Mr M Imms and Mr R Latham v A One Distribution (UK) Ltd: 2407352/2023 and 2407361/2023
EMPLOYMENT TRIBUNALS
Case No 2407352/2023, 2407361/2023
Between
Mr M Imms and Mr R LathamClaimantA One Distribution (UK) LtdRespondent
Before
Employment Judge JohnsonMr Paul Kerfoot (instructed by counsel) for respondentDate 26 September 2025
JUDGMENT
The judgment of the Tribunal is that:(1) The complaint of constructive unfair dismissal is well-founded. The claimant was unfairly dismissed.(2) The claimant’s agreed notice period ran from 4 April 2024 until the effective termination of employment on 4 May 2023. Any failure to pay the second claimant his correct notice pay for this period, will be addressed at the remedy hearing.(3) The complaint of constructive unfair dismissal is well-founded. The claimant was unfairly dismissed.(4) The claimant’s agreed notice period ran from 4 April 2024 until the effective termination of employment on 12 May 2023. Any failure to pay the second claimant his correct notice pay for this period, will be addressed at the remedy hearing. The remedy hearing(5) The case will be listed for a 1 day remedy hearing on a date to be confirmed before Judge Johnson.
REASONS
(6) These proceedings arose from the first and second claimants’ employment as a sales manager and adviser respectively with the respondent and following the termination of their employment in April and May 2023. This occurred when they both resigned. They believe that their resignations arose from fundamental breaches in the trust and confidence that the claimants could reasonably be expected to have with the respondent as their employer. (7) The first claimant presented a claim to the Tribunal on the 11 July 2023 following a period of early conciliation from 17 May to 12 June 2023. The second claimant presented the claim form on 12 July 2023 following a period of early conciliation from 16 May to 27 June 2023. They both presented complaints of constructive unfair dismissal and notice pay redundancy payment and unlawful deduction from wages. (8) The first claimant also presented a second claim form under case number 2407390/2023 and bringing a complaint of whistleblowing. (9) They respondent presented responses and grounds of resistance in respect of each claim on 6 September 2023. They disputed constructive unfair dismissal and redundancy and sought further particulars from the claimants. (10) Following an initial proposal by Judge Allen on 9 August 2023, Judge Buzzard on 12 October 2023 confirmed that the complaints will be considered together. There was initially meant to be a preliminary hearing case management on 16 November 2023, but this was postponed. (11) The next preliminary hearing case management PHCM took place before Judge McCarthy on 26 June 2024. A final list of issues was identified dealing with the complaints of constructive unfair dismissal and notice pay. (12) The claimants agreed to withdraw the redundancy payment and unlawful deduction from wages complaints. The first claimant also agreed to withdraw the second claim that had been brought and withdrew the whistleblowing complaint. (13) The respondents had presented an amended grounds of resistance in respect of the two claims. The first claimant had made an application seeking additional disclosure in relation to Skype messages which they believed were relevant and which had not been disclosed. I considered the application at the hearing today and refused it because the respondent had disclosed what documents that had relevant to the allegations within the list of issues that. There was a need to deal with this case in a proportionate way given that the hearing bundle was already in excess of 800 pages. However, I confirmed to the first claimant’s representative Mrs Imms that in the event it became clear during evidence that relevant documents were available which had not been disclosed, I would make appropriate orders for their disclosure so that witnesses could be cross examined upon them. (14) I also heard from Mrs Imms regarding an application to amend the claim to include an additional complaint of automatic unfair dismissal relating to health and safety contrary to section 100 Employment Rights Act 1996 (ERA 1996). I refused this application because it was a fundamental and substantial amendment because: a) It sought to include a new complaint that could have been brought at the same time as the whistleblowing complaint which was withdrawn at the earlier PHCM; b) it was made significantly out of time; c) that it was misconceived because it related to health and safety matters involving third parties and which should have been included as part of the original whistleblowing complaint under section 43B(1)(d) ERA 1996; and, d) I also took into account the prejudice to the parties in allowing the application. I concluded that it would be significant because in all likelihood I would need to postpone the final hearing in order that the respondent would have additional time in which to review the complaint on the new list of issues, potentially prepare an amended ground of resistance, explore further disclosure and update their witness evidence. This would also result in a delay of the resolution of the second claimant’s claim and indeed the first claimant’s claim as well. (15) Given the stage of the proceedings that we had reached, I concluded that it would be wholly unreasonable to allow the application. The balance of prejudice was such that there was far greater prejudice to the respondent than to the second claimant in being denied the completion of this case during the current listing. This was compared with the first claimant being denied a complaint which had a number of problems including its substance and timing and where the first claimant still had two valid complaints including constructive unfair dismissal. (16) It was also noted that the first claimant was partially motivated in making this application because of concerns about the statutory cap and the extent of damages that could be awarded as part of remedy. I explained that this was not a material reason for seeking to amend a claim at this late stage and the first claim would therefore proceed based upon the constructive unfair dismissal and notice pay complaints. Issues (17) The issues which the Tribunal has been asked to consider were included within the Annex to Judge McCarthy’s Note of PH and for each claimant, identified the allegations leading to their resignations and their complaints of wrongful dismissal. Although remedy was also provided within the list, I explained that liability issues would be dealt with first and if relevant and sufficient time was available, I would then move onto remedy. (18) It is not necessary to repeat the full list of issues within this section as they involve the usual format of questions that a Tribunal is asked to consider in relation to constructive unfair dismissal and wrongful dismissal. However, it is useful to include the claimants’ allegations concerning the treatment which led them to resign as a variety of matters are included. (19) In the case of the first claimant, the allegations made in respect of breaches of the implied term of trust and confidence are as follows: a) 1.1.1. Did the respondent do the following things: 1.1.1.1. Blame the first claimant for purchasing non-UK regulatory power cables; 1.1.1.2. Ask the first claimant and other members of the sales team to each pay the respondent £19,000 for the cable recall; 1.1.1.3. Threaten to deduct this sum (£19,000) from his salary; 1.1.1.4. Email the first claimant regarding the changing of his and the sales team’s commission structure when he and others did not agree to pay £19,000 for the cable recall. The first claimant alleges that such a change would have meant that he would have taken a “hefty” reduction in his pay and that he would not receive minimum wage; 1.1.1.5. Not respond to the first claimant’s advice to recall the cables due to safety concerns. The first claimant sent an email of 3 April 2023 about whether the company would be recalling the relevant cables and said he received no response; 1.1.1.6. At a meeting between the first claimant and Mr Naughton on 4 April 2023, Mr Naughton:- – blamed the first claimant for buying the non UK regulatory power cables; –wanted the first claimant to