Mr M A Craven v Forrest Fresh Foods Ltd: 2406608/2023

EMPLOYMENT TRIBUNALS

Case No 2406608/2023

Between

Mr Mark Andrew CravenClaimant

Forrest Fresh Foods LimitedRespondent

Before

Employment Judge Leach, Mr J Flynn, Ms S Moores.

In person for claimant

Ms E Evan-Jarvis (instructed by solicitor) for respondent

Date 2 June 2025

JUDGMENT

[1]the claimant was constructively and unfairly dismissed.

[2]The date of dismissal was 3 February 2023. The claim was presented within the relevant time limit under section 111 Employment Rights Act 1996.

REASONS

[1]The claimant brings a complaint of constructive, unfair dismissal, saying he resigned from his employment with the respondent on 3 February 2023, in response to the respondent’s fundamental breach(es) of contract.

[2]The respondent disputes that the claimant was constructively dismissed, although claims that he was actually dismissed much earlier, on or about 10 June 2022, and that this claim was presented out of time. Proceedings to date

[3]This claim was issued on 9 June 2023 after the claimant had been through ACAS early conciliation, a process which began on 19 April 2023 and concluded with an early conciliation certificate issued on 10 May 2023.

[4]This is the second claim that the claimant issued against the respondent. A claim was issued on 11 November 2022 (case 2408838/22) in which the claimant made various complaints about unauthorised deductions from his wages. We call this claim the “First Claim.”

[5]The First Claim went to a final hearing before this (second) claim was issued. The final hearing of the First Claim took place on 6,7 March 2023 and 10,11 May 2023. Judgment was reserved and sent to the parties on 8 August 2023. In short, the judgment was that all the claimant’s unauthorised deductions complaints were dismissed.

[6]The claimant applied for reconsideration of that judgment (or various aspects of it). A reconsideration hearing took place on 12 February 2024 following which the claimant’s application was dismissed.

[7]The claimant appealed parts of the judgment in the first claim. In the initial sift stage, the Employment Appeal Tribunal (EAT) dismissed some points of the appeal although issues relating to the payment of salary and sick pay are going forward to a full hearing.

[8]The EAT is due to hear the surviving points of appeal on 10 June 2025.

[9]The claimant applied to have this final hearing postponed pending the outcome of his appeal. At a preliminary hearing on 25 March 2025 that application was rejected. However (and with some regard to the appeal) it was decided to limit this hearing to determine liability only although also including consideration of adjustments (under sections 207A Trade Union and Labour Relations (Consolidation) Act 1992 and 123(6) Employment Rights Act 1996) to any compensation that may subsequently be awarded at a remedy hearing. B. This Hearing

[10]On 7 May 2025, just 3 working days before the start of this hearing, Ms EvansJarvis applied to convert the hearing to a remote hearing by CVP or a hybrid hearing, explaining that she was unable to attend in person for health reasons. The claimant resisted the application.

[11]On the working day before this hearing (Friday 9 May) the Tribunal wrote to the parties to tell them that, for health and safety reasons, the building in which the Employment Tribunals were based in Manchester, was closed. A hearing room at the Immigration and Asylum Tribunal centre in Manchester had been allocated to this case. The parties were told that a CVP link would be sent out and that a hybrid hearing could take place if the respondent was unable to attend.

[12]On day one the claimant and his wife attended in person. Ms Evans-Jarvis and the respondent’s only witness (Mr Christopher Craven) attended by CVP.

[13]We noted our own preference for an in-person hearing but recognised that a hybrid hearing may have to take place . We asked for medical information to confirm Ms Evans-Jarvis inability to attend. We received a fit note completed by a GP stating that Ms Evans-Jarvis was unable to work at all and noting what we took to be a serious medical condition.

[14]We expressed concerns about agreeing for this hearing to go ahead at all (whether in person, remotely or hybrid) given the medical information received and expressed puzzlement about why other representation had not been arranged. We proposed postponement, also noting that the claimant had, some 2 months previously, applied for a postponement pending the outcome of the appeal and therefore presuming that he would not object.

[15]As it was, both parties objected to our proposal, the claimant noting that he had now prepared for the hearing and was keen that we went ahead. Ms Evans Jarvis was able to produce another fit note stating that she was well enough to work remotely.

[16]Through correspondence and discussions all agreed to proceed on the basis that the claimant would continue to appear in person. Ms Evans-Jarvis would attend remotely. Mr Christopher Craven (CC) would attend in person to give his evidence on day 3. The connections were good and we are satisfied that, through these arrangements, both parties were able to participate fully and that a fair hearing took place.

[17]We heard the claimant’s evidence on day 2 and at the beginning of day three. We heard CC’s evidence over the remainder of day 3. The parties made their submissions on the morning of day 4 and we were able to reach our decisions following deliberations on the afternoon of day 4.

[18]Both parties had asked for full written reasons. We did not therefore resume the hearing to provide oral reasons but informed the parties that they would receive the outcome in writing.

[19]We were provided with a main bundle of documents and a supplemental bundle. Almost all of the main bundle was the same bundle that had been used in the in first claim. Ms Evans Jarvis told me that it had been agreed that the same bundle would be used to assist the claimant who is dyslexic. Pages were then added to the bundle so that pleadings and additional correspondence and documents that might be relevant to this second claim were included. The bundle comprised 1502 pages.

[20]Ms Evans Jarvis told us that although the documentation we were provided with was significant she estimated about 90% was not relevant to the issues we needed to determine. Our focus has therefore been on those documents to which we were referred.

[21]The claimant also attended with a supplemental bundle which comprised documents that he said the respondent had refused to include in the main bundle.

[22]Reference to page numbers below are to references to the main bundle unless stated otherwise. C. The Issues

[23]The issues were identified at case management stage and the parties confirmed those issues remained the ones that we would consider in the course of this hearing. 1. Were the following actions viewed singularly or cumulatively capable of amounting to a repudiatory breach of the Claimant’s contract and the implied term of trust and confidence?a. Failure to show any regard for the Claimant’s health and wellbeing during his ongoing sickness absence and deliberate isolation of the Claimant as an employee.

b. Failure to pay wages due whilst on sick leave.

c. Failure to make employer pension payments.

d. Failure to pay a bonus.

e. Failure to deal with, and respond to, the Claimant’s grievances.

f. The Respondent conducted covert surveillance on the Claimant including:- i. Covert surveillance - ii. Covert vehicle tracker fitted to the Claimant’s car.

g. Failure to address the Claimant’s subject access requests in accordance with the UK GDPR? 2. Did the Respondent act in such a way that when viewed objectively was calculated or likely to destroy or seriously damage the trust and confidence between the Claimant and the Respondent? 3. Did the Respondent fundamentally breach the implied duty of trust and confidence entitling the Claimant to resign by acting ? 4. Did the Claimant resign in response to that breach or for some other reason. i.e. Did the repudiatory breach of contract play a part in the Claimant’s decision to resign? 5. Did that last straw contribute to the breach of trust and confidence in a manner that was more than trivial? 6. Did the Claimant affirm the contract, thus accepting any breach? 7. If the Claimant was unfairly dismissed, should any compensatory award be reduced on the grounds of the Claimant’s contributory conduct 8. Did the Respondent unreasonably fail to follow ACAS Code of Practice ? If so, should any award be increased by up to 25%?

[24]We also noted that, at case management stage, the respondent had raised a jurisdictional issue, saying that the claim was outside of the primary time limit for unfair dismissal claims. The respondent’s argument was based on an assertion that the claimant’s employment had ended on 10 June 20922 and not, as the claimant says, on 3 February 2023. We noted this and confirmed that we would add this jurisdiction point to the list of issues that we would consider and decide on. D. First claim

[25]There were some findings of fact of relevance to issues in this claim:-25.1 That the claimant held 3 relationships with the respondent company, as a shareholder, director and employee.

25.2 That the respondent’s obligation to pay the claimant ended in June 2022. That is because the claimant ceased being a director in June 2022. This finding is part of the appeal being heard by EAT on 10 June 2025.

25.3 That the claimant was removed as a director on 10 June 2022. The claimant appealed against this finding of fact and it was one point of appeal that was removed in the sift process. We note in our findings of fact below some doubts about whether the claimant was removed as a director on 10 June 2022. Those doubts arise from consideration of the evidence that was presented to us. However, the date the claimant was removed as a director of the respondent company is irrelevant to our findings on liability. It may have some impact on compensation, but that will not be considered until after the outcome of the claimant’s appeal is known.

[26]In her submissions, Ms Evans-Jarvis asserted that the Tribunal in the first claim also decided that the claimant’s employment terminated at the same time as he was removed from the office of director (10 June 2022). No such finding is recorded in the Judgment in the First Claim. The date on which the claimant’s employment terminated, was a finding that we had to make. E. Findings of Fact Relevant Background

[27]The respondent is a business that specialises in the supply and distribution pf food and drink products. It was set up by Mr and Mrs Forrest, the parents of CC. Mr and Mrs Forrest are now retired and live overseas although retain shareholdings in the respondent company. We were told by CC that he was at all relevant times the majority shareholder. CC also told us that, by this, he meant that he held more than 50% of the shares. That evidence was not disputed.

[28]The respondent business has grown over the years. Once there were only 3 or 4 people working for the respondent, by the time of the claimant’s departure there were around 70.

