Mr J Pearson v IT Governance Ltd and IT Governance Ltd v Mr J Pearson: 3300015/2019 and 3312362/2019

EMPLOYMENT TRIBUNALS

Case No 3300015/2019, 3312362/2019

Between

Mr J PearsonClaimant

IT Governance Ltd and IT Governance Ltd v Mr J PearsonRespondent

Before

Employment Judge K J Palmer

In person for claimant

Ms V Brown (instructed by Counsel) for respondent

Date 18 November 2019

JUDGMENT

JUDGMENT It is the Judgment of this Tribunal as follows: Unfair Dismissal

[1]The Claimant's claims in unfair dismissal fail and are dismissed.

[2]The Claimant's claims in wrongful dismissal fail and are dismissed.

[3]The Claimant's claim for unpaid commission for September 2018 succeeds. The Tribunal awards the sum of £3,653.73 to the Claimant payable by the Respondent.

[4]The Respondent's counterclaims fail and are dismissed. 1 of 18

REASONS

[5]This matter came before me as a three day hearing on the 4, 5 and 6 November 2019.

[6]On 24 October the parties appeared before Employment Judge Cassel at a preliminary hearing case management discussion.

[7]Whilst at the outset of this full merits hearing the record of that preliminary hearing had yet to be distributed to the parties. I was fortunate enough to have before me a draft of Judge Cassel's record of that hearing which was of great assistance to me. History and Issues

[8]The Claimant was employed by the Respondent as a Business Development Manager between 1 November 2012 and 3 October 2018 when the Claimant resigned, for the second time.

The Claims

[9]The Claimant's claims unfair dismissal based upon constructive dismissal. He says he was entitled to treat himself as constructively dismissed and did so by his resignation on 3 September 2018. He had originally proposed to work his three months' notice until 2 December 2018 but claims that further breaches of his contract during the notice period entitled him to treat himself as dismissed which he did on 3 October 2018 determining to leave and not work out the notice period he had triggered by his resignation a month earlier.

[10]He claims unfair dismissal based upon his constructive dismissal either on 3 September 2018 or on 3 October 2018 in the alternative.

[11]The Claimant also pursues claims in contract.

[12]He pursues a claim for wrongful dismissal based upon the balance of notice he would have received had the Respondent not constructively dismissed him on 3 October, thus salary from 3 October to 2 December. He also claims for commission he would have earned in the period from 3 October to 2 December.

[13]He further claims for commission which he says he should have been paid but was not for the month of September which he did work.

[14]The Respondent pursues a counterclaim against the Claimant which falls into two parts.

[15]First they say that between the beginning of July and the Claimant leaving in early October he failed to comply with clause 4.3.1 of his contract of employment namely the requirement for him to devote the whole his time, 2 of 18 attention and abilities to the business of the Company. They claim losses arising out of this breach.

[16]Secondly they claim that by his leaving early and failing to work out his notice he is further in breach of his contract more particularly clause 2.2 of his contract of employment and that they suffered loss as a result in that they were unable to replace him during the period from 3 October to 2 December and that the Company suffered loss as a result.

[17]Originally the Respondent sought to include a further contract claim arising out of alleged breaches of restrictive covenants in his contract but my colleague, Judge Cassel pointed out that this is specifically prohibited under Article 5 of the Employment Tribunal Extension of Contract Jurisdiction (England and Wales) Order 1994 ("the Extension Order").

[18]All of the contract claims above both the Claimant's and the Respondent's counterclaims are brought under the jurisdiction of the Extension Order.

[19]The Respondent's first counterclaim relating to the alleged breach of the Claimant's contractual term to devote his full time and attention was questioned by my colleague Judge Cassel at the preliminary hearing and I will need to determine whether I have jurisdiction to hear it under the above mentioned Extension Order in particular Article 4(c).

[20]In support of his constructive dismissal claims both statutory and in contract the Claimant relies on the implied term of trust and confidence.