admit that he purchased these power cables; -intimidated the first claimant and created a hostile environment, shouting at the first claimant and putting his finger in the first claimant’s face; - Mr Naughton followed the first claimant outside to his car after the meeting and knocking on the claimant’s car window asking the first claimant to let him know that he had purchased the cables. The first claimant identifies this meeting as the “last straw” (20) In the case of the second claimant the allegations made in respect of breaches of the implied term of trust and confidence are as follows: a) 1.1.1 Did the respondent do the following things:1.1.1.1 In February 2023, stopped the second claimant from coming in half an hour later on a Monday morning so he could take his children to school (the only day he did not have cover);1.1.1.2 question the second claimant’s integrity and whether he was actually ill when he returned to work having taken sick leave on 13/14 March 2023. The second claimant contends he was being called a liar after 23 years at work and that he was ill and unable to work due to the mental abuse of the respondent;1.1.1.3 Ask the second claimant and others in the sales team to pay the respondent around £19,000 each for the recall of non- UK compliant power cables; 1.1.1.3[A] display threatening and abusive behaviour towards the second claimant - in a conversation between him and Mr Naughton on 29 March 2023, pushing him to accept a £19,380 deduction from his wages and saying “Please accept this as won’t be pretty. Things will only get much worse for you”; and -on 25 March 2023 Mr Naughton offered to promote the second claimant to purchasing manager but insisted that the second claimant accept the role with a backdated start date of 2018. When the second claimant said he would accept the position but only from the present day, Mr Naughton told him “no deal” and withdrew the promotion. The second respondent contends that this was an attempt to manipulate him and an attempt to backdate his promotion to before the relevant cables were first purchased to enable the respondent to blame him for the purchase of the non compliant power cables (to “stitch him up”). 1.1.1.3[B] Email the second claimant regarding the changing of his and the sales team’s commission structure from 1 May 2023 when he and others did not agree to pay around £19,000 for the cable recall. The second claimant alleges that this change was totally unreasonable and, in some cases, unachievable. He says that such a change would have meant that his commission earnings would drop by 45% per month on average and that in quite a few months he would not receive minimum wage, and he had no choice but to leave. The second claimant contends that the decision to change the commission structure was to punish him indirectly for the cables;1.1.1.4 Mr Naughton contacted the second claimant whilst he was on annual leave and informed him that the first claimant had resigned and said that he needed to know whether the second claimant was going to do the same. He accused the second claimant of having another job and conspiring with the first claimant. The second claimant said that he had thought about resigning (and had drafted a resignation letter before leaving for holiday) but had not made his final decision and felt forced into resigning by Mr Naughton;1.1.1.5 The second claimant identified the main reason he decided to resign as the change in the commission structure effective from 1 May 2023. Evidence used (21) As the claim involved constructive unfair dismissal, the claimants presented their case first and gave closing arguments last. (22) The claimants both provided witness evidence and gave oral evidence on day 1 to 3 of the final hearing (23) The respondent relied upon the witness evidence of the following individuals: a) Mr Craig Bentham (Finance and Operations Director) on Day 4; and, b) Mr Thomas Naughton (Managing Director) on Day 4 and 5. (24) Documents were provided within an 833 page bundle which was only agreed shortly before the hearing. Although this bundle comprised of some of the Skype messages between the claimants and Mr Bentham and Mr Naughton, it was understood that this was not complete. However, they appeared to deal with the correspondence involving the relevant issues and their content could not be considered favourable to the respondent and unfavourable to the claimant. In this respect, they were relevant and not ‘cherry-picked’ to present an image of the respondent in the best light. (25) I reminded the parties that the respondent’s legal representatives and the respondent’s owner/managers were aware of the duty to disclose all relevant documents regardless of whether it helps or hinders their case. (26) Having heard submissions from both sides, I accepted that the respondent had IT issues which would make retrieving all of the claimant’s requested Skype messages an arduous task, that they had provided documents which appeared to be relevant, that the breadth of the claimant’s total request for disclosure was expansive and amounted to a ‘fishing expedition’. It would be disproportionate to require the totality of the disclosure request to be allowed, but should it become clear as the case progresses that additional documentation is available and is required, I could consider this matter further. (27) There was little additional disclosure as the case progressed except that on Day 3, Mrs Imms provided documentary relating to trading standards enquiries made by the first claimant in relation to the respondent with the local authority and national government. These papers were added to the bundle as documents ‘C1’. However, it was not necessary for much consideration to be given to them during the hearing. Findings of fact (28) The parties should note that the Tribunal’s findings of fact do not seek to deal with every point where the parties disagree, simply what is relevant to the issues which the Tribunal is being asked to consider. If the discussion of an incident or point is not referred to within these findings, it does not mean that it has not been considered by the Tribunal, simply that it is not relevant to the issues and the findings that we are required to make. (29) In terms of the findings that we make, the Tribunal has reached its decision on what it considers to be on balance of probabilities the most likely way/reason in which an incident arose. The respondent (30) The respondent (‘A One’), is a company which specialises in selling computer components. It was established by Mr Naughton and his partner in 1991. The business operates in Bury and expanded as the years progressed. (31) Mr Bentham described the company at relevant time from 2020 to 2023 as consisting of around 15 or so employees. Mr Naughton is the managing director; Mr Bentham is the Finance and Operations Director and known within the business as Mr Naughton’s ‘right hand man’. (32) Of relevance to this case, was the Sales team which consisted at the material time of the first and second claimants and Andy Burnard. The claimants (33) The first claimant (Mr Imms) began his employment with A One on 1 June 2004. From 24 May 2007, he was appointed as a Sales Manager with a basic rate of pay at £18,000. This figure would remain in place until his disciplinary hearing in July 2022 (see below). As the role was sales related, it provided him with an opportunity to earn significant amounts of commission. The contract of employment provided that the hours of work were 9am to 5:30pm, Monday to Friday. However, from time to time, he would work additional hours. The employer could give one month’s notice of termination, whereas the employee was expected to give six months’ notice. (34) The second claimant (Mr Latham) was employed as a Sales Adviser with A One for many years. He worked in the same Sales team as Mr Imms under similar contractual terms, but with a salary £12,000. His basic earnings were supplemented by commission on sales like Mr Imms. (35) On 15 July 2022, Mr Imms was subject to a disciplinary hearing which arose from allegations of suspected fraud against A One. The alleged fraud involved attempts by Mr Imms to ‘manipulate your figures once we hit a quiet period’. It was understood that this involved displacing sales figures into the quiet period so that