[29]The claimant is CC’s second cousin. He was initially employed in 2008 as a driver. He left the respondent’s employment in 2012 but then returned the following year (2013) in a sales capacity.

[30]The claimant was not initially provided with a written statement of terms of employment or similar. However in 2015 he was provided with a short contract of employment. The claimant recalls being provided with a document some time into his employment and also recalls signing this and returning it to the respondent. The respondent has provided a document that is only signed on behalf of the respondent. It is at pages 173-174 and is dated 24 August 2015. The claimant’s evidence is that he does not know whether or not this is the agreement he signed. Initially he believed it was not but told us that he might be confused with another document he was asked to sign on a different occasion which references restrictive covenants. We find on balance (as did the judge hearing the First Claim) that this was the document signed and agreed by the claimant.

[31]The contract notes the claimant’s job role as Business Development Manager. It provides for an annual salary of just £10,600. This was the income tax threshold in 2016 – the amount an employee could earn before being required to pay any income tax.

[32]From the date of this contract of employment, the payment arrangements for the claimant changed. He was paid a low salary and was given a single share in the respondent company. This was a different class of share to the shares held by CC and his parents. It was a non-voting share. It supposedly enabled a different level of dividend to be applied to this share than was applied to the shares that CC and his parents held. It was intended to enable the claimant to be remunerated without that remuneration being subject to income tax or national insurance, instead being subject to lower tax percentages applied to declared share dividends.

[33]The dividend applicable to the claimant’s share was paid on a regular, monthly basis. It was paid in advance instalments via a loan from the respondent company to the claimant. A dividend applicable to the claimant’s class of share, was declared at the end of each financial year when the loan was repaid.

[34]The following year, on 30 June 2016, the claimant was appointed as a director of the respondent company. The loan arrangement referred to above became a director’s loan account (DLA). The dividend declared was used to repay the DLA that had built up over the financial year as advance instalments of the dividend were made to the claimant. The loan was repaid promptly, before it was regarded as a taxable benefit.

[35]The claimant’s appointment to the office of director came at around the same time as the claimant took on more responsibilities for business in the South of England. The respondent began a business called Nationwide in Romford in 2016. The claimant relocated to the Southeast. It is not disputed that the turnover of the business based in the South increased considerably over the following 3 years, from £4 million to £9 million. The claimant’s job title changed from Business Development Manager to Commercial Director.

[36]As well as receiving payment of salary and (advance payments of) dividends, the claimant was by this stage also provided with a company car, fuel card (providing for free business and private fuel) and mobile phone.

[37]In addition, the claimant was provided with monthly contributions of £400 into a pension scheme. The pension contributions began in 2014 although were initially for £100 per month.

[38]According to the respondent’s evidence the claimant became a “de facto” director in August 2015. From the evidence we heard, we doubt that. His job title at that date was as noted on the contract of employment – business development manager; we have not heard evidence about whether for example he represented to third parties that he was acting as a director, whether he was making influential decisions, about whether the business treated him as a director. But we have decided we do not need to make a finding about whether he had the status of a de facto director or, for that matter, as a shadow director (a term that has a statutory definition). What is clear is that, in addition to his employment by the respondent, the claimant held the office of director from 30 June 2016 and continued to hold that position until the occurrence of events that are directly relevant to this claim and described below. VIP Essex

[39]Whilst based at Romford the claimant attended a gym near the respondent’s office. He became friends with a trainer at the gym called Danny Lee Finch (DLF). He decided to invest in a gym project that DLF had. New premises were acquired. A company called VIP HQ Essex Limited (“VIP Essex) was set up. The claimant was not initially appointed as director of VIP Essex. His evidence (which was not challenged) was that he was helping a friend. He did provide some assistance but only in his spare time during morning gym sessions and evenings/weekends. The claimant’s relocation

[40]The claimant relocated from his home in the South-East back to the North West of England in 2020. He and his family moved to Birkdale near Southport.

[41]Having relocated, the claimant and his wife decided to invest in commercial premises in Birkdale with the intention of opening up a gym under the VIP HQ name, together with DLF. The new Birkdale venture would involve the claimant and his wife making a significant financial investment. The claimant decided therefore that he would need to be appointed as a director of VIP HQ. That appointment was made on 1 January 2022. By that stage the claimant had been back in the North West for 18 months or so (we were not provided with a precise relocation date).

[42]The claimant continued in his role as commercial director. The role was a national one, the respondent operating on a nationwide basis and with offices in the South East (Romford) the North West (Rochdale) and the North East (Bedlington).

[43]CC’s evidence is that he started to have concerns about the claimant’s conduct from towards the end of 2021. As we note below, one of the concerns was about the claimant’s attendance at the respondent’s premises. We considered whether the claimant’s decision to locate to Birkdale might be a reason for this, the members of this Tribunal knowing that a commute from Birkdale to Rochdale (the location of the respondent’s North West office) is a significant one. However, the respondent appeared not to have had concerns about that for over a year following the claimant’s relocation. Relationship between CC and the claimant

[44]The claimant described his working and business relationship with CC as one that was “built on trust.” CC had control of the business and took all major decisions including decisions about the allocation of dividends between the different classes of share and other decisions about the claimant’s remuneration. The claimant was not provided with a new employment contract (or service agreement) following his appointment as director and as noted above, his salary did not particularly change following his appointment, always staying on or around the nil band limit for income tax purposes.

[45]Whilst the relationship between the 2 appeared to be a successful one for most of their time working together (during which the size of the respondent increased significantly) relations started to deteriorate. As noted above, CC’s evidence is that he started to have some concerns about the claimant’s conduct towards the end of 2021 “in that he appeared to be having a significant time of non-attendance to his duties as a director and/or was taking longer to undertake certain (and otherwise routine) tasks.”

[46]The claimant’s evidence is that “since moving back up North and prior to my discussion with Chris in February 2022 mine and Chris’s relationship had been strained.”

[47]We detail below the breakdown in relations in the first half of 2022. Both parties accept that their relationship was adversely affected before then, certainly from the end of 2021 and, as far as the claimant was concerned, a little before then.

[48]Poor communication is a feature of this case. There is no evidence that either CC or the claimant told each other about their concerns as the relationship worsened in late 2021. For example, there is no evidence that CC raised concerns with the claimant (either verbally or in writing) that he was not attending to some of his duties and if so what these were.

[49]However the respondent’s business continued to be successful. The claimant referred us to an exchange of emails on 23 and 24 December 2021 (pages 143-146 of the supplemental bundle). On 23 December 2023, CC emailed the claimant and another director (Jamire Kennedy) with congratulations on an increase in annual sale s figures by around 20%. Sales was a key part of the claimant’s responsibilities as commercial director. Other business interests

[50]The claimant gave evidence that other directors at the respondent had business interests separate to the respondent, particularly CC but also the respondent’s transport director. This evidence was not challenged and we find that directors other than the claimant did have external business interests . Meeting of 9 February 2022 between CC and the Claimant.

[51]This meeting was held at a time when both CC and the claimant considered there were issues with their working relationship. We find that the claimant asked for this meeting. The main reason why the claimant asked for the meeting was to tell CC about his interest in VIP Essex. We find that(1) the claimant informed CC of his interest and sought to assure him it would not impact his work with the respondent

(2) CC did not raise any objections;

(3) CC did not appear particularly interested;

(4) CC did not look to set any conditions relating to the claimant’s interest in VIP Essex.

[52]We also find that CC did not try to address with the claimant, any concerns he may have had about the claimant’s commitment to the respondent business. Appointing Private investigators.

[53]CC’s evidence is that following that meeting, the amount of time that the claimant was working with the respondent became more erratic. No evidence of this, other than CC’s statement, has been provided. For example there is no evidence of days when the respondent says the claimant was and was not in work or of times within days when he was not working; no evidence of an absence of activity on platforms such as outlook; no evidence that tasks had not been completed. This is surprising given the next step that CC took – to instruct a private investigator to carry out covert surveillance on the claimant.

[54]CC instructed a firm of private investigators called Trojan. He did so verbally by a telephone call. There were no written instructions from the respondent to Trojan The respondent has not disclosed any written terms of business between Trojan and the respondent and, from the evidence we have, we find that there are no written terms. CC understood the investigator appointed was a former police officer.

[55]The bundle includes a report from Trojan – headed “observation log” from 25 February 2022 (pages 346-354). It contains a series of photos and observations about the claimant’s movements from 07.50am to 5pm. At 08.15am the claimant is observed delivering his company car to a main dealership for a service. It is apparent from the observations that the private investigator had been informed of that appointment and was, unknown to the claimant, waiting outside the dealership to record the claimant’s arrival and departure. The observation log records the claimant being driven home from the dealership to his house where he remained until 14.05. A that time he visited the new VIP HQ premises in Birkdale for a short time ( about 40 minutes) before returning home.

[56]Trojan also fitted a tracker to the claimant’s company car. The claimant was not told that a tracker was being fitted and did not learn of this until December 2022. The only reason this tracker was fitted was to assist with the covert surveillance of the claimant’s movements. The bundle includes a report from the tracker, detailing the claimant’s whereabouts between 28 February 2022 and 10 March 2022 (pages 355- 370). Whilst we have not forensically examined the report we note that it shows the claimant travelled between his home and the respondent’s offices in Rochdale on most working days between these dates as well as on a Saturday (5 March 2022) . On 10 March 2022, it records the claimant travelling to an address in Essex with a Romford postcode (where the respondent’s South-East office is based) and beginning that journey shortly before 5am. The evidence secretly obtained by the respondent casts doubt on the respondent’s concerns about the claimant’s commitment to work. Meeting on 19 April 2022

[57]The claimant and CC had a fractious discussion primarily about an email that the claimant had sent to the respondent’s (then) newly appointed financial controller (FC). CC wanted to challenge the claimant about an instruction that he considered the claimant had given that stopped the new FC from carrying out his role effectively. The claimant denied that. CC did not believe the claimant and has referred us to an email from the claimant to the new financial controller (FC) to support his position. The email is dated 9 April 2022 and is at page 373. It was sent by the claimant after the new FC had sought information from an employee in the team being managed by the claimant who had also been recently appointed. It appears that employee (we understand they had only recently been appointed) felt unable to help the FC and had spoken with the claimant. In the email the claimant suggests to the FC that it might help if FC and the claimant spoke first. We have read the email. It is in respectful and appropriate language and not the type of email that we would expect would lead to a disagreement. Sadly it did. It is possible that CC and the claimant had crossed wires; CC believing that the claimant was denying that he had told the FC to speak with him before speaking with members of the trade team; the claimant believing that he was responding to CC’s accusation that he was stopping or blocking the fc from doing his job.

[58]The meeting also took place when, as noted above, relations between the 2 were deteriorating. CC appears to have continued to believe the claimant was not carrying out his role properly (although had still not made clear what it was he thought the claimant was not doing or not doing well enough). As for the claimant, he considered that CC was excluding him from business decisions ( including the recent appointment of the fc). He had seen posts on LinkedIn which noted that other employees were being made directors ( but CC had not spoken to him about such matters) and he believed that CC was looking to remove him from the business.

[59]We accept the claimant’s evidence that this discussion with CC upset him and affected him greatly. He attended the respondent’s Rochdale office over the following 2 days (20 and 21 April) although left at around lunchtime on 21 April. The tracker records at pages 417-420 show this. The claimant attended his doctor on 22 April and was signed as unfit to work for 1 month due to a “stress related problem.” (Fit note at 497). The claimant wrote to CC on 22 April 2022, at the start of his sickness absence. Dear Chris, Due to recent events I am writing this Letter. There has been a major breakdown in communication, I have tried to speak to you on a number of occasions now and you just dismiss me. On Tuesday 19th April I came to your office to speak to you and it resulted in you accusing me of telling the new FC not to speak directly to a member of my team. This is untrue and resulted in you arguing with me and on numerous occasions I feel like you are gaslighting me. This is causing me major stress, worry and anxiety. I feel the way you are treating me is unacceptable and unjust after 13 years of service at Forrest which I have always put first. For the first time in 13 years I do not feel a part of the business, I am being left out of major decisions including the hiring of a new FC Director and the formulating of a Board. As a Director this would usually be something we discuss and you have made it quite clear you are happy to leave me out. I am also being contacted by people I have solely dealt with for years asking why you are contacting them, this feels sneaky and untrustworthy. This has been going on for over a year now, constant arguing with you and when I spoke to you back on the 9th Feb 2022 I was open and honest and wanted things to change. Nothing has been done since then, and I have tried to communicate with you and still nothing. I would appreciate not only as my boss but cousin and friend that you can give me some time out and understand the position you have put me in. I need some time out to protect myself and my mental health and to be honest this will be the first time I have put myself before the business in 13 years. I have been to see the doctor and they have being signed me off for 1 month from today 22nd April 2022. Kind Regards,

[60]There are more “observation logs” detailing the private investigator’s covert surveillance of the claimant between 25 April and 29 April 2022 (pages 498-539). This was a week that the claimant did not attend work due to sickness. The observation logs show the claimant and his wife attending the new VIP HQ premises for most of 25 April; from about 3.30pm-5pm on 26 April and between 9am and 10am on 27 April. The logs also show that the claimant was followed to his dad’s address in Huddersfield and the claimant being secretly recorded taking his dad to a hospital appointment. On 28 April the claimant is recorded attending the VIP HQ premises for an hour between noon and 1pm and again between 3pm and 5pm. On 29 April the claimant is at the VIP HQ premises ( or appearing to run errands relevant to works being carried out there) for most of the afternoon.

[61]The investigation logs do not show the claimant being particularly active in his visits to the VIP HQ premises. He appears to meet some trades people and provide access, to speak with other visitors, visit a building trade/DIY store and collect some tools. The covert surveillance does not however show what activities the claimant may have engaged in whilst inside the building. Letter of 17 May 2022

[62]The respondent wrote to the claimant on 17 May 2022, a little before the claimant’s month of sickness absence was due to end. CC’s letter was drafted with the benefit of advice from solicitors. The letter is headed “Your position as a director of both Forrest Fresh Foods Holding Limited and Forrest Fresh Foods Limited.” It is a long letter making various allegations and enclosing the logs from Trojan for 25 to 29 April 2022.

[63]The letter tells the claimant that there will be an Extraordinary General Meeting (EGM) of the respondent and its holding company (referred to in the letter as FFF and Hold Co) on 3 June 2022, so that the shareholders can vote on whether the claimant should be removed as a director of the company in accordance with section 168 of the Companies Act 2006. Notice of that meeting was enclosed.

[64]The letter lists various concerns that there are said to be about the claimant’s “conduct and commitment to the interests and promotion of FFF.” The stated concerns are noted in paragraph 67 below.

[65]The letter contains a list of allegations specifically relating to the claimant’s observed activities between 25 and 29 April 2022. These are as follows:- 1. You were not acting in the best interests of either FFF or the Hold Co; 2. You have deliberately and knowingly misled the Officers of FFF and the Hold Co; 3. You were, or are, drawing monies from FFF, whilst working for and in relation to another business which is for your own personal interest; 4. You have deliberately and knowingly acted in a manner designed to cause damage to FFF and Hold Co, in failing to provide any services to either entity, whilst capable of doing so; 5. You have failed to act reasonably or with due care and skill; 6. You failed to declare your interests in another business in respect of which your time and focus has detracted from the services you are due to provide to FFF;

[66]This same list also includes an item (Item 7) which alleges that the claimant has knowingly concealed that an employee based at Romford had been taking illegal drugs, had instructed another employee to conceal the information and that failure to disclose appears to have somehow led to an altercation between the landlord of the office and the drug taking employee in question.

[67]The separate list of concerns referred to at 64 above are as follows:- The Companies have had, for some time, various concerns about your conduct and commitment to the interests and promotion of FFF. In particular, FFF have had cause to suspect that: -a. On various dates, whilst claiming to work from home, you were unavailable and uncontactable and that you were in fact taking unauthorised absence from FFF;

b. Your use of the company credit card was considered manifestly excessive and it was suspected that you were using the card for ulterior purposes;

c. The managing director received communications from existing clients identifying that you had contacted suppliers directly to arrange for products and samples to be sent directly to your home address;

d. You had directed suppliers to deliver goods and products to addresses not known to, or associated with FFF or its business;

e. You were contacting suppliers directly and were seeking the disclosure of sensitive commercial information, pricing and inviting one or more to invest in another venture;

f. You had been rude and aggressive towards several members of staff and that one or more members of staff had in face left the business specifically because of your conduct towards them;

g. You provided customers with a phone number not associated with your work mobile and represented to those customers that the ‘new number’ was your new main point of contact; and

h. You had sought to take annual leave in April, which due to staff shortages, had been refused, yet despite this refusal you still took time off from the office, claiming to work from home yet being unavailable when sought. We comment that none of the above matters have been investigated further at this time, but the Company shall be entitled to do so. The issues raised above however, justify the Company’s concerns as to your conduct and behaviour.

[68]Perhaps consistent with the note that further investigations had not taken place into these concerns, there was no evidence at all that was enclosed with the letter relating to these concerns other than the investigation logs produced by Trojan.

[69]Near the end of the letter, there is a paragraph telling the claimant he was suspended pending the EGM. The letter then sets out the effects of suspension – prohibiting the claimant from contacting customers, suppliers and employees; telling the claimant that access to his work email account was suspended as was the claimant’s access to other work IT systems. It provides the claimant with an opportunity to request evidence from the respondent’s systems as long as he makes that request before 4pm on 31 May 2022. Any such request would then be considered and information reasonably requested provided by 14 June 2022.

[70]We accept the claimant and his wife were very upset by the letter of 17 May 2022, shocked and upset about the evidence that they had been secretly followed and filmed and that had included occasions outside of the family home and included filming, not just the claimant but also his family. We accept that the claimant did not feel able to pick up the phone and speak with CC about the letter. We also accept that it had a negative impact on the claimant’s mental health. He attended his doctor again who issued a fit note signing the claimant as unfit to work for a further 8 weeks.

[71]The respondent replied to this fit note, effectively not believing it because they had evidence that the claimant had been working for another business.

[72]The claimant instructed solicitors who wrote to the respondent on 27 May 2022 noting their interest and that a substantive reply to the letter of 17 May 2022 would follow shortly. The letter also requested a copy of the claimant’s employment contract.

[73]The respondent’s solicitors replied on 31 May 2022, also noting their interest and that they were also taking instructions “in respect of the history and circumstances behind the draft shareholders’ resolution relevant to the termination of [the claimant’s] position. As for the request for a copy of the contract of employment, they asked as follows:- “We are considering your client's request for a copy of any contract of employment and/or Director Service agreement.... As we conduct our own inquiries into this matter and for the avoidance of doubt, what is your client asserting, i.e.that he has an employment contract or. a director service agreement; Or. he has both and/or he is asking for a copy of his contracts because he's not sure if he has one.

[74]The substantive reply from the claimant’s solicitors on his behalf, followed on 1 June 2022. Again, it is a long letter. Relevant parts of the letter are as follows:-74.1 It notes discussions that the claimant had had with CC regarding VIP HQ; effectively saying that he had been open about his investment and involvement.

74.2 It asserts that the claimant had been excluded from various decisions and treated with disdain.

74.3 It provides responses to the various allegations listed in the respondent’s letter and asked for an independent investigation into them.

74.4 It comments on the claimant’s statement of fitness to work and the evidence obtained by Trojan.

74.5 it comments on the proposed removal of the claimant from the office of director noting that it was a “fait accomplice” and that it appears nothing is going to be able to be said in defence of the claimant to stop it. That part of the letter ends as follows: The decision to proceed with the EGM in the absence of any evidence to support the allegations is evidence in itself of CC’s resolve to remove our client as director. It seems to us and our client that the breakdown in the relationship of trust and confidence and the unfairly prejudicial conduct suffered by our client is such that our client's continued role as a Director is not sustainable. Whilst our client would very much wish to remain as a director, CC’s treatment of him has made this untenable. In such circumstances, our client requires he is removed from all personal guarantees given for and on behalf of FFF and Hold Co.

74.6 it makes allegations and seeks a resolution about matters not relevant to the decisions we need to reach in this case.

74.7 It notes the claimant can ask for information but that it would not be provided until well after the scheduled EGM. It also notes that the date the EGM had been scheduled for (3 June 2022) fell on the Platinum Jubilee Bank Holiday. The EGM

[75]The EGM did not take place on 3 June 2022. The respondent (CC) says that, as the claimant’s solicitors had identified the date to be on the bank holiday, it was moved to the following week, 10 June 2022. CC also says that the claimant and his solicitors were aware of this but the respondent has not been able to provide evidence that either the claimant or his solicitors were notified.

[76]From the evidence that we have seen, we find it difficult to accept CC’s version of events about the EGM and doubt very much that an EGM was held on 10 June 2022. If it was, then we do not accept that the claimant and/or his solicitors were informed of the meeting and its outcome. These are out reasons:-76.1 As noted above, there is no documentary evidence that the claimant/his solicitors were informed of the new EGM date (10 June) or the outcome.

76.2 The respondent’s solicitors (Aticus Law) wrote to the claimant’s solicitors (Napthens) on 17 June 2022. One of the topics dealt with in that correspondence is removal of director. Another is the claimant’s response to the allegations provided by Napthens on 1 June 2022. This is what is said about each:- “ALLEGATIONS As to the allegations that have been levelled as against your client, the responses as contained within your Letter are duly noted, but and with respect, they are not accepted and our clients retain and maintain their position in respect of said issues. Our client has been required and continues to conduct a thorough investigation into the emails and communications as facilitated by your client. The extent of your clients' inappropriate conduct has become even more of a concern to our clients by consequence of those issues which have additionally been uncovered. REMOVAL OF DIRECTOR We note from the content of your correspondence that your client is resigned to being removed as a Director. It is not necessary for the Shareholders to present any justification for their decision to remove a director and their calling of the Shareholders meeting to consider the same. Had he been removed as director, then the letter could (and in our view, would) simply have said that. It did not.

76.3 Companies House records note the date that the claimant was removed as a director of the respondent was 3 February 2023 (which is, as detailed below, the date that the claimant says his employment ended).

[77]The respondent’s position (central to its case on jurisdiction) is that the claimant’s directorship and employment came to an end at the same time – 10 June 2022. Whilst this Tribunal has considerable doubt that the EGM occurred on 10 June 2022, we note the terms of the Judgment in the First Claim, particularly para 50 (page 1426): “ It appears that the EGM was ultimately held on 10th June 2022 and that the vote was passed to remove the Claimant as a director; the Claimant did not attend through ill health but it was agreed between the parties at the hearing that this is indeed what happened, even though it is unclear when the Claimant says that he became aware of it.”

[78]We also note that it is not necessary for us to determine the date when the claimant was removed from the office of director. What is clear to us is that he was not dismissed as an employee on 10 June 2022. These are our reasons:-78.1 The terms of the letter from Aticus Law dated 17 June 2022 and particularly the section under the heading “ALLEGATIONS” quoted above – reference to an ongoing disciplinary investigation.

78.2 Crucially, the claimant was not given notice of his dismissal.

78.3 The terms of the ET1 and ET3 in the First Claim. The claimant stated in his ET1 that his employment began on 01/01/2008 and was continuing (response to standard question 5.1 on that claim form (page 6). In the response form (ET3) the respondent sought to correct these dates by stating ( at part 4 of the ET3 – page 19) that the claimant’s employment started in 2013 but accepted (at 4.2) that the employment was continuing.

78.4 The respondent’s willingness to initially engage in a grievance process – see below.

78.5 The absence, in any contemporaneous document we have been referred to, of the claimant having been dismissed on 10 June 2022.

78.6 The absence, in any contemporaneous document we have been referred to, of the claimant’s employment having ended before 3 February 2023.

78.7 The claimant was not required to return his company vehicle until after his letter of resignation dated 3 February 2023.

[79]We carefully considered the facts that appeared inconsistent with his continuing employment, particularly the fact that the respondent stopped paying the claimant. In the First Claim the respondent argued (successfully) that all payments related to the claimant’s directorship and not his employment. Whilst we understand that finding will be considered on appeal, assuming it is correct then stopping those payments is not inconsistent with continuing employment.

[80]Our finding is that the claimant’s employment continued until terminated on 3 February 2023 by his resignation. Grievance

[81]On 18 July 2022, the claimant submitted a grievance. In that grievance the claimant complained that:-81.1 there was a “vendetta” to remove him from the business.

81.2 that carrying out the covert surveillance was a serious breach of the mutual trust and confidence term and a breach of his right to privacy.

81.3 his pay for July had not been received.

81.4 he was due a bonus that has not been paid.

81.5 the respondent stopped making monthly payments to HMRC (there had been an arrangement by which the respondent would provide payments in respect of historic tax liabilities).

[82]In relation to the alleged failures by the respondent to pay sums due to him the claimant said they were “further attempts to force me to leave. I refuse to walk away from everything I have built over the last 13 years, instead, I will reserve my position for now and continue to work under protest (once fit to return) whilst seeking remedy for sums due to me.”

[83]The claimant also noted that it was CC’s conduct that had caused his illness and asked that the respondent appoint an external person to investigate his grievance.

[84]The respondent’s operations director replied on 22 July 2022, confirming receipt of the grievance and stating, “Your comments will be investigated and the company will be in contact in due course.”

[85]There is no evidence that the respondent took any steps relating to this grievance until much later in the year. The claimant’s solicitors wrote on 9 and 16 August asking for an update and expressing disappointment that there had been no response (135) noting that the claimant reserved his position regarding ongoing breach of trust and confidence.

[86]The respondent wrote to the claimant on 5 October 2022 noting a decision to instruct an independent third party to conduct a grievance investigation and telling the claimant that person would be in touch “in due course” to invite the claimant to a hearing. A barrister based in Manchester, called David Jones (DJ) was instructed. DJ’s clerk contacted the claimant’s solicitors and arranged an appointment for 11 November 2022.

[87]On 28 November 2022, the claimant’s solicitors wrote to DJ and asked for an update. DJ replied that same day: Apologies, the delay is with me just trying to co-ordinate diaries for meetings. I am expecting to have dates confirmed today at which point I will provide a further update. Please be assured, I am keen to conclude this matter as soon as possible for your client, it was clear to me when we met the considerable impact it is having on his wellbeing.

[88]However on 6 December 2022, DJ wrote to the claimant’s solicitors to inform them that he had been asked to pause all existing work as he had been told the parties were to engage in mediation.

[89]Although the mediation was not successful, the claimant received no further contact about the grievance. CC was asked about the slow progress of the grievance and the fact that the claimant had not been provided with an outcome. CC’s response was that the respondent had appointed DJ and that the fault was with him. However we have seen no evidence that the respondent contacted DJ following the unsuccessful mediation and asked him to resume the work. In his statement ( para 51) CC states that “at the time of the claimant’s resignation letters in January and February 2023 we were still actively dealing with the grievance.” There is no evidence of any step being taken in the grievance process beyond DJ’s meeting with the claimant on 11 November 2022. We find that the respondent took no steps to progress the grievance after the unsuccessful mediation and only limited steps before then. Pension

[90]In 2014 the respondent started making payments to a pension scheme that had been set up in the claimant’s name. Initially the respondent’s monthly contribution was £100 (see page 1347). By 2021 the respondent’s monthly contributions had increased to £400. The claimant wrote to the pension provider to ask for details of the contributions being made into the scheme. On 26 January 2023 he learned that contributions had stopped in May 2021.

[91]We accept that the claimant did not know, before 26 January 2023, that the respondent had stopped payments into the scheme.

[92]In response to questions on cross examination, CC told us that an error had occurred with the pension provider and that the claimant’s pension was not the only one affected. This detail was not provided in the respondent’s response form or in CCs witness statement.

[93]CC also told us (in response to questions from the claimant) that the respondent would not be making up the missed payments into the pension scheme that had been set up for the claimant’s benefit. His stated justification for not doing so is that the claimant owes money to the respondent. ICO

[94]On or about 9 December 2022, the claimant made a subject access request under data protection legislation. No response had been received by the claimant and therefore on or about 25 January 2023, the claimant made a complaint to the Information Commissioner’s Office (ICO).

[95]We have been referred to correspondence with the ICO that post-dates the claimant’s resignation and we simply note that cannot be relevant to the claimant’s decision to resign.

[96]There is one relevant finding of fact, however. The claimant reported the respondent to the Information Commissioner’s Office who then made enquiries of the respondent about their use of the claimant’s data.

[97]When responding to enquiries from the ICO the respondent told the ICO that the tracker was put on the claimant’s company car to comply with insurance purposes. That is reflected in the ICOs letter to the claimant dated 2 June 2023, (page 1474-5) providing outcomes to complaints raised by him.

[98]When being cross examined, CC accepted that was what the respondent told the ICO and that it was not true. He added that his own company vehicle now has a tracker fitted. But it did not have a tracker fitted at the time and a tracker that may have been more recently fitted was not done secretly, without his knowledge. It is not disputed either that the claimant’s commercial vehicles ( lorries and vans) delivering product have trackers fitted. Those trackers may be fitted for insurance purposes.

[99]We find that Trojan fitted a tracker to the claimant’s vehicle. They did so secretly, with the sole purpose of carrying covert surveillance on the claimant. The claimant was not told about the tracker until December 2022. The bundle includes records from the tracker between 28 February 2022 and 10 March 2022 and between 9 April 2022 and 7 May 2022. No evidence was provided about the date that the tracker was fitted or removed (if at all). Claimant’s resignation.

[100]The claimant provided 2 letters of resignation. The first is dated 17 January 2023. It refers back to the grievance of 18 July 2022. It also notes :-100.1 an ongoing failure to make statutory sick pay (SSP) payments.

100.2 That, in addition to the covert surveillance that the claimant was told about in May 2022, the claimant discovered in December 2022 that the respondent had caused a tracker to be fitted to his car.

100.3 That the grievance had been “handled abysmally”

100.4 That correspondence from the claimant regarding the SAR had been ignored.

100.5 That the claimant had no trust that the respondent would seek to resolve the grievances and that the respondent’s actions were designed to force the claimant to resign, which he did by providing 12 weeks’ notice.

[101]The claimant wrote again on 3 February 2023, stating as follows:- To the Directors, Resignation I write further to my letter of 17 January 2023 to confirm that I resign my position as Commercial Director with Forrest Fresh Foods Limited (the Company) with immediate effect, due to ongoing fundamental breaches of my contract of employment. Due to the Company's actions, I have been forced to leave my position and seek further employment to provide for my family. I trust that this is clear and will wait to hear from you in relation to the arrangements on termination for my pay etc.

[102]We find the principal reasons for the claimant’s resignation to be the respondent’s actions in engaging in covert surveillance of the claimant. The clamant found out about the covert observational surveillance on receipt of the “suspension” letter of 17 May 2022 and, in December 2022, found out that the company car being used by him was being secretly tracked. We are supported in this conclusion by the wording of the letter from the claimant’s solicitors dated 31 May 2022, as noted at 74.5 above.

[103]We also find that the respondent’s failure to advance and conclude the grievance process was one of the reasons why the claimant resigned. The claimant was asked whether a grievance outcome might have enabled him to remain in employment. He responded that if a fair outcome was reached then it might.

[104]The other reasons for the claimant’s resignation – relating to pay, pension and the delay to the handling of the SAR (which was not at that stage a significant delay) formed part of the claimant’s decision but were more peripheral to the covert surveillance and the grievance. The pension issue was not known by the claimant when he sent the first resignation letter (17 January) and not specifically referred to in the second letter. Further, the issues relating to pay were part of the claimant’s grievance. He was entitled to have his grievance investigated and a fair outcome. The claimant’s sickness

[105]As noted above, the claimant began a period of sickness on 22 April 2022 and did not return to work. .

[106]The bundle includes fit notes which stated that the claimant was not well enough to attend work.106.1 Dated 19 May 2022 for 8 weeks - page 580.

106.2 Dated 20 July 2022 for 8 weeks from 14 July 2022 – page 583.

106.3 15 December 2022 for the period 7 September 2022 to 31 January 2023.

[107]There is no dispute that the respondent was provided with fit notes covering the period to 7 September 2022. The claimant’s evidence is that he also provided (or believed he had) a fit note in September. He may have provided it to his solicitors to pass to the respondent. The respondent may not have received it. The claimant arranged for what he called a duplicate fit note to be issued by his doctor. That is why there is a fit note dated 15 December 2022, covering the period 7 September to 31 January 2023. We accept that evidence.

[108]CC’s evidence is that as far as he was concerned the employment had ended on 10 June 2022 at the same time as he says he/the shareholders brought the directorship to an end. The fit notes provided following then therefore were irrelevant.

[109]Also, the respondent’s position (supported by CC’s evidence) is that the claimant was not ill at all. His absence at the end of April was taken fraudulently. Some weeks before the sickness began the claimant had asked for a week’s annual leave at the end of April and was refused because it was the respondent’s financial year end and his absence would have left the respondent short staffed. The claimant’s sickness was therefore “concocted” to allow him time off. Whilst absent, he engaged in activities with his other business.

[110]Having considered all of the evidence available to us, we do not accept this. We find the claimant’s absence to have been genuinely caused by illness. These are our reasons:-110.1 Both CC and the claimant gave evidence that, over the claimant’s long service with the respondent, sickness absence was very rare.

110.2 The meeting between CC and the claimant did take place and the claimant was very upset by the meeting – that much is evident from his letter that followed (see para 59 above) .

110.3 The working relationship between the 2 had seriously deteriorated.

110.4 That deterioration in relations affected the claimant greatly.

110.5 The GP decided to sign the claimant off for 4 weeks rather than a lesser period. That indicates to us that the GP was concerned about the claimant’s health.

110.6 The claimant’s health did not improve and we have seen reference in the bundle to the claimant being referred in August 2022, to a mental health crisis team pathway with an urgent care assessment team (page 298).

110.7 The activities that were captured by Trojan really show no more than the claimant attending premises that he and his wife had acquired, opening those premises and being present when work was being carried out. He also attended a store probably to collect parts or tools, attended a café for lunch and took his Dad to hospital. There is no evidence to indicate that the claimant, if genuinely absent because of a mental illness, would be unable to carry out these tasks. Allegations against the claimant.

[111]The respondent’s letter of 17 May 2022 included a long list of alleged misconduct by the claimant. These allegations were not at any stage fully investigated. We have been referred to some (but not much) evidence in this hearing relating to some of the items on the long list. We note particularly in the course of cross examination, CC made reference to the claimant’s credit card invoice including payments to Apple in 2021. We note regular (they appear to be monthly) purchases from Apple for £2.49, £9.99 and £49.99. No reference was made in CC’s statement and the claimant was not cross examined about these.

[112]The claimant was provided with a company credit card. The respondent received statements and paid the credit card bill. The bundle of documents prepared for the hearing in the First Claim (and therefore included in the bundle we had) included various Barclaycard statements which were noted in the index as “Bank statements – showing unauthorised usage. No particular item was identified to us as unauthorised.

[113]We have also seen an exchange of messages between the claimant and CC’s wife (Shona Craven (SC) who also worked for the respondent) from April 2020. These tell us that SC reviewed the claimant’s card statements and on that occasion asked for receipts relating to Apple. (page 1340). Other messages in the exchanges we were provided indicate that SC did carry out a bookkeeping or accountancy role with the business – we note for example later messages re invoices (1343). Had there been genuine concerns regarding the claimant’s credit card usage then these would have been raised in 2020 or on other occasions when the concerns arose. They were not.

[114]From the evidence that we have been referred to, we find that the claimant did not make inappropriate claims on the company credit card. We have no evidence to begin to conclude that the claimant’s use of the card was “manifestly excessive” as alleged in the letter of 17 May.

[115]In his evidence, CC also indicated that employees who had been managed by the claimant were leaving the respondent. There was no evidence provided of misconduct on the claimant’s part other than vague (and unsubstantiated ) evidence about the claimant not attending the workplace and not being interested in the respondent.

[116]No evidence was provided to us in relation to other allegations of misconduct except evidence referred to earlier in these findings of fact concerning the claimant’s involvement in another business and his alleged fraud in being absent due to sickness. F. Submissions We heard submissions from both parties. Ms Evans-Jarvis provided us with oral submissions and the claimant handed us a document that he also read to us. We considered both parties submissions when making our findings of fact and in reach our conclusions. G. The Law Constructive Dismissal

[117]The claimant claims(1) that his resignation amounted to a constructive dismissal and

(2) that this dismissal was unfair under s98 of the Employment Rights Act 1996.

[118]Dismissal for the purposes of s98 includes the circumstances stated at s95(1)( c). “ …..an employee is dismissed by his employer if…….the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”

[119]In considering the issue of constructive dismissal, an Employment Tribunal is required to consider the terms of the contractual relationship, whether any contractual term has been breached and, if so, whether the breach amounts to a fundamental breach of the contract (Western Excavating (ECC) Limited v. Sharp [1978] QC 761) (“Western Excavating”) .

[120]It is an implied term of every employment contract that the employer shall not without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. We refer to this term as “the Implied Term.”

[121]In considering the Implied Term, Browne-Wilkinson J in Woods v WM Car Services (Peterborough) Limited

[1981] ICR 666

, said that the tribunal must “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.”

[122]A breach of the Implied Term is, by itself, a fundamental breach of contract (see for example the EAT’s judgment in Morrow v. Morrison Stores EAT/O275/00 at paragraph 23)

[123]A course of conduct can cumulatively amount to a fundamental breach of contract entitling an employee to resign and claim constructive dismissal following a “last straw” incident, even though the “last straw” is not, by itself, a breach of contract: Lewis v Motorworld Garages Limited

[1986] ICR 157

CA.

[124]In the judgment of the Court of Appeal in Omilaju v Waltham Forest London Borough Council

[2005] 1 All ER 75

(“Omilaju”) Dyson LJ stated as follows in relation to the last straw. “A final straw, not in itself a breach of contract, may result in a breach of the implied term of trust and confidence. The quality that the final straw must have is that it should be an act in a series whose cumulative effect is to amount to a breach of the implied term. I do not use the phrase “an act in a series” in a precise or technical sense. The act does not have to be of the same character as the earlier acts. Its essential quality is that, when taken in conjunction with the earlier acts on which the employee relies, it amounts to a breach of the implied term of trust and confidence. It must contribute something to that breach although what it adds may be relatively insignificant.”

[125]The Court of Appeal decision in Kaur v Leeds Teaching Hospitals NHS Trust

[2018] IRLR 833

, commented on the last straw doctrine. The judgment included guidance to Employment Tribunals deciding on constructive dismissal claims. At paragraph 55 of the judgment, Underhill LJ states:- In the normal case where an employee claims to have been constructively dismissed it is sufficient for a tribunal to ask itself the following questions:(1) What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation?

(2) Has he or she affirmed the contract since that act?

(3) If not, was that act (or omission) by itself a repudiatory breach of contract?

(4) If not, was it nevertheless a part (applying the approach explained in [LB Waltham Forest v. Omilaju

[2005] ICR 481

] of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the [implied term of trust and confidence]? ……

(5) Did the employee resign in response (or partly in response) to that breach? None of those questions is conceptually problematic, though of course answering them in the circumstances of a particular case may not be easy.

[126]Once a repudiatory breach of contract has been established, it is necessary to consider the part it played in the claimant’s decision to resign. The following passage from the judgment of the Court of Appeal in Nottinghamshire County Council v. Meikle

[2004] IRLR 703

, is helpful. It has been held by the EAT in Jones v Sirl and Son (Furnishers) Ltd

[1997] IRLR 493

that in constructive dismissal cases the repudiatory breach by the employer need not be the sole cause of the employee's resignation. The EAT there pointed out that there may well be concurrent causes operating on the mind of an employee whose employer has committed fundamental breaches of contract and that the employee may leave because of both those breaches and another factor, such as the availability of another job. It suggested that the test to be applied was whether the breach or breaches were the 'effective cause' of the resignation. I see the attractions of that approach, but there are dangers in getting drawn too far into questions about the employee's motives. It must be remembered that we are dealing here with a contractual relationship, and constructive dismissal is a form of termination of contract by a repudiation by one party which is accepted by the other: see the Western Excavating case. The proper approach, therefore, once a repudiation of the contract by the employer has been established, is to ask whether the employee has accepted that repudiation by treating the contract of employment as at an end. It must be in response to the repudiation, but the fact that the employee also objected to the other actions or inactions of the employer, not amounting to a breach of contract, would not vitiate the acceptance of the repudiation.

[127]In the event that an Employment Tribunal decides that the termination of a claimant’s employment falls within s95(1) the employer must show the reason for dismissal and that the reason for dismissal was a potentially fair one under s98(1) and (2) ERA. In a constructive dismissal claim, the reason for dismissal is the reason why the employer breached the contract of employment (Berriman v. Delabole Slate Limited

[1985] IRLR 305

at para 12).

[128]A delay in resigning may indicate that the employee has affirmed the contract, so losing the right to claim constructive dismissal In Western Excavating Lord Denning stated that 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’

[129]In Bournemouth University Higher Education Corporation v Buckland

[2010] ICR 908

, CA, the Court of Appeal confirmed this although in his judgment Lord Justice Jacob noted the requirement for Tribunals to review the particular facts of a case very carefully before deciding whether the employee has affirmed the contract. Next, a word about affirmation in the context of employment contracts. When an employer commits a repudiatory breach there is naturally enormous pressure put on the employee. If he or she just ups and goes they have no job and the uncomfortable prospect of having to claim damages and unfair dismissal. If he or she stays there is a risk that they will be taken to have affirmed. Ideally a wronged employee who stays on for a bit whilst he or she considered their position would say so expressly. But even that would be difficult and it is not realistic to suppose it will happen very often. For that reason the law looks carefully at the facts before deciding whether there has really been an affirmation. (Para 54)

[130]In Chindove v William Morrisons Supermarket PLC

UKEAT/0201/13/BA

(26 March 2014) (“Chindove”). The EAT considered the significance or otherwise of the passage of time in relation to affirmation, and said this in paragraphs 25-27 25….We wish to emphasise that the matter is not one of time in isolation. The principle is whether the employee has demonstrated that he has made the choice. He will do so by conduct; generally by continuing to work in the job from which he need not, if he accepted the employer’s repudiation as discharging him from his obligations, have had to do.26. He may affirm a continuation of the contract in other ways: by what he says, by what he does, by communications which show that he intends the contract to continue. But the issue is essentially one of conduct and not of time. The reference to time is because if, in the usual case, the employee is at work, then by continuing to work for a time longer than the time within which he might reasonably be expected to exercise his right, he is demonstrating by his conduct that he does not wish to do so. But there is no automatic time; all depends upon the context. Part of that context is the employee’s position. As Jacob LJ observed in the case of Buckland v Bournemouth University Higher Education Corporation

[2010] EWCA Civ 121

, deciding to resign is for many, if not most, employees a serious matter. …

27. An important part of the context is whether the employee was actually at work, so that it could be concluded that he was honouring his contract and continuing to do so in a way which was inconsistent with his deciding to go.

[131]In the recent case of Leaney v. Loughborough University

[2023] EAT 155

, the EAT held that the correct approach is for a Tribunal to focus on what conduct there was during the relevant period that might or might not have amounted to an express or implied communication of affirmation. The judgment includes the following guidance. 21. In particular, acts of the innocent party which are consistent only with the contract continuing are liable to be treated as evidence of implied affirmation. Where the injured party is the employee, the proactive carrying out of duties falling on him and/or the acceptance of significant performance by the employer by way of payment of wages, will place him at potential risk of being treated as having affirmed. However, if the injured party communicates that he is considering and, in some sense, reserving, his position, or makes attempts to seek to allow the other party some opportunity to put right the breach, before deciding what to do, then if, in the meantime, he continues to give some performance or to draw pay, he may not necessarily be taken to have thereby affirmed the breach.

[132]We referred the parties to the ICO’s Employment Practices Data Protection Code and note the following from part 3 (Monitoring at Work) (the underlined sections are the ones that we consider to be particularly relevant when considering the actions of the parties in this case): 3.4 Covert monitoring Covert monitoring means monitoring carried out in a manner calculated to ensure those subject to it are unaware that it is taking place. This subsection is largely directed at covert video or audio monitoring, but will also be relevant where electronic communications are monitored when workers would not expect it.3.4.1 Senior management should normally authorise any covert monitoring. They should satisfy themselves that there are grounds for suspecting criminal activity or equivalent malpractice and that notifying individuals about the monitoring would prejudice its prevention or detection.

• Covert monitoring should not normally be considered. It will be rare for covert monitoring of workers to be justified. It should therefore only be used in exceptional circumstances.

3.4.2 Ensure that any covert monitoring is strictly targeted at obtaining evidence within a set timeframe and that the covert monitoring does not continue after the investigation is complete.

• Deploy covert monitoring only as part of a specific investigation and cease once the investigation has been completed.

3.4.3 Do not use covert audio or video monitoring in areas which workers would genuinely and reasonably expect to be private.

• If embarking on covert monitoring with audio or video equipment, ensure that this is not used in places such as toilets or private offices.

• There may be exceptions to this in cases of suspicion of serious crime but there should be an intention to involve the police.

3.4.4 If a private investigator is employed to collect information on workers covertly make sure there is a contract in place that requires the private investigator to only collect information in a way that satisfies the employer's obligations under the Act.

• Check any arrangements for employing private investigators to ensure your contracts with them impose requirements on the investigator to only collect and use information on workers in accordance with your instructions and to keep the information secure.

3.4.5 Ensure that information obtained through covert monitoring is used only for the prevention or detection of criminal activity or equivalent malpractice. Disregard and, where feasible, delete other information collected in the course of monitoring unless it reveals information that no employer could reasonably be expected to ignore.

• In a covert monitoring exercise, limit the number of people involved in the investigation.

• Prior to the investigation, set up clear rules limiting the disclosure and access to information obtained.

• If information is revealed in the course of covert monitoring that is tangential to the original investigation, delete it from the records unless it concerns other criminal activity or equivalent malpractice. 3.5 In-vehicle monitoring Devices can record or transmit information such as the location of a vehicle, the distance it has covered and information about the user's driving habits. Monitoring of vehicle movements, where the vehicle is allocated to a specific driver, and information about the performance of the vehicle can therefore be linked to a specific individual, will fall within the scope of the Data Protection Act.

3.5.1 If in-vehicle monitoring is or will be used, consider—preferably using an impact assessment—whether the benefits justify the adverse impact.

• Where private use of a vehicle is allowed, monitoring its movements when used privately, without the freely given consent of the user, will rarely be justified.

• If the vehicle is for both private and business use, it ought to be possible to provide a 'privacy button' or similar arrangement to enable the monitoring to be disabled.

• Where an employer is under a legal obligation to monitor the use of vehicles, even if used privately, for example by fitting a tachograph to a lorry, then the legal obligation will take precedence.

3.5.2 Set out a policy that states what private use can be made of vehicles provided by, or on behalf of, the employer, and any conditions attached to use.

• Make sure, either in the policy or separately, that details of the nature and extent of monitoring are set out.

• Check that workers using vehicles are aware of the policy. Grievances

[133]There is an implied term in every contract of employment that the employer will “reasonably and promptly afford a reasonable opportunity to their employees to obtain redress of any grievance they have.” (WA Goold (Pearmak) Limited v. McConnell

EAT/489/94

) (Pearmak)

[134]More recent authority recognises that a failure to adhere to a grievance procedure is capable of amounting to a breach of the Implied Term. (Blackburn v. Aldi Stores Limited

UKEAT/0185/12

) ACAS code of practice

[135]Section 207(A)(3) Trade Union and Labour Relations (Consolidation) Act 1992 provides as follows. If, in the case of proceedings to which this section applies, it appears to the employment tribunal that—(a) the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies,

(b) the employee has failed to comply with that Code in relation to that matter, and

(c) that failure was unreasonable, the employment tribunal may, if it considers it just and equitable in all the circumstances to do so, reduce any award it makes to the employee by no more than 25%.

[136]The ACAS Code of Practice on Disciplinary and Grievance Procedures (the most recent version dating from 2015) is a relevant code of practice for the purposes of section 207A above.

[137]We note paragraph 40 of the Code is headed “decide on appropriate action” which provides as follows: “Following the meeting decide on what action, if any, to take. Decisions should be communicated to the employee, in writing, without unreasonable delay and , where appropriate, should set out what action the employer intends to take to resolve the grievance. The employee should be informed that they can appeal if they are not content with the action taken.” Contributory Conduct

[138]The list of issues requires us to apply section 123 (6) Equality Act 2010 and reach a decision about(1) whether there should be a percentage deduction to a compensatory award and

(2) if so how much.

[139]Section 123(6) provides as follows:- “S123(6) Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.” H. Conclusions

[140]We set out our conclusions under the various issues listed explaining, where appropriate how we have reached the conclusion.

[141]Before we address the listed issues we note, for the avoidance of doubt, our conclusion that the claimant’s employment ended on 3 February 2023. See our findings at paragraph 78, particularly as to why we do not accept the respondent’s case that the claimant was dismissed on 10 June 2022. List of issues 1. Were the following actions viewed singularly or cumulatively capable of amounting to a repudiatory breach of the Claimant’s contract and the implied term of trust and confidence? a. Failure to show any regard for the Claimant’s health and wellbeing during his ongoing sickness absence and deliberate isolation of the Claimant as an employee. Conclusions – 1a.

[142]This was not directly referred to in either of the claimant’s resignation letters or his grievance raised in July 2022. It does not describe a particular action by the respondent The evidence provided was that:-142.1 CC decided that the claimant was not really ill in April 2022 and was fraudulently claiming that he was.

142.2 CC appears to have decided that the claimant was up to “no good”.

142.3 The claimant was suspended. CC appears to have decided that the claimant was no longer employed by the respondent after 10 June.

[143]With the exception of(1) the limited steps taken with the claimant’s grievance and

(2) not requiring the claimant to return the company car, the respondent did nothing that was consistent with the claimant’s ongoing employment.

[144]It is inevitable therefore that the claimant was isolated from the respondent and that the respondent (through the actions and omissions by of CC) did not show any regard for the claimant’s health and wellbeing. Whilst the respondent did not act by dismissing the claimant, CC had decided by 3 June 2022 latest that he wanted the claimant’s employment to end. b. Failure to pay wages due whilst on sick leave. c. Failure to make employer pension payments. d. Failure to pay a bonus. Conclusions - 1b, c and d

[145]Conclusions were reached in the First Claim about these payment issues. The outstanding appeal will consider the finding about the claimant’s wages being linked to the office of director rather than employee. Stopping any payments to the claimant ( even statutory sick pay) is consistent with CC’s view that he regarded the claimant’s employment at an end, supporting our conclusions under 1a above.

[146]The claimant did not become aware of the pension payment issue until after he had sent in his first (January 2023) resignation letter. That cannot therefore have been a reason for the claimant’s decision to resign. e. Failure to deal with, and respond to, the Claimant’s grievances. Conclusions – 1e

[147]The respondent did fail to address the claimant’s grievances. There was a long gap (July to November 2022) before the respondent took any steps to address the grievance. We do not accept that CC attempted to resurrect a grievance process following an unsuccessful mediation.

[148]The apparent disinterest in the claimant’s grievance may have been caused by a belief that the claimant was no longer employed by the respondent and, perhaps a disconnect between CC’s belief and legal advice he was receiving at the time.

[149]The facts as we find them are that the claimant’s employment was continuing. The claimant raised a grievance and the respondent (his employer) was obliged to take steps to promptly address those grievances – as recognised in Pearmak). It did not. We find that the respondent’s failure to deal with the claimant’s grievances for such a period was in itself capable of amounting to a fundamental breach of the Implied Term (Blackburn). Further, in the circumstances of this case, the failure did amount to a breach of the Implied Term f. The Respondent conducted covert surveillance on the Claimant including:- i. Covert surveillance - ii. Covert vehicle tracker fitted to the Claimant’s car. Conclusions – 1f

[150]The respondent (CC) instructed private investigators to engage in covert monitoring of the claimant. This instruction appeared to have been given after the claimant had been open with CC about another business interest. The ICO Code stresses how rare it should be to engage in covert monitoring of employees. The reallife experience of members of this Tribunal confirm that covert surveillance of employees almost never happens and is only considered in the circumstances described in the Code. – where there are grounds for suspecting criminal activity or equivalent malpractice and where there is no reasonable alternative to investigating these suspicions.

[151]The respondent had made no attempt to first raise concerns with the claimant; to make clear the boundaries that it considered were appropriate to the respondent’s business. For example:-151.1 About outside business interests.

151.2 Whether and how often working from home should be permitted.

[152]Instead of engaging in a sensible dialogue with the claimant, the respondent arranged for Covert surveillance in February 2022. Such actions should be considered by an employer as a last resort. Covert surveillance was this respondent’s first resort. It was speculative investigation in the hope that the claimant might be caught doing something that was inappropriate.

[153]As for the covert investigations in April, the respondent did not stop and consider what might or might not be possible where the illness is a stress related one.

[154]Neither the respondent nor the instructed investigator (Trojan) had any regard to the ICO’s Employment Practices Code. Assuming that there were sufficient grounds to engage in covert surveillance, no terms were agreed, no parameters set, the vehicle tracking continued for a significant period beyond the extent of the allegations set out in the respondent’s letter of 17 May 2022; the claimant’s family were filmed, irrelevant footage of the claimant’s visit to his Dad was taken and retained.

[155]The respondent’s actions in arranging the covert monitoring were capable of amounting to a repudiatory breach of the claimant’s employment contract. We also find those actions were unjustified in the circumstances of this case and that they breached the Implied Term entitling the claimant to have resigned as a result. g. Failure to address the Claimant’s subject access requests in accordance with the UK GDPR? Conclusions – g

[156]We have decided that we do not need to reach a conclusion about this. See our findings of fact at 95 above. 2. Did the Respondent act in such a way that when viewed objectively was calculated or likely to destroy or seriously damage the trust and confidence between the Claimant and the Respondent? 3. Did the Respondent fundamentally breach the implied duty of trust and confidence entitling the Claimant to resign by acting ? Conclusions – 2 and 3

[157]We have addressed 2 and 3 in our conclusions under the various sub paragraphs of 1 above. 4. Did the Claimant resign in response to that breach or for some other reason. i.e. Did the repudiatory breach of contract play a part in the Claimant’s decision to resign? 5. Did the last straw contribute to the breach of trust and confidence in a manner that was more than trivial? 6. Did the Claimant affirm the contract, thus accepting any breach? Conclusions to 4,5 and 6

[158]Having decided that the respondent fundamentally breached the claimant’s contract, we have to decide the part it plated in the claimant’s decision to resign.

[159]We find that the claimant resigned in response to the actions of the respondent and particularly:-159.1 Its actions in arranging for the covert surveillance.

159.2 The respondent’s failure to address the claimant’s grievance – in which he addressed various issues including the covert surveillance.

[160]The claimant decided to resign came when he concluded that the respondent had no intention to fulfil its obligations to the claimant as his employer. The claimant was correct in reaching that conclusion. From 10 June 2022 latest, the respondent (through the actions of CC) had no intention of complying with its obligations to the claimant as his employer.

[161]The claimant was told of the respondent’s actions in arranging covert surveillance on receipt of the correspondence dated 17 May 2022. Having considered evidence about what happened between then and the claimant’s resignation, we conclude that the claimant did not at any time affirm the contract, even though he tried to raise and address the respondent’s actions through a grievance process. .

[162]In reaching the conclusion that there was no affirmation of the contract between 17 May 2022 and 3 February 2023, we carefully considered the time lapse (8 months) and asked whether, so much time between breach and resignation, in itself amounted to affirmation of contract. We decided, in the circumstances of this case, that it did not. These are our reasons:-162.1 That time in itself does not amount to affirmation (see Chindove – above).

162.2 That the claimant, through correspondence from his solicitors, made clear on various occasions that he had not accepted the respondent’s breach.

162.3 That according to CC’s own evidence, there was no ongoing relationship to sustain. That was the position of the respondent itself (even though it was inconsistent with a position of ongoing employment that came across in communications from the respondent’s solicitors). There was nothing done or sustained by the respondent that would have enabled the claimant to affirm.

162.4 The claimant was absent due to sickness during the whole of the period. He was not therefore attending work and – as already noted above – not agreeing to receive any pay.

[163]In case we are wrong in concluding that there was no affirmation following receipt of the letter of 17 May 2022, we considered the impact of:-163.1 the respondent’s instruction to secretly track the car that was used by the claimant, noting particularly that the claimant found out about this in December 2022;

163.2 the respondent’s failure to promptly and adequately address the claimant’s grievance. There was either an ongoing failure or, if not, then the omission in resuming the grievance process following the unsuccessful mediation was a failure in itself.

[164]The claimant discovered these acts/omissions shortly before he decided to resign. Either is capable of amounting to a last straw and we are satisfied that both confirmed to the claimant that the respondent was in breach of the Implied Term. He did not affirm the contract following his discovery of these . 7. If the Claimant was unfairly dismissed, should any compensatory award be reduced on the grounds of the Claimant’s contributory conduct Conclusion – Issue 7.

[165]Ms Evans Jarvis in her submissions made the following points:-165.1 That the claimant was “the architect of his own downfall” in failing to give 100% to the respondent business.

165.2 That the claimant was setting up his own business – an act that was 10 times more stressful than his employment and therefore ( Ms Evans Jarvis implied) any stress related illness was related to that activity and not his employment with the respondent.

165.3 That the claimant was complicit in the methods of payment – particularly the use of anticipated and declared dividends to pay much of the income from the respondent to the claimant – and any compensation should be limited to loss of PAYE earnings.

[166]We address these 3 points in reverse order.,

[167]We have decided that it is appropriate to address the third point ( what do and do not amount to earnings from employment) at a remedy hearing later this year.

[168]As for setting up in business being stressful and the sole or main cause of the claimant’s illness, that is mere speculation by Ms Evans-Jarvis. Further, whatever the cause of the claimant’s sickness absence from April 2022, it did not cause or contribute to the claimant’s resignation. This submission is also a departure from the position put by CC in evidence, that the claimant was being untruthful in claiming that he was unwell.

[169]As for the submission that the claimant was the architect of his own downfall, we refer to our findings of fact, for example at para 49, 53, 56, 68 and 11 to 116.

[170]The letter of 17 May 2022 contained a long list of allegations and a statement that investigations would continue. The respondent had ample time to continue with those and to present findings to the claimant. From the evidence we have been referred to, the claimant was not the architect of his downfall as alleged. The architect of the claimant’s downfall was CC.

[171]Our conclusion therefore is that there should be no reduction to the compensatory award under section 123(6) ERA. 8. Did the Respondent unreasonably fail to follow ACAS Code of Practice? If so, should any award be increased by up to 25%?

[172]The respondent did not provide the claimant with an outcome to his grievance. We also note that the respondent showed no sign of following a compliant disciplinary procedure either. On the basis that some steps were taken to investigate the claimant’s grievances in advance of the mediation (by instructing DJ) we have decided that the increase should be less than 25%. We will apply an increase of 20%. Approved By

[1]I have undertaken preliminary consideration of the respondent's application for reconsideration of the Judgment that the claimant was constructively and unfairly dismissed.

The Law

[2]An application for reconsideration is an exception to the general principle that (subject to appeal on a point of law) a decision of an Employment Tribunal is final. The test is whether it is necessary in the interests of justice to reconsider the judgment (rule 68 of the Employment Tribunal Rules of Procedure 2024 (Rules)).

[3]Rule 70(2) of the Rules empowers me to refuse the application based on preliminary consideration if there is no reasonable prospect of the original decision being varied or revoked.

[4]The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v Burton and anor

[2016] EWCA Civ 714

in July 2016 where Elias LJ said that: “the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board

[1975] ICR 395

) which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray and Vials

[1994] ICR 384

Mummery J held that the failure of a party's representative to draw attention to a particular argument will not generally justify granting a review.”

[5]Similarly in Liddington v 2Gether NHS Foundation Trust

EAT/0002/16

the EAT chaired by Simler P said in paragraph 34 that: “a request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or by adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.”

[6]In common with all powers under the Rules, preliminary consideration under rule 70(2) must be conducted in accordance with the overriding objective which appears in rule 2, namely, to deal with cases fairly and justly. This includes dealing with cases in ways which are proportionate to the complexity and importance of the issues and avoiding delay. Achieving finality in litigation is part of a fair and just adjudication. The Application

[7]All points raised by the respondent are attempts to re-open issues of fact on which the Tribunal heard evidence from both sides and made a determination. In that sense they represent a “second bite at the cherry” which undermines the principle of finality. Such attempts have a reasonable prospect of resulting in the decision being varied or revoked only if the Tribunal has missed something important, or if there is new evidence available which could not reasonably have been put forward at the hearing. A Tribunal will not reconsider a finding of fact just because the respondent wishes it had gone in his favour.

[8]The entire application is an alternative account of the relevant facts -an account that the respondent prefers/ wanted us to find rather than the facts that (having considered carefully all evidence provided) we did find.

[9]That really answers all the points made by the respondent and it would be disproportionate to respond to each and every point raised in the detailed application.

[10]Applying proportionality I focus below on those parts of the reconsideration application that appear more important to the findings made against the respondent.a. The challenges about dates of termination of employment and from the office of director (these challenges are throughout the application). The respondent is referred to the Judgment at paragraphs 25.3, 26 and 78 particularly.

b. There are various challenges to our findings about payments from a loan account and the declaration of dividends. We made a finding that a loan was advanced to the claimant in the expectation that declared dividends the following year would be used to repay the loan. See paragraph 33. The finding is consistent with evidence provided by Mr C Craven (the respondent’s witness) and was a finding we considered uncontroversial and unlikely to be unfavourable to the respondent. This is why the loan payments are sometimes referred to elsewhere in the judgment as advance dividend payments. In any event this is of marginal relevance to the finding on liability that the claimant was constructively and unfairly dismissed.

c. Regarding the challenge to paragraph 39 of the judgment – the respondent wanting to note that the claimant was a director of 2 businesses. The respondent will note that paragraph 39 states that the claimant was not initially appointed as director of VIP Essex (emphasis now added).

d. At paragraph 22 the respondent/its solicitors assert that there was evidence that the tracker was fitted to the car being used by the claimant for insurance purposes. Whilst there was evidence provided that some of the respondent vehicles (commercial vehicles) at the time had trackers fitted for this purpose, on cross examination C Craven accepted that was not a reason why the tracker was fitted to the car being used by the claimant. The tracker was fitted by the private investigator for the purpose of covert surveillance.

e. At paragraph 27 the respondent/its solicitors assert that evidence was ignored about confidential information being sent to justify the respondent “to act in the way [it] did in order to protect the business.” i. In so far as this point is put forward to justify the appointment of private investigators ( if that is what is meant by acting in the way it did) this is contradicted by Mr C Craven’s witness statement – see paragraphs 26 noting the sending of confidential information was identified in April, 2 months or so after private investigators were instructed. ii. The issue about confidential information was an allegation made in the letter to the claimant dated 17 May, various allegations that we note were not fully investigated and in respect of which the claimant, through solicitors, provided a reply. See paras 67 and 74.3. See also page 117 of the bundle.. The response was that investigations into the various allegations would continue but there is no evidence that they were. Further, the explanations provided on behalf of the claimant were not tested. iii. It was not part of the respondent’s argument about contributory conduct – see conclusion at para 165.

[11]Towards the end of the application ( after numbered paragraph 41) there is reference to “assumptions made by the Tribunal in relation to what constituted pay” It is not made clear what assumptions the respondent considers the Tribunal has made. In the same paragraph it is asserted that the Employment Tribunal does not have an adequate understanding or jurisdiction to make findings as to what constitutes pay. I do not know whether that is directed generally at Employment Tribunals ( presumably the point on jurisdiction must be) or at the particular Tribunal that heard and decided this case. Whichever it is, it is rejected. Conclusion Having considered all the points made by the respondent I am satisfied that there is no reasonable prospect of the original decision being varied or revoked. The application for reconsideration is refused. Approved by