended electronic bundle to the claimant and Tribunal late afternoon on 2 November 2010, the day before the hearing. The original bundle produced earlier ran to approximately 400 pages, and the respondent had taken out a number of pages without consultation or agreement with the claimant. The claimant indicated that he did not have the time to check through the bundle to ensure all his relevant documents had been included and the respondent in the email heading had not put him on notice that documents had been taken out. The issue only came to light when the Tribunal took the parties to the bundle and checked with the claimant that the documents he wished to rely upon had been included. It transpired that there were missing documents and these have now been included in an updated bundle that runs to 304 pages, which is the second bundle sent to the Tribunal for the hearing on 9 November 2020.

[5]The claimant has had time to review the bundle and now read the Skeleton Argument prepared on behalf of the respondent, which he did not have time to do prior to 3 November 2020, and as a litigant in person had that hearing proceeded without giving the claimant the opportunity to understand the respondent’s position, an injustice would have taken place. Ms Quinn was uncertain whether the claimant had been sent a copy of the skeleton argument; the claimant was certain that he had not seen or read the skeleton argument which includes detailed reference to case law including the relevant Court of Appeal decision in Kaur v Leeds Teaching Hospital

[2018] EWCA Civ 978

2018 WL 02008605 referred to the claimant by the Tribunal as a key case. As set out by the Tribunal in its case management order sent to the parties as a matter of urgency on 3 November 2020, the claimant is a litigant in person; constructive unfair dismissal claims are complex and the law needs to be carefully read to be understood especially when a party if not legally qualified and has no experience in such matters. It is unrealistic for Ms Quinn to expect the claimant to deal with her skeleton argument during the CVP hearing. Following the adjournment Mr Jamison confirmed he is now prepared for this hearing and has provided his own written skeleton argument in response, a statement dealing with means and a bundle of additional documents duly marked. There is now also a third bundle, and no reason why the hearing cannot fairly proceed with the claimant giving evidence on oath as to his means and providing oral submissions dealing with the respondent’s application, Ms Quinn having made oral submissions on behalf of the respondent on the 3 November 2020.

[6]The Tribunal has considered those documents to which it was referred and oral closing submissions made on behalf of both parties, which it does not intend to repeat in full. It also heard evidence under oath from the claimant as to his means.

The claim

[7]By a claim form received on the 10 March 2020 following ACAS early conciliation that took place between 30 January to 1 March 2020, the claimant claims constructive unfair dismissal.

[8]A preliminary hearing was heard on the 18 August 2020 at which the claimant’s application to amend his claim to include an unlawful deduction of wages claim was dismissed, and he was ordered to provide further information on the breach of contract claim giving rise to the constructive unfair dismissal. Further and better particulars

[9]The claimant provided further and better particulars on 4 September 2020 setting out the reasons for his resignation and alleging he had “2 years of concerns that lead up to the decision…the Outcome Appeal was delayed and I felt that the gravity of the procedure and my deep concerns warranted the respect of a timely response. This delay was the straw that broke the camel’s back…Over 2 years I had continued to work for the Respondent because: I could not afford to not have a job, the only choice I was given was to leave…I did not have the funds to get detailed legal advice and go to court. I and many others, including a Board Director expected the main protagonist, DS to leave and we could restore the culture and relationships. Due to the nature of the business I needed to work through the 2 distinct periods of troughs and peaks to prove the Indicative Commission Structure was never achievable…I believed that the only way to change my terms and re-instate the culture of the business was to work from within…The Respondent maintains that I was not capable in my role as Operations Director and was overpaid. The detail which supported this view was never shared with me, and I was not given the opportunity to defend myself and I was never taken down an official disciplinary route…” [the Tribunal’s emphasis]. The points raised were largely repeated by the claimant in his written and oral submissions, and I took the view that based on the claimant’s description of his case, it was problematic and there was a real issue with affirmation, not least by the fact that on the claimant’s own account, he had not resigned waiting for the “main protagonist” to leave in order that the culture of the organisation and relationships could “be restored”. The contemporaneous documents referred to below revealed the claimant’s claim had no reasonable prospects of success for the reasons given below.

[10]At today’s adjourned hearing the claimant was invited to take me to the documents in the bundles (which the claimant has now had time to check and insert into the bundle during the adjournment ensuring that all relevant documents have been included) which refer to him having made it clear to the respondent he was working under objection to the new contractual arrangements which he had accepted under duress, and it clear to the Tribunal there were no such documents in existence. The claimant relies on oral evidence to the effect that he did not accept the contractual changes agreed under duress; however, the contemporaneous documents undermined the claimant’s position for the reasons set out below. The Tribunal has spent a great deal of time carefully sifting and reading through documents to which it was taken given the fact that the claimant is a litigant in person and it is incumbent on it to leave no stone unturned when considering the draconian step of striking out a claim without hearing evidence at trial. The documentary evidence before the Tribunal as set out in the various bundles.

[11]It is not disputed the Claimant from 1 July 2014 until he resigned on notice which ended on 3 January 2020 after serving his contractual notice, from his position of service director on a salary of £50,000 per annum. The case revolves around the reduction of the claimant’s salary from £100,00.00 when he was the operations director to £50,000 plus bonus on 19 October 2017 when the Respondent terminated the claimant’s employment and made an offer of re-engagement as a service director on a basic salary of £50,000 per annum with the potential to earn commission. In short, the claimant’s case is that he worked under protest from 29 January 2018 (when he signed the new contract) until he gave notice on 4 December 2019, and the last act which led to his resignation was the respondent’s failure to provide him with an outcome of the formal grievance issued on 16 October 2019, by 30 November 2019 when he had been informed it would be given no later than 7 December 2019, if not earlier.

[12]In his skeleton argument the claimant submits the respondent did not use the correct ACAS procedure before it unilaterally reduce his pay by half. He referred to an appraisal document originally in the first bundle before it was taken out by the respondent without informing the claimant. The claimant also refers to other documents disclosed by the respondent for these proceedings but not shared with him at the time, which are not relevant to his claim as he was unaware of the documents when he resigned. It is also notable the claimant did not resign when the respondent allegedly failed to comply with the ACAS Code in 2017/2018.

[13]The claimant referred the Tribunal to a bundle of additional documents he has produced, which have been read including the 12 July 2017 appraisal and 6 July 2017 performance measure review. Neither of these documents assist the claimant in establishing his claim and serve only to highlight the claimant’s attempt to persuade the respondent that he was not underperforming in his role.

[14]The claimant prepared a report dated 25 October 2017 titled “Notes and Observations Ref. Events Service Manager Role” that runs to many pages. It includes a reference to the claimant feeling pleased with the recruitment of a new operations director (the position previously held by the claimant) and offering to assist with handover, targets were referred to and a number of other matters which does not concern the Tribunal. The tone of the communication was positive and in the summary the claimant wrote “the changes from my current role as operations director to service director as described within your job title document is significant…the changes that the directors wish to implement must be seamless with minimal disruption…below I comment on the targets an objectives…You have explained to me that my current level of earnings will be “maintained” for a period of time in order to smooth the transition of my role from ops to service director…I feel this transitional period will be between 5 and 6 months…I assume that given the 5 to 6 months lead to adopting the new practices operationally that my annual targets would be adjusted pro rata.” Reference was made to the claimant’s commission package, and the claimant concluded “I believe it is right and proper to introduce change to our business in support of a more systematic, procedural and target driven performance measurement process…I welcome the opportunity to meet and discuss with the management team details of how we can capitalize on this change.” The claimant did not say he was objecting to the changes proposed; instead he was exploring how “we can best capitalize on this change” and the tone and content could not be interpreted as the claimant reserving his contractual and statutory rights. The steps taken by the claimant up to the date he submitted a formal grievance supports the Tribunal’s view that the claimant had agreed the contractual changes and took part in “candid” conversations relating to commission structure which was renegotiated.

[15]The offer of re-engagement was accepted verbally in October 2017 by the Claimant who then signed the “termination of your current contract and reengagement on new terms” offer letter dated 8 November 2017 which referred to discussions “ongoing since your review in March in respect of the changes to your terms and conditions of employment as of 13 November 2017”. The letter set out the background to the changes and reference were made to the claimant’s underperformance, why there was to be a reduction in salary and protection of his current earnings for a period of 4-months. The letter confirmed the claimant had been made aware of the decision in August 2017 and that a verbal agreement had been reached. The claimant acknowledged his re-engagement under the new contract, an indicative commission structure signed by the claimant indicating his agreement on the 11 November 2017, and a new job description.

[16]It was submitted by Ms Quinn the Claimant only asked that it was recorded that he did not accept the allegation that he was underperforming as Operations Director and did not refer to working under objection in any documents. In closing submissions, the claimant explained that he had requested the new contract include concerns, this was refused and he was only allowed to add the note regarding performance. The Tribunal notes that there was nothing to stop the claimant writing to the respondent setting out all his concerns and objections before and/or after he had signed the offer letter followed by the new contract and then throughout the period up to and including the lodging of his grievance. The claimant wrote a letter of objection dated 11 November 2017 which he signed. The claimant’s objections were limited to “Please note that I do not accept the analysis of my performance as stated in the termination of contract and re-engagement letter…I would like this note to be attached to my acceptance” undermining his argument that he was not “allowed” to add any notes to documents or send emails objecting to the contractual changes. The claimant’s letter of objection dated 11 November 2017

[17]The claimant’s case is that he was offered no choice; he was told to sign the new contractual terms or resign, and denies he verbally accepted the changes in his contract. The 11 November 2017 letter signed by the claimant undermines his position as it reflects he could and did write a letter of objection. The claimant denies he verbally accepted the change and had this matter proceeded to trial, intended to cross-examine his line manager together with other employees and directors who were, he says, aware of his concerns. The problem for the claimant lies with the contemporaneous documentation. The offer letter dated 8 November 2017 referenced a verbal agreement, and the claimant signed it without comment or amendment which suggests a verbal agreement had been reached. It is notable dates had been amended via hand-written insertions a number of times in the body of the letter, and there was nothing to stop the claimant from disputing a verbal agreement had been reached as recorded. Further, in the claimant’s letter of objection, the claimant made no reference to working under objection or agreeing to the contractual changes under duress. It is likely that he will fail to persuade a judge no oral agreement had been reached before his written agreement was confirmed in the offer letter signed by the claimant indicating his acceptance. The contemporaneous documents are an unsurmountable evidential problem for the claimant in that it supports the respondent’s version of events, including his attempts at renegotiating commission structures. For example, the claimant wrote in an email dated 6 December 2017 sent to his line manager referencing “we can now see that the targets are impossible to achieve in the time given…can we set some time to discuss the points above and the impact on my target. I am excited about what I can achieve for Rhino focused on the job in hand passionate about what we do but worried about how long it will take me to get there and what impact this has on my earnings.” This email reflects the true situation; the claimant had agreed the contractual changes and was concerned about commission payments which he then continued to negotiate hence the emails and communications that followed i.e. on the 17 January 2018, 24 January 2018 and 29 January 2018 leading to the claimant signing the new contract dated 29 January 2018 that included an amended commission structure and amended job description dated 26 January 2018.

[18]The claimant complains of a lack of negotiation; which is irrelevant to the issue concerning whether the claimant had accepted the new contract or not. It is apparent from the bundle that whilst there may have been no negotiation on the unilateral reduction in pay and demotion, there appeared to be discussions and negotiations on the commission potential, which the claimant had not been happy with at the outset. During these negotiations it is not disputed the claimant worked to his new terms from November 2017. The claimant submits he had no choice and needed a job, so he delayed signing the new contract in order to negotiate a better package. The problem for the claimant is that he did have a choice; he could have treated the respondent’s unilateral breach as a fundamental express breach of contract and a breach of the implied term of trust and confidence and resigned and/or accepted that his contract had been terminated and claim unfair dismissal given he had the requisite two-years continuous employment. The claimant chose not to do so, and that is a fundamental weakness in his case as he continued to work without objection until his resignation on notice.

[19]The contemporaneous documents reflect following the commission structure negotiations the claimant signed the new contract of employment on 29 January 2018 amended to delete the requirement for the claimant to meet a minimum number of sales to earn commission. There is no reference on that document to the claimant signing under duress or objecting to the change in his contract, and the only logical conclusion that can be reached is that the claimant negotiated more advantageous terms with respect to commission before he finally signed the contract. The fact the claimant took the view commission would not replace the £50,000 reduction in salary is by the way. The Tribunal appreciates the claimant was unhappy with such a substantial salary reduction and the prospect of earning commission that may not be capable of replacing the shortfall, but he continued to work for the respondent meeting his contractual obligations for a period of approximately two-years before raising a formal grievance on 16 October 2019. The claimant had obtained alternative employment at a similar salary by the time he raised a grievance about the events leading to November 2017 when he was allegedly “forced” to sign a new contract of employment under duress, the indicative commission structure produced in 2017 was unachievable; and management had failed to deal with his informal complaints appropriately. As the claimant’s submissions progressed and were explored it became clearer that he relies on “informal complaints,” maintaining in oral and written submissions that he had complained for two-years and this demonstrates(a) he did not affirm the new contract, and

(b) the respondent was aware of his “deep concerns” and this must mean he “signed under duress.” The claimant made the point that he should be given the opportunity to explore this evidence at the final hearing and he continued to work in order to “see out a full cycle to without doubt, prove to the Respondent their commission structure was flawed, I did this and put the same in writing to the Respondent.”

[20]In written submissions the claimant argued there was no affirmation of the contract, and this is shown in “all the emails” over the two-year period. He was invited to take the Tribunal to any documents that revealed there had been no affirmation of the contract, and the claimant was unable to do so. In oral submissions the claimant explained he did not “willfully” accept the change, there existed 30 emails complaining about the commission structure which the claimant believed was “flawed” and these were not “all” in the bundle before the Tribunal.

The law

[21]It is clear that no documents exist in the bundle put before the Tribunal which showed the claimant was complaining about the contract; he was complaining about commission and had not objected or reserved any right with respect to the changes in pay. The claimant explained the reason for this was that he was not allowed to and commented “now I know why”, and yet the claimant submitted a formal grievance when it became clear to him that the commission arrangement he had agreed was not advantageous to him.

[22]The “last straw” relied upon by the claimant relates to his grievance. It is not disputed the grievance hearing was held on 29 October 2019, and the minutes were sent to the Claimant on 31 October 2019. No timescales were guaranteed to the claimant at the conclusion of the grievance meeting. The 29 October 2019 grievance hearing

[23]The Tribunal has read the minutes taken at the grievance hearing in detail, which it does not intend to repeat in full as they run to many pages.

[24]The notes reflect the claimant stating “I have tried to resolve this situation over the last couple of years with Simon a little bit, mainly with Johnny obviously and Lee…its just hit a brick wall each time…if I had to put it in a succinct sentence…I would say that the commissions, the structure that was put to me was never achievable…in October 1917 [2017]…I stated at that point it was impossible to achieve but I would give it a go, and very consistently as per everything I have got here, consistently questioning that this is not achievable…my salary was halved and to make up that half was never gonna be achievable…the document I signed was pretty much under duress.” The claimant was asked to give an example of what he meant by signing under duress and he responded “No, yes because I needed the job and what do I do, I didn’t agree with any part of the termination letter, it was put to me as a fait accompli as I saw it but I needed a job, how could I challenge that at a point of time in my life when I really needed a job” [the Tribunal’s emphasis]. It is clear from the claimant’s own admission in the grievance investigation meeting that he had not challenged the new contract either before or after he had agreed terms.

[25]Within the minutes reference was made to the negotiated commission structure and the claimant confirmed “so now I have done one complete full year of working to that structure and it is not achievable”, and when it was pointed out to him that it “would be nice to replace your salary but here is not any guarantee it is just potential earnings” the claimant’s response was “I think that’s getting into semantics…” There followed a discussion about the commission structure with no target being potential earnings with no guarantee to make up the £50,000 which was the crux of the claimant’s grievance and his claim for constructive unfair dismissal. In the grievance hearing the claimant stated, “it’s about being given the opportunity to take my salary back to where it was…Jonny and Lee and Simon…we had a couple of long and deep discussions about the concerns I’ve had.” Later, in the meeting after discussing a number of other matters the claimant stated “It’s very simple, it’s your salary was X, it was halved…I was given the opportunity to replace that with commissions. I said at that point it was not achievable…” An agreement was reached that the respondent had removed limits for the commission and added a discretionary payment to help the claimant after he had “signed this new arrangement” which indicates other discussions did take place and subsequent agreements reached “probably to try and keep me motivated.” The claimant’s clear issue was the amount of commission he had generated; it was “not enough” and a disincentive. The claimant made reference to “no one wanting to talk to me about resigning” and that “I know you’ve got a procedure” and a “speedy response” to the grievance was requested.

Conclusion

[26]It was left that the respondent did not have sufficient information and “it’s really important we get it in, the commission information…and let us know if you can find those emails.” Ms Quinn submitted the cclaimant was asked to send on emails as the investigating officer found the Claimant’s grievance to be so broad and vague. The Tribunal was doubtful that the email notes could be interpreted to mean that an agreement was reached that the process would be delayed pending the claimant providing further information, however is was undeniably the case that information relating to commission was outstanding and further investigation would need to take place. The claimant would have understood that this was the position at the time.

[27]A grievance investigation subsequently took place and managers were interviewed including DS who related how the discussions with the claimant progressed and the claimant’s “primary focus was if and how he was going to be able to get himself back to the income of the previous role, circa £100k...” The grievance investigation meeting was minuted and reference was made to a document titled “CJ response letter” referred to above. When asked whether the claimant had taken the position under duress DS responded “it is fair to say CJ was not happy and did not agree that his performance as Director of Operations was not working, despite the outcome of his review, but he did not take the new role or sign his contract under duress. The period between the initial presentation of the new contract and his signing of it gave lots of opportunity for review and amendments. By January 26, 2018 it appeared the contract was acceptable and he had discussed any outstanding concerns with those relevant to the issue.” The contemporaneous documents before the Tribunal reflect this history.

[28]At a grievance meeting with another manager JM, the claimant’s line manager, was asked about the claimant’s allegation that he had signed the contract under duress. He reported that legal advice had been mentioned and the claimant “off the cuff” said “perhaps I should go for unfair dismissal.” JM described how the commission restrictions had been removed and in December 2018 commission rates were discussed and “CJ [the claimant] agreed that he was comfortable with the new proposed package.”

[29]On the 19 November 2019 the claimant was sent an email in response to his requesting a “speedy response and positive outcome,” apologising for the delay in sending him the outcome. The financial director investigating the claimant’s grievance wrote “you have my assurances that I am doing a thorough investigation into your grievance and do not wish to rush this process which is important.”

[30]On the 20 November 2019 a third grievance meeting took place with another manager, and prior to that on 19 November 2019, the financial director wrote updating the Claimant and informing him that “Due to me being away for a week and catching up with a backlog of work, this has put me slightly behind. In addition to trying to coordinate diaries with people I need to speak to as part of my investigations…I have further planned leave next week in addition to it being month end… realistically it looks like I will get an outcome to you by Friday 7 December 2019…”.

[31]The claimant responded on 20 November 2019 “The business has been aware of these issues for over 2 years. For me, this delay is a further example of how poorly I am treated, re-affirms all my concerns and causes me added distress…I would ask you to adhere to the 28 days in the company’s handbook for a reply, I am not aware of any unusual circumstances that would not make this response time possible.” In a second email sent 22 November 2019 the claimant acknowledged “I understand that the Handbook is there for guidance…” requesting an outcome by the 30 September 2019.

[32]It is accepted by the parties that respondent’s Grievance Procedure set out in the handbook refers to the following: - “…We will write to you, usually within 28 days of the final grievance meeting, to inform you of the outcome of your grievance and any further action that we intend to take to resolve the grievance. We will also remind you of your right of appeal. Where appropriate we may hold a meeting to give you this information in person…”

[33]As submitted by Ms Quinn, the claimant was aware the delays had been due to co-ordinating diaries with witnesses, two trenches of annual leave pre-booked by the financial director/investigating officer, availability of witnesses, responsibilities of the financial director for payroll and month end which were due on 25th of each month and last working day of the month in addition to other work. The Tribunal found objectively the claimant could not have reasonably formed a view the delay was “a further example of how poorly I am treated,” he was kept updated and there were valid reasons for the outcome being expected on 7 December 2019 at the latest.

[34]The respondent sent an email to the claimant on 21 November 2019 reiterating the circumstances that will “not make a response possible within the ideal 28 days…This is not a compulsory obligation and the handbook is not contractual and is there for guidance purposes only.” An outcome was given to part of the claimant’s grievance regarding sales leads and the investigation into the process for customer inquiries concluding “I do not agree with your comments that you have been treated poorly…a recent example being that we have just paid a briefing payment earlier than due, into your wife’s bank account to your benefit at your request. I know this as I processed the payment…” The final paragraph of this email clarified the position as follows: “… if I can get the grievance outcome to you before 7 December 2019 I will endeavour to do so, but otherwise it will be on 7 December”.

[35]The claimant was aware by 19 November 2019 the grievance outcome was due no later than 7 December 2019, and the 21 November 2019 email referenced before the 7 December 2019 if possible or on 7 December. The claimant received the emails on the day they were sent and almost one-month letter verbally resigned and handed across a letter dated 4 December 2019 alleging he had asked for the grievance outcome deadline be the 30 November 2019 and “I have not had a reply or acknowledgment to this request” [the Tribunal’s emphasis]. The claimant relies on the delay to the grievance outcome as a “last straw” and his statement that he had not had a reply or acknowledgment was incorrect and had the claim proceeded to a liability hearing would have raised credibility issues concerning the claimant as what he had written was not true.

[36]The Claimant claims that he was unfairly dismissed in accordance with section 95(1)(c) of the Employment Rights Act 1996 The Claimant contends that the conduct of the Respondent as portrayed above amounted to a fundamental breach of the implied term of trust and confidence and that he resigned in relation to this breach. Law: strike out on the basis of no reasonable prospects of success/deposit order

[37]The Tribunal’s power to strike out the Claim is set out in Employment Tribunals Rules of Procedure 2013 rule 37(1) that “(a) that it is scandalous or vexatious or has no reasonable prospect of success; (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant … has been scandalous, unreasonable or vexatious”.

[38]The Employment Tribunals Rules of Procedure 2013 rule 39(1) provides that where “the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument”. 39. in Ezsias v North Glamorgan NHS Trust

[2007] EWCA Civ 330

. The Court of Appeal held, as a general principle, cases should not be struck out on the ground of no reasonable prospect of success when the central facts are in dispute. On a striking-out application (as opposed to a hearing on the merits), the Tribunal is in no position to conduct a mini-trial, with the result that it is only in an exceptional case that it will be appropriate to strike out a claim on this ground where the issue to be decided is dependent on conflicting evidence. Such an exception might be where there is no real substance in the factual assertions made, particularly if contradicted by contemporary documents or, as it was put in Ezsias, where the facts sought to be established by the claimant were 'totally and inexplicably inconsistent with the undisputed contemporaneous documentation' (para 29, per Maurice Kay LJ). I found that this was indeed the case here, where Mr Jamison’s assertions were contradicted and undermined by contemporaneous documents many which had been signed by the claimant, sent by the claimant and written by the claimant. As can be seen above, I have spent a great deal of time going through the documents, acknowledging that the claimant would have been upset by a fifty-percent unilateral reduction of his salary and with some cause. It is entirely understandable that he believed he had be treated shoddily the respondent who held most of the cards in an unequal employee/employer bargaining relationship. However, it does not necessarily follow that the claimant claim had a reasonable prospect of success two years down the line following the contractual changes.

[40]In Ezsias, reference was made to 'a crucial core of disputed facts' that was 'not susceptible to determination otherwise than by hearing and evaluating the evidence.' Lord Justice Morris Kay in paragraph 26 stated the issue was “whether an application has a realistic as opposed to a merely fanciful prospect of success” and he accepted that there may be cases which “embraced dispute of facts but which nevertheless may justify striking out on the basis of their having no reasonable prospect of success. I took the view that Mr Jamison’s case falls into the category that there is a dispute of facts concerning whether the claimant objected to the new contract and worked under duress that has no reasonable prospects of success given the contemporaneous documentation which reflected the dealings between the parties at the time and not the gloss now given to them by the claimant who has these proceedings in mind.

[41]The basis for making a deposit order with reference to the provision “little reasonable prospect of success” imposes a lower threshold compared to a threshold for striking out a claim, thus a deposit order is a less draconian alternative to striking out a claim perceived to be weak but which could reasonably be described as having no reasonable prospect of success. I considered whether the claimant’s claim of constructive unfair dismissal fell under the description of “little reasonable prospect of success” a less draconian outcome, and decided that it did not and fell under the definition of “no reasonable prospect of success”. If my analysis is wrong, in the alternative I have dealt with a deposit order below, having heard evidence from the claimant under oath that was not entirely satisfactory, evidenced by the fact that he attempted after the hearing to reference additional documents not before the respondent or Tribunal when the claimant was giving oral evidence under oath.

[42]In exercising these powers, the Tribunal has in mind at all times the overriding objective in seeking to deal with cases justly and expeditiously and in proportion to the matters in dispute. This case has been listed for 4-days in 2022, the claimant is concerned with the fact that he is at high risk of being ordered to pay substantial costs when he is already in debt, and rightly so given the fundamental weaknesses in his constructive unfair case and the cost warnings he has been sent by the respondent. Law: constructive unfair dismissal

[43]Section 95(1)(c) of the Employment Rights Act 1996, as amended (“the ERA”) states that there is a dismissal when an employee terminated his or her contract, with or without notice, in circumstances that he or she is entitled to terminate it without notice by reason of the employer’s conduct.

[44]In “Harvey on Industrial Relations and Employment Law” at paragraph DI [403]. “In order for the employee to be able to claim constructive dismissal, four conditions must be met:(1) There must be a breach of contract by the employer. This may be either an actual breach or an anticipatory breach. (2) That breach must be sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents which justify his leaving. Possibly a genuine, albeit erroneous, interpretation of the contract by the employer will not be capable of constituting a repudiation in law. (3) He must leave in response to the breach and not for some other, unconnected reason. (4) He must not delay too long in terminating the contract in response to the employer’s breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract.” I took the view that the claimant’s case, at its highest, failed at the fourth hurdle; he delayed over two-years and it is likely had this matter proceeded to trial he would be deemed to have waived the breach and agreed the new contract, in the event of the trial judge in the first instance not finding an express agreement by the claimant to vary.

[45]The Tribunal’s starting point would the test laid down by the Court of Appeal in Western Excavating (ECC) Ltd –v- Sharp

[1978] ICR 221

whether the employer was guilty of conduct which is a repudiatory/significant breach going to the root of the contract. The issues to be decided upon in this respect were: Was there a fundamental breach on the part of the employer? Did the claimant terminate the contract by resigning? Did the claimant prove that the effective cause of her resignation was the respondent’s fundamental breach of contract? In other words, what was the effective cause of the employee’s resignation? Did the claimant delay and therefore act in such a way that is inconsistent with an intention to treat the contract as an end? The Court of Appeal “made it clear that questions of constructive dismissal should be determined according to the terms of the contractual relationship and not in accordance with a test of ‘reasonable conduct by the employer’” (see Harvey DI [411]). The implied term of trust and confidence

[46]The claimant is relying on the alleged breach of the implied term of trust and confidence; he is not relying on an express breach of contract.

[47]There is an implied term in every contract of employment to the effect that the employer will not without reasonable and proper cause, conduct itself in a manner likely to destroy, or seriously damage the relationship of confidence and trust between employer and employee. In order to constitute a breach of the implied term it is not necessary for the employee to show that the employer intended any repudiation of the contract: the 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; or put another way, the vital question is whether the impact of the employer’s conduct on the employee was such that, viewed objectively, the employee could properly conclude that the employers were repudiating the contract. The correct test of repudiatory conduct by an employer is set out in the Court of Appeal judgment in the case of Paul Buckland V Bournemouth University Higher Education Corporation

[2010] EWCA Civ 121

, and this is an objective test. I took the view that in the absence of an express agreement to vary, the respondent’s unilateral reduction of the claimant’s salary by 50 percent could well have amounted to a breach of the claimant’s express terms and the implied term of trust and confidence. The respondent was repudiating the contract; it had offered the claimant less advantageous terms and would have brought the employment contract to an end had not the claimant accepted them.

[48]The House of Lords in Malik v Bank of Credit; Mahmud v Bank of Credit

[1997] UKHL 23

, held that the breach occurs when the proscribed conduct takes place. In Mr Jamison’s case it appears the proscribed conduct took place in August 2017 when the claimant was informed of the contractual changes and yet he remained in employment until 3 January 2020 after resigning when the grievance outcome was due no later than 7 December 2019 and the claimant wanted to be told by the 30 September 2019, a date the respondent had never agreed to. In Malik it was held that the employee may take the conduct as a repudiatory breach, entitling him to leave without notice. If the employee stays, the extent to which staying would be a waiver of the breach depends on the circumstances. Lord Steyn referred to the implied obligation covering a diversity of situations in which “a balance has to be stuck between an employer’s interests in managing his business as he sees fit, and the employee’s interest in not being unfairly and improperly exploited,” and to the impact of the employer’s conduct being objectively assessed to ascertain whether objectively considered, it is likely to destroy or cause serious damage to the relationship between employer and employee. If it is found to be so, then a breach of the implied obligation may arise.

[49]A course of conduct can cumulatively amount to a fundamental breach of contract entitling the employee to resign and claim constructive dismissal following a “last straw” incident. The last straw itself does not need to amount to a breach – Lewis –v- Motorworld Garages Limited

[1986] ICR 157

CA. Glidewell LJ said at para 169F “The breach of this implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, although each individual incident may not do so. In such a case the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term”.

[50]In Omilaju –v- Waltham Forest London Borough Council

[2005] ICR 481

the Court of Appeal held that the act constituting the last straw need not be the same character as the earlier acts, nor must it constitute unreasonable or blameworthy conduct, although in most cases it will do so. The last straw must contribute, however slightly, to the breach of the implied term of trust and confidence. An entirely innocuous act on the part of the employer cannot be a final last straw, even if the employee genuinely but mistakenly interprets the act as hurtful and destructive on his or her own trust and confidence in the employer. Turning to Mr Jamison as set out above, I took the view if the matter proceeded to a contested hearing the anticipated date for the grievance outcome and reasons for it did not contribute at all to the breach of the implied term of trust and confidence. It is likely a judge taking the contemporaneous email exchange into account would find the anticipated date for grievance outcome was an entirely innocuous act on the part of the respondent which could not amount a final last straw. I have doubts that the claimant genuinely but mistakenly interpreted the act as hurtful and destructive on his trust and confidence in the respondent given his misconceived attempt to build up a case in the resignation letter, as set out above. The claimant had been given part of the outcome and he was aware that the remainder was due on a set date, if not earlier. He had waited for over two-years to bring his grievance and it was difficult to understand the urgency of an outcome and in the claimant’s eyes a “delay” of 5-working days. The employee must resign in response to repudiatory breach

[51]“The employee must leave in response to a breach committed by the employer. This breach may be an actual breach or an anticipatory breach … it is not enough that the employee expects the employer to repudiate the contract and leaves in anticipation …” (see Harvey paragraph DI [508]).

[52]Walker v. Josiah Wedgwood & Sons Ltd

[1978] ICR 744

, IRLR 105, the EAT held “… it is at least requisite that the employee should leave because of the breach of the employer’s relevant duty to him, and that this should demonstrably be the case. It is not sufficient, we think, if he merely leaves … And secondly, we think, it is not sufficient if he leaves in circumstances which indicate some ground for his leaving other than the breach of the employer’s obligation to him” (per Arnold J) [the Tribunal’s emphasis]. This point is relevant to Mr Jamison’s case given the further delayed after he was told the anticipated date of the grievance outcome, and it is likely the claimant’s case would have failed on the issue of waiver in addition to the other reasons for finding the claim had no reasonable prospect of success. Waiver of breach

[53]Weston Excavating cited above; The employee “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”.

[54]In the case of W.E. Cox Toner (International) Ltd v. Crook

[1981] ICR 823

IRLR 443, the employee was censured by employer in July 1980 for taking leave without previously advising the employer. He demanded the withdrawal of the censure letter. He was informed on 6 February 1981 that the letter would not be withdrawn. He left four weeks later. The EAT held that he was precluded from claiming for unfair dismissal because he had remained for four weeks after it had become clear that his grievance would not be remedied and consequently must be taken to have affirmed the contract (see Harvey DI [523]). Turning to Mr Jamison, he was informed on the 20 November 2019 the outcome would be sent to him on the 7 December 2019 and yet the claimant did not resign until the 4 December 2019, 3-days before the grievance outcome was expected if not earlier. It is undisputed that as matters transpired, the claimant would have received the grievance outcome on the 4 December 2019. Last straw

[55]In Kaur v Leeds Teaching Hospitals NHS Trust

[2018] EWCA Civ 978

, the Court of Appeal set out the following five questions to consider: -55.1 What is the most recent act which the employee is pointing to as a reason for resignation?

55.2 Has the employee done anything that suggests that they have affirmed the contract since that act?

55.3 If not, was the act alone sufficient to justify resignation?

55.4 If the act alone was not sufficient, was there a series of actions which cumulatively, resulted in a breach of contract? If the answer to this is yes, there is no need to give consideration to a previous affirmation.

55.5 Did the Employee resign totally or partially in response to the breach?

[56]In Phoenix Academy Trust v Kilroy (2020)

UKEAT/0264/19

, the following main points were established to consider for constructive dismissal claims: -(i) Accepting the employer’s actions affirms the contract.

(ii) Once affirmed, the employee cannot argue that it amounts to a breach of contract. The employee’s affirmation removes the breach.

(iii) If the employer does something else which amounts to a breach of contract, this will break the chain and amount to a last straw. This would entitle the employee to resign and claim the ‘last straw’.

Conclusion

[57]Rule 37(1)(a) provides that all or any part of a claim or response may be struck out if it is ‘scandalous or vexatious or has no reasonable prospect of success’. Having considered all of the information before me, I was satisfied that the claimant’s claim of constructive unfair dismissal has no reasonable prospects of success for the reasons set out mindful of the fact that Tribunals should be slow to strike out a claim brought by a litigant in person on the basis that it has no reasonable prospect of success. As references above, strike-out is a draconian step that should be taken only in exceptional cases and caution should be exercised. It is more likely than not that if the claim were to proceed to a final hearing and the claimant given the opportunity he seeks today, namely, to cross-examine the respondent’s witnesses, his constructive unfair dismissal claim would not succeed given the fact that the contemporaneous documentation supports the respondent’s position that the claimant had not worked under protest, alleged duress at any stage or reserved his right to take action (e.g. unfair dismissal proceedings) against the respondent when he agreed the new contract.

[58]On the face of the documentary evidence the claimant’s new contract was expressly agreed by him and it was clearly enforceable as the claimant carried out his contractual duties for which he received and accepted a salary and commission under its terms having worked under those terms and negotiate changes to the commission structure before and after signature. The claimant effectively argues that his consent to the new contract was acquired through duress; had he not agreed it dismissal would have followed. It is clear the claimant was unhappy and remains unhappy with the fifty percent reduction in his wages, understandably so. However, he was prepared to continue in employment of the respondent with some enthusiasm and generate commission payments, which he renegotiated, in the hope that they would cover his loss of earnings. It is also clear that the respondent had made it clear when it offered the claimant the new contract he would be dismissed if it was not accepted. When the claimant signed the new contract, he did not indicate on the contract itself or on the face of any other document that he was working under protest, which was a possible course of action open to the claimant. The Tribunal invited the claimant to take it to any document in the bundles which referenced the claimant working under duress, or reserving his rights to claim breach of contract/unfair dismissal and there were none.

[59]The respondent was legally entitled to terminate the claimant’s contract on notice, which it did offering the claimant a new contract. The claimant complains it failed to follow the ACAS Code and the procedure it adopted was unfair; however, such actions cannot without more amount to duress. In short, the claimant knew he would be dismissed if the contract including a pay reduction and commission was not agreed, and it was at that stage action for unfair dismissal/breach of contract should have been taken. It is not sufficient for the claimant to now say that he could not afford legal advice, given the amount of his salary and the fact he was in communication with lawyers over a business matter/property acquisition during the relevant period. It is notable that at no stage did the claimant assert the respondent prevented him from obtaining legal advice, and the notes of the grievance investigation meeting with the claimant’s line manager records he was advised to take legal advice and the claimant mentioned constructive dismissal at the time. The claimant re-negotiated, signed the contract and continued to work for the respondent until he obtained alternative employment on similar terms which he took up approximately two years later after raising a grievance and then resigning.

[60]Ms Quinn submitted the claimant only noted in November 2017 that he did not agree with the allegation of him underperforming, and there was no reference to him accepting the terms under duress and or working under protest. The Claimant only ever raised this after he resigned. The Tribunal agreed with Ms Quinn’s analysis, and it appears from the claimant’s own submissions (reflected in his formal grievance) that his objection after signing the contract was to the commission structure and his earnings under it given he was unable to make up the £50,000 shortfall.

[61]Ms Quinn also submitted the claimant signed the new contract in January 2018. There was no note on the signed contract that the claimant was signing under duress or working under protest. The claimant only raised the reference to ‘duress’ and ‘working under protest’ after his resignation. The claimant worked to the terms of his new contract for two years before raising a grievance and resigning. The contemporaneous documents, taking the claimant’s case at his highest, supports the respondent’s position that the claimant’s case is that he felt aggrieved that his role was changed. If this was how the claimant felt in October 2017, then was the appropriate time to bring a claim not over two years later. The claimant accepted he signed a new contract. He further accepted he had always been paid in accordance with his new contract of employment.

[62]The Tribunal accepts Ms Quinn’s submission that the claimant clearly affirmed the contract and new terms in October 2017, and as per the guidance provided in Kaur and Kilroy cited above, his argument that the imposition of a new contract incorporating the wage reduction amounted to a breach of contract two years after affirming the agreement has no reasonable prospect of success.

[63]Turning to the claimant’s allegation that the way his grievance was handled was the ‘straw that broke the camel’s back’ the claimant has made much of the “delay” in the grievance outcome, the final part of which was sent to him minutes after his resignation. The Tribunal agreed with Ms Quinn that the manner in which the financial director dealt with the grievance cannot objectively amount to a breach of the implied term of trust and confidence. The Claimant wanted the outcome by the end of November, there was no agreement to this effect, and he was told it would be sent to him by 7 December or earlier if possible, and it was sent to him on the 4 December 2019, a difference of 4- days. The claimant was kept fully informed via email communications and sent a decision in part before his resignation. He accepted at the time the reference in the non-contractual handbook to 28 days was only for guidance purposes. He was aware that the financial director had two trenches of holiday absence and other responsibilities during the period when she was investigating and considering his grievance and this contributed to the time it took her to reach an outcome.

[64]Ms Quinn accepted that the last straw could potentially be capable, under the definition in Omilaju , of contributing to a preceding history of acts that together constituted a breach of the implied term as to trust and confidence. She submitted “taking the claimant’s case at its highest there is no reasonable prospect of the claimant establishing that the respondent did not have reasonable grounds for taking the time it did to complete the grievance procedure and it was proper to keep the claimant informed that the grievance investigation and outcome would be delayed, which the claimant accepted at the time. The Tribunal preferred Ms Quinn’s submissions and concluded that there was no reasonable prospect of the claimant establishing in those circumstances that the delay in providing him with the final part of the grievance outcome amounted to anything other than an “entirely innocuous act”: Omilaju. The fact that the claimant attempted to build up an entirely different version of the grievance outcome delay in the resignation letter in order to bolster up his case, points to its fundamental weakness. The claimant was aware by 19 November 2019 the grievance outcome was due no later than 7 December 2019, and after a delay of almost onemonth, resigned. The resignation letter dated 4 December 2019 alleged he had asked for the grievance outcome deadline be the 30 November 2019 and “I have not had a reply or acknowledgment to this request.” The claimant relies on the delay to the grievance outcome as a “last straw” despite the fact that(a) contrary to the claimant’s version of events, he had received an acknowledgement to his request for the 30 November 2019 deadline,

(b) was under no misapprehension for the reasons why the outcome could not be given by the 30 November including two holiday absences of the grievance decision maker,

(d) he had received part of the grievance outcome with only one week remaining until it was dealt with in full.

[65]Objectively assessed the grievance outcome date, whilst it does not need to amount to a breach of contract (which it clearly does not): Lewis –v- Motorworld Garages Limited cited above, does not contribute, “however slightl”, to the breach of the implied term of trust and confidence. It is difficult to see how the claimant genuinely interpreted the delay as hurtful and destructive on his trust and confidence in the respondent when looking at the conduct of the grievance procedure as a whole within the factual matrix. The investigating officer had a reasonable and proper cause for the outcome date taking it beyond .28-days, and it is unlikely the claimant will be able to establish that this central fact could be resolved in his favor, entitling him to rely on the new contract which he had, according to the contemporaneous documentation, entered freely and fully. Taking these two events together, and the claimant’s case at its highest, the Tribunal took the view that when considering the issues in the case and the facts that can be disputed, the claimant would have an uphill struggle at a liability hearing given the contemporaneous documentation. The claimant wishes to cross-examine witnesses from the respondent to prove that he was unhappy with the new contract and the terms of commission payments negotiated and re-negotiated. The fact the claimant was unhappy with the bargain he struck is without doubt, and had he taken action against the respondent in 2017 it may well have been the case that it was in repudiatory breach of the express contractual term to pay. The issue was whether the claimant in accepting the new terms did so under duress on the basis that the only choice he had was accept or be dismissed. Given the documents set out within the bundle, including the minutes of the grievance investigation meeting, it is difficult to see how the claimant can establish duress when what he is complaining about was the fact the commission scheme would not provide the means by which he could cover the loss of earnings shortfall following the respondent’s unilateral reduction of 50 percent of his pay two years previously. Despite the claimant’s submissions and references to documents that do not cast any light on the issue of duress, it appears to be the case that there are no crucial facts in dispute. Deposit order

[66]In the alternative, if the Tribunal is wrong in its analysis of the claimant’s claim and the claimant should be given an opportunity to cross-examine the respondent’s witnesses and present oral evidence that he was working under duress at a final hearing, the Tribunal would have concluded that there was little reasonable prospect of the claimant succeeding in his claim for unfair constructive dismissal. Touching briefly on the claimant’s means, it is undisputed he is in debt and has reached a IVA with creditors which is being paid off gradually.

[67]The claimant earns over £50,000.00 per annum, a substantial income, his wife runs her own business which may have been adversely affected by the Covid pandemic notwithstanding financial measures put in place by the government for small businesses. The claimant has not disclosed all his bank accounts, he holds a joint account with his wife into which substantial amounts of salary was transferred as the claimant earns a similar amount to that salary he received under the new contract with the respondent. The claimant owns a house; it is mortgaged. No information was given on the amount of equity he holds.

[68]The claimant’s monthly expenditure is considerable; he finances three cars, pays for three vehicle insurance policies, pays money across for his independent daughter monthly, has taken out expensive house and building insurance, spends a considerable amount of his income on food and entertainment, pays for three mobile phones. In short, despite the IVA the claimant spends a considerable amount of his income per month on other people, including his wife who also earns her own money. It is undisputed the claimant can lay his hands of reasonably large sums of money when necessary, for example, to pay council tax underpayments. He also repays individual family members monies owed, and confirmed that if a deposit order in the sum of £1000 was made he would be able to borrow the money so as to proceed with the litigation, but would not be able to pay the respondent’s costs were he to lose his case. My preliminary view, based on the documents including bank statements that did not include the joint bank account, the claimant’s written statement and oral evidence, was that it would be difficult for the claimant to pay £1000 as he is already in debt, but not impossible. It is more likely than not that the claimant will lose his claim and be on the wrong side of a costs application, which he can ill afford, and this is a risk he would take if the litigation were to proceed.

[69]For all of those reasons set out above, and when taking into account the claimant’s income as set out in the statement, schedule and bank statements, the Tribunal in the alternative to strike out, would have concluded that the constructive unfair dismissal claim has little reasonable prospect of success and ordered the claimant to pay a deposit of £350.00 (three-hundred and fifty pounds) as a condition of being permitted to continue to take part in the proceedings relating to that matter.

[70]In conclusion, the constructive unfair dismissal claim has no reasonable prospect of success and it is and it struck out under the Employment Tribunals Rules of Procedure 2013 rule 37(1). 19.11.20

[1]Upon reconsideration of judgment striking out the claimant’s claim of constructive unfair dismissal promulgated on the 4 December 2020 the original decision is revoked under rule 70 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013/1237 and substituted by a deposit order in the sum of £350.00 (three hundred and fifty pounds).

[2]The parties will be advised of the date for a one-hour telephone preliminary hearing in due course.

[1]This is a preliminary hearing to consider the claimant’s application for a reconsideration. Following a preliminary hearing held on the 3 & 9 November 2020 reserved judgment was sent to the parties on 4 December 2020 (“the reserved judgment and reasons”). The judgment of the Tribunal was that the constructive unfair dismissal claim has no reasonable prospect of success and it was struck out under the Employment Tribunals Rules of Procedure 2013, rule 37(1).

[2]In an email sent by the claimant on the 16 December 2020 he applied for a reconsideration. This hearing today is to consider the claimant’s application only, as the respondent does not wish to proceed with its cost application against the claimant at this stage, although reserves the right to do so in the future.

[3]I have before me a number of documents, which were checked with the parties, consisting of the following:3.1 A bundle provided by the claimant marked “Updated bundle PH 9 Nov 20.”

3.2 A bundle provided by the claimant numbered 74A, 66 to 73 and 338A in that order.

3.3 A document provided by the claimant titled “Reconsideration Request bundle Index 16.12.20 together with the 39 documents numbered Recon. 1 to Recon.39.

3.4 The claimant’s application dated 16 December 2020.

3.5 The respondent’s written submissions opposing the claimant’s application for a reconsideration that includes a cost application dated 18 December 2020.

3.6 The claimant’s response to the respondent’s application undated.

3.7 Various copy party-to-party emails enclosed within a WORD format document.

[4]I have below attempted to succinctly set out the background to the claimant’s application and the grounds on which he relies, followed by the respondent’s objections. The fact that I have not referenced all arguments and evidence put forward should not be taken as an indication that they have been ignored, rather I have attempted to extract the key points raised.

[5]In addition to the written application and respondent’s response to it, the parties made a number of oral submissions refencing the relevant documents referred to above which I have taken into account. Background to the reconsideration application

[6]At the preliminary hearing held on the 3 and 9 November 2020 the respondent applied to strike out the claimant’s claim as an abuse of process, and / or as having no reasonable prospect of success and order the Claimant to pay a deposit in the event of the Tribunal determining that the claim has little reasonable prospect of success.

[7]As recorded in the reserved judgment and reasons, no oral evidence was heard on the facts in this case, and these were still to be determined by an employment judge sitting alone at a final hearing had the claimant satisfied the Tribunal that his claim of constructive unfair dismissal should proceed to a final hearing.

[8]At the first hearing held on 3 and 9 November 2020 the Tribunal had before it a bundle of documents plus additional documents introduced on both hearing dates following the adjournment. The Tribunal was referred to three bundles of documents in addition to additional documents produced by the claimant. After the hearing the claimant attempted to introduce additional documents not before the Tribunal or respondent previously which were not taken into account. I have heard a lot of argument today as to whether the claimant was not permitted to introduce contemporaneous documents dated between March 2017 and 29 January 2019, as the claimant was relying on the respondent’s email sent to him on 5 November 2020 referring to that time frame. The answer lies in the Case Management Summary sent to the parties following the 3 November 2020 hearing which included a case management order from which it can be seen there was no limit (including no limit on dates dates) placed on the claimant as to what documents could be included in the bundle, as follows: 1.1 “The claimant will check and ensure that all documents he wishes to rely on have been included in the amended bundle referred to above. For the avoidance of doubt, unlike the problems encountered today which resulted in delay and confusion, the parties will come prepared with an agreed bundle and any additional documents will be added chronologically with numbers and letters. The Tribunal will not delay the adjourned hearing if the bundle is not in order.”

[9]It is important to note that the preliminary hearing was adjourned part-heard from 3 to the 9 November 2020 with the agreement of both parties, in the interests of justice as there was an issue with the contents of the bundle. The respondent had sent an amended electronic bundle to the claimant and Tribunal late afternoon on 2 November 2010, the day before the hearing. The original bundle produced for an earlier hearing ran to approximately 400 pages, and the respondent had taken out a number of pages without consultation or agreement with the claimant. The claimant indicated at the hearing on the 3 November 2020 that he did not have the time to check through the bundle to ensure all his relevant documents had been included, and the respondent in the email heading had not put him on notice that documents had been taken out. The issue only came to light when the Tribunal took the parties to the bundle and checked with the claimant that documents he wished to rely upon had been included. It transpired that there were missing documents and the claimant was given the opportunity to include all the documents he wished to rely upon in anticipation of the hearing going forward on the 9 November 2020, which to all intents and purposes he did. The claimant’s documents were included in an updated bundle that ran to 304 pages, which was the second bundle sent to the Tribunal for the hearing on 9 November 2020.

[10]The judgment and reason records that the claimant by reason of the adjournment had time to review the bundle and read the Skeleton Argument prepared on behalf of the respondent. In anticipation of the reconvened hearing the Tribunal in its case management order sent to the parties as a matter of urgency on 3 November 2020 to assist the parties properly prepare for the hearing, particularly the claimant given the fact that he was a litigant in person.

[11]Following the adjournment Mr Jamison confirmed he was prepared for the reconvened hearing, provided his own written skeleton argument in response, a statement dealing with means and a bundle of additional documents duly marked. The claimant referred the Tribunal to a bundle of additional documents he has produced, including the 12 July 2017 appraisal and 6 July 2017 performance measure review. Despite having access to the original bundle and the documents produced for this reconsideration hearing today marked Recon.1 to Recon.39, the claimant did not produce all of the documents he wished to rely upon. At today’s hearing he has attempted to lay the blame for this on Ms Quinn’s email of 5 November 2020, despite the clear indication within the body of the email that the claimant could apply to introduce the original bundle used in an earlier preliminary hearing when the claimant’s unlawful deductions and breach of contract claim was struck out. No such application was made, and Ms Quinn cannot be criticised for the claimant’s mismanagement and default in preparing his own case.

[12]At the outset of the hearing held on the 9 November 2020 I was satisfied all of the documents Mr Jamison wished to rely upon were contained in a third agreed bundle and the matter proceeded on that basis. The claimant now wishes to rely on 39 additional documents he could have produced but failed to do so, without providing a cogent satisfactory reason.

[13]The claimant provided further and better particulars on 4 September 2020 setting out the reasons for his resignation and alleging he had “2 years of concerns that lead up to the decision…the Outcome Appeal was delayed and I felt that the gravity of the procedure and my deep concerns warranted the respect of a timely response. This delay was the straw that broke the camel’s back…Over 2 years I had continued to work for the Respondent because: I could not afford to not have a job, the only choice I was given was to leave…I did not have the funds to get detailed legal advice and go to court. I and many others, including a Board Director expected the main protagonist, DS to leave and we could restore the culture and relationships.”

[14]The claimant submitted at the reconsideration application the documents he had provided made it plain he accepted the new contract under duress and frequently objected to it. Together, we went through all the documents the claimant wished to discuss in order that he had the opportunity to explain fully his case. and it clear to me there were no documents in existence referencing duress or working under objection. As was the case at the earlier hearing the problem for the claimant was that the contemporaneous evidence was against him, and no appears document exists to support his case that he was working under protest/ duress as he alleged, quite the reverse, although there are hints of the claimant objecting which I referred to below as highlighted.

[15]Putting the additional documents Recon.1 to Recon 39 into context, a reduction of the claimant’s salary from £100,00.00 when he was the operations director to £50,000 plus bonus took place on 19 October 2017 when the Respondent terminated the claimant’s employment and made an offer of re-engagement as a service director on a basic salary of £50,000 per annum with the potential to earn commission. As recorded in the reserved judgment and reasons the claimant’s case was that he worked under protest from 29 January 2018 (when he signed the new contract) until he gave notice on 4 December 2019, and the last act which led to his resignation was the respondent’s failure to provide him with an outcome of the formal grievance issued on 16 October 2019, by 30 November 2019 when he had been informed it would be given no later than 7 December 2019, if not earlier.

[16]I agreed with the oral submissions made by Ms Quinn that the documents to which I was taken to by both parties today supported the respondent’s case and the strike out. The following is relevant:16.1 Recon.2 is an email sent on 25 March 2018 refers to the claimant receiving his new basis salary seeking clarification on what he will be paid. By this stage the claimant had been in receipt of the reduced salary and commission taking his salary to £100,00 for a three-month period until it dropped down to £50,000 plus commission earned. The claimant stated this was the first email dealing with his salary sent to the respondent, followed by Recon.4 seeking an explanation for how the March salary was calculated.

16.2 .Recon.5 is an email from the claimant expressing his disappointment and concern with the March salary payment.

16.3 Recon.7 is an email sent on 11 June 2018 by the claimant as follows; “I am 6 months into the role (review was due in Jan) and we agreed to discuss this after 6 months” the claimant seeking clarification of how the last 3 salary payments had been calculated.

16.4 Recon. 8 is an email sent by the claimant on 25 September 2018 about the commission he earned stating “JM and I have been speaking about my concerns for a number of months, ever since my contract was put to me. I strongly believe the pay structure does not work for the business to incentivise growth and obviously myself…my commitment cannot be questioned but I hope you agree that my salary has to be commensurate with the effort…I appreciate we have hit upon a difficult period but my salary, on the current structure will be almost halved and this will be impossible for me to sustain” [the Tribunal’s emphasis].

16.5 Recon.9 is an email sent by the claimant titled “commission structure” on 15 October 2018, and a key document as it encapsulates this case and the claimant’s position at the outset; “I accepted the new structure and the substantial basic pay reduction with concern that was explained in mails from me at the time…I am now one year into the new deal and my monthly pay is so low, it is difficult to sustain…I believe my current pay structure to be flawed. It should be designed to; with activity and hard work, enable to get my salary back to where it was before the signing” [the Tribunal’s emphasis].

16.6 Recon.10 is an email sent by the claimant on the 23 October 2018 regarding the pay structure as follows; “the structure put to me last October has now proven to not allow me to get even close to earning anything like similar money to the previous years. If you remember, you said I could even earn more, and to trust you if the structure did not work out…” [the Tribunal’s emphasis].

16.7 Recon.15 is an email from the claimant sent on 24 November 2018 about his salary asking the board to review it stating “my commitment and passion for you guys and Rhino, somehow remains…I am struggling beyond belief financially. Which at best is probably what Dave wants to see of just another ‘managing someone not’ mechanism”[the Tribunal’s emphasis]. In oral submission the claimant argued that this was a constructive dismissal, however, the claimant continued to remain in employment even when it was made clear to him that whilst the commission calculation would change to his benefit, his basic salary would not be increased later on in the chronology.

16.8 Recon.16 is an email from the claimant sent on 8 December 2018 concerning the pay structure in which he stated “I have remained 100% committed to Rhino whilst knowing that the pay structure and overall commission structure was unachievable. I have struggled throughout the year to fund the reduction in my basic pay in the hope you will all see my worth to the business and address my concerns that were laid before you at the start of my new role…I am still incredibly driven and passionate about your business, I want to be part of the future growth, I want to help repair the business…” [the Tribunal’s emphasis].

16.9 Recon.18 is an email is response from the respondent to the above to the effect that the claimant will earn commission of “everything you introduce at an agreed rate all-year-round an don’t have the penalty of peak periods…you will earn a fixed rate with no earnings cap or commission barrier. Your potential earnings will ultimately be in your own hands…” The new commission structure was agreed with the claimant, who then proceeded to send emails about the change in his job title arguing for a different title.

16.10 Recon.25 is an email from the claimant sent on 29 April 2019 dealing with business matters, a request to the board for his greater involvement in the business “the main drive of this is to request the business considers my longterm position, standing in the company and of course, my salary. I accepted the challenge of a new role with a changed pay structure. Now I have ‘walked in those shoes’ I believe there is potential to grow but the personal financial strain is becoming unbearable” [the Tribunal’s emphasis].

16.11 The remaining documents were largely concerned with commission payments and the claimant’s concern (Recon.27) and in Recon.34 an email sent by the claimant on 7 August 2019 the claimant wrote “when my new role was presented to me, I spent some time analysing the possibility of replacing my earnings with commissions laid out in my contract. I shared my concerns with the business about how unrealistic, near impossible it would be to achieve the sales expected. The only option I had was to put everything into the role an hope I was wrong. It took some time but the business eventually accepted that the structure was flawed and you delivered an improved package…we are now 18 months into the new package…” [the Tribunal’s emphasis. The claimant suggested a number of proposals including change of title and targets., and he indicated that discussions regularly took place when he objected to the contract, and as reflected in the earlier reserved judgment and reasons, the claimant seeks to cross-examine the respondent’s witnesses on this. It appears to me from the documents now presented by the claimant that there is a possibility some discussion had taken place.

[17]The insurmountable problem for the claimant is that the threat of dismissal and offer of re-engagement was accepted verbally in October 2017 and he signed the “termination of your current contract and reengagement on new terms” offer letter dated 8 November 2017 which referred to discussions “ongoing since your review in March in respect of the changes to your terms and conditions of employment as of 13 November 2017”. The letter set out the background to the changes and reference were made to the claimant’s underperformance, why there was to be a reduction in salary and protection of his current earnings for a period of 4-months. The letter confirmed the claimant had been made aware of the decision in August 2017 and that a verbal agreement had been reached. The claimant acknowledged his re-engagement under the new contract, an indicative commission structure signed by the claimant indicating his agreement on the 11 November 2017, and a new job description as set out in the reserved judgment and reasons. The claimant has not produced any contemporaneous documents to show that he accepted the re-engagement of a new contract under duress, however the documents suggested he may have objected to it and oral evidence is necessary to determine the conflicts in the evidence. In short, whilst the documents reflect the claimant accepted the offer and continued to work under it for a period of two-years during which he renegotiated commission payments, oral evidence may possibly cast a different light on the written evidence.

[18]Ms Quinn submitted the claimant sent numerous letters complaining about his salary when he was not earning enough commission as his aim was to make up in commission the reduction in salary earned when he was working in a different role, and yet not once did he mention the that he was working under duress. On the claimant’s own contemporaneous evidence, he had accepted the contractual changes and the new role, and the fact that he was struggling to make up the pay differential does not given rise to a fundamental breach of contract. It is evident from the documents produced by the claimant; he emphasised his commitment and value to the business having “accepted the challenge of a new role with a new pay structure (Recon.25). the claimant’s case is weak and he is likely to lose.

[19]The documents and arguments produced by the claimant today have not undermined the fact that the claimant had agreed the contractual changes and was concerned about commission payments which he then continued to negotiate hence the emails and communications that followed i.e. on the 17 January 2018, 24 January 2018 and 29 January 2018 leading to the claimant signing the new contract dated 29 January 2018 that included an amended commission structure and amended job description dated 26 January 2018 which he had agreed, then later on in the chronology the commission structure was changed by agreement again.

[20]The claimant submitted that he did not have a choice at the time as it would have taken him 12-months to find alternative work. The claimant worked to his new terms from November 2017. The claimant submits he had no choice and needed a job, so he delayed signing the new contract in order to negotiate a better package. The problem for the claimant is that he did have a choice; he could have treated the respondent’s unilateral breach as a fundamental express breach of contract and a breach of the implied term of trust and confidence and resigned and/or accepted that his contract had been terminated and claim unfair dismissal given he had the requisite two-years continuous employment. The claimant chose not to do so, and that remains fundamental weakness in his case as he continued to work for the respondent meeting his contractual obligations for a period of approximately two-years before raising a formal grievance on 16 October 2019. The claimant indicated today that it was not correct to state he had obtained alternative employment at a similar salary prior to resignation. Alternative employment was obtained a few days after he resigned, and this is clearly a disputed matter which does not go to the issue before me today. The law

[21]Under Rule 70 of the Employment Tribunal Rules of Procedure 2013 a judgement can be reconsidered where it is necessary in the interests of justice to do. Under Rule 72 if a judge considers that there is no reasonable prospect of the original decision being varied or revoked, the application must be refused.

[22]There is an underlying public policy principle in all proceedings of a judicial nature that there should be finality in litigation and reconsiderations are a limited exception to the general rule that judgements should not be reopened and relitigated. It is not a method by which a disappointed party to proceedings can get a second bite of the cherry, and it is the Tribunal’s view that this is precisely what the claimant is seeking to achieve.

[23]In the well-known case of Stevenson v Golden Wonder Ltd

[1977] IRLR 474

, EAT, Lord McDonald said with reference to review provisions that they were ‘not intended to provide parties with the opportunity of a rehearing at which the same evidence can be rehearsed with different emphasis, or further evidence adduced which was available before’ and it was apparent during oral submissions, despite a clear indication being given to the claimant on a number of occasions, he wanted to take the reconsideration application as an opportunity to re-hearse and re-emphasise the evidence in the hope that the Tribunal would change its mind and find all claims in his favour.

[24]Where relevant fresh evidence comes to light after the hearing that was not available at the hearing is a potential ground on which it might be in the interests of justice to reconsider a judgment.

[25]Ms Quinn referred the Tribunal to the well-known Court of Appeal decision in Ladd v Marshall

[1954] 3 All ER 745

, CA. The Court of Appeal established that, in order to justify the reception of fresh evidence, it is necessary to show:• that the evidence could not have been obtained with reasonable diligence for use at the original hearing

• that the evidence is relevant and would probably have had an important influence on the hearing; and

• that the evidence is apparently credible.

Conclusion

[26]In the 16 December 2020 written application for a reconsideration, the claimant’s arguments are essentially as follows, which I will deal with in the same order that they appear: My main concern is that you have not seen many emails therefore I do not think you have had a full picture of my claim… 10. My concern here lies with the over 30 emails and documents that you have not seen that were not included. They were removed from the original bundle for this hearing by the Respondent and they told me on the 10th August 2020, they could not be admitted because they “were not relevant to the strike out proceedings”.26.1 The claimant had a number of opportunities to introduce any document, and was aware that it was fundamental to the hearing for him to produce documents which showed he worked under duress and objected to the unilateral changes made to his contract until he raised the grievance in which he clearly objected. The first hearing was adjourned specifically for this purpose in order that the claimant could insert the emails and documents he said were missing, which he did before the reconvened preliminary hearing, and yet he was still unable to produce any documents that assisted him, for no good reason.

26.2 The claimant makes reference to the hearing on 9 November 2020 as follows: “They were finally admitted for the 1st Preliminary Hearing after I pushed to have them admitted. They were then removed for the hearing with yourself. These are the emails that I mentioned in the Hearing of the 9th November when you asked if there were any other documents I could point to. I said there were a lot more of me complaining but the Respondent said they could not be admitted. I asked if I could send them and you said you did not want to see any more documents due to the already large bundle and would have added more confusion. I maintain that the content of these demonstrate clearly the pressure I was under from the change in terms and that I was working under protest.” The claimant’s recollection of the hearing is incorrect; he was not prevented from producing any document on which he wished to rely. The objective of the adjourned hearing was to give the claimant to produce documents which he did, and the manner in which the claimant has dealt with the documents in this case has been confusing, which may be attributable to the fact that he is a litigant in person. The claimant’s additional documents marked Recon.1 to Recon.39

26.3 Ms Quinn argues that it is not in the interests of justice for the Tribunal to consider the evidence now provided by the claimant as it was not new evidence that has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at that time. The claimant was aware of the evidence and should not be allowed to “re-argue” his case.

26.4 The claimant is a litigant in person, albeit a employee who previously had a great deal of responsibility originally earning £100,00 per annum and before that, ran his own business. Constructive dismissal claims are complex and knowing what documents may or may not be relevant can be difficult for a litigant in person to resolve. Having heard from the claimant today I took the view that given the draconian effects of striking out any document which he believes assists his case, should be taken into account. This has been my position from the first adjourned hearing through to today’s reconsideration, and given the possibility that the evidence could influence the outcome, it was in the interest of justice to take it into account, which I did, despite the fact the claimant had not been diligent: Ladd V Marshall. I also took into account Recon.1 to Recon.39 consisted of contemporaneous documents that was not disputed by the respondent, although the claimant’s allegation that he raised the issue of duress and objected at meetings with various people, is disputed and I take the view that the conflicts can only be resolved at a final hearing .

26.5 At this reconsideration hearing I have invited the claimant to direct me to the emails which, according to the application, will show he referenced working under protest. As recorded above these emails do not exist. ” There were many discussions within the company across all levels, including Directors that he (DS) was a consultant and he would eventually leave. Is it unreasonable for me to accept this change initially, in which I had no choice and then to try to reinstate the culture and specifically my situation, when he left?”

26.6 The claimant encapsulates the real issue in his case; which is that he did accept the contractual changes and remained in employment without objection, choosing to do so. The same point applies to the commission structure which the claimant re-negotiated. The Recon. 1 to 39 documents underline the fact that the claimant agreed to the contractual changes and this is one of the many reasons I believe the claimant is unlikely to succeed in his claim. In your paragraph 12, you refer to documents that I was not aware of at the time. I urge you to consider that the tone and manner of communication toward me had deteriorated and the Formal Grievance procedure was a forgone conclusion. Finding this out after I resigned only strengthened my case that my suspicions were correct.

26.7 This was not an argument put forward by the claimant at the time, he did not indicated the “tone and manner” of the respondent’s communications was a “last straw” and there was no suggestion the claimant objected to the communications the preliminary hearing, or that the grievance procedure was a foregone conclusion. The claimant is attempting to introduce new arguments in order to deflect from the difficulty he has in his argument that the imposition of a new contract incorporating the wage reduction amounted to a breach of contract two years after affirming the agreement. The ‘straw that broke the camel’s back’ relied upon by the claimant was the “delay” in the grievance outcome, the final part of which was sent to him minutes after his resignation. I found there was no reasonable prospect of the claimant establishing the delay in providing him with the final part of the grievance outcome amounted to anything other than an “entirely innocuous act”: Omilaju, and this is yet another weakness in his case.

26.8 The reserved judgment and reasons recorded that objectively assessed the grievance outcome date, whilst it does not need to amount to a breach of contract: Lewis –v- Motorworld Garages Limited cited above, does not contribute, “however slightly”, to the breach of the implied term of trust and confidence. It was difficult to see how the claimant genuinely interpreted the delay as hurtful and destructive on his trust and confidence in the respondent. I found it was unlikely the claimant will be able to establish that this central fact could be resolved in his favour, entitling him to rely on the new contract which he had, according to the contemporaneous documentation before me today, entered freely and fully. Taking these two events together, and the claimant’s case at its highest, I continue to take the view that when considering the issues in the case and the facts that can be disputed, the claimant would have an uphill struggle at a liability hearing given the contemporaneous documentation. The Recon.1 to Recon. 39 documents also reflect the fact the claimant was unhappy with the bargain he struck, which he sought to renegotiate successfully in relation to the commission payment structure. 4) In your paragraph 14, you refer to my first response dated 25th October 2017. A report that the Respondent states it never considered. You refer to the positive tone of the report. I would ask you to consider why it may have a positive slant, what were my motives? Please consider why in this report I question, but not openly criticise the Respondent around the new direction for the business and my change in role.

26.9 The fact the claimant did not “openly criticise” the unilateral change in his contract at the time, which he accepted without objection goes to the heart of my reasoning that the claimant had affirmed the contractual changes having agreed the bonus calculations and he continued to work without objection for two years. I do not intend to deal with the detail in the claimant’s observations about sales targets, marketing plans and so on, as this is irrelevant given the fact the claimant remained in the business without raising any objections to the contractual changes at the time, his main concern being that the respondent alleged he was underperforming and renegotiating the commission payments. Your paragraph 18 refers to the “negotiations”. Again, I would like to investigate the depth and results of these one-sided discussions. You also state I had a choice to not sign. Given the Respondent held all the cards and the personal financial devastation of having no job whilst I pursued them with no representation, I respectfully ask, can that be considered a “choice”?

26.10 The claimant is repeating arguments made previously and dealt with in the reserved judgment and reasons. The same point applies in paragraph 9 save for the claimant’s reference to his new salary, which I was given the impression was the same as the salary he earned at the time of resignation. If I am incorrect, the amount of the claimant’s new salary is not central to the issue in this case. The point is that the claimant waited for over 2-years before he obtained alternative employment after his salary was unilaterally reduced in half with an introduction of a commission structure, and he did nothing about it at the time, accepting the changes apart from re-negotiating the commission structure.

[27]Rule 37(1)(a) provides that all or any part of a claim or response may be struck out if it is ‘scandalous or vexatious or has no reasonable prospect of success’. In Mbuisa v Cygnet Healthcare Ltd EAT 0119/18 the EAT noted that strike-out is a draconian step that should be taken only in exceptional cases. The claimant’s claim verges on being one of those exceptional cases; however, there some documentation in this case which points to discussions taking place about the claimant’s contractual position, and I am concerned there would be a great injustice if the claimant was not given the opportunity to take forward his complaint of constructive unfair dismissal to a final hearing. He is a litigant in person and it is clear that he struggles with the legal concepts involved in a constructive dismissal claim and the evidence needed for him to succeed. At its highest, the claimant may be able to establish he raised oral objections to the contractual changes, and a hearing with witnesses being cross-examined is necessary in the interests of justice.

[28]With reference to the constructive unfair dismissal claim, the central facts are in dispute, and there may be substance in the factual assertions made by the claimant. These require determination by hearing and evaluating the evidence.' In the House of Lords decision in Anyanwu v South Bank Student’s Union

[2001] IRLR 305

which dealt with striking out discrimination claims, Lord Steyn referred to discrimination cases as being “generally fact-sensitive, and their proper determination is always vital on our pluralistic society. In this field, perhaps more than any other, the bias is in favour of a claim being examined on the merits or demerits of its particular facts are a matter of high public interest”. This decision is applicable to the claimant’s claims today, despite the fact he is not bringing a discrimination claim as some constructive dismissal claims can be complex and fact sensitive when deciding whether fundamental breaches of contract took place or not, depending on oral evidence and cross-examination before the facts can be found by a judge sitting alone. after the witnesses have given their evidence.

[29]After I went through the documents with the claimant, a discussion took place about deposit orders, whether the claimant could afford to pay a £350.00 deposit, which he assured me was within his means, and the effect of a deposit order on costs. I suggested if a deposit order was made the claimant obtained legal advice, as he is concerned with a costs order being made against him and it is my view he has a very weak case which he is likely to lose and costs could be an issue despite the IVA entered into by the claimant.

[30]In the reserved judgment and reasons reference was made to the alternative of a deposit order, and having heard oral representations and taken into account the documents referred to above, I am satisfied that there is “little reasonable prospect of success” of the claimant’s constructive dismissal claim succeeding, and a deposit order of £350 should be made as a less draconian alternative to a strike out in accordance with the overriding objective and principles of justice having regard to all the circumstances of the case, particularly the documents marked Recon.1 to Recon.39 produced today. It may be possible, although unlikely, that the claimant could establish a fundamental breach of contract had taken place given there are disputed facts as to whether “JM and I have been speaking about my concerns for a number of months, ever since my contract was put to me” – Recon 7, “I accepted the new structure and the substantial basic pay reduction with concern that was explained in mails from me at the time” Recon 8, “the structure put to me last October has now proven to not allow me to get even close to earning anything like similar money to the previous years. If you remember, you said I could even earn more, and to trust you if the structure did not work out…” Recon 10, and when my new role was presented to me, I spent some time analysing the possibility of replacing my earnings with commissions laid out in my contract. I shared my concerns with the business about how unrealistic, near impossible it would be to achieve the sales expected” Recon 34.

[31]A Deposit Order has been made, which can be found in a separate document order was discussed. If, following the making of a deposit order, the tribunal decides the specific allegation or argument against the paying party for substantially the same reasons given in the order, the paying party will be treated as having acted unreasonably in pursuing that allegation or argument for the purpose of making a costs or preparation time order under rule 76, unless the contrary is shown — rule 39(5)(a). The deposit sum will be paid to the other party — rule 39(5)(b). In order words, unless the paying party successfully shows that it did not act unreasonably in pursuing the specific allegation or argument, a costs or preparation time order can be made against it. If the paying party successfully shows that it did not act unreasonably, the deposit will be refunded.

[32]If the claimant (who indicated he could afford to pay £350) fails to pay by the date specified, the constructive unfair dismissal claim will be struck out under rule 39(4) of the Employment Tribunal Rules. A tribunal has no discretion on the matter: the strikeout occurs automatically on the failure to pay.

[33]In conclusion, upon reconsideration of the judgment striking out the claimant’s claim of constructive unfair dismissal promulgated on the 4 December 2020 the original decision is revoked under rule 70 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013/1237 and substituted for a deposit order in the sum of £350.00.

[34]Both parties will provide dates of availability for a one-hour telephone case management hearing to take place before a judge sitting alone (not EJ Shotter who should not longer have any part in this proceedings including case management and at the final hearing) within 14-days of receiving this judgment and reasons.

[35]In the meantime, the claimant will produce a written document consisting of a list of all dates set out in a chronological order, detailing if possible each and every meeting he had regarding the new contract, the words used indicating duress and working under objection where relevant, people involved and any witnesses which he will send to the Tribunal and respondent within 14-days of receiving this reserved judgment and reasons.

[36]The parties will agree the draft issues to be decided at the final hearing and obtain availability dates for the next 18-months.

[37]The parties will be provided with an Agenda for completion prior to the preliminary hearing which will take place via CVP. 11.6.21