Mr Imms would not suffer a loss of bonus in subsequent months. Reference was made to the hearing in a disciplinary decision letter dated 18 July 2022 and which resulted in a final written warning being imposed for a period of 24 months. This was combined with a reduction of base salary from £18,000 to £12,000 which was the same figure as his other Sales Adviser colleagues, (p508). It is understood that Mr Imms retained the Sales Manager role and while he was given a right of appeal, it is understood that he accepted the decision. However, I accepted that while Mr Imms took the decision ‘on the chin’ (as Mr Naughton put it to him at the time), it nonetheless served to undermine his relationship with A One during the remaining period of his employment. (36) During January 2023, Mr Bentham emailed Mr Imms as manager of the Sales team regarding Mr Latham and his attendance during January. It referred to several late arrivals at work and days where he started late to drop his children off at school. It was understood that the school drop offs, and a late start had been an agreed arrangement, but that Mr Bentham wanted these arrangements to change. It was clear from the available evidence that Mr Naughton did not like flexible working. He held a belief that Mr Latham had an ‘attitude’ about having the level of flexibility that existed at that time, (p522-3). (37) However, it was not clear to me that this was a matter which was raised as a problem by Mr Latham at the time. In any event, it appeared to have ceased to be an issue when the events of March and April 2023 arose, (see below). This appeared to arise from concerns on the part of Mr Bentham that Mr Imms would be seeking similar flexibility to that which had been given to Mr Latham. Under the heading of ‘Possible Staff Issue’, Mr Bentham began his email of 25 January 2023, with the sentence: ‘Further to our conversation yesterday whereby you said you will be WFH [understood to mean working from home] for the next few weeks / months whilst your extension is built’, (p519). While Mr Naughton was the managing director and A One was his company, he did not appear to be leading by example when it came to presenteeism in the office. (38) Mr Latham entered into a text message exchange with Mr Naughton regarding his sickness absence on or around 16 March 2023. Mr Naughton was sceptical about whether the illness was genuine or not and referred to a pattern of absences on Monday’s when Mr Latham was performing well towards his sales target. However, he accepted that the data regarding his sickness absences did not support this belief. The messages were inconclusive, but clearly left Mr Latham feeling that Mr Naughton would be sceptical whenever he reported sick, (pp533-537). The cable incident (39) On 20 March 2023, there was an exchange of Skype messages between Mr Imms and Mr Bentham regarding copper coated aluminium wire being used in cables ostensibly supplied as containing 100% copper wire. A customer called Pyramid had raised a concern regarding the composition of the cables. Mr Bentham asked Mr Imms to contact the customer personally by phone, (p791). The customer had concerns that the cables which had been supplied to them were copper coated aluminium and not 100% copper, (pp526-7). (40) On 21 March 2023, Mr Naughton sent a lengthy email to the Sales team, Mr Bentham, Tony Cutt who was a warehousing manager called ‘History of Power leads Prt 3’. It began with a rather menacing quote as follows: “Any further Order you wish to Place will be on your Heads and You will pay the consequences.” The email proceeded to go through a chronology of events beginning in October 2019 dealing with the ordering of power cables by A One for sale in the UK, the issues which could arise with provenance, safety, Mr Naughton’s dislike of this particular product as a consequence and his belief that the Sales team would nonetheless try to purchase the cables to secure additional sales for UK customers. His conclusion was that each member of the Sales team would instruct Mr Bentham to arrange for a deduction from their wages of a large part of the losses arising from the most recent cable purchase/sale, (pp542-545). (41) On 23 March 2023, an ill tempered conversation took place regarding this ongoing issue between Mr Naughton and Mr Imms and it is worth repeating it below, (with spelling as per the document): Naughton – ‘in january 2021 you had 70k real cables just landed from Yitali’, ‘why did you order in January 2021 with 70k in stock real cables with this arsehole ishen g WHY’, ‘that’s the only question you need to advise me.’ Imms – ‘all about the profit tom [Mr Naughton’s first name] is that what we are paid to do bring in as much profit as we can.’ Naughton – ‘well you just answered your own question is ot all about profit now.’ Imms – ‘1.20 off yitali 1.09 off i sheng’. [understood to be US$]. Naughton – ‘5 pence a cable woop’. Imms – ‘we done the checks we could of sample was tested pi saying full copper.’ Naughton – ‘bollox’, ‘you didn’t have time to chek a sample.’ Imms – ‘qc done on sample, and qc will have been done on first order.’ [‘qc’ being quality control]. Naughton – ‘you just received 70k cables and reordered whilst i wasn’t in work and its not like you needed them’, ‘show me’ [in response to assurance that quality control carried out]. (p792) (42) This discussion continued with Mr Imms saying that the evidence of the quality control could not be found on the server. Mr Naughton queried what this would have achieved anyway given that to be sure of the provenance of the cables, more than 1000 checks would need to be carried out on cables for certainty. Mr Imms disagreed that ‘qc’ would not have made a difference, which resulted in Mr Naughton becoming bad tempered and saying, (again, with spelling as per the original document): ‘SO QC DONE MAKES FUCKALL DIFFERENCE’,’FUCKALL DIFFERENCE’, ‘BECAUSE YOU BOUGHT OF A RANDOM STRANGER WHOS DISAPEARED INTO THIN AIR NOW.’ Mr Imms continued to assert that ‘qc’ would have reduced the risk, to which Mr Naughton replied, ‘risk are all mine than you npw’, ‘me who gets fucked now’, ‘not you 3 # no no’, (p793). (43) Mr Naughton reminded Mr Imms that he was ‘500k out of pocket for the last CCA cables you bought but it clearly didn’t bother you as you didn’t have topay that bill back i did.’ Mr Imms replied, ‘that’s bullshit’, ‘I work my arse off and do the best i can tom but u don’t think that’. (44) As this conversation developed, Mr Naughton reminded Mr Imms that ‘Yitali are the manufacturer massive factory isheng sales is a rip off of ishengcorporation taiwan and they have never heard of this idiot’, (p794). Mr Naughton then explained to Mr Imms that he would meet each of the 3 sales advisers individually at his house. He went on to say that Mr Imms ‘created this situation’ and that he should ‘OWN IT’ and that ‘you and rob and andy b all alone made that decisiion’. Mr Imms confirmed that ‘we made the descion to buy the cables and we asked you could we get them u said yes, fact, see u 6pm’. (45) By this point it was agreed that a meeting would take place, but amongst these messages, Mr Imms was expressing concern that Mr Naughton was looking at deducting monies from their wages each month to cover the losses incurred. However, Mr Naughton did not confirm expressly that he would do so within the available Skype messages, (p795-6). What was clear however, was that Mr Naughton felt that Mr Imms and his colleagues had not given full disclosure from were they were ordering the cables. Moreover, he believed that the Sales team’s need to maximise profit and competitive advantage had got in the way of proper due diligence and quality control. However, I noted that Mr Naughton had previously decided not to recruit any more purchasing managers and had decided that the Sales team would be responsible for purchasing, even though that could potentially create a conflict between the different activities. (46) In response to Mr Naughton’s ‘History of Power leads Prt 3’ email, Mr Bentham emailed Mr Burnard, Mr Imms and Mr Latham on 23 March 2023, stating that each had put their name to 19,000 cables at a value of £1.02 making a total figure of £19,380 which they would collectively repay to A One over a period of 24 months. The tone of this short email was that the three employees were expected to agree to these deductions with each accepting a share of responsibility to the losses incurred and that they should confirm how it would be deducted from their gross wages each month. Despite what Mr Naughton suggested in his evidence, I concluded that this represented a serious intention and attempt to deduct money from the Sales team’s wages by seeking their agreement, (p542). (47) On 25 March 2023, there was a lengthy exchange of messages between Mr Latham and Mr Naughton about the cables and who was responsible. Mr Naughton clearly considered Mr Latham to be the Purchasing Manager, whereas Mr Latham believed he had never been appointed or announced to that role, nor given a pay rise to reflect the additional responsibilities. It then developed from a discussion about who was responsible for the cables to a curious exchange where Mr Naughton adopted a position that he had taken Mr Latham to China, he had observed Mr Naughton conduct purchasing and had stepped in the purchasing role having been ‘trained by the master and bin to all factory’s [sic]’, (p553). The messages extended from around midnight on 25 March and into the early hours of 26 March 2023. Mr Latham understandably wanted some sort of formality to this role (which he was clearly interested in having), but Mr Naughton was unwilling to commit to a formal appointment. A confusing ‘deal or no deal’ exchange regarding the roles then followed which could be treated as inconsequential banter, except that the underlying theme of this lengthy conversation was that Mr Naughton asserted that Mr Latham should accept his responsibility for purchasing and agree to contribute towards the losses. (48) There was no real conclusion to these messages and to some extent they reflected the oral evidence given by Mr Naughton on several occasions that A One was like a family with many long serving employees who shared a great deal of time together. Unfortunately, based upon the available evidence, Mr Naughton appeared to blur matters of employment with those of family and friends. He relied upon concepts of what he considered to be duty and responsibility without having a formal structure in place so that employees agreed to clear roles and responsibilities and appreciated where they stood with him as employer. He had dispensed with a dedicated purchasing manager and had not formally appointed anyone to this role. Instead, Mr Latham and other members of the Sales team would deal with purchasing (in addition to Mr Naughton), as and when required. I agreed that some of the bonds that might exist in a family were present by virtue of the lengthy employment relationships. However, as will become clear below, this produced a situation where employees could become confused regarding their role and responsibilities and the degree that they were managed. (49) To some extent, the Sales team had a great deal of freedom, but the absence of clear systems of management, meant that they could make mistakes and when they did, Mr Naughton could react angrily and in a confusing way depending upon his temper. He gave evidence during the hearing accepting that this was the case, but that the claimants and their colleagues understood his temperament and how to deal with it. However, this bore all the hallmarks of a paternalistic and controlling environment with chaotic tendencies. This inevitably meant that employees were left without clarity concerning where they stood with Mr Naughton and A One as their employer. This became apparent from the events which took place over the next week or so. (50) On Wednesday 29 March 2023, Mr Bentham chased Mr Latham, Mr Burnard and Mr Imms as well as copying in Mr Naughton on the subject of Power Cables. He explained: ‘Hi Guys Just after the figures you would like deducted from March payroll, if you can let me know by Friday lunchtime. Obviously Andy you will need to let me know by tomorrow night as your off on Friday. If you want the same figure for all 24 months, then it would be a deduction of £807.50 per month.’ I concluded that whatever the intentions of Mr Naughton and Mr Bentham, the Sales team were being given a clear impression that they were expected to agree to substantial deductions from their monthly wages with a view to recovering the losses on the cables, (p576). (51) Mr Latham was the first to reply on 29 March 2023 stating that he had simply ordered the stock required and was not responsible for the losses. He refused to accept any deduction from his wages, (pp571-2). Mr Imms responded on 30 March 2023 and asserted that he was not responsible for any losses relating to purchasing or quality checking. He stated he did not agree to any deduction from wages and expected payment of his wages in full, (p573). (52) There was also an exchange of messages on Skype on 29 March 2023 involving Mr Latham and Mr Naughton where he said that he had done nothing wrong and that he would not agree to any deductions from his wages. Mr Naughton at 16:45 told Mr Latham, ‘Please accept as won’t be pretty, ‘Will only get worse for you’, (p568-9). Mr Naughton in evidence argued that this was not meant as a threat and that the implication was that the business would suffer if Mr Latham refused to contribute to the losses. I did not find this a credible explanation. Mr Latham did not accept the meaning given by Mr Naughton in evidence. On balance of probabilities, a recipient of this messages would assume that there would be personal consequences in refusing to comply. While I appreciate that Mr Naughton may have felt under a great deal of pressure when faced by these large and unexpected losses and he believed he had been let down by the Sales team, it was a wholly unreasonable message to send. (53) However, at 8:51 on 30 March 2023, Mr Bentham emailed Mr Naughton to say: ‘…there was no legal mechanism to force people for this mistake and certainly not if they don’t agree to deduction. Therefore, I think we use this as a catalyst for changing the commission structure/targets, which we have discussed several times’, (p571). He proposed a suitable way forward to Mr Naughton within this email. (54) Mr Bentham replied in a discussion with Mr Burnard on 30 March 2023 and confirming that A One would take the loss and he would not be responsible, (p573). Mr Bentham emailed Mr Naughton to explain that he had confirmed that the Sales team would not be liable for the cable losses, which explained why the targets would not be adjusted, (p575). (55) On Thursday 30 March 2023 Mr Bentham sent an email to Mr Latham, Mr Andy Burnard and Mr Imms within the Sales team and copying in Mr Naughton, (p614). Its subject was ‘Targets’ and opened by asserting that the team’s current targets would ‘not allow A One to cover its overheads, let alone make any profit’. Mr Bentham stressed that targets had not changed for many years despite other changes taking place over the years. It is not necessary to consider the changes in detail, but it related to changes in the percentages and thresholds when each percentage of commission would be payable. (56) Mr Latham quickly replied and asked whether the team’s low basic salary figures would remain the same. Mr Bentham said that they would remain the same, but if targets were not met and bonuses not received, A One would ensure it complied with national minimum wage legislation. Mr Latham responded by questioning whether he would still be required to carry out any purchasing while Mr Imms emailed concerning how the changes would impact upon split sales. (57) Mr Naughton emailed them all and copied in Tony Cutt on Saturday 1 April 2023 explaining that he wished to correct Mr Bentham’s email sent on 30 March 2023 and it is understood that the proposals regarding targets would not be progressed any further at that time. (58) On 3 April 2023, Mr Imms became received an email from a customer regarding the cables. Mr Imms emailed Mr Naughton, notified him and asked whether the cables would be recalled, (pp514-5). (59) On 4 April 2023, Mr Imms left the office following a discussion with Mr Naughton. There was a dispute concerning the nature of the discussion, but Mr Imms said that the discussion was about the cables issue, that he explained he had no responsibility, but that Mr Naughton continued to discus the matter with increased volume and hostility. He said he left the premises in an attempt to deescalate the situation but was followed outside by Mr Naughton before leaving in his car. He regarded this incident as the final straw which led to his resignation, but following the sustained period of conduct described within the list of issues. (60) Mr Naughton’s recollection was different to that expressed by Mr Imms, but on balance I found Mr Imms’ description of the events that day to be more credible, especially taking into accounts the recent events and the way in which Mr Naughton had behaved during that period. First and second claimants’ resignation (61) Mr Imms gave notice of resignation in his email sent to Mr Naughton on Tuesday 4 April 2023 at 2:32pm, (p604). In his short email he said the following: ‘As per our conversation please accept this letter as official notification of my resignation as Sales Manager from Aone Distribution. ‘As agreed today my one-month notice will result in my last working day being Thursday 4th May. ‘I am happy to help with the transition to the best of my ability. I thank you and Aone for the opportunity to work for you.’ (62) Mr Naughton replied the same day at 14:08 according to the date stamp on the email, (p603-4). This date was not disputed by the parties, and I concluded that there was some sort of error in Mr Naughton’s device with regards to the correct time for the time zone he was then in, (believed to be Greenwich Meantime or GMT). I therefore treated this message as having been sent at 15:08 which would logically follow the 40 minutes or so since the resignation email had been sent to him. (63) Mr Imms then sent a further email on 5 April 2023, thanking Mr Naughton for accepting his resignation and explained that he was ill and could not come into work. However, he asked Mr Bentham and Mr Naughton to look into a number matters that he identified within the email with the aim of providing ‘…a detailed update/resolution’. In summary, they were as follows: a) Reducing his salary in July 2022 following his disciplinary but not reducing his workload. He acknowledged the final written warning but referred to an understanding that the reduction would end in 6 months. b) Changes to the way in which he received commission for split accounts from August 2022 imposed by Mr Bentham. He referred to Mr Naughton telling them during their discussion on 4 April 2023, that he had not authorised this revision. c) In relation to the cable outlay and its recovery, receiving an email from Mr Bentham changing the commission structure on 30 March 2023, following Mr Imms refusing to agree to a deduction from his wages. While he acknowledges that Mr Naughton confirmed by email on 2 May 2023 that this was incorrect, he identified this as being illustrative of uncertainty and a cause of stress. He described that on 4 April 2023, he ‘…had to leave aone and resign due to my mental health’, but did link this decision to the overall uncertainty in this senior management decision making and this had a consequential impact on his stress. He referred to this email as providing details of his resignation but confirmed he was currently unwell and could not return to work until his GP determined that he was fit. (64) Having considered the witness evidence and the documentary evidence available, I concluded that Mr Imms decided to resign on 4 April 2023 and communicated this to Mr Naughton the same day. He was stressed and unwell and with the support of his family, decided that for his own health he needed to resign. This decision was prompted by actions of his employer. While the salary reduction and commission change the previous year had undermined his confidence in the business, he had continued to work but identified them as concerns. However, it was the recent events which were important and the way in which the respondent had attempted to recover part of the cable losses from him, followed by a change of mind and quickly followed by proposed change in the commission structure. Mr Imms explained clearly and credibly how these decisions caused him to resign, and I accepted that this was why he made the decision when he did, (p603). (65) On 11 April 2023, Mr Imms emailed Mr Bentham and Mr Naughton confirming that he was unfit for work and submitted a Med3 fit note from his GP. This remained the case until his employment ended on 4 May 2023, (p636). He then sent a further email on 12 April 2023 expressing concern upon receiving no reply from either Mr Naughton or Mr Bentham to his email of 5 April 2023, (p626). (66) There were a series of WhatsApp messages between Mr Latham and Mr Naughton on 4 April 2023 within the bundle, (p624-). Mr Naughton apologised for messaging him while on holiday and informed him that Mr Imms had resigned, and he wanted to know whether ‘…you intend to do the same’. Mr Latham confirmed having written a resignation letter and he would hand his notice in when he returned from leave. However, as he had been messaged by Mr Naughton on this issue, he said he would send it immediately. (67) Once the letter had been sent, Mr Naughton accused Mr Latham that both he and Mr Imms had found alternative work with competitors. Mr Latham said ‘…I am leaving without a job or a plan. Make of that what you will.’ By way of rebuttal to the reasons given for Mr Latham’s resignation, Mr Naughton suggested that no deductions from wages had taken place and the commission structure changes were not being implemented. He stated during a number of messages that ‘You [Mr Latham] needed to accepts [sic] responsibility and I was never gonna take a penny off you when calm…’. (68) Mr Latham replied by suggesting that there were other reasons for the resignation such as being made a scapegoat, Mr Bentham’s behaviour towards him and how he was suffering and so was his family. He acknowledged how long he had worked for A One, but confirmed he was resigning. When he returned from leave on 7 April 2023, he messaged Mr Naughton with an offer to meet him, to which Mr Naughton said he was too busy on 8 April 2023 and despite further messaging from Mr Latham, no further replies were received, (p624-5). (69) Mr Latham’s letter had been drafted on 1 April 2023 but remained unsent until he received the messages from Mr Naughton on 4 April 2023 and sending it at 7:39pm, (p619). (70) It gave notice of his resignation as Sales Advisor with his last day of employment being 12 May 2023. It was polite in tone and expressed regret in having to make the decision. He said ‘…I feel I have no option but to leave A One due to many reasons over the recent past but mainly for my mental and physical health.’ He identified a number of detailed reasons why he had reached this decision which can be summarise as follows: a) Threatening behaviour towards me and other members of staff. He referred to the Skype exchange where Mr Naughton said, ‘accept this or it will get a lot worse for you.’ He explained that this comment resulted from him being forced to accept something which he believed was nothing to do with him and yet involved him being punished. This was understood to be the attempt to recover the cable losses from employee wages as discussed above. b) He moved on to identifying a fear of coming into work and opening emails and feeling ‘…in a constant state of second guessing you and its causing me loss of sleep and hours upon hours of worry about what is coming next and what else I will get blamed for and then subsequently penalised or worse. c) He then referred to not being given clarity regarding his role which was told to be Purchasing Manager/Purchasing Director yet not formally announced and yet being forced to take responsibility for other people and work. He noted that his job title remained Sales Adviser and was paid at this level. He said that ‘…its very upsetting and embarrassing, like it’s a game for you.’ d) Attempts being made to force him and others to pay £19380 in respect of the cables which could not be sold. Then when realising the deduction could not be made, changing a commission structure change. e) He said that he already made up his mind to resign before the commission structure change was imposed, but cited it as being something which confirmed he was making the right decision. Mr Latham concluded by confirming to Mr Naughton that he would be happy to discuss these points with him, should he wish to do so. (71) On 5 April 2023, Mr Naughton emailed to accept the resignation but also asserting that no monies had been deducted from his salary and that Mr Bentham was not authorised to proceed with the commission changes that he had identified in his email of 30 April 2023. Having considered this explanation, Mr Latham replied and said he would like to retract his resignation, (p601). Mr Naughton however, responded as follows on 8 April 2023: ‘Thank you For your email However, it doesn’t work like that I accepted your resignation, and we have all been trying to cope with the position we are left in ‘I Do not require you to attend aone during your notice period or until I return from China. ‘I am available when I return to discuss anything with you and todays meeting is cancelled.’ Consequently, Mr Latham’s resignation notice remained in place and his employment ended on 12 May 2025 as advised in his letter of resignation. (72) From 11 April 2023, Mr Naughton and Mr Bentham began a series of discussions with customers regarding the recall of the power cables and the claimants did not play a part in this process, (pp638-671, pp676-683, pp686- 698, 702-713). (73) On 4 May 2023, Mr Latham received his next payslip, and he immediately responded challenging the level of commission awarded, (p673- 4). Mr Bentham replied and explained that he had applied ‘…10% on the profit achieved on your accounts of £7400.14’. Mr Latham then sought a breakdown of the month, but Mr Bentham declined arguing that: ‘We are not willing to share confidential information with you in relations to the split on the accounts profits.’ Mr Latham questioned this decision, observing that he: ‘…never ever failed to hit the minimum 10k in my life and I have not dropped below 17k in way over 6 years, so to told my accounts have accumulated £7400 in a month is pretty shocking to me…especially as if I had been allowed to work the final full month of my notice period I would have achieved more.’ No further correspondence was received from Mr Bentham in reply. Instead, Mr Latham requested confirmation from him on his last day of work with A One (12 May 2023), when he would receive his final payslip. Mr Bentham confirmed that it would be 5 June 2023 in accordance with the ‘…start of the June run’, along with his P45, (p699). Law Constructive Unfair Dismissal (74) Section 95(1)(c) of the Employment Rights Act 1996 provides that 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. (75) In Western Excavating (ECC) Ltd v Sharp 1978 ICR 221 it was held that in order to claim constructive dismissal an employee must establish:(i) that there was a fundamental breach of contract on the part of the employer or a course of conduct on the employer’s part that cumulatively amounted to a fundamental breach entitling the employee to resign, (whether or not one of the events in the course of conduct was serious enough in itself to amount to a repudiatory breach); (note that the final act must add something to the breach even if relatively insignificant: Omilaju v Waltham Forest LBC [2005] IRLR 35 CA). Whether there is breach of contract, having regard to the impact of the employer’s behaviour on the employee (rather than what the employer intended) must be viewed objectively: Nottinghamshire CC v Meikle [2005] ICR 1.(ii) that the breach caused the employee to resign – or the last in a series of events which was the last straw; (an employee may have multiple reasons which play a part in the decision to resign from their position. The fact they do so will not prevent them from being able to plead constructive unfair dismissal, as long as it can be shown that they at least partially resigned in response to conduct which was a material breach of contract; and,(iii) that the employee did not delay too long before resigning, thus affirming the contract and losing the right to claim constructive dismissal. (76) All contracts of employment contain an implied term that an 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: Malik v BCCI [1997] IRLR 462. A breach of this term will inevitably be a fundamental breach of contract; see Morrow v Safeway Stores plc [2002] IRLR 9. (77) The gravity of a suggested breach of the implied term is very much left to the assessment of the Tribunal as the industrial jury. (78) It is open for an employer to argue that, despite a constructive dismissal being established by the employee, that the dismissal was nevertheless fair. The employer will have to show a potentially fair reason for the dismissal and that will be the reason why the employer breached the employee’s contract of employment; see Berriman v Delabole Slate Ltd 1985 ICR 546 CA. The employer will also have to show that it acted reasonably. If an employer does not attempt to show a potentially fair reason in a constructive dismissal case, a Tribunal is under no obligation to investigate the reason for the dismissal or its reasonableness; see Derby City Council v Marshall 1979 ICR 731 EAT. (79) Mr Kerfoot in his submissions referred to the case of Kaur v Leeds Teaching Hospitals NHS Trust [2019] ICR 1. He highlighted the guidance given by the Court of Appeal in paragraph 55 stressing that the law of constructive unfair dismissal should not be treated as complicated and that in normal cases, the following is sufficient: a) What was the most recent act of omission by the employer that caused the resignation. b) Whether the employee affirmed the contract since that act or omission. c) If not, whether that act or omission was a repudiatory breach of contract d) If not, whether it was part of a course of conduct involving several acts and omissions when viewed cumulatively, amounted to a repudiatory breach of trust and confidence and if it was, no separate consideration of a possible previous affirmation. e) Whether the employee resigned wholly, or partly response to that breach. (80) Mrs Imms referred me to the above cases and also the cases of Malik and Omilaju (see above). Wrongful dismissal (81) The Employment Tribunals Extension of Jurisdiction Order 1994 provides that proceedings for breach of contract may be brought before a Tribunal in respect of a claim for damages or any other sum (other than a claim for personal injuries and other excluded claims) where the claim arises or is outstanding on the termination of the employee’s employment. (82) A claim for notice pay is a claim for breach of contract; Delaney v Staples 1992 ICR 483 HL. Discussion (83) In terms of jurisdiction, it was accepted that both complaints were presented in time and that both claimants had been continuously employed by the respondent for more than two years prior to the effective date of termination in accordance with sections 111 and 108 of the ERA respectively. (84) In terms of the evidence given by the witnesses in this case, I was conscious that both claimants at times appeared to be anticipating the questions that were being asked of them in cross examination. This meant that cross examination took longer than should reasonably have been expected and it contributed to my having insufficient time to deliver an oral judgment in what had been a reasonably generous listing for a case with complaints of constructive unfair dismissal. (85) What I did consider was whether the way in which the claimant’s answered the questions was an indication of a lack of credibility or reliability. My conclusion was that although it took some time to get clear and unequivocal answers from the two claimants during their evidence, I did find any dishonesty on their part or anything which undermined their overall reliability as witnesses. (86) Both of the respondent witnesses were clear in their answers, and I did not consider that they had been dishonest in the answers given and they genuinely believed that they had behaved reasonably towards the claimants. However, when it came to evaluating the conflicting recollections of what had happened, I concluded that the respondents reviewed the claimant’s treatment through ‘rose tinted spectacles’. Mr Naughton in view genuinely believed that the business operated like a family and there was no doubt many happy and comradely occurrences during the claimants’ time with the respondent. Unfortunately, Mr Naughton appeared to manage in an intuitive and inconsistent way. I acknowledged that the respondent was a relatively small business in terms of staffing, but it operated with a not insignificant turnover and the lack of structure and process appeared to be the issue. First claimant (87) Mr Imms argued that A One did not want him to remain with the company and this forced him to leave because of the allegations within the list of issues. This resulted in his resignation, and it was effectively a dismissal. (88) I accepted that he had been blamed as part of the Sales team for purchasing cables which were not compliant with UK regulations because they consisted of copper coated aluminium wires rather than the safer and more fire resistant 100% copper wires. This was evidenced by the Skype conversations referred to above and the lengthy emails leading up to the final discussion on 4 April 2023. Although there was blame placed upon the first claimant, no capability or even disciplinary process had taken place and this would have been a proportionate and appropriate way to deal with this matter, carried out of course in accordance with fair processes. This was not done and while as manager of the Sales team, the first claimant may have held some responsibility, the manner in which Mr Naughton raised this issue was an unreasonable act against him. (89) The first claimant was also asked along with other members of the Sales team to pay £19,000 in respect of the losses arising from the cable recall. This included a threat that it would be automatically deducted from in instalments from their monthly salaries. It is perhaps understandable that this emotional response was made by Mr Naughton given the history that he described in his email discussed in the findings of fact, above. However, he should have known that there was no contractual provision for this request to be made of the Sales team members and to do so without authority of the employees would have amounted to an unlawful deduction from wages. Nonetheless, that was the impression that he gave the claimants and while Mr Naughton may not have believed he would have carried out that threat, I accepted that the claimants would quite reasonably believe that he was deadly serious at that time. This would have caused the first claimant a great deal of anxiety and his evidence which I accepted left him feeling distressed by events. (90) Fortunately, Mr Bentham recognised the legal issues arising from a unilateral decision by A One to make the proposed deductions. The decision was therefore rescinded and the claimants notified, but the way in which the matter escalated from demand for contribution, to a threat of deductions from monthly wages to a sudden retreat, was both high handed and unreasonable. (91) Once Mr Bentham realised and advised Mr Naughton that the deduction of wages could not be imposed, a consequential change to the commission structure was proposed to the Sales team very quickly afterwards. Mr Bentham may genuinely have believed that this was something which was long overdue, and it may have been the case that it would need to be discussed in the not-too-distant future. But it would have had an impact on the team’s salaries and needed to be raised in a measured way once the cable issue had been resolved. (92) Instead, the proposal’s proximity to the deduction of wages issue and the way in which Mr Bentham raised it with Mr Naughton and then the Sales team, quite reasonably left them in a position where an alternative from of punishment was being carried out because of the cables being unsaleable. Mr Naughton withdraw the proposal shortly after the Sales team began to challenge it with Mr Bentham, but this simply added to the overall perception by the claimants that they were under attack, and they were uncertain as to their ongoing position within the business. This was a further example of unreasonable behaviour on the part of the respondent and one which added to the undermining of the trust and confidence that the claimants could have in their employer. (93) In terms of the first claimant’s alleged ‘advice’ to recall the cables due to safety concerns, I concluded that this did not amount to advice, a disclosure or safety request. It was more a questioning of next steps because of customer emails about cables and I did not hear evidence which persuaded me that the failure to respond to Mr Imms’ email of 3 April 2023 amounted to unreasonable behaviour on the part of A One. (94) I accepted that at the meeting on 4 April 2023, Mr Naughton still blamed Mr Imms for the cable issue. The full extent of what was discussed and how it was discussed was not entirely clear. However, I considered that Mr Naughton’s behaviour towards Mr Imms at the meeting on this day was sufficient to make him feel intimidated and that he needed to leave. Mr Imms may have reached the end of his tether and was becoming unwell. But in any event, Mr Naughton had a responsibility to gauge how best to deal with Mr Imms and the issue and manage him in a proportionate and reasonable way. On balance his behaviour towards Mr Imms was inappropriate and I accepted that this allegation happened as alleged and was the last straw. (95) This last straw was because of the series of events relating to the cables in March 2023 and which individually and collectively amounted to acts which undermined the trust that Mr Imms could reasonably have in the respondent as his employer. (96) I concluded that while the events of the meeting on 4 April 2023 were not in itself significant grounds alone to make resignation a reasonable response, when considered cumulatively with the other unreasonable acts, the respondent had no reasonable grounds to behave in the way that they did. When viewed objectively, this series of behaviours of acts was likely to destroy or seriously damage trust and confidence. While it may not have been a series of calculated acts designed to undermine trust and confidence on the part of Mr Naughton and Mr Bentham, it was reasonable to conclude that this was the inevitable effect that they would have on Mr Imms. (97) I appreciated that Mr Naughton wanted Mr Imms to stay and did value what he perceived to be the family relationships within the business. But even families can experience inappropriate behaviours and in this case those discussed above had been disproportionate and unreasonable. (98) Consequently, in the case of Mr Imms, the fundamental breach was the aggregate of the events in March 2023 relating to the cables involving blame, attempts to recover the losses and concluding with the ill-tempered meeting which prompted the decision to resign. (99) Mr Imms did affirm the earlier issues relating to the disciplinary action and the first review of commission in 2022. However, he did not acquiesce in relation to the cable issues which formed part of the series of acts leading to his resignation. Indeed, matters began and concluded within a matter of weeks and I was not persuaded that Mr Imms affirmed the contract following the breaches in question. These breaches caused the resignation, and it was a decision that took place quickly and without delay. (100) Finally, there was no evidence that had Mr Imms not resigned, A One would have dismissed him because of the incident relating to the cables. Despite the poor behaviour during March 2023, I accepted that Mr Naughton did not want to terminate Mr Imm’s employment and had no intention of considering conduct or capability process. (101) In terms of the claim for notice pay, I did discuss the asymmetric notice periods applying to employer and employee within the contract of employment. However, Mr Imms gave notice on 4 April 2023 that his employment would end the following month on 4 May 2023. This was accepted by the respondent and his employment ended on that date. I understood that because of sickness absence, Mr Imms was unable to work his notice period, but in terms of notice pay, he was entitled to his pay for that one month’s notice period. The quantification of this loss will be a matter for a future remedy hearing. Second claimant (102) The second claimant Mr Latham argued that A One did not want him to remain with the company and forced him to leave as a result of the allegations within the list of issues. This resulted in his resignation. I will deal with each allegation in turn below. (103) I accepted that in February 2023, that the respondent stopped Mr Latham from coming in half an hour later on a Monday morning so he could take his children to school. This was the only day he could not rely on his partner to provide cover for this activity. Despite Mr Naughton’s decisions to work from home himself during building work at his home, he appeared to have a reluctance to allow much flexible working from the employees and there was clearly an unhappiness concerning Mr Latham’s working patterns at this time. (104) This was not a case where flexible working regulations had been raised as an issue and ultimately, I accepted that while the allegation happened as alleged and may have seemed unfair, management did not behave unreasonably in seeking to stop the delayed start at work. In any event, the second claimant did not pursue this matter and acquiesced to the decision. He therefore affirmed the contract in this instance. (105) Similarly, I accepted that there was a challenge of the second claimant by Mr Naughton regarding his sick leave on 13 and 14 March 2023. However, this was a matter which while inappropriate, did not amount to mental abused as alleged. Importantly, the second claimant did not pursue this issue any further with Mr Naughton and affirmed the contract in this instance as well. (106) My greater concern like that with the first claimant, lay with the treatment of the second claimant in relation to the cable issue in March 2023. I would repeat my findings made in respect of the first claimant Mr Imms as they are broadly the same as those raised by Mr Latham. The demand for £19,000, the threat to unilaterally deduct wages and the aborted proposed change to the commission structure all amounted to a series of unreasonable acts which were closely connected. They served to undermine Mr Latham’s trust and confidence in his employer A One. (107) An additional factor was the way in which Mr Naughton engaged with Mr Latham by stating that he should accept the deduction ‘…as wont be pretty’ and the late night ‘deal or no deal’ late night messaging conversation. These actions were a mixture of blame, threat and using the purchasing role as a device to pressurise Mr Latham into accepting he should pay £19,000 or so. as I have already mentioned, whatever Mr Naughton’s ultimate intentions were, the series of behaviours identified by Mr Latham in relation to the cable issue combined to amount to unreasonable behaviour which undermined his trust and confidence in Mr Naughton and A One as his employer. (108) I accepted that by the time Mr Latham began his annual leave in April 2023, he had become distressed and with his family’s support, he had drafted his resignation letter. He did not intend sending it to Mr Naughton until his return from leave. However, prompted by Mr Naughton contacting him while on leave, he responded immediately and confirmed that he had decided to resign and as consequence of being approached, he would send his notice of resignation immediately. (109) Mr Latham’s allegations in terms of their dates were slightly confusing given that he gave notice of his resignation on 4 April 2023. Additionally, in his resignation letter he said that he already made up his mind to resign before the commission structure change was imposed, but cited it as being something which confirmed he was making the right decision. However, having considered the evidence heard during this final hearing, I accepted on balance that the allegations relating to the deduction of £19,000 and concluding with the final straw of the proposal of the commission structure change on 30 March 2023 were the reasons for Mr Latham deciding to resign. On balance, while Mr Latham was contemplating resignation before the commission change as proposed on that date, it was the tipping point which persuaded him to draft his letter and begin his holiday knowing that resignation was the next step he would take in response to what had happened a few days before. (110) Like Mr Inmms, I accepted that Mr Latham resigned because of these allegations and that collectively they amounted to a fundamental breach of contract, sufficient to justify resignation. Mr Latham did not delay following the final straw on 30 March 2023 as he prepared his resignation letter on 1 April 2023 and sent it to Mr Naughton when asked whether he was resigning on 4 April 2023. Consequently, he did not affirm his contract in relation to these allegations. (111) I also accepted that while Mr Naughton questioned Mr Latham concerning whether he was proposing to resign and subsequentlyrefused the later withdrawal of notice, I was not persuaded that he was proposing to dismiss him by reason of conduct, capability or any other reason. Having considered the messages which took place between them during the material time, I concluded that despite everything, Mr Naughton envisaged Mr Latham remaining in employment with him. His failure to agree to meet following Mr Latham giving notice of resignation was more akin to a fit of pique rather than representing an underlying belief that employment would need to be terminated by the respondent. (112) Finally, in terms of notice pay, I would repeat my comments made above in relation to Mr Imms. In this case, Mr Latham gave notice in his email confirming his resignation sent on 4 April 2023, of a termination date of 12 May 2023. The claimant was entitled to his notice pay for that period but any failure would be a matter for the remedy hearing. Conclusion (113) Accordingly, the judgment in this case is as follows: (114) The complaint of constructive unfair dismissal is well-founded. The claimant was unfairly dismissed. (115) The claimant’s agreed notice period ran from 4 April 2024 until the effective termination of employment on 4 May 2023. Any failure to pay the second claimant his correct notice pay for this period, will be addressed at the remedy hearing. (116) The complaint of constructive unfair dismissal is well-founded. The claimant was unfairly dismissed. (117) The claimant’s agreed notice period ran from 4 April 2024 until the effective termination of employment on 12 May 2023. Any failure to pay the second claimant his correct notice pay for this period, will be addressed at the remedy hearing. The remedy hearing (118) The case will be listed for a 1 day remedy hearing on a date to be confirmed before Judge Johnson. (119) The parties must cooperate and agree case management orders to ensure that updated schedules and counter schedules of loss, remedy documents and witness evidence and a remedy hearing bundle are available for the remedy hearing. JUDGMENT ON REMEDY (made pursuant to the Judgment on liability dated 26 September 2026) The judgment of the Tribunal is that: (1) The first claimant’s claim is successful, and the respondent shall pay the claimant the sum of £39,859.79 (Thirty-Nine Thousand, Eight Hundred and Fifty-Nine Pounds 79 Pence only) in full and final settlement of the successful complaint of constructive unfair dismissal and as discussed in the paragraphs below. (2) The second claimant’s claim is successful, and the respondent shall pay the claimant the sum of £18,946.56 (Eighteen Thousand, Nine Hundred and Forty-Six Pounds 56 Pence only) in full and final settlement of the successful complaint of constructive unfair dismissal and as discussed in the paragraphs below. (3) This judgment is calculated on the following basis, applying relevant just and equitable principles under the Employment Rights Act 1996, as applied below: UNFAIR DISMISSAL (First Claimant – Mr M Imms) Subtotal/Totala. A. Basic Award £10,003.20b. B. Compensatory Award Immediate loss of earnings £29,356.59[2]Loss of statutory rights £500.00 Total Award (First Claimant) £39,859.79 UNFAIR DISMISSAL (Second Claimant – Mr L Subtotal/Total Latham)a. A. Basic Award £9378.00b. B. Compensatory Award Immediate loss of earnings £9068.56[2]Loss of statutory rights £500.00 Total Award (Second Claimant) £18,946.56 Recoupment of benefits The award is subject to the application of recoupment provisions in accordance with the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 (SI 1996/2349). It is understood that the claimants have not claimed relevant benefits and therefore the recoupment provisions do not apply. Approved by: