Employment Judge WilkinsonMr D Oakland (instructed by solicitor) for claimantMiss N Mallick (instructed by counsel) for respondentDate 13 February 2025
JUDGMENT
[1]It is declared that the claimant was an employed by the respondent under a contract of employment between 30 August 2018 and 4 June 2024 and that the tribunal has the jurisdiction to hear these claims.[2]The complaint of constructive unfair dismissal is well founded. The claimant was constructively unfairly dismissed.[3]The claimant’s complaint of unauthorised deductions from wages is wellfounded. The respondent made unauthorised deductions from the claimant’s wages in the period 1 April 2024 to 4 June 2024 inclusive.[4]The complaint of breach of contract in relation to notice pay is well-founded.[5]The tribunal shall consider remedy in respect of the claimant’s successful claims and give a further judgment at a remedy hearing to be fixed.
REASONS
[1]The claimant is Michael Okoro (hereafter “the claimant”) who has been represented by Mr Oakland. His claim relates to unfair dismissal, wrongful dismissal and unpaid wages. He seeks a declaration that he was an employee of the respondent in order to establish the tribunal’s jurisdiction to determine his claims.[2]The respondent is Diamond Hangar Limited (hereafter “the respondent”), represented by Miss Mallick (counsel). The respondent asserts that the claimant was a self-employed contractor and that there was no contract of employment and therefore the claims must fail. In the alternative the respondent asserts that whilst there may not have been a fair process regarding the dismissal, any financial reward ought to be reduced by 100%, applying the Polkey principles and the principles relating to contributory fault. The procedural history[3]This hearing has been the final hearing of the claims. It has been the only hearing to date.[4]The claimant contacted ACAS on 5 June 2024 and Early Conciliation ended on 18 June 2024. The claim form was received on 28 August 2024. The response was received late – on 12 November 2024; however, on 15 November 2024, Legal Officer granted the respondent’s application of 13 October 2024 to submit the response late. Whilst there was subsequent correspondence sent to the tribunal by the claimant opposing this decision that decision was not appealed or overturned and the point was not pursued before me.[5]The parties were subsequently late in complying with previous tribunal directions; however, documents and witness statements were exchanged shortly before this hearing (it appears from correspondence in the bundle on 24 January 2025) and the hearing was effective notwithstanding that. Neither party asserted that the late exchange of documents and evidence ought to preclude this hearing from proceeding.[6]I have considered a bundle of documents running to 174 pages which included witness statements filed on behalf of both parties. Additionally, I considered a draft list of issues (which was not agreed) submitted by Miss Mallick and which I received on the morning of the hearing.[7]I have heard oral evidence from Alexandra Covaci (CEO of the respondent company) and from the claimant.[8]I also heard detailed oral submissions from both representatives.[9]The hearing has been a remote hearing by CVP. The claimant’s connection dropped briefly during the hearing, but he was reconnected immediately thereafter. There were no other technological issues. I am satisfied in all of the circumstances that the hearing has been fair procedural to all involved and neither party sought to argue otherwise.[10]The hearing was listed for two days. It had been listed to consider both liability and remedy. Having heard all of the evidence and submissions relating to liability on day one of the hearing I had intended to consider my decision and give my judgment and oral reasons at 14:00 on day two, with remedy to follow if necessary.[11]On reflection I decided that I would require further time to consider my decision due to the number of issues involved and the complexity of the evidential matters relating in particular to the claimant’s employment status. On the morning of the second day of the hearing I therefore asked my clerk to contact the parties to inform them that I would not be giving my judgment or reasons that day and that these written reasons would follow.[12]It therefore follows that I have only considered liability at this stage. Having found in the claimant’s favour I will need to consider remedy separately in due course. The legal framework Contract of employment
The legal framework
[13]Section 230 of the Employment Rights Act 1996 defines an employee and a contract of employment: Section 230 – Employees, workers etc.(1) In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.(2) In this Act “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.[14]There has been a wealth of jurisprudence from the Senior Courts down in respect of how the tribunal ought to interpret these provisions in any given case. I was referred to some of the authorities in closing submissions.[15]In Ready Mix Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 1 All ER 433 (QBD) MacKenna J held that the three key elements must be present to establish what was then termed a “contract of service”: “(i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master. (ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other's control in a sufficient degree to make that other master. (iii) The other provisions of the contract are consistent with its being a contract of service.”[16]That judgment has subsequently been approved in the higher courts.[17]In Nethermere (St Neots) Ltd v Gardiner and anor [1984] ICR 612 Stephenson LJ stated that for such a contract to exist “there must in my judgment, be an irreducible minimum of obligation on each side to create a contract of service”.[18]I remind myself that the authorities establish that a checklist approach is to be avoided. I must look at all of the circumstances and facts as I find them. In Hall (Inspector of Taxes) v Lorimer [1994] 1 WLR 209 Nolan LJ (at [217]) approved the following dicta of Mummery J (as he then was) at first instance (reported at: [1992] 1 WLR 939) at [944]: “In order to decide whether a person carries on business on his own account it is necessary to consider many different aspects of that person's work activity. This is not a mechanical exercise of running through items on a check list to see whether they are present in, or absent from, a given situation. The object of the exercise is to paint a picture from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of evaluation of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another. The process involves painting a picture in each individual case. As Vinelott J said in Walls v. Sinnett [1986] 60 TC 150, 164: ‘It is, in my judgment, quite impossible in a field where a very large number of factors have to be weighed to gain any real assistance by looking at the facts of another case and comparing them one by one to see what facts are common, what are different and what particular weight is given by another tribunal to the common facts. The facts as a whole must be looked at, and what may be compelling in one case in the light of all the facts may not be compelling in the context of another case.’”[19]In her closing oral submissions Miss Mallick referred to me two additional authorities. Neither of these fundamentally alter or add to the cases set out above but I include them for the sake of completeness:a. In Cotswold Developments Construction Ltd v Mr S J Williams UKEAT/0457/05/DM Langstaff J, at [53] said: “Thus viewed, it seems plain that a focus upon whether the purported worker actively markets his services as an independent person to the world in general (a person who will thus have a client or customer) on the one hand, or whether he is recruited by the principal to work for that principal as an integral part of the principal’s operations, will in most cases demonstrate on which side of the line a given person falls.”b. In Hashwani v Jivraj [2011] UKSC 40 Lord Clarke (giving the majority judgment) made a distinction between those who are under the direction of another and those who perform an independent role, free of such control, as being a defining consideration when looking at the scope of whether a contract was a contract of employment – see the summary of Lord Clarke’s distinction in Lord Mance’s judgment at [78]. Exclusion of rights, illegality and void contracts[20]In her closing submissions Miss Mallick invited me to consider the principle that “he who comes to equity must come with clean hands” and submitted that because of how the claimant had presented his income to HMRC, if I accept his position in respect of employment status, I ought to find that he had knowingly entered into a contract that he knew to be false and therefore he ought to be precluded from relying on the Statutory rights protecting against unfair dismissal in the Employment Rights Act 1996.[21]In her oral submissions Miss Mallick referred me to a first instance employment tribunal decision of “Hudson v Redcoat Community Centre” but I was not provided with a copy of that decision. In any event it is a first instance employment tribunal decision and is not binding on me.[22]Following the end of the oral hearing – on 30 January 2025 – Miss Mallick sent by email four additional authorities. I have not heard oral arguments on these authorities as they were sent after the close of oral submissions. I invited Miss Mallick to confirm which were the relevant sections of those authorities, which she did by email. The authorities referred to were:a. Massey v Crown Life Insurance Co [1978] IRLR 31, [1978] ICR 599, CAb. Tomlinson v Dick Evans ‘U’ Drive Ltd [1978] IRLR 77, [1978] ICR 639. EATc. Newland v Simons and Willer (Hairdressers) Ltd [1981] IRLR 359, [1981] ICR 521, EATd. Tracy Robinson v His Highness Sheikh Khalid Bin Saqr Al-Qasimi [2021] EWCA Civ 862[23]The common theme running through those authorities is that a party cannot benefit from rights under a contract which is void for illegality. If arrangements are put in place with the intention to deceive the Inland Revenue, then those arrangements cannot subsequently be relied upon to enforce a Statutory right. What is clear from all of the authorities is that there has to be a deliberate attempt to deceive or defraud with the knowledge, participation or acquiescence of the employee in order to render a contract void. Unfair dismissal[24]The respondent argues that if I find against it in respect of whether the claimant was an employee, that the effective date of termination was 4 March 2024. It asserts that in those circumstances then:a. The claimant is out of time to bring the claim; or alternativelyb. The dismissal was fair because of either: i. Redundancy; or ii. The claimant’s misconduct.[25]A dismissal by an employer for the purposes of an unfair dismissal claim is defined in section 95 of the Employment Rights Act 1996.[26]In respect of misconduct this is a potentially fair reason pursuant to section 98(2)(c). In respect of misconduct dismissals there is well-established guidance for Employment Tribunals in the cases of British Home Stores v Burchell [1980] ICR 303 and Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23.[27]Essentially those authorities established the following questions for the tribunal to address:a. Did the employer genuinely believe that the employee was guilty of misconduct?b. If so, was that belief based on reasonable grounds (considering the information available at the time of the dismissal and appeal decisions). The tribunal must evaluate whether the view that there was misconduct was within the band of reasonable responses.c. Had the employer carried out such an investigation into the matter as was reasonable (within the band of reasonable responses). A Tribunal must bear in mind the nature of the allegations, the position of the claimant and the size and resources of the employer.d. Did the employer follow a reasonably fair procedure?e. If all of the above requirements were met was dismiss within the band of reasonable responses, as opposed to the imposition of a lesser sanction? The tribunal must take care not to substitute its view for that of the reasonable employer.[28]Turning to redundancy, this is a potentially fair reason by virtue of section 98(2)(c). Redundancy is defined in section 139 as follows: Section 139 – Redundancy (1) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to – (a) the fact that his employer has ceased or intends to cease – (i) to carry on the business for the purposes of which the employee was employed by him; or (ii) to carry on that business in the place where the employee was so employed, or (b) the fact that the requirements of that business – (i) for employees to carry out work of a particular kind, or (ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish.[29]There is a wealth of case law in respect of redundancy unfair dismissal cases. The leading authority is Williams v Compare Maxam Limited [1982] IRLR 83 and additional guidance is given in Morgan v The Welsh Rugby Union [2011] UKEAT/0314/10/LA and Wrexham Golf Club v Ingham [2012] UKEAT/0190/12.[30]Those authorities broadly set out the following relevant legal points:a. Generally speaking, employers must act within the band of reasonable responses.b. Employers must give employees adequate notice of any proposed redundancies and ensure a proper consultation takes place, bearing in mind their size and their resources.c. When making a selection decision employers must act reasonably in both identifying the selection pool and the criteria by which employees within that pool are to be selected.d. It is permissible to have a pool of one – this is ultimately a decision for the employer provided that it acts within the range of reasonable responses. The tribunal must not substitute who it thinks ought to have been in the pool but consider whether the employer acted reasonably in limiting the pool.e. Employers must take reasonable steps in all of the circumstances to find employees suitable alternative employment. Constructive unfair dismissal[31]The claimant’s case is that the effective date of termination was 4 June 2024 and that he was constructively dismissed.[32]Whilst there is wealth of case law in respect of constructive unfair dismissal claims, this is a relatively straightforward area of law. The legal test is well established.[33]The right not to be unfairly dismissed is enshrined in section 94 of the Employment Rights Act 1996 (“the Act”). Section 95 of the Act gives rise to a complaint of constructive unfair dismissal.[34]The case law has provided the following legal test for the Employment Tribunals to consider. This was clearly established in Western Excavating (ECC) Ltd v Sharp [1978] ICR 221 in which the Court of Appeal head that, for an employer’s conduct to give rise to a constructive dismissal, it must involve a repudiatory breach of contract. As Lord Denning MR stated: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed.”[35]In summary the case law has set out that in to claim for constructive dismissal a claimant must establish that:a. there was a fundamental breach of contract on the part of the employer;b. the employer’s breach caused the employee to resign; andc. that the employee did not delay too long before resigning, thus affirming the contract and losing the right to claim constructive dismissal. Unfair dismissal – time limits[36]I remind myself that a claim for unfair dismissal must be brought before the end of the period of three months beginning with the effective date of termination – section 111 of the Employment Rights Act 1996.[37]This time limit can be extended by up to one month to take into account the period of ACAS Early Conciliation.[38]In this case the ET1 claim form was received by the tribunal on 28 August 2024. Unfair dismissal – remedy[39]In the event that the tribunal is satisfied that the dismissal was unfair, then the tribunal must consider what remedy to award, by reference to Chapter II of the Employment Rights Act 1996. In respect of cases such as this where compensation is sought then the tribunal must consider sections 118 to 127B of the Act.[40]When considering remedy the tribunal must determine whether any adjustment to an award ought to be made to the compensation on the grounds that if a fair process was followed that the claimant might in any event have been fairly dismissed. The Tribunal must consider the principles established in Polkey v AE Dayton Services Ltd [1987] UKHL 8.[41]Additionally the tribunal must consider, if it finds that a claimant was unfair dismissed, whether the basic or compensatory awards ought to be reduced for culpable conduct in the circumstances set out in sections 122(2) and 123(6) of the Act.[42]Section 122(2) sets out that: “Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly.”[43]And section 123(6) says: “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.[44]Given that the evidence and enquiries relied upon by the respondent occurred after the date on which the respondent asserts that the claimant was dismissed, the respondent relies upon the principles established in Boston Deep Sea Fishing and Ice Co v Ansell [1888] 39 Ch D 339 and W Devis & Sons Ltd v Atkins [1977] 1 AC 931 in its assertion that information which came to light subsequent to the dismissal ought to be considered so as to make it just and equitable to reduce any award by 100%.
The issues
[45]I was assisted in considering my decision by the agreed list of issues prepared by Miss Mallick on behalf of the respondent submitted on the morning of the hearing. That list of issues was broadly agreed by Mr Oakland in his closing submissions. It was broadly speaking complete. I do not set it out in full below but adopt the broad outline of it: Employment Status 1. Was the claimant employed by the respondent as an employee at the relevant time, so that the tribunal has jurisdiction to consider the claim for unfair dismissal? If so; Unfair Dismissal 2. Was the claimant’s employment contract was terminated within the meaning of section 95 of the Employment Rights Act 1996 by the respondent? 3. If so, was the claimant’s contract terminated by the respondent on 4 March 2024 when the claimant was told that his services were suspended? The respondent suggests it was. 4. If so, was the claim made within time pursuant to section 111 of the Employment Rights Act 1996, and if not was it(a) reasonably practicable for it to have been made within the time limit; and(b) if it was not reasonably practicable for it to have been so made, was it made within a reasonable period? 5. If so, was the reason for dismissal a potentially fair reason for dismissal pursuant to sections 98(1) and 98(2) of the Employment Rights Act 1996 (namely; redundancy or misconduct)?a. If the principal reason was redundancy, did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant?b. If the principal reason was misconduct, did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant? 6. If not, was there any other point in time, when it could be said that the contract was terminated by the respondent? The respondent does not offer any other date. 7. If so, was the dismissal fair under section 98(4) of the Employment Rights Act 1996, in all the circumstances? Constructive dismissal 8. If not, was the claimant’s contract terminated by reason of resignation on 4 June 2024? The claimant suggests he did. 9. If so, did the respondent fail to pay the claimant promptly or at all following 4 March 2024? 10. Did that breach the implied term of trust and confidence? The tribunal will decide: a. Whether the respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the parties; and b. Whether the respondent had reasonable and proper cause for doing so. 11. Did the claimant resign in response to the respondent’s repudiatory breach of contract? 12. Did the claimant affirm the contract before resigning? 13. If the claimant was constructively dismissed, was the dismissal fair under section 98(4) of the Employment Rights Act 1996 in all the circumstances? In considering this, the tribunal will decide whether the claimant had engaged in conduct that was fundamentally inconsistent with his continued employment? Illegality 14. Is the claimant entitled, in all of the circumstances, to protection from unfair dismissal in light of any illegality or fraud in the contract of employment relating to the Inland Revenue? Polkey 15. If the claimant was unfairly dismissed, would he have been fairly dismissed, anyway? 16. If so, was the chance of dismissal 100%, such that he is not entitled to any compensation? 17. If not, what was the percentage chance of dismissal? Contributory fault 18. Whether the conduct of the claimant before the dismissal was such that it would be just and equitable to reduce or further reduce the amount of the basic award? 19. Whether the claimant’s dismissal was to any extent caused or contributed to by any action of the claimant such that it would be just and equitable to reduce or further reduce the compensatory award? Remedy 20. In light of the above: a. Does the claimant seek reinstatement or re-engagement and should the tribunal order that? The claimant does not. b. Should there be a compensatory award and if so: i. how much should it be? ii. in light of the tribunal’s decision in respect of Polkey and contributory fault, should it be reduced and by how much?c. What is the basic award payable, if any; and in light of the tribunal’s decisions above, would it be just and equitable to reduce the award and if so, to what extent? 21. What remedy should be ordered and, if financial, how much? Wrongful dismissal / Notice pay 22. What was the claimant’s notice period? 23. Was the claimant paid for that notice period? 24. If not, was the claimant guilty of gross misconduct? Unauthorised deductions from wages 25. Did the respondent make unauthorised deductions from the claimant’s wages and if so, how much was deducted / unpaid? Findings of fact – preliminary matters
Preliminary matters
[46]As in any case such as this there are a number of factual matters which are agreed and which are in dispute. In this case there are a large number of factual matters which are agreed.[47]Additionally there are a number of facts which formed the basis of the oral and written evidence which are not probative to my decision.[48]I set out below the relevant findings of fact which I have decided in order to make my decision. Where a fact is in dispute I will set out my reasons why I have made a particular finding in favour of one party over the other. In doing so I remind myself that the standard of proof is the balance of probabilities; namely is any particular fact more likely than not to have happened. Assessment of witnesses[49]I remind myself that as the tribunal hearing this case and hearing the oral evidence of the witness I am uniquely placed to form an assessment of them.[50]My impression of Ms Covaci was that she was direct in her responses. She only joined the respondent company in late 2023, shortly before the claimant stopped working for it. She had limited knowledge of the historical factual matters and therefore was relatively unspecific on a number of points. Her written evidence was extremely vague in respect of the events surrounding the allegations of mismanagement and her evidence was not wholly consistent with the documentary emails. She gave hearsay evidence in respect of events which she was not a direct witness (for example: Prince Eze’s conversations with the claimant) but did not specify exactly where this hearsay evidence came from. On these points I am satisfied that I cannot attach significant weight to her evidence given that it is not supported by any other contemporaneous documentary evidence.[51]I found the claimant to be forthright. His evidence was broadly consistent with his written evidence. When asked questions by Miss Mallick he was able to provide credible details which in my judgment gave his evidence a degree of authenticity. His evidence was supported by the documentary evidence (for example in respect of what had been provided to Ms Covaci in early 2024). The claimant appeared frustrated with the respondent’s challenges to his position at times. I found him to be a compelling witness and a witness to whose evidence I was able to attach some weight. Findings of fact – findings The background and commencement of the relationship between the parties[52]The respondent company is a business operating from a large commercial hangar at Stanstead airport. The facility is made up with space for the parking and maintenance of aircraft, office space, workshops, storerooms and engine bays. The space is rented to various third parties more often than not with links to the aviation industry. The company is owned by Prince Arthur Eze (hereafter “Prince Eze”), who lives in Nigeria.[53]The claimant commenced his work with the respondent on 30 August 2018 following submitting his CV and undergoing an interview with Allen Blattner, the previous CEO of the respondent company, earlier that month. That interview was followed up by a telephone call with Prince Eze.[54]On 30 August 2018 at 15:22 an email was sent by Mr Blattner to staff members of the respondent entitled ‘Appointment’. It read as follows: “By direction of the Chairman Prince Arthur Eze, M. Okoro has been appointed as Director of Administration for the Ebas Diamond Hangar group. Your full cooperation and assistance is fully sought.”[55]It is accepted that it was agreed that the claimant would be remunerated at £72,000 (gross) per year plus an additional £6,000 in travel expenses per month. That having been said it appears that at some point in 2019 the travel expenses of £500 per month were stopped (based upon the claimant’s unchallenged written evidence).[56]The claimant’s evidence was that during his conversation with Mr Blattner and indeed at no time prior to 10 September 2018, nothing in respect of employment status was discussed. This was disputed by the respondent in its grounds of resistance. The respondent asserted in its pleadings that the claimant understood “from the outset” that the respondent was “not seeking a contract of personal services, but just that ‘services’ were provided to get the job of administrating the facilities and finance, done”.[57]The respondent has not provided any evidence as to what was discussed at the time immediately before the claimant started work and up to the point that the contract was signed (on 10 September 2018). The only witness relied upon by the respondent was Ms Covaci. Neither Mr Blattner nor Prince Eze gave evidence to the tribunal. The claimant was not specifically challenged on these conversations. In those circumstances I prefer and accept the claimant’s unchallenged written evidence and I find on the balance of probabilities that no discussions took place before 10 September 2018 as to the claimant’s employment status.[58]The claimant says that, having been employed for most of his working life previously, he had understood that he was being engaged subject to an employment contract with the respondent. Given that there had been no previous conversations with the respondent as to employment status he may well have thought this; however by 10 September 2018 he accepts that the terms of the contract were clear to him when he signed the ‘Service Agreement’ contract (“the contract”). The contract[59]That contract is dated 10 September 2018 and is signed by both the claimant and Mr Blattner on behalf of the respondent. The contract contains the following key provisions:a. The claimant is identified within the contract as the “contractor”. The respondent is identified as the “client”.b. Paragraph 2 of the contract, under the heading “SERVICES PROVIDED” states: “The Client hereby agrees to engage the Contractor to provide the Client with the following services (“the Services”): o Director of Administration The Services will also include any other tasks which the Parties may agree on. The Contractor hereby agrees to provide such Services to the Client.”c. Paragraph 6 of the contract, under the heading “PAYMENT” states that the claimant was to be paid £6,000 per month for the services plus an additional £6,000 per annum (or £500.00 per month) for “travel expenses”.d. Paragraph 6 goes on to state: “The Contractor will be required to be on site at the Clients’ Long Border Road, Stanstead, Essex, CM24 1RE address from 9.30am to 5pm Monday to Friday. The Contractor may from time to time be required to travel internationally as directed by the Client. Invoices submitted by the Contractor to the Client are due upon receipt. … The Contractor will be responsible for all income tax liabilities and National Insurance or similar contributions relating to the Payment.”e. Paragraph 11 of the contract, under the heading “RIGHT OF SUBSTITUTION states: “The Contractor does not have the right to hire a subcontractor without the express written approval of the Client.”f. Paragraph 12 of the contract, under the hearing “AUTONOMY” states: “The Contractor will always work at the direction of the Client.”g. Paragraph 13 of the contract, under the heading “EQUIPMENT” states: “The Client will provide to the Contractor all equipment, software, materials, and any other supplies necessary to deliver the Services in accordance with the Agreement.”[60]Upon receipt of the contract the claimant duly signed it. Miss Mallick for the respondent challenged the claimant as to the basis upon which he signed or otherwise acquiesced to the contract’s terms and in particular to the description of him as a contractor as opposed to an employee.[61]During the course of that cross-examination the claimant accepted, and I am satisfied and I find that:a. He was aware of what would in a contract of employment based upon his past experience: the claimant has had a number of previous jobs, all of which he was engaged as an employee;b. That the claimant had a particular skill set in respect of negotiations. He told me that his previous employment as a negotiator for a lettings company had involved him negotiating residential and (to a lesser extent) some commercial leases. He was good at his job and was the top fee-earner in that company. I accept and find that he had skills at negotiating contractual terms.c. The claimant did not seek to use those skills to negotiate the terms of the contract to be an employment contract. The claimant’s evidence (which was not challenged and which I accept) was that he was told by Mr Blattner that his engagement could only continue on a contractor basis.d. Accordingly, the claimant signed the contract and agreed and understood the terms of it; specifically including those set out by me above.[62]In those circumstances I find as a fact that by 10 September 2018 the claimant had agreed to and signed up to the contract and was aware that he was not engaged by the respondent under a written contract for employment.[63]That having been said I accept the claimant’s account to me and make a finding of fact that in signing that contract the claimant had limited choice and he was, in fact, presented with a fait accompli. He had already started is work and was not realistically in any position to exercise his negotiating skills. I am not satisfied that the claimant could, as alleged by Miss Mallick, have renegotiated the contract in any meaningful or substantive way. Remuneration[64]In respect of remuneration at the start of his engagement the claimant sent invoices to the respondent on a monthly basis for the £6,000 due under the contract. In its grounds of resistance the respondent asserts that the claimant provided his services through and raised invoices from a “trading entity” – ‘Robusta Capital’. The claimant denies that this was a trading entity.[65]The claimant’s evidence was that following his initial engagement with the respondent invoices were raised in his own name and paid into his own bank account. His written evidence sets out that it was some time after commencing his employment that he opened a separate business account with Starling Bank in the name ‘Robusta Capital’ and that it was from that moment that he raised invoices in that company’s name. The claimant asserts that the account is the name is a sole trader account in the name: ‘Michael Okoro/ TA Robusta Capital’. The claimant asserts that ‘Robusta Capital’ has never been a limited company nor was it in existence when he commenced his work with the respondent.[66]I have been provided with the following invoices in the bundle: an invoice for the month of September 2018, monthly invoices from November 2019 to March 2022 (inclusive) and for the months of April 2024 and May 2024. The invoice from September 2018 is in the claimant’s name. Each of the other invoices in the bundle is raised in the name of ‘Robusta Capital’.[67]It is accepted, and I find as a fact, that between April 2022 and March 2024 (inclusive) that the claimant did not send any invoices to the respondent. Notwithstanding this it is agreed, and I find as a fact that throughout the entirety of the claimant’s engagement with the respondent he was paid £6,000 per month up to and including February 2024. He did not receive the payment in March 2024, and I will deal with this later in these reasons.[68]The claimant’s evidence as to when he opened his ‘Robusta Capital’ bank account was somewhat inconsistent. In his written evidence he suggested that he had opened “some 3 years later [than commencing his work with the respondent] in June 2021”. I asked the claimant as to the discrepancy between this assertion and the fact that invoices were being raised in the name of ‘Robusta Capital’ as early as November 2019. It was notably not explored with the claimant on behalf of the respondent. The claimant’s evidence to me was that this had been a genuine error and that the ‘Robusta Capital’ account had in fact been opened around 12 months later. He had chosen to open a business bank account on the basis that he may wish to start his own business at some point in the future. He said that he chose that name because it was a name that he liked the sound of.[69]The claimant’s oral evidence was that the November 2019 invoice was the first invoice raised in the name of ‘Robusta Capital’.[70]The claimant was not challenged by the respondent in respect of his assertion that at the outset of the engagement with the respondent invoices were raised in his own name and that this only changed in November 2019. It was not put to the claimant that he had deliberately misled the tribunal in respect of when the account was opened. I accept the claimant’s evidence. Whilst I have not had sight of the invoices sent between October 2018 and October 2019 (inclusive) the invoice from September 2018 is clearly in the claimant’s own name. This undermines the assertion made by the respondent that ‘Robusta Capital’ was used from the outset. There is no objective documentary evidence – i.e., the invoices themselves – which can gainsay the unchallenged oral evidence of the claimant. That evidence could have been placed before the tribunal if available. In those circumstances I attach significant weight to the claimant’s unchallenged oral evidence. He has explained the discrepancies in the dates to me and I have no evidence which suggests that this is not correct.[71]Accordingly, my findings in respect of this matter are:a. That from September 2018 to October 2019 (inclusive) the claimant’s invoices were raised in his own name and payments were made to his personal bank account.b. That at some point thereafter the claimant opened a business bank account in the name: M Okoro T/A Robusta Capital with Sterling Bank.c. ‘Robusta Capital’ is not a limited company.d. Thereafter from October 2019 to March 2022 (inclusive) invoices were raised monthly in the name of ‘Robusta Capital’ and payments were made to that account.e. No invoices were sent between April 2022 and March 2024 (inclusive).f. Payments were made by the respondent to the claimant of £6,000 each month between September 2018 and February 2024 (inclusive) under the terms of the contract.[72]In respect of how the payments were made by the respondent to the claimant, the invoices which were raised (and subsequently the monthly payments that were made without the need for an invoice) were placed on a table a monthly table setting out what the payment was for, the amount, a reference and details of the receiving bank account. I have not seen copies of these tables for each month, but I have been provided with a sample of them in the tribunal bundle. The following matters are self-evident from the unchallenged documentary evidence:a. On occasion it was the claimant who made the requests for payments (both to himself and to others) – for example in a table dated 22 December 2023 the claimant counter-signed the request for payments alongside Mike Foley and Prince Eze.b. On more than one occasion the payments to the claimant were referred to as a being ‘a salary’. This includes in the following tables: 22 December 2023, 4 April 2024 and 13 June 2024.c. Each time a table was presented to Prince Eze it appears that he considered the request and applied a wet signature to the document approving the same.d. I am therefore satisfied and find as a fact that each payment made to the claimant was personally approved by Prince Eze and that this was the way in which such payments were made.[73]The use of the word “salary” by the respondent in such documents was explored by Mr Oakland in cross-examining Ms Covaci. He observed that on the table dated 22 December 2023 the claimant’s payment was referred to as a “salary”. This differed to payments made to two other people in that month which are referred to respectively as “Inv. 20” and “Inv. 9”. Ms Covaci was unable to explain why the claimant’s payments were referred to on more than one occasion as being a “salary” as opposed to payment of an invoice.[74]Later in her evidence, in what struck me as a telling reply, Ms Covaci was being asked questions by Ms Mallick in re-examination. She was being asked about the notice pay which was due to the claimant under the contract. The exchange went as follows: Q Did you understand that he [the claimant] would be entitled to notice pay? A Yes. The chairman said to me he would be entitled to basic salary. Q Salary? A That’s the way we referred to it. He was entitled to the basic pay. Q Did you understand the April payment to be notice pay? A Yes.[75]The reason this exchange was, in my judgment, note-worthy was that Ms Covaci used, unprompted, the word “salary”. It was only when led by Miss Mallick to consider that the April payment was “notice pay” did Ms Covaci change her mind. Moreover Ms Covaci was frank in saying that the respondent referred to payments to the claimant as “salary”. This accords with the written descriptions of payments to the claimant as being part of a “salary”, in contrast to payments to other individuals. I find as a fact that the respondent referred to and treated payments to the claimant as being a “salary” rather than other payments. Holiday and sick pay[76]I heard evidence as to what happened when the claimant went on holiday and when he was ill. In his written evidence the claimant said this: “Whenever I took time off or holidays, these had to be cleared in advance with Mr Blattner or Mike Foley or Prince Eze. I continued to be paid regardless of whether I was working or on holiday. In October 2020 when I was seriously ill from Covid 19 and was not able to come to work for one month, I still received my salary in full.”[77]That written evidence was not challenged in cross-examination and the respondent produced no evidence to contradict what the claimant said. I therefore accept his unchallenged written evidence and find as a fact that the claimant was paid when he was on holiday and when he was off work sick and that therefore he continued to be paid by the respondent regardless as to whether he was in fact carrying out work for it. Tax arrangements[78]In respect of tax arrangements, the contract makes it clear (at paragraph 6) that the claimant was responsible for his own tax and national insurance payments. He was not subject to Pay As You Earn (“PAYE”) arrangements and the respondent did make any national insurance payments. The claimant gave evidence that he had and continues to use the services of an accountant. The claimant was asked a number of questions about this by Ms Mallick on behalf of the respondent. There are not any real factual disputes. He conceded the following points which I accept and find as a fact:a. He submitted a tax return each year to His (formerly Her) Majesty’s Revenue and Customs (“HMRC”) on the basis that he was being paid as a gross contractor.b. As part of those annual accounts he submitted a profit/loss account.c. As part of those accounts he deducted travel costs and would most likely have claimed for other usual work expenses such as the depreciating value of his computer.d. At no point during the time in which he was engaged under the contract did he suggest to HMRC that he ought to be subject to the PAYE system or that he was otherwise employed by the respondent.[79]In all of those circumstances I find as a fact that for the purpose of HMRC the claimant has presented as a self-employed person and has submitted tax returns on that basis.[80]At no point in either party’s statements of case or in the written or oral evidence has it been suggested that the contractual arrangements were entered into either by the claimant or the respondent in a deliberate attempt to mislead or otherwise to defraud HMRC. The respondent has not advanced a case that the parties, separately or together, entered into the contract on the basis of the claimant being self-employed in order to benefit from tax arrangements associated with that.[81]Similarly, whilst Miss Mallick challenged the claimant as to the benefits which he gained from being registered as self-employed (for example: offsetting travel expenses and depreciating assets against his income), she did not put to him that he had been deliberately defrauding or seeking to defraud HMRC. Indeed such a position would have been antithetical to the respondent’s case as it would have to have been based on the premise that both parties knew – in reality – that the arrangements amounted to an employer/employee relationship but that a different label had been placed upon it so as to mislead the Inland Revenue.[82]In those circumstances I specifically do not make any findings that there has been any dishonesty or deliberate attempt to mislead or defraud HMRC by either party in this case. I would be unable to properly make those findings based upon either the party’s respective cases or the evidence in front of me. The claimant’s role and how he carried out his work[83]Moving away from the financial situation, the evidence as to how the claimant carried out the work for which he was engaged by the respondent between September 2018 and early 2024 is unclear. Ms Covaci was not working for the respondent at the time and the respondent has chosen not to rely on any witnesses who can speak of how the claimant carried out his role. The claimant gives some details in his witness statement. On some of these matters he was not challenged by the respondent in crossexamination. I deal with some specific matters below and make findings accordingly. I will set out the evidential basis for making each finding.[84]The scope of the claimant’s role was not set out in the contract. On 30 March 2023 the claimant, at the request of Prince Eze, sent an email in which he provided a detailed breakdown of what his role entailed. This was sent by him to Mike Foley (another director of the respondent) and reads as follows: “Michael Okoro - Director of Administration Duties: - Legal and Compliance - Dealing with all legal and compliance matters to ensure both companies are compliant with all regulatory standards. - Managing the day-to-day operations of every department, establishing company policies, implementing necessary changes, and adhering to compliance procedures, laws and regulations - Main point of contact interfacing with the Local Government/Council, the CAA, the landlord, the tenants, commercial property agents and surveyors, liaising with the Inland Revenue UK (HMRC) - Negotiating contracts and agreements with vendors, suppliers, tenants, customers · Managing schedules and deadlines. - Overseeing human resources function for both DH and LJC, including recruiting, counselling and disciplining employees. Ensuring all employees fill out the required legal documents. - Overseeing the IT system. - Reviewing and approving operational invoices and forwarding them to payment Financial Oversight – Analysing accounting and financial data. - Preparing annual budgets, scheduling expenditures, Credit Control, monitoring costs, managing budgets and cash-flow. - Developing operating procedures and policies. - Oversee facilities management, maintenance activities and tradespersons. - Oversee general Health & Safety of the facility. - Evaluating overall company performance. Researching and identifying growth opportunities. Generating reports and giving presentations. - Updating executives on business performance.”[85]That list was not challenged in cross-examination. It is supported in some respects by Ms Covaci’s written evidence in which she sets out the following: “Furthermore, the Claimant had authority to manage all of the internal works related to the Company. which included, looking after the buildings & facilities, staff and finance. He also headed the finance department and all of the payments were under his control. However, he was restricted to directly liaise with third parties or to bind the company in any contracts without the Prince Eze’s (Chairman) authority. He did not ever have any authority to sign contracts on behalf of the Company. Any and every contract signed by him was subject to Chairman’s approval. The Claimant’s role was not exclusive and the company had another contractor, Mr Mike Folley, performing similar tasks.”[86]What can be seen from those descriptions, and what I find as a fact, is that the claimant clearly had a wide range of responsibilities. The claimant was not performing one specific task. This is supported to some degree by the claimant’s catch all title in the contract: “Director of Administration”.[87]From the written and oral evidence which I have considered what was overwhelmingly evident was that Prince Eze had overwhelming control over key decisions of the company. The claimant described in his oral evidence how Prince Eze was “not a man who you say no to” when asked to do something. This degree of control exercised by Prince Eze over the workings of the company is also evidenced as follows:a. In the way in which payments from the company were authorised – see above – including payments made to the claimant.b. The evidence of Ms Covaci that every contract had to be signed by the chairman.[88]I find as a fact that in fulfilling the role for which he was engaged the claimant was subject to strict limitations in that each major decision had to be verified and approved by Prince Eze. I am supported in this finding by the terms of the contract itself (at paragraphs 12): “the Contractor will always work at the direction of the Client.”[89]In order to carry out that work the claimant chose to use his own laptop. This was accepted by him. The claimant accessed files and documents belonging to the respondent from this personal device albeit he accessed these through the Diamond Hangar domain (which he, the claimant established) and the Diamond Hangar OneDrive – they were therefore accessed through a cloud server rather than held on the hard drive of the claimant’s computer. These matters were not challenged by either party and I accept that they accurately reflect the factual reality. Working hours[90]The contract specifies (at clause 6), that the claimant was required to be on the business premises from 09:30 to 17:00 on a Monday to Friday. Ms Covaci’s oral evidence on this point was that she had observed – during her time working with the claimant – that he was not always present during these hours; however she fairly conceded that she was not aware of previous agreements that he may have had with the HR department due to having only started working for the respondent in late-2023.[91]The claimant’s unchallenged written evidence was that his understanding of the contract was that he was mandated to be working during those hours.[92]In respect of this, whilst it may be correct that the claimant was not physically present in the office for the full period of time between 09:30 and 17:00 for five days each week; in my judgment the terms of the contract and the claimant’s understanding of it are clear. I am satisfied and I find that the claimant was expected under the contract to be available for work for those hours on each working day of the week. Integration into the respondent company[93]In respect of social events the claimant’s written evidence was that throughout his employment he participated in and helped to organise social evidence including staff Christmas parties. The claimant was not challenged on this evidence. Ms Covaci was asked about this by Mr Oakland and was unable to comment on it, particularly given that she only started to work for the respondent in 2024. Against that background I accept the claimant’s unchallenged evidence and find as a fact that he did attend and on occasions helped to organise staff social events including Christmas parties. Disciplinary processes[94]In respect of disciplinary processes, it appears that the need to engage a disciplinary procedure did not arise during the claimant’s engagement with the respondent. The respondent’s evidence is that the claimant was not subject to such processes in any event. The claimant suggests, in his oral evidence, that he believes that he would have been subject to these had it been necessary.[95]On balance I accept the respondent’s position. There is no evidence to suggest that the claimant’s belief is correct. The contract is silent on this point. Moreover the claimant’s actions following the events of March 2024 (when his engagement was suspended) do not reflect a belief that he was subject to those processes. The claimant did not seek to appeal any decision or otherwise liaise with the company or its management structure. It appears from the claimant’s own case (in agreement with Ms Covaci’s written evidence), that any discussions following his suspension on 1 March 2024 were had with Prince Eze directly. For all of those reasons I do not find that the claimant was subject to the respondent’s disciplinary processes; however I am unable to make a positive finding that he was not. The claimant’s suspension – March 2024[96]It is common ground that on 1 March 2024 a meeting took place involving the claimant, Mr Blattner, Mr Foley and Ms Covaci and that the claimant was informed by the respondent that his services were no longer required.[97]The claimant’s case is that at that meeting he was told that Prince Eze had taken the decision to restructure the business and that his role was no longer needed. As such he would be “suspended on full pay” with immediate effect.[98]The respondent’s case was set out in Ms Covaci’s written evidence. She states that the company was struggling financially and that as a result the respondent had to “restructure its business and also bring in new management”. Her evidence was that at the meeting the financial situation was explained to the claimant and that the claimant’s role was suspended.[99]A letter was sent to the claimant dated 4 March 2024 from Prince Eze. I have seen a copy of that letter. It set out the following: “… After careful consideration and evaluation of our organization (sic) needs and goals strategic planning, the management board has decided to implement a restructuring plan aim at streamlining our operations and enhancing overall efficiency. As part of this restructuring there will be a change in the management team. On 1st March 2024, as a result of this restructuring, your current role within the management team will be temporarily suspended from your position with immediately (sic) effect. Appending further instruction from the board. The decision is not a reflection of your performance or dedication to the company, but rather a strategic adjustment to ensure that our leadership structure is best positioned to support our objectives moving forward. During this period, I am hereby instructing all members of the management team not to engage in any form of communication with staff members during the suspension period. This includes, but is not limited to phone calls, emails, text messages, social media interaction, or any other means of communication, Please know that your contributions to the company have been greatly valued, and we are committed to assisting you during this transaction period. We will provide further details regarding any changes to your roles or responsibilities as soon as they become available.”[100]In my judgment a number of findings of fact can made from this letter:a. The letter clearly refers to the claimant being “suspended” rather than his role terminated or otherwise ended. This accords with the claimant’s evidence that this is what he was informed. I am satisfied based on the clear wording of the letter that the claimant was not told that his engagement with the respondent was at an end on that date.b. The letter suggested that the suspension was temporary with a view to the claimant returning to work with the respondent at some point in the future. This is self-evident from the word “temporarily” but also evidenced through the reference to a “transition” period and to the respondent contacting the claimant “regarding any changes to [his] roles or responsibilities].c. There is no reference in the letter to any concerns as to the claimant’s work or any other suggestion that he had mismanaged or misused his position. Rather the letter is clear that “the decision is not a reflection of your performance or dedication to the company, but rather a strategic adjustment”. I therefore find as a fact that the formal notification and reason given for this suspension was not related to the claimant’s performance. I accept the claimant’s evidence that there was no suggestion that he had done anything wrong.d. Finally, I note in passing the reference by Prince Eze, when describing the claimant as a “staff member”.[101]Under cross-examination from Mr Oakland Ms Covaci conceded that the claimant was suspended on 1 March 2024. Her evidence was that that meeting took place on a Friday and the following day (Saturday 2 March 2024), the claimant returned to the office and cleared his desk. She told me that this included removing his computer, clearing his desk and removing all documents which were present. She told me in her oral evidence that there was left “no data of the company, no contracts, nothing”. The claimant accepted that he had returned to his desk and removed all of his personal possessions, which he observed had accumulate over a six-year period. He acknowledged that he removed his personal laptop. The claimant denied that there were any files on his desk to clear.[102]I am satisfied, based on the claimant’s acceptance, that the day following the meeting he returned and cleared his desk of personal belongings. I do not find that this included any files belonging to the respondent. Ms Covaci was not specific in her assertion that files were taken. Had the claimant removed confidential files belonging to the respondent I would have expected that she would have been able to specify what they were. Moreover in her written evidence Ms Covaci did not refer to the claimant having taken any documents belonging to the respondent, simply asserting that he took away his personal belongings. On the balance of probabilities I prefer the claimant’s evidence which is supported by the initial written account of Ms Covaci.[103]The claimant says that after the meeting on 1 March 2024 he spoke to Prince Eze to ask about the situation. The claimant’s evidence was that Prince Eze instructed him to fly to Nigeria to speak to him in person. The claimant’s evidence was that he purchased return tickets on the following day, and I have seen copies of flights purchased on 2 March 2024 for a flight to Nigeria from London Heathrow at 22:30 on 5 March 2024, with a return flight at 08:50 on 14 March 2024. The cost of the flights was £673.79.[104]In his written evidence the claimant says that he spent two days with Prince Eze who told him to “take a holiday for 2 months. Take your wife on holiday”. The claimant says that he asked Prince Eze whether he would return to work to which Prince Eze replied “listen, if I wanted to sack you then I would have. Just follow my instructions and take leave for a couple of months”.[105]In his oral evidence when asked about this meeting with Prince Eze the claimant gave a clear description of spending time with Prince Eze in his compound in Nigeria and eating meals with him. The claimant told me that he spent additional time in a hotel in Nigeria and stayed for a week due to the distances involved and the number of return flights between Nigeria and the United Kingdom.[106]The claimant was asked about his son’s wedding. His son got married in Nigeria in early May 2024 and Prince Eze was invited to the wedding. The claimant’s evidence was clear: that there were two separate trips. One in March 2024 and a further trip in May 2024 for the wedding.[107]Ms Covaci, in her written evidence, denied that the claimant had been instructed to meet Prince Eze in Nigeria or that the claimant had visited Nigeria and met with Prince Eze in March 2024 at all. Ms Covaci’s evidence was that the claimant met with Prince Eze in May 2024 at the time of his son’s wedding. The wedding invitation and the email accompanying it (dated April 2024) is relied upon in support of this assertion.[108]Ms Covaci can give no direct evidence on these matters. Her evidence is hearsay. She was not party to the conversations between the claimant and Prince Eze and was not present in Nigeria either in March or May 2024. The respondent has chosen not to rely on any direct evidence from Prince Eze in respect of these events. Prince Eze has not filed a witness statement.[109]I prefer the claimant’s direct account. I find that the claimant spoke to Prince Eze on either 1 or 2 March 2024 and was instructed to meet him in Nigeria. The claimant booked the flight to Nigeria on 2 March 2024 and flew out on 5 March 2024. During that period of time he met with Prince Eze on his compound and the conversations detailed by the claimant in his written evidence took place as described by him.[110]I make those findings for the following reasons:a. The claimant gave direct evidence on this. His oral and his written evidence was consistent, and he was able to withstand the cross examination from Miss Mallick.b. The claimant’s account is supported by detail as to what happened in Nigeria in March 2024: he gave a clear account of what he did and what was said.c. By contrast there is no direct evidence from the respondent. Given the lack of detail and the fact that it is hearsay evidence I am unable to attach any weight to Ms Covaci’s evidence on this point; particularly given the strengths in the claimant’s evidence.d. The claimant’s case is supported by the documentary evidence: there are records of flights for March 2024 which were booked on 2 March 2024 which are consistent with the claimant’s evidence. After March 2024[111]The claimant says that he additionally spoke to Prince Eze on 28 April 2024. Whilst the claimant’s written evidence states that he “flew out to see” Prince Eze on this date, I am not satisfied that this is correct. It seems to me that the real reason that the claimant flew to Nigeria around this time (he returned from this trip on 9 May 2024) would have self-evidently been for his son’s wedding which took place over 3 and 4 May 2024.[112]Notwithstanding this it appears to be agreed that the claimant spoke with Prince Eze on this visit, and I accept that he did. The claimant says that “Prince Eze again reassured me that I would be returning to work soon and that my salary would continue to be paid in meantime”. The claimant’s account was not challenged by the respondent. I do not have Prince Eze’s account. I accept the claimant’s unchallenged written account of what Prince Eze said to him during this meeting and find that it occurred as described.[113]Pausing at this point to consider my finding as to whether the effective date of termination occurred in March 2024. In her closing submissions Miss Mallick submitted that the effective date of termination was 4 March 2024 when the claimant was told that his contract had been suspended. From my findings of fact the claimant was in fact told of this in the meeting on Friday 1 March 2024. In any event I am not satisfied that this was the effective date of termination for the following reasons:a. The claimant was only suspended during this period. His engagement did not end.b. The reason for the suspension – as he was told at the time – was due to the restructuring of the respondent company.c. It had been made clear to the claimant – both in the letter dated 4 March 2024 and in his subsequent conversation with Prince Eze – that the respondent was considering his employment resuming at some point in the future.d. In her closing submission Miss Mallick suggests that there were ongoing investigations into the claimant’s mismanagement of his role; however these matters were not communicated to the claimant at the time and there is no contemporaneous evidence to suggest that this was in the mind of the respondent at the time when the suspension commenced. I will consider the matters relating to mismanagement further below.[114]In respect of payments made to the claimant following 1 March 2024, the following appears to be the position on the basis of the unchallenged evidence:a. For March 2024 the claimant was not paid on 28 March 2024 (when he expected to be paid) but was subsequently paid on 5 April 2024. The claimant says, and I accept his evidence, that he had emailed Prince Eze between the 28 March 2024 and 5 April 2024 to request this payment. I have seen the payment approval table signed by Prince Eze which is dated 4 April 2024 and refers to the claimant’s “April 2024 salary” (my emphasis). It seems self-evident that this is a typographical error and ought to refer to March 2024.b. For April 2024 the payment was not made until 13 June 2024 (which was after the claimant had first contacted ACAS). I have seen the signed payment table from Prince Eze dated 13 June 2024 which refers to a payment to the claimant for “April 2024”.c. For May 2024 and thereafter the claimant did not receive any payment.[115]Ms Covaci’s evidence was that she viewed the payments for March 2024 and April 2024 as notice payments following the contract coming to an end. I have already made a finding that the effective date of termination was not in March 2024. I am fortified in that conclusion by my finding that these payments were not in fact notice payments. I reach that conclusion on the balance of probabilities for the following reasons:a. It was only when led, in re-examination, and after having referred to the payments as “salary” that Ms Covaci gave oral evidence that this was notice pay. I attach limited weight to that oral evidence for those reasons.b. In her written evidence Ms Covaci suggested that these were payments made as notice payments under the contract for two months; however that is not what the contract mandates. The contract (at paragraph 3: “TERM (sic) OF AGREEMENT”) states: “The Client [the respondent] may elect to terminate this Agreement with immediate effect by summary written notice to the Contractor by paying the Contractor, in lieu of the notice period an amount equivalent to six months’ notice pay. Such payment will be paid in a lump sum within five days of the termination date.” No such payment was made. The payments made following 4 March 2024 neither amounted to six months of payments (£36,000) nor were paid in a lump sum within five days – so around 9 March 2024. In my judgment it cannot be said that the payments on 5 April 2024 and 13 June 2024 were notice payments under the contract.c. The payment table itself – dated 4 April 2024 – continues to refer to the claimant’s “salary”. There is no suggestion in either table that these were notice payments.[116]The claimant’s unchallenged written evidence was that following his return from his son’s wedding on 9 May 2024 he “tried for several days to contact Prince Eze” and that he eventually managed to speak to him. The claimant’s evidence was that Prince Eze “assured me [the claimant] that he would “pay your salary””. Thereafter the claimant says he received no further responses from Prince Eze to his attempts at contacting him. That evidence was not challenged by the respondent in cross-examination. Prince Eze has not filed any evidence to gainsay the claimant’s evidence. I accept the claimant’s evidence as being accurate and make findings of fact that the matters progressed, from May 2024, as described by the claimant.[117]On 30 May 2024 the claimant contacted ACAS to commence a complaint of an unlawful deduction from wages. I have not seen that ACAS certificate, but I understand from Ms Covaci’s evidence that he named Prince Eze as the respondent.[118]Having not received any payment at the end of May 2024 (and at that time having still not been paid for April 2024, the claimant sent an email to Prince Eze on 4 June 2024 (timed at 00:40) which said: “I am writing to confirm my resignation from the post of Director of Administration at Diamond Hangar Limited. I am resigning with immediate effect from today’s date, Tuesday 4 June 2024, because of the non-payment of my salary for April 2024 and May 2024, and for the failure of the company to respond to any of my emails and phone call in the last 30 days. The company has fundamentally breached my contract and the trust and confidence between us, as a result of which I regard myself as having been constructively dismissed.”[119]No reply was received.[120]I find as a fact that this was the date that the contract was ended and that it was ended by the claimant sending the email of 4 June 2024. I reach that conclusion for the following reason:a. The contract did not end in March 2024 as asserted by the respondent for the reasons I have already given;b. There was no other date between 4 March 2024 and 4 June 2024 on which the contract ended;c. The words and actions of the respondent do not support its assertion that the contract ended before then. In particular the repeated references to a “suspension” which was “temporary” and the words spoken by Prince Eze to the claimant; andd. The respondent’s failure to comply with the contractual provisions regarding notice pay: i.e., if the respondent actually was proceeding on the basis that the contract was ending it did not act in accordance with the terms of the contract.[121]The claimant contacted ACAS again separately on 5 June 2024 to commence a claim for unfair dismissal. I have seen that certificate (number: R190029/24/28) which names the respondent as the employer.[122]I have seen a reply from Prince Eze to an email sent by ACAS on 14 June 2024. The date of Prince Eze’s reply is not clear from the email. That is a lengthy email. Within that email Prince Eze suggests that the claimant “has never been an employee of Diamond Hangar” and that he had been “offering his services through his company, Robusto Capital, since 2019”. Prince Eze describes having made payments under the agreement both with and without invoices having been submitted.[123]The email goes on: “In February 2024, the Board of Diamond Hangar decided to restructure the company and temporarily suspend the services provided by Mr. Okoro. This decision was made due to concerns over the company’s lack of profitability. We informed Mr. Okoro of this suspension, but out of goodwill, I ensured he was paid in full on April 4, 2024, despite the ongoing restructuring and review of all contractors and procedures. Following your email, I made another payment to Mr. Okoro on June 13, 2024, as a gesture of assistance, not due to any contractual obligation. On June 4, 2024, Mr Okoro sent an email stating his resignation from Diamond Hangar, which was puzzling as he was neither an employee nor had a long-term contract with us. … It is important to note that Mr. Okoro did not adhere to the instructions given to him during the suspension of his services and disrupted Diamond Hangar’s activities. Based on our experience with Mr. Okoro, we strongly believe that we will no longer use his services in the future. Furthermore, we do not owe any invoices to him as he did not offer any services or work for Diamon Hangar during this period.”[124]It is important to note the following about that email:a. It specifically undermines and contradicts the evidence of Ms Covaci that the payments in April 2024 and June 2024 were notice payments in compliance with the contract: Prince Eze refers to making the payments “out of goodwill” and his belief that that the payment in June 2024 was “as a gesture of assistance, not due to any contractual obligation.” This reinforces my earlier finding in respect of the payments not being notice payments.b. There is reference once again to a temporary suspension in March 2024. This reinforces my earlier finding that the effective date of termination was not and could not realistically be said to have been the March 2024 date.c. It reinforces the previous evidence that the reason for the suspension was the internal reorganising of the respondent company rather than relating to any concerns as to the claimant’s work.[125]In light of the contents of that email and bearing in mind that the respondent had not responded or otherwise acted upon the claimant’s earlier requests for payments, I am satisfied and find as a fact that the reason for the second of the post-4 March 2024 payments was solely made in response to the claimant having contact ACAS. Without that I am satisfied and find that the claimant would most likely not have received the second payment. I also find that this was a significant delay in paying the claimant: over two months after the last payment was made.[126]The claimant issued his claim in the Employment Tribunal on 28 August 2024. I have dealt with the subsequent chronology earlier in these reasons. The respondent’s allegations of mismanagement and misuser of position[127]Before considering my analysis of the facts against the legal framework and the list of issues above, I turn to the respondent’s position that the claimant mismanaged his role or otherwise misused his position. Within her witness statement (at paragraph 16), Ms Covaci makes a number of allegations about various aspects of the claimant’s work and various contracts which he entered into. I heard a significant amount of oral evidence in respect of these matters. The respondent asserts that:a. These matters, taken together, amount to misconduct on the part of the claimant; andb. Whilst they were not fully in the respondent’s mind at the time of the suspension in March 2024, they came to light shortly thereafter such that they ought to be able to rely upon it when considering whether(i) the claimant would have been dismissed anyway; and(ii) it would be just and equitable to reduce any compensation payable to the claimant if he succeeds in his claims. Concealing material information[128]What appeared to be the most concerning aspect of the claimant’s asserted conduct related to him concealing material information relating to contracts which he had arranged for the respondent. In particular in her witness statement Ms Covaci says that information was requested “when the [claimant’s] role was suspended” and that the leases for three tenants: TAG Aviation, Eye Level, and Jet One X were not provided. It appears from the documentary evidence that these matters were, in fact, raised and were being pursued prior to March 2024.[129]The tribunal was provided with a number of emails. It is helpful to set out a chronology of those emails and the evidence from the parties as to what happened at that material time.[130]On 14 December 2023, Ms Covaci emailed the claimant and Mike Foley requesting all of the contracts for the tenants renting space at the hangar. She subsequently chased those contracts in an email dated 30 January 2024.[131]To that second email, the claimant replied on the same day asking Ms Covaci to confirm which of the contracts he had already provided on a USB device and which were outstanding. Ms Covaci responded on 31 January 2024 asking for: “all the contract[s] through email for the tenants that are renting office and storage spaces in our premises, As mentioned previously the USB did not have all this information.” The claimant thereafter sent across four contracts as pdf files and indicated that the “remaining leases” would be sent separately due to their size. I have not seen those separate emails.[132]The contracts sent on 31 January 2024 were for: Storm Aviation, DH KNSI, AirX and Stansted Aerospace Ltd.[133]The next documentary evidence relating to this issue is an email sent by the claimant to Ms Covaci on 20 February 2024. In that email he refers to a telephone call that he had had with Prince Eze in which the chairman said that he had been informed by Ms Covaci that the claimant had not provided with information requested. The email goes on to state: “Since your arrival, all the DH and LJC staff have been instructed to provide you with all the information you request. You handed me you USB flash storage device and have received all the contracts, parking agreements, etc, with further documents provided by email. If there is any other information your (sic) require, please formally request it in writing, copying in everyone in this email, listing exactly what is outstanding, and you will receive it by reply.”[134]Ms Covaci responded later that day; indicating that she had not been provided with the “information requested”. She noted that the four contracts had been sent by email on 31 January 2024 but that the information was “incomplete”. She requested “all the documentation for the fleet insurance as per [her] request on 30th January 2024”. There then following a short sequence of emails in which the claimant criticised Ms Covaci for not specifying what “information” was required in a list form.[135]At 14:24 on 20 February 2024 the claimant stated that he had sent to Ms Covaci “the fleet insurance documents” in a separate email and that he had sent the four contracts on 31 January 2024. He asked for confirmation as to “what contracts/agreements [he] provided to [her] on [her] USB flash drive so that [he] may know which are still outstanding and can forward by return.”[136]Ms Covaci responded that the ‘USB contained HR files only” and that the documents requested had “nothing to do with those on the USB”. Ms Covaci stated that she had not received the remaining leases which the claimant had said would be sent separately on 31 January 2024. The claimant disputed Ms Covaci’s assertion that the USB did not contain relevant documents. In any event he re-sent five additional contracts as pdf documents at 13:00 on 21 February 2024. The five contracts sent were for: DH Deluxe Executive Catering, Anitas Coaches, Manor Nights, Aviation Equipment Resources Rental Ltd, and Swissport.[137]Pausing there: by 21 February 2024 therefore the claimant had sent to Ms Covaci by email nine contracts for the following companies: Storm Aviation, DH KNSI, AirX, Stansted Aerospace Ltd, DH Deluxe Executive Catering, Anitas Coaches, Manor Nights, Aviation Equipment Resources Rental Ltd, and Swissport.[138]Also on 21 February 2024, Prince Eze sent an email to the claimant referring to a telephone conversation of 20 January 2024 in which he requested that Ms Covaci was provided with all company documents. The email set put that if these things were not provided in 24 hours, then the claimant “face[ed] disqualification for misconduct”. The claimant replied to this email stating that he had provided everything and asked Ms Covaci to confirm what, specifically, she requested. Ms Covaci replied with a list of companies and requested confirmation that they were all the tenants. That list of tenants comprised of the nine contracts which she had received as recorded above.[139]The following day, 22 February 2024, the claimant replied to Ms Covaci with details of three further companies. These were TAG Aviation, Eye Level and Jet One X. The claimant stated that: “There is TAG Aviation (lease) and Eye Level (storage licence). I have never seen or been in possession of these documents and have requested copies from our surveyors, Annes & Partners, who drafted them. TAG Aviation have been tenants since 2015 and occupy 5,901 sq. ft. of office, storage and tools store. Annual rent and service charge of £85,618.02. Eve Level occupy 3,248 sq. ft. of storage and office space along the hangar roadway, paying annual rent and service charge of £56,141.92. As you aware (sic), there is also JetOneX, who gave notice to vacate the West Side of the hangar in January 2023 and vacated the vast majority of their initial footprint. For the remaining office, storage and document storage JetOneX are paying £34,299.03 per quarter.”[140]Ms Covaci acknowledged that email later the same day and requested that the claimant chase Annes & Partners for the missing contracts.[141]A further list of tenants was sent by Ms Covaci on 29 February 2024 to the claimant asking for confirmation that they were all the tenants. That list comprised the nine companies referred to previously plus the three additional companies set out in the claimant’s email of 22 February 2024. Ms Covaci appeared to have received the contract for TAG Aviation by this stage but had still not received at that stage the contracts for Eye Level or for Jet One X (and requested them again in this email). The claimant confirmed that they were the full list of companies and also confirmed that: “As you are aware, the company responsible for cleaning the communal parts of the hangar and London Job Centre, WMS, have an office/storage for their equipment, in exchange for providing cleaning services and supplies.”[142]The respondent, in Ms Covaci’s witness statement, asserts that the claimant did not send the requested documents despite multiple verbal and written requests to do so. She specifically criticises him for failing to provide the leases for the three additional companies: TAG Aviation, Eye Level, and Jet One X. In her oral evidence Ms Covaci said that the claimant had “refused” to give her the requested documents. She suggested that the claimant was deliberately being difficult and obtuse in his replies.[143]The claimant disputed that he had been difficult. His evidence was that he provided all of the contracts that he had access to, that he had not sent over HR files on the USB drive and that the outstanding contracts had been contracts which had been negotiated before he had joined the respondent company and which had been negotiated by a third party. In respect of that latter point, this was not challenged by the respondent and I therefore accept the claimant’s evidence.[144]I accept the claimant’s account of this matter. I am not satisfied that the claimant was being deliberately difficult or obstructive. I am satisfied and find that the claimant provided the information requested of him. I make this finding for the following reasons:a. When the chronology of emails is set out it is clear that the vast majority of the contracts were sent by the claimant to Ms Covaci. Certainly by 22 February 2024 she had most of the relevant contracts.b. I am unable to resolve the factual dispute as to what was on the USB drive. I have not been provided with any documentary evidence to show what was on it. In any event I do not accept that if Ms Covaci was correct that the claimant had deliberately put the incorrect files onto that drive.c. What in fact happened was that when the claimant was told by Ms Covaci explicitly in the email of 20 February 2024 that she didn’t have the relevant documents, he forwarded them to her shortly thereafter.d. In respect of the three outstanding contracts, it is not clear from the emails whether there were in fact three outstanding contracts. The email of 29 February 2024 only refers to two contracts being missing. In any event I accept the claimant’s unchallenged evidence that the contracts were not in his possession, having been drawn by a third party prior to him joining the company.e. Moreover, I am satisfied and find as a fact that the claimant was actively seeking to assist Ms Covaci notwithstanding that he didn’t have the contracts to hand: i. It was the claimant who made reference to those three companies in his email of 22 February 2024 – he was not seeking to hide this omission; ii. He provided as much information as he had as to the details of the contract (space rented and rental income) despite not having the contracts; and iii. He also gave additional information regarding the cleaning company, WMS. This demonstrates, in my judgment, the claimant seeking to be helpful and to assist the respondent in the audit exercise which was being undertaken.f. When one looks at the broad thrust of the emails it is apparent to me that there is clearly some confusion. The emails and the replies demonstrate, in my judgment, the claimant seeking to clarify exactly what was outstanding in order to be of assistance. I am satisfied that the request by Ms Covaci for “information” was vague and unclear and I find that the claimant was wholly justified in seeking clarity as he told me that he was attempting to do.[145]There was a factual dispute between the parties as to why the files were initially sent on a USB drive. Ms Covaci said this was the claimant’s suggestion due to their size; the claimant said that it was Ms Covaci who had passed him the drive and asked for the documents to be uploaded. In my judgment it matters not why the USB drive was used. For the reasons I have given above I am satisfied and I find that the claimant was not ignoring instructions and was assisting the respondent and Ms Covaci.[146]The respondent also relied upon a number of other matters which were contained in the witness statement of Ms Covaci. I deal with these now. Manor Knights[147]A company called Manor Knights rented space from the respondent. Manor Knights is a car rental company. The lease was organised by the claimant. The price agreed was £6,000 plus VAT per month. Ms Covaci’s evidence was that following the claimant’s departure she reviewed the contracts. She said that the lease was subsequently renegotiated (in mid-2024) to £14,000 plus VAT per month. Additionally Ms Covaci’s evidence was that Manor Knights had provided a courtesy car to the claimant for his “personal use” and which was not authorised by the respondent. Taking these two matters together it is the respondent’s position that the claimant deliberately undervalued the lease when initially negotiated in order to gain personally from it.[148]The claimant denied this. In his oral evidence he said that the initial price of £6,000 plus VAT was negotiated in 2022 following a valuation from a surveyor. He denied using a courtesy car. The claimant’s evidence was that the respondent’s sister company – London Jet Centre – needed to replace two old cars and Manor Knights were asked for a quote for two people carriers. The cars identified were not in stock and so Manor Knights provided two courtesy cars until they were ready which, said the claimant, were available to be used both by him and by other employees of both the respondent and its sister company. When pressed by Miss Mallick on this point the claimant denied exclusive use of a courtesy car and he denied setting off the use of a courtesy car against his self-assessment profit/loss account for HMRC. The claimant’s evidence was that it was a colleague who took the lead in negotiating the Manor Knights account.[149]Aside from the evidence of the two witnesses I have been provided with no documentary evidence in respect of the Manor Knights account. In respect of the original contract in 2022 this was implemented before Ms Covaci worked for the respondent. She could give no direct evidence on the point. I accept the claimant’s account of this. In particular I accept his unchallenged and uncontradicted evidence that the rental fee was established following the valuation by a surveyor. In respect of the use of the courtesy car, Ms Covaci’s evidence as to this was repeating secondhand hearsay evidence. There was no other evidence to support the respondent’s assertion that the claimant had sole use of the courtesy car or that this was in any way a reason for him negotiating a lower than marketvalue rental fee. The claimant’s evidence as to the origins of the rental cars was clear, detailed and specific. I preferred his account for this reason. Accordingly, I am not satisfied on the balance of probabilities that there was anything untoward or otherwise dishonest about this contract and I make a finding of fact that the Manor Knights contract was not an example of mismanagement by the claimant. James Grange[150]The respondent further alleges that the claimant allowed a gentleman (or company) named James Grange to use 1,500 square feet of space in the hangar without a formal lease and on the basis of an “understanding” with the claimant. It is not clear from Ms Covaci’s evidence how long this arrangement went on for which I would have expected to have been sent out in the witness statement. Ms Covaci does state that the respondent lost out on £30,000 per month based on a rental fee of £20 per square foot. Aside from a brief paragraph in Ms Covaci’s witness statement there is no further evidence relied upon in respect of this allegation. There are no contemporaneous documents nor is any real detail given by the respondent in support of its assertion.[151]The claimant was asked about James Grange by Miss Mallick. The claimant denied the allegations. His evidence was that the unit in question was operated by London Jet Set and that it had previously been used to carry out paintworks. The claimant’s evidence was that Mr Grange was assisting London Jet Set and that the agreement in question had nothing to do with him but was arranged by the previous management of the sister company.[152]As with Manor Knights I am not satisfied that the respondent has established this allegation. There is a paucity of any evidence. The agreement appears to have been reached – whatever and with whoever it was – outside of Ms Covaci’s direct knowledge. It is unclear to whom Mr Grange indicated that he had an “understanding” with the claimant. Whilst it may be that the claimant was aware of James Grange occupying the space and not paying (he was not explicitly asked about that) there is no evidence to suggest that he was, as alleged by the respondent, the person responsible for the arrangement commencing. I do not make any finding that the claimant mismanaged this arrangement being implemented. Peter Courtney[153]In respect of Peter Courtney, it is asserted that space was leased to Mr Courtney without any formal agreement or contract. Ms Covaci asserts that the claimant accepted to her that this was “a favour and a temporary arrangement”. Mr Courtney was subsequently evicted due to non-payment of rent. I have seen two series of emails in respect of this matter:a. On 23 March 2024 Mr Courtney emailed an employee of the respondent (Mr Das) seeking permission to visit his room for 10 minutes. Mr Das replied confirming that the CEO [Ms Covaci] had granted permission but asked that the premises be vacated as soon as possible.b. On 2 April 2024 Mr Das contacted Mr Courtney again by email. It is set out in that email that he (Mr Courtney) had been granted the space “free of charge” for the past year. The email goes on: “However, I must inform you that we will now need the space to accommodate other arrangements. Therefore, we kindly request that you vacate the space by April 15th 2024. We understand that this may be an inconvenience, and we sincerely appreciate your understanding in this matter. As a token of gratitude for you cooperation and as a gesture of goodwill, please note that no charges will be incurred for the period you have utilized the space.” The email states that Mr Courtney had been offered a space in the Diamond Hangar and that rental terms would be agreed. It is anticipated that “this new space will better serve your needs”. The email concludes: “We value your continued partnership and hope to make this transition as smooth as possible for you”.[154]The claimant again denied any mismanagement. His oral evidence was that Mr Courtney worked for the respondent, providing general maintenance services. The claimant said that Mr Courtney was in the process of moving house and kept some of the things from his garage in an unused office. The claimant denied that Mr Courtney was ever a formal tenant.[155]On balance I prefer the claimant’s account. The implication from Ms Covaci’s evidence was that the claimant had entered into a private arrangement with Mr Courtney and that upon discovering this Mr Courtney had been evicted. When one reads the email sent on 2 April 2024 it strikes me that the tone, content and context of that document sets out that the respondent had either some knowledge or some sympathy with Mr Courtney. I make this finding due to:a. The request being made “kindly” by Mr Das – this is not an email sent to evict someone who has been utilising space rent-free due to a rogue worker’s mismanagement;b. There is reference to the space having been “generously granted” and utilised by Mr Courtney – again, in my judgment, this suggests a mutual agreement; andc. The offer to Mr Courtney to find alternative space which “better suit” his needs and the reference to a “continued partnership” – in my judgment these references all support the claimant’s assertions that Mr Courtney provided services to the respondent and that the arrangement was to help him out as a favour.[156]By contrast Ms Covaci’s evidence lacks any detail or context and is not supported by the documentary evidence.[157]I find that the arrangements relating to Mr Courtney were not an example of mismanagement by the claimant. Greetings Work[158]The respondent’s case is that Greetings Work was a company who provided some maintenance/ cleaning work for the respondent and in return were provided a space in the car park free of charge. Ms Covaci’s written evidence was that this arrangement was never agreed to by the respondent and that it was entered into by the claimant.[159]The claimant was not specifically asked about this particular matter in his evidence; however he did give evidence as to another company – WMS (a cleaning company) who the claimant had referred to in one of his February 2024 emails. The claimant’s unchallenged evidence (which I accept) was that this company provided cleaning services in exchange for a small storeroom. This contract had nothing to do with him and the arrangement had been in place since 2013.[160]Against that background I am not satisfied that the arrangement with Greetings Work – even if Ms Covaci’s evidence is correct – amounted to misconduct. There was clearly a precedent for such quid pro quo arrangements being put in place by the respondent which were arranged before the claimant commenced working for it, and I do not find, absent further evidence and absent the claimant having specifically been challenged on this point that the arrangements amounted to mismanagement or to misconduct. ABM[161]Ms Covaci asserts in her witness statement that the claimant attempted to execute a lease with a company named ABM on 13 March 2024, so following his suspension on 1 March 2024. Ms Covaci’s witness statement asserts that the lease was being executed on the claimant’s instructions between the claimant and ABM and was being facilitated by Tim Gage. She refers to a series of emails appended to her witness statement in support of this allegation.[162]In her oral evidence Ms Covaci elaborated further on her written evidence. She told me that ABM were a company who worked at Stanstead Airport and had requested a space in the hangar. They had contacted the claimant in order to make arrangements to enter the Engine Room. Upon the claimant’s suspension it appears as though he (the claimant) passed the information to Tim Gage in order to continue with the arrangements. Ms Covaci’s evidence was that the claimant ought to have passed the information to her rather than to Mr Gage, whom she described as a “subcontractor”. In the second week in March 2024 a representative from ABM met with Mr Gage at the hangar to sign the contract. When Ms Covaci discovered this, she asked them to leave and sent a series of emails thereafter in which she apologised and, she said, attempted to smooth the misunderstanding over.[163]The emails I have seen show that on 20 March 2024 ABM contacted Ms Covaci to ask whether there has “been any progress in place in terms of getting the contract reviewed and signed by the new management in place”.[164]In response to that email Ms Covaci replied (on the same date) stating that she has been appointed as the CEO of the respondent company on 1 March 2024 and that she had no previous knowledge of the contract which had been agreed by the claimant (and two other colleagues). She goes on to explain that the claimant was suspended on 1 March 2024 and that she was keen to ensure that “all contractual agreements are handle (sic) through the proper channels and in accordance with our company’s policies and procedures”. She apologies and requests that ABM send to her all correspondence and documents which had been shared in formulating the proposed contract.[165]ABM replied on 21 March 2024 and stated that they have attached all communication between them and the claimant/ Mr Gage. They also refer to their being two draft contracts and state that they had had two in-person meetings with the claimant before the handover to Mr Gage. It is clear that ABM were keen to pursue renting the space because they say so in the email of 21 March 2024 and send a follow up email asking for an update on 25 March 2024. Ms Covaci reassured ABM that the documents were being reviewed and that a formal reply would be forthcoming.[166]In his evidence the claimant said that Mr Gage had been someone who had been working with the respondent company for over 10 years, including having spent some time assisting the company with banking. The claimant asserted that Prince Eze was aware of the lease as it was something that had been ongoing for months. The claimant observed that on 13 March 2024 he was travelling home from his trip to Nigeria. He denied having anything to do with the meeting at the hangar with Tim Gage.[167]I have reminded myself of the allegation made by the respondent, which was that the claimant continued, after his suspension, to work for the respondent and that it was the claimant who attempted to execute the lease on 13 March 2024. Ms Covaci’s witness evidence says this: “...Despite being suspended, the Claimant kept working without authorization (sic) and contacted the clients of the company. It came to the Company’s knowledge that the Claimant, without authorisation, attempted to execute a lease with ABM’s representative on 13.03.2024. On Claimant’s instructions, the lease was being executed between the Claimant and ABM and was being facilitated by Tim Gage.”[168]Put simply the documentary evidence does not bear out that assertion. I do not make that finding. I bear in mind the following:a. There is simply no evidence to suggest that the claimant continued to contact ABM or work for the respondent without authorisation after 1 March 2024. The evidence suggests to the contrary, and find as a fact, that following the claimant’s suspension all matters were dealt with by Tim Gage.b. The implication of Ms Covaci’s witness statement is that the claimant was present on 13 March 2024. If that is not the assertion that is being made then the drafting of the witness statement is unfortunate. In any event, he was not at the hangar. I accept his assertion that he was not. I find as a fact that he was not present and that he was flying back from Nigeria on that date.c. In any event I accept the claimant’s unchallenged evidence that Prince Eze was aware of the contract. Whilst I also accept that Ms Covaci was not aware of it, the fact that Prince Eze was aware of it demonstrates that the claimant was not seeking to mislead or go behind the back of the respondent company. I am satisfied that Prince Eze was aware of the contract because I accept the claimant’s evidence. There is no evidence from Prince Eze to contradict this nor is there any other documentary evidence which would cast doubt on the claimant’s oral account.[169]For those reasons I do not find that the allegations in respect of ABM amount to a misuse of the claimant’s position or was in any other way a form of misconduct. Swiss Ports[170]Ms Covaci asserts that the respondent carried out an investigation which uncovered that the claimant had leased a space in the hangar to a company named Swiss Ports for which a deposit had been paid and which had been paid into the personal bank account of Tim Gage. Ms Covaci asserts that:a. Mr Gage has never been associated with the respondent;b. Mr Gage is an associate of the claimant and that they have “both worked alongside [each other] in their own separate business”; andc. Mr Gage has admitted to receiving the payment in his personal account.[171]The claimant was cross-examined on this matter. He set out, as I have recorded already, that Mr Gage had worked with the respondent for over 10 years. The claimant accepted that some monies had been paid to Tim Gage as he, Mr Gage, had introduced Swiss Port to the respondent company. The monies were therefore to cover Mr Gage’s fees said the claimant. The claimant’s evidence was that all rental monies were paid to the respondent by Swiss Port.[172]I do not accept that this is evidence of the claimant misusing his position. I make that finding of fact for the following reasons:a. I accept the claimant’s evidence as to why Mr Gage received money into his account. I would have expected, had the claimant something to hide, that he would have denied this; particularly in circumstances where the respondent’s evidence is minimal. The fact that(i) he accepted that money had been paid to Mr Gage; and(ii) could give an explanation as to why it had been paid, gives credibility to his evidence.b. Whilst the respondent says that Mr Gage has “accepted” that he was paid money, Ms Covaci does not say that Mr Gage has accepted any wrong-doing or attempt by either himself or the claimant to defraud the respondent. Has this been something the respondent wished to have asserted I would have expected it to have filed evidence from Mr Gage to that end.c. There is no evidence to suggest that Mr Gage and the claimant have their own “separate business” as suggested by Ms Covaci. This appears to be little more than a bare assertion on the part of Ms Covaci. I am not persuaded that I can attach any weight at all to this bare assertion.d. Whilst Ms Covaci refers to the respondent having carried out an “investigation” in her oral evidence she stated, when questioned by Mr Oakland, that no investigation had been undertaken by the respondent. There is therefore some degree of incongruity in her evidence to that regard.e. I accept the claimant’s evidence that all rental money was paid by Swiss Port to the respondent. I note that the Swiss Port contract was one of the contracts that the claimant provided to Ms Covaci when asked in February 2024.f. It seems apparent to me that the Swiss Port contract was entered into some time prior to Ms Covaci joining the respondent company. This raises two matters: i. The events surrounding this are not within her direct knowledge and limits the amount of weight I can put on her evidence in the absence of any supporting documentary or witness evidence; and ii. Shows that Mr Gage had in fact been working with the respondent for some time. He has featured both in this contract and in the contract relating to ABM. I cannot therefore accept Ms Covaci’s evidence that “Mr Gage has nor and has never been associated with the Respondent Company”. On the balance of probabilities I prefer and accept the claimant’s evidence that Mr Gage has been working with the respondent company for some time.[173]The respondent asserts (through Ms Covaci’s evidence) that both of these latter matters – ABM and Swiss Port – are examples of the claiming misusing his position “to make personal gains”. I have not accepted the respondent’s position in respect pf either of them; however even if I had it is difficult to see how the claimant would have gained personally from either of those matters. There is no assertion or suggestion that he received any monetary or other gain out of either of those contracts. The fact that these two incidents have been so framed, despite not supporting such an overarching allegation lead me to conclude that the respondent has sought to over-play some of these matters in order to paint a negative image of the claimant. The fact that none of the allegations made against the claimant have been proved, in a large part due to a lack of any cogent evidence, reinforces me in reaching that conclusion. Discussion by reference to the legal principles and list of issues Was the claimant employed under a contract of employment?[174]I have decided that the claimant was employed under a contract of employment. I am satisfied that the claimant was an employee from the outset of his work with the respondent and that notwithstanding the written terms of the contract the reality of the situation reflected an employer/employee relationship.[175]In reaching that conclusion I acknowledge, as Miss Mallick rightly observed, that this is a case in which there is a written contract which clearly refers to a client / contractor relationship. Furthermore, I acknowledge that the claimant, throughout his employment, presented himself as self-employed to HMRC and paid tax on that basis. The respondent did not pay any National Insurance Contributions.[176]However it is clear to me that neither the terms of the contract nor the claimant’s tax arrangements are determinative.[177]Moreover for the reasons I have given above I am satisfied that whilst the claimant agreed to and signed the contract and did not seek to re-negotiate its terms, he was left in reality with little choice but to take or leave the terms placed before him by Mr Blattner on 10 September 2024.[178]I bear in mind the following factual findings that I have made:a. The claimant’s work was under the control and supervision of Prince Eze. No substantial decision was taken without Prince Eze’s agreement and any and all of Prince Eze’s directions had to be followed. A clear example of this was the claimant having to comply with Prince Eze’s direction to provide Ms Covaci with the contracts in February 2024 or face disciplinary action. This is reflected in clause 11 of the contract” The contractor will always work at the direction of the client.b. The claimant was paid a salary. This is how the respondent saw, referred to and treated payments made to the claimant. The claimant continued to be paid regardless to whether he was working or not. He was paid when he was on holiday. He was paid when he was unwell. In all the circumstances the claimant was paid as if he were an employee rather than a self-employed contractor.c. The above is borne out by the fact that the respondent continued to pay the claimant notwithstanding no further invoices being sent after March 2022.d. The claimant was required to be present on the respondent’s premised from 09:30 to 17:00 five days per week. Whilst this may not have been adhered to strictly, it was a clear requirement of the contract.e. The claimant’s role for the respondent was an integral part of the business. His title of ‘Director of Administration’ was clearly not a reference to him being a company director for the purposes of Companies House. However his role encompassed a wide range of responsibilities. These may only have been clarified at a later and date and by the claimant himself in the email sent to Prince Eze on 30 March 2023, but it is demonstrative of the fact that the claimant’s role was wide-ranging and akin to an employed and integral part of the business as opposed to a contractor carrying out a specific and focused role.f. This integration is further demonstrated by the claimant participating in and on occasion organising staff social events such as the Christmas party.[179]Set against those matters I have borne in mind that the claimant was not obviously subject to the respondent’s disciplinary procedures and that he chose to use his own computer (and thereafter removed his own computer following his suspension on 1 March 2024).[180]When I consider those factual findings against the well-established criteria in Ready Mix Concrete (supra) I find the following:a. Consideration of a wage or remuneration for the provision of work and skill There was clearly consideration in the form of a salary for the provision of work done by the claimant. This was paid regardless of the claimant being present and it was paid when the claimant was unwell and on holiday.b. An agreement to be under the control to a sufficient degree to the respondent I am wholly satisfied that the claimant was under the control of the respondent. He could not in reality make any decisions without ultimately letting Prince Eze know. Prince Eze confirmed all financial expenses and exerted a significant level of control over the claimant’s activities.c. The other conditions of the contract being consistent with its being a contract of service. I repeat those matters set out at paragraph 179 (above). When I balance those against those facts set out at paragraph 180, I am drawn to the conclusion that the other conditions within the contract were overwhelmingly consistent with it being a contract of service.[181]I am wholly satisfied, based upon my factual determination regarding the level of control exerted by Prince Eze and by the respondent paying the claimant a salary that there was the irreducible minimum of obligation on each side both to offer and accept work. For a period of almost six years the claimant worked consistently for the respondent. He did not have other paid employment. His role was varied and wide-ranging and he was paid a salary throughout. I am satisfied that the irreducible minimum of a contract of employment was therefore present.[182]Taking a step back and looking at the detailed picture which has been painted and viewing that picture from a distance in order to make an informed, considered, qualitative appreciation of the whole I find that the claimant was employed by the respondent as an employee as defined in section 230 of the Employment Rights Act 1996.[183]Whilst I accept that the wording of the contract and the arrangements with HMRC are relevant they cannot be determinative. From its very inception the relationship between the claimant and the respondent was more akin to an employee / employer relationship notwithstanding the wording of it. I do not accept that the claimant was working as a business providing services to the respondent. He was working as an individual providing work and skill for remuneration whilst under the control of the respondent.[184]I accept and endorse Mr Oakland’s submission that the vast majority of the conditions underpinning this relationship points to it being one of employer / employee.[185]Put by reference to wording of section 230 of the Employment Rights Act 1996:a. This was a contract of service implied by the way in which the parties conducted themselves throughout the course of their relationship. It was therefore a contract of employmentb. The claimant entered into and worked under that contract of employment. The claimant was therefore an employee. Illegality of contract[186]I do not accept the submission made by Miss Mallick that due to the claimant having presented himself to HMRC then the contract is illegal, and the claimant ought to be prevented from relying upon his status as an employee to benefit from the protections under the Employment Rights Act 1996.[187]The line of authorities to which Miss Mallick referred to me related to situations in which one or both parties deliberately sought to mislead or otherwise defraud HMRC by making use of either employed or selfemployed status and thereafter sought the protection afforded to employees under either the 1996 Act or its precursors. That was not the situation here. Neither the claimant nor the respondent sought to create a sham contract or to otherwise deliberately mislead the Inland Revenue.[188]Whilst the claimant has paid tax and National Insurance on a self-employed basis whilst working for the respondent and has doubtless received some of the benefits associated with that, he has not done so in order to deliberately mislead HMRC. I therefore do not accept that this contract was illegal or that the claimant ought for any other reason to be precluded from relaying upon his rights under the 1996 Act. What was the effective date of termination?[189]Based on my findings of fact and for the reasons that I have already given I am satisfied that the effective date of termination of the contract was 4 June 2024 rather than either 4 March 2024 or any other time in between those two dates. Did the respondent terminate the claimant’s contract or was the contract terminated by reason of resignation?[190]It therefore follows that I am satisfied and find that the claimant’s contract was terminated not by the respondent, but by the claimant’s resignation email of 4 June 2024.[191]I do not find based on the above and based upon my findings of fact, that at any stage was the contract terminated by the respondent as defined in section 95 of the Employment Rights Act 1996. Time limits[192]Given my finding on the effective date of termination I am therefore satisfied that as the claimant issued these proceedings on 28 August 2024 that he has brought the matter before the tribunal in the time limits prescribed by section 111 of the Employment Rights Act 1996 and that the tribunal has jurisdiction to consider his claim. The unfair dismissal claim / constructive dismissal[193]It follows from the above decisions regarding the effective date of termination and how the contract ended, that this is a claim for constructive dismissal and I therefore consider those matters set out in the list of issues under that heading.[194]Did the respondent fail to pay the claimant promptly or at all following 4 March 2024? I have found that following 4 March 2024 the respondent paid the claimant as follows:a. On 4 April 2024; and thenb. On 13 June 2024 (after the claimant had approached ACAS). I have further found that the claimant had to repeatedly request payments from the respondent and that the reason for the second of those payments was solely because the claimant had approached ACAS. I have found that there was a significant delay in the respondent paying the claimant, with the claimant having to wait over two months between those two payments at a time when his contract of employment had not been terminated. It therefore, in my judgment, follows inexorably that the respondent failed to pay the claimant promptly and indeed failed to pay him at all for one of the three months of March 2024, April 2024 and June 2024.[195]Did that breach the implied term of trust and confidence? The tribunal will decide:a. Whether the respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the parties; andb. Whether the respondent had reasonable and proper cause for doing so. Remuneration is at the heart of an employment contract. The vast majority, if not all, employees, carry out their work in order to receive payments from their employers. In this case the respondent failed to pay the claimant promptly or at all despite repeated assurances that the suspension was temporary and an explicit conversation in which Prince Eze told the claimant that he would resume his role in a couple of months. The claimant repeatedly sought clarity and repeatedly sought payment from the respondent but received neither payment nor explanation. It is axiomatic to say that such an approach and such behaviour was likely to destroy or seriously damage the trust and confidence between the parties. It was also a clear and fundamental breach of one of the key clauses in the contract – that dealing with remuneration. The respondent, in my judgment, had not reasonable and proper cause for that approach. I have rejected its assertions that the claimant was guilty of misconduct but in any event the respondent simply did not engage with the claimant at all during the period between 4 March 2024 and 4 June 2024. The respondent offers no other explanation and in my judgment there is none. Accordingly I am satisfied that the failure to pay the claimant promptly or at all after 4 March 2024 was a breach of the implied term of trust and confidence.[196]Did the claimant resign in response to the respondent’s repudiatory breach of contract? The claimant’s email of 4 June 2024 is self-explanatory. It makes it clear in explicit terms why the claimant was resigning. I am wholly satisfied that after having waited for two months since his last payment and having received no replies to his repeated requests for clarity that the resignation was in response to the repudiatory breach of contract. The respondent does not suggest otherwise.[197]Did the claimant affirm the contract before resigning? He did not. There was no suggestion that he did and I have found no factual basis for any finding in support of the claimant having affirmed the contract.[198]If the claimant was constructively dismissed, was the dismissal fair under section 98(4) of the Employment Rights Act 1996 in all the circumstances? In considering this, the tribunal will decide whether the claimant had engaged in conduct that was fundamentally inconsistent with his continued employment? I deal with this particular issue further below. I have decided on the balance of probabilities that the claimant did not engage in conduct that fundamentally inconsistent with his continued employment. In particular I have not made findings as asserted by the respondent that the claimant’s actions amounted to misconduct. I am satisfied in all of the circumstances that the claimant’s conduct was consistent with his continued employment. Looking at all of the circumstances of the case, I consider that the dismissal was not fair. The reason for the contract ending was the claimant’s resignation which was caused by the lack of any or any prompt payments from March 2024 onwards. The respondent had told the claimant that the suspension was temporary. It then reinforced this in writing and in oral conversations. There was no explicit suggestion from the respondent that the contract was coming to an end yet the respondent ceased to pay the claimant and ceased to communicate with him following the claimant’s return to the United Kingdom in early May 2024. I therefore consider that the factual matters which I have found amount to an unfair situation. Polkey and contributory fault[199]I must consider whether, had a fair process been followed, the claimant would have been dismissed in any event. I am not satisfied that he would have been. My findings in respect of the claimant’s actions which the respondent relied upon in support of its position on this issue are clear. In my judgment the claimant did not engage in any conduct which would amount to mismanagement or misuse of his position, or which could have been said to have amounted to misconduct. I am not satisfied that that respondent has established that the allegations it relies upon are proved. It therefore follows that I am satisfied that even had a fair process been followed I cannot find that there is any chance that the claimant may have been dismissed in any event.[200]In respect of contributory fault, my decision is based upon the same findings – or lack of findings – of fact. It follows that it cannot be established that the claimant contributed to his dismissal. I say that for the following two primary reasons:a. The reason for the initial suspension was said to be (on multiple occasions) the respondent’s need to reorganise the business rather than any culpable done or not done by the claimant;b. The allegations made have not been made out – therefore there has been no contributory fault established on the claimant’s part.[201]Whilst I accept that, if proved, the allegations made by the respondent which came to its knowledge after the event could have been relied upon (as per the decision in Boston Deep Sea Fishing (supra)), in this case those allegations have not been proved. Moreover it is wholly unclear based on the evidence presented by the respondent when some of these matters are said to have happened or when the respondent gained knowledge of them. Ms Covaci’s evidence is silent as to particulars and dates and there is little, if anything, by way of documentary evidence to assist. Wrongful dismissal / unpaid wages[202]It follows based upon my findings of fact that I am satisfied that the claimant was entitled to monthly wage payments of £6,000 for March, April, May 2024. The payment he received on 4 April 2024 was the payment for March 2024 and he received the additional payment on 13 June 2024. He was therefore entitled to, but did not receive, an additional monthly wage of £6,000 for that period.[203]The issues surrounding wrongful dismissal are related to the notice period. The contract is clear and I find that the notice payments are as set out in the contract: six months’ salary in a lump sum within seven days. The claimant did not receive this, but in light of my findings and decision relating to his constructive dismissal these matters are likely to be addressed in full at the remedy stage.
Conclusion
[204]For those reasons I find that:a. The claimant was employed by the respondent under a contract of employment from 30 August 2018 until 4 June 2024.b. The claimant was unfairly constructively dismissed and that the effective date of termination was 4 June 2024.c. The claims for wrongful dismissal and unpaid wages succeed.d. The claims were brought in time and the tribunal has the jurisdiction to decide the claims and make the orders sought[205]For the reasons I have set out earlier in these reasons the tribunal did not have time to consider remedy as part of the hearing listed on 29 and 30 January 2025. The parties had filed, or had had the opportunity to file, all relevant evidence relating to remedy in advance of the substantive final hearing. No further evidence is therefore required. There will need to be a remedy hearing listed if the parties are unable to agree the issues beforehand. I will therefore give further directions under a separate case management order.[206]Those are my reasons.