[21]Over the course of the three day hearing I heard evidence from the Claimant and on his behalf, from Sasha Lawrence and Tony Drewitt. For the Respondent I heard evidence from Ms Sharon Jones of HR, Steve Watkins and Alan Calder, the Executive Chairman of the Respondent.

[22]The Claimant represented himself and the Respondent was represented by Ms V Brown of Counsel.

Findings of Fact

[23]The Claimant was employed between 1 November 2012 and 3 October 2018. He was employed as a Business Development Manager which essentially meant that his role was in sales. He was part of a team. This was a home based role. Initially he was the only person employed in that role. It is a matter of common acceptance between the parties that the Claimant's role was such that he was responsible for a large number of key accounts with the Respondent such as Volkswagen, Vodafone, Microsoft, Inmarsat and Norton Rose Fulbright. There is no doubt that the Claimant was consistently the top or one of the top performing external sales employees within the Company.

[24]There was a reorganisation in early 2018 the upshot being that there was a parent company GRC International Group of which the Respondent became a wholly owned subsidiary. At this point the Claimant was asked to enter into a 3 of 18 new contract of employment which included various restrictive covenants. Despite some issues raised by the Claimant at this stage he ultimately decided to sign the new contract and did so on 17 July 2018. The contract was dated 27 April 2018.

[25]At clause 2.2 of the contract under the heading in clause 2 of "Terms of Appointment" it was specified that the employee's notice period was three months either way.

[26]At clause 4.3.1 the contract reads: "Unless prevented by incapacity, devote the whole of their time, attention and abilities to the business of the Company."

[27]In March of 2018 the Claimant requested a meeting with Alan Calder in order to discuss future promotion opportunities within the Respondent. It is common ground that Mr Calder praised the Claimant's performance in his current role but indicated that he had some reservations about the Claimant's suitability for a more strategic or managerial role and said that in order to progress into such a role he would have "prove himself". This was mirrored in an appraisal which the Claimant had undergone, the only one he ever underwent, in his tenure at the Respondent which reflected his excellence as an external sales person but indicated that they were things to work on in other areas. It is accepted by the Respondent that it could have been better in its appraisal processes. Sharon Jones gave evidence to the effect that she was having great difficulty in introducing a proper appraisal and performance system into the Respondent. This was reflected in the fact that the Claimant had only one appraisal during his six years at the Respondent and that he initiated that appraisal in May of 2016 but it took until April of 2017 for it to take place. The appraisal was with Alan Calder.

[28]It is no secret that the Claimant was feeling uneasy and unhappy about his prospects of obtaining suitable promotion opportunities within the Respondent.

[29]I heard evidence to the effect that it was on 21 June 2018 that the Claimant incorporated his own company, Intelligent Storms Solutions Limited.

[30]Ultimately it is this company in respect of which he and a friend were principal shareholders which he took forward as his own business after he left the Respondent.

[31]In evidence the Claimant was clear in the fact that he had not gone "live" with this company until 1 December 2018. Where there is a conflict in the evidence between the parties on this point I accept the Claimant's evidence. I am bound to say however that the Respondent produced no evidence to suggest that the Claimant had been working on his own account through that company whilst he was still working at the Respondent. Mr Calder speculated in his evidence that this had happened but there was no direct evidence to support that speculation. 4 of 18

[32]In evidence the Claimant was cross-examined by Ms Brown as to how unlikely it was that a website and other preparatory steps had been taken to launch his company between 3 October when he left the Respondent and 1 December. In my Judgment such preparatory steps are often taken with great swiftness and web designers and web companies can very readily produce websites and other materials both physically and online in a very short period of time to enable companies to go live. I see nothing unusual in the suggestion that the Claimant's company lay dormant between the end of June and the beginning of October when he, together with his new partner made appropriate preparatory steps to launch the business on 1 December. The First Resignation

[33]It is common ground that it was on 25 July that an email from Alan Calder initiated a telephone conversation between the Claimant and Alan Calder. It is the contents of that conversation which are significantly in dispute between the parties. It is Claimant's position that during the telephone call Alan Calder, acting on behalf of the Respondent effectively offered him a new role as Global Head of Major Accounts. This would have represented a significant increase in responsibility for the Claimant and a major promotion. The Claimant says that he was told by Mr Calder that he wanted to secure an appointment for that role as soon as possible and that the role would be to create and execute a strategy for the Respondent's parent company to manage key accounts and that this would involve building a new team to effect this. The Claimant says he was told that the role was to commence almost immediately on 1 August. His evidence is that he said he would be interested but he would need to know more. He said the call lasted 10 minutes. The Claimant interprets the call as him essentially being offered the role.

[34]Mr Calder's recollection is somewhat different. He says he was doing no more than scoping out whether the Claimant might be interested in the role as a means of progressing his career as he had indicated he was very keen to do in the March 2018 meeting. Under cross-examination Mr Calder said that he had no more than a 50% feeling that he would ultimately consider the Claimant to be suitable for the job but that he wanted to gauge his enthusiasm. He says he was surprised at the Claimant's lack of enthusiasm. When pushed he confirmed that the Claimant had seemed reasonably keen during that conversation but that subsequently had sent an email on 31 July which I had before me indicating that he didn't think that August was going to be the best time to discuss the new role and seeking to have a meeting with Alan Calder in September. Alan Calder took this to be an indication that the Claimant was not enthusiastic and decided not to pursue the possibility of the Claimant taking up that new role. In fact we know that during the course of August a new employee, Bill Bailey was interviewed and ultimately offered the role which he started on 3 September.

[35]Where there is a conflict on the evidence as to the contents of this telephone conversation I prefer the evidence of Alan Calder. I cannot see that it is likely that Mr Calder would offer the job to the Claimant in such a telephone conversation. Even the Claimant's own evidence in his witness statement is 5 of 18 framed along the lines of Mr Calder sounding him out to see if he was interested before developing a package for the role. This is not commensurate with the role being definitively offered.

[36]I did hear evidence that Mr Calder had written an email to the Claimant's then Line Manager, Tony Drewitt indicating that the was seeking to take the Claimant away from his team but this is not inconsistent with Mr Calder's evidence.

[37]What the Claimant seeks to rely upon as a breach of his contract enabling him to consider himself as dismissed was the reaction of Mr Calder to his email of 31 July putting off discussions about the role until September when Mr Calder simply moved on and appointed someone else. I had an exchange of emails between the two in front of me and it is clear that Mr Calder wanted to move quickly and appoint someone in August. He perceived rightly or wrongly that the Claimant was not enthusiastic and decided to seek a candidate externally.

[38]Mr Calder speculated in evidence that in hindsight he now felt that the Claimant's lack of enthusiasm could be explained by the fact that he had already decided to leave the Respondent and set up his own business.

[39]There is no doubt in my mind that it was within the Claimant's contemplation at this time to go and work in his own business but I do not consider that he had taken any more than simple preparatory steps by incorporating the company and buying a domain name.

[40]Pursuant to the events of 25 July and the exchanges between the Claimant and Alan Calder there continued to be email exchanges. Nothing in the evidence before me suggests to me that the job was effectively offered to the Claimant. I accept Alan Calder's evidence that he was simply scoping out the Claimant as to his enthusiasm for the role and it was entirely within his authority to determine that the Claimant wasn't sufficiently enthusiastic and determined to look elsewhere. I am not persuaded from this view by the evidence of Tony Drewitt. Whilst it is true that Mr Calder may have indicated to Tony Drewitt that the Claimant may be taking the new role I do not accept the Claimant's evidence that there was certainty of this.

[41]The Claimant in his evidence then specifies that he was unhappy about the fact that the subsequent exchanges with Alan Calder pursuant to the telephone conversation of 25 July and his subsequent attempts to schedule a meeting with Alan Calder in early September to discuss the role came to nought. We of course know that Alan Calder had determined to look elsewhere to fill that role.

[42]In the Claimant's witness statement he indicates that during the course of his holiday in August he thought about what had happened and felt he no longer could work for the Respondent.

[43]As a general comment I must say that I have found the Claimant's evidence to be vague particularly when he was cross-examined on the reasons for his resignations. 6 of 18

[44]With respect to the first resignation he seemed uncertain as to precisely what he was suggesting was the reason he resigned.

[45]Evidence from Alan Calder and from Steve Watkins makes it clear what the reason was, namely that he had determined that he was going to proceed to set up and launch his own business. The evidence points overwhelmingly to this being the reason for his resignation on 3 September.

[46]He attended, unannounced at Alan Calder's office and told Alan Calder that he was resigning and that the reason was he wanted to set up his own business where he could be his own boss and he would feel like he had created something. Even on the Claimant's own evidence he does not deny that this was the reason he gave. The evidence of Steve Watkins also supports this. He gave evidence that he had a conversation with the Claimant the day he handed in his notice. He also confirmed that the Claimant had told him he was setting up his own business. There is also evidence that the Claimant sold shares in June and then subsequently in October in the Respondent which may explain that he was seeking funds to do so.

[47]The reason is further confirmed by an email from the Claimant to Alan Calder pursuant to the conversation they had on 3 September. In this email the Claimant confirms that he has given his notice to Mr Calder that morning and that he is aware that the notice will run for three months. There is no mention of the reasons he now seeks to rely upon in pursuance of his claim for constructive unfair dismissal and constructive wrongful dismissal as being the reason for dismissal.

[48]Moreover subsequently on 17 September the Claimant contacted Sharon Jones of HR and sought a copy of the grievance procedure at the Respondent. He then initiated an informal grievance but at no time during the initialisation of that process and the detailing of the issues the subject of the grievance does he confirm that that was the reason he has resigned.

[49]It is clear that he resigned for the reasons he explained to Alan Calder on 3 September. The Second Resignation

[50]During the course of discussing the grievance with Sharon Jones of HR the Claimant made it clear that he would prefer if possible to work a short notice and not work the full three months' notice period. Pursuant to his seeking a grievance an informal grievance was set up and took the form of a telephone call between the Claimant on one end and Sharon Jones on the other end.

[51]This took place on 25 September and is another key moment in the Claimant's claim as it is this telephone call, amongst other things which the Claimant relies upon as being the Respondent's repudiatory breach entitling him to treat himself as dismissed which he says he then did by leaving early and not working out his notice period on 3 October. 7 of 18

[52]Prior to that informal telephone grievance taking place the Claimant had a telephone conversation with Sharon Jones on 20 September and this was reflected in an email from Sharon Jones to the Claimant the following day, 21 September. In it she set out the Respondent's position concerning the Claimant's requests to leave early. She says the Company would consider this but only on the basis that the Claimant would agree not to pursue payment beyond the point of early termination and that a full and agreed handover would be undertaken. She stressed that there would be no additional payment other than monies owed to the Claimant at the point of departure.

[53]She went on to say that the expectation currently was that the Claimant would work his full notice period save for an agreement to bring forward the termination date from 2 December to 30 November in respect of untaken holiday and she further confirmed that it was agreed by all that the grievance to that point would simply be informal thus by implication accepting that the Claimant had every right to pursue a more formal grievance in due course.

[54]The grievance then proceeded by telephone and I had some pages of notes in front of me setting out what took place.

[55]Whilst the Claimant was uncertain and vague in cross-examination it is his case as I understand it that it was this informal grievance which either in isolation or in conjunction with a later conversation he had with Bill Bailey, which he relies upon as being the breach which he says he accepted which gave him cause to effect his second resignation on 3 October.

[56]I do not propose to repeat everything which is in the notes. However it is fair to say that there was clearly some sparring going on between the Claimant and Alan Calder. The Claimant wanted to leave early and appeared to be suggesting that if the Respondent allowed him to do so he would not pursue a more formal grievance. However he still wanted to be paid monies in lieu during the three month notice period. Alan Calder was not prepared to agree to that and the subject of the Claimant's setting up his own business was raised. The Claimant was reminded that he had restrictive covenants in his contract of employment and Alan Calder said the Respondent would seek to enforce them if appropriate.

[57]During this conversation Alan Calder did say that the Respondent had sought legal advice and had been told that any formal grievance pursued by the Claimant would be likely to succeed. The conversation continued and Alan Calder and the Claimant talked about handovers and Mr Calder said that the Respondent was looking for the Claimant to handover all existing accounts to Bill Bailey prior to his departure but Alan Calder said that they would not be seeking to expect the Claimant to handover live opportunities currently running. He said "Even if account ownership opps by who originated".

[58]Nothing was resolved and it was after that the Claimant says he found his position untenable. Shortly afterwards there appeared to be an issued raised by Alan Calder and followed through by Tony Drewitt concerning the possibility that the Claimant had taken a day or half a day's holiday without proper 8 of 18 authorisation however ultimately it appeared that that issue was resolved. It is the Claimant's evidence he felt that both the informal grievance call and the discussion he then had a day or so later with Bill Bailey where Bill Bailey told him to handover all of his accounts caused him to consider his position to be untenable. It was on that basis that he decided he could no longer remain to work out his notice period and he resigned again with immediate effect on 2 October by email to Sharon Jones. He says in evidence that he felt threatened by the tone of the discussion on 25 September which bordered on blackmail.

[59]His second resignation email does refer to the 25 September telephone meeting but says he has been advised by his solicitor to leave with immediate effect.

[60]I do not accept the Claimant's position that he resigned in reliance on the behaviour which took place on 25 September or indeed Alan Calder's behaviour on that occasion and/or his subsequent discussion with Bill Bailey.

[61]I found his evidence on this to be vague and wholly unconvincing. I am much more inclined to believe that he resigned because he couldn't negotiate an early exit on the terms which he sought.

[62]The first resignation was because he was planning to go off and start his own business and clearly he was anxious to do so and get on with it. The second resignation was I consider much more likely to have been because he wished to get away and negotiate short notice but could not do so.

[63]Accordingly the Claimant left pursuant to his email of 3 October.

[64]Dealing with the commission payments enjoyed by the Claimant throughout his employment I had before me a letter to the Claimant dated 17 September 2012 which set out the way in which commission payments were made from that date going forward. That letter indicates that the commission scheme is discretionary and subject to variation.

[65]However over the course of the next six years the Claimant was paid commission on the basis of that structure subject to a couple of minor tweaks. However, during the one month's notice in September which the Claimant worked that procedure was not followed and in fact the commission claimed by the Claimant for September of £3,653.73 relates entirely to commission in respect of two significant accounts which he had been the account manager for some time those of Inmarsat and Norton Rose Fulbright. Usually prior to those accounts being "handed over" during September the Claimant would be paid commission on invoices raised to those existing clients who were under contract on an ongoing basis. He was paid some commission for the month of September in the sum of £1,056.35 but it is common ground between the parties that he was not paid commission arising out of the Inmarsat and Norton Rose Fulbright contracts. 9 of 18

[66]I questioned Alan Calder about this and he said that it was in the normal course of events for accounts to be handed over by a salesman who were serving their notice. He accepted that this was reduced to writing anywhere and there was written or physical evidence in front of me. I was also not impressed with his evidence on this point.

[67]He said that both the Inmarsat and Norton Rose Fulbright contracts were up for renegotiation and he was very keen that these be managed by someone who was going to remain in the business. They were handed over to Bill Bailey. I do not accept that there was a contractual term in place by custom and practice that accounts would be handed over in this way and that the exiting sales executives would be deprived of commission on those accounts that they would otherwise have been paid during their notice period.

[68]The Respondent has not convinced me of this. I can understand the rationale for seeking an orderly handover of accounts in a period of notice but I cannot understand why an employee who relies significantly upon commission for the bulk of his income would be deprived of that income during that notice period. It was not argued that this was an exercise of some discretionary right by the Respondent but if it had been so argued I would have considered such an exercise of that discretion to be perverse.

[69]There was also some discussion in evidence about the new role which had been taken up by Bill Bailey ironically, on the same day as the Claimant's first resignation. Alan Calder was at pains to point out that this role was entirely different to the Claimant's and did not in any way overlap. However it is clear that certain of the Claimant's accounts were handed over to Bill Bailey and the Claimant was deprived of the commission on them. It is accepted that Billy Bailey did not receive the commission as his package was different. He was the new employee who had secured the Global Head of Major Accounts role. On the remit of that new role the evidence I have from Steve Watkins was somewhat different. He said that there was an overlap between the two roles and that much of the Claimant's work would be done by Bill Bailey and that the Claimant's job had been subsumed into Bill Bailey's role although Bill Bailey's role then was a much wider role working within the parent company. The Claimant was also adamant that Bill Bailey had in essence taken over his job but with a wider remit. I prefer the evidence of Steve Watkins on this point.

[70]What is clear to me is that the Claimant was told to hand over his accounts to Bill Bailey namely those accounts that were already in place but continuing to produce income. Submissions

[71]I heard detailed submissions from Ms Brown and from the Claimant. I do not propose to reproduce those verbatim. I was also handed up a note on the law by Ms Brown and three schedules were produced to me which I have marked R2, R3 and R4. Ms Brown asked me to accept that the Claimant's evidence lacked credibility and that he was inconsistent. I do accept that assertion. The Claimant seemed uncertain as to the reason for both resignations but as I have 10 of 18 indicated in findings I do not accept that the reason the Claimant resigned on either occasion are the reasons put forward by him in this claim.

[72]The Respondent's counterclaim is twofold. First they claim that between the end of June or beginning of July and the date the Claimant left on 3 October he did not devote his full time and attention to the business. They argue that they now know this in retrospect was as a result of him having incorporated his company in June and brought a domain name and the fact that he now operates his own business through that company.

[73]They produced figures suggesting that there was a downturn in income generated by the Claimant during this period and that this is as a result of his failure to comply with his duty under his contract of employment to devote his full time and attention to the Respondent's business.

[74]Secondly they aver that they suffered loss when the Claimant left prematurely on 3 October in breach of his contract and that they should be compensated for that loss for the period between 3 October and 2 December when he could have left legitimately.

[75]I am bound to say that despite Ms Brown's best efforts to convince me otherwise the evidence in support of this counterclaim is unformed. The Respondent's Schedule of Loss in the second bundle before me did not impress me. The figures used in support of the loss claimed for the failure to work the final two months of his notice period were initially figures calculated as income rather than profit and in submissions Ms Brown attempted to convert them but I am unconvinced by her argument that 70% of income is profit to the Respondent. The figures are also highly speculative. It is also clear to me that the Respondent has not even sought to give credit for commission saved on the Claimant's continuing accounts during that two month period as it is clear that that commission was not paid to anyone else. I heard no evidence of any cogence that they had sought to replace the Claimant. The evidence points much more strongly to Bill Bailey having taken over his accounts in which case it is difficult to sustain an argument that any loss at all was suffered.

[76]Turning to the Respondent's counterclaim relating to the alleged failure to devote full time and attention there was an issue with respect to the Extension Order Article 4(c) as to whether that claim falls within the jurisdiction of the Extension Order and was essentially outstanding on the termination of the employment of the employee. It is on that point that the majority of Ms Brown's note on the law is concerned. I am grateful to her for that.

[77]The Claimant also made detailed submissions which I am grateful but I also do not propose to repeat in detail. 11 of 18 The Law Claimant's Claim for Constructive Unfair Dismissal

The Law

[78]Constructive dismissal is dealt with under Section 95 of the Employment Rights Act 1996 ("ERA 1996"). This states: "95 Circumstances in which an employee is dismissed: (1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2)…, only if) – (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct." It is that part of Section 95 upon which the Claimant relies in support of his claim for constructive unfair dismissal and his claim for payment he should have received both notice and commission between 3 October and 2 December.

[79]The leading authority on constructive dismissal remains Lord Denning Judgment in the case of Western Excavating (ECC) Limited v Sharp

[1978] ICR 221

. Here Lord Denning said: "If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, 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."

[80]This has been refined in the case of Malik v Bank of Credit and Commerce International SA

[1997] ICR 606

and in the case of Claridge v Daler Rowney Limited

[2008] IRLR 672

and Sharfudeen v TJ Morris Limited in the EAT. This says that an Employment Tribunal must be satisfied that the employee has lost trust and confidence in his employer as a result of conduct on the part of the employer that was without reasonable and proper course. It is an objective test and in that case was referred to as the unvarnished Malik test.

[81]I therefore must determine whether there were circumstances perpetrated by the Respondent which entitled the Claimant to resign in reliance. In other words was there a breach going to the root of the contract of employment being conduct on the part of the employer that was without reasonable and proper cause. I then have to determine whether the Claimant resigned in reliance upon that breach or some other reason and if he did whether he did so within a reasonable time thus not affirming the contract. 12 of 18

[82]If the Claimant is successful in his constructive unfair dismissal claim I am then bound to consider the terms of Section 98 of the ERA 1996 as to whether that dismissal was reasonable or unreasonable. The Claimant's Commission Claim for September

[83]I must consider this claim on purely contractual terms and on the evidence before me. I have a contract of employment and a separate commission clause and a history of operation of that clause in terms of the way in which commission was traditionally paid. The question is whether I consider there is sufficient evidence before me that it was an implied or express term of the Claimant's contract of employment that during any notice period he would be deprived of commission otherwise usually earned as a result of a policy of handover during that period. The Claimant's Claims for Pay and Commission in October and November

[84]The key issue here is whether I consider the Claimant to be in breach of contract at the point of his second resignation on 3 October by not working out his notice fully. If he is then he would not be entitled to any further payment for October and November or indeed any commission. If I consider he legitimately resigned pursuant to his employer's breach then I would need to assess contractually that which he was entitled to during that two month period. The Respondent's Claim for Breach under Clause 4.3.1 of the Claimant's Contract of Employment

[85]I am bound to consider whether the Tribunal has jurisdiction to hear a claim for the Claimant's failure to devote his full time and attention to his duties at the Respondent between the end of June 2018 and his second resignation on 3 October 2018. Such jurisdiction is governed by the Extension Order. The question arises as to whether this Tribunal has jurisdiction to consider the Respondent's counterclaim under Article 4 of that Order. Article 4 states: "4 Proceedings may be brought before an [employment tribunal] in respect of a claim of an employer for the recovery of damages or any other sum (other than a claim for damages, or for a sum due, in respect of personal injuries) if–(a) the claim is one to which section 131(2) of the 1978 Act applies and which a Court in England and Wales would under the law for the time being in force have jurisdiction to hear and determine;

(b) the claim is not one to which article 5 applies; 13 of 18

(c) the claim arising or is outstanding on the termination of the employment of the employee against whom it is made; and

(d) proceedings in respect of a claim of that employee have been brought before an [employment tribunal] by virtue of this Order."

[86]The key Article for me to consider is 4(c) and I have heard submissions from the Respondent's Counsel and had a note on the law handed to me in this respect. That note directs me to authorities on 4(c) namely Hendricks v Lewden Metal Products Limited EAT 1185/95, Capek v Lincolnshire County Council

[2000] IRLR 590

, Sarker v South Tees Acute Hospital NHS Trust

[1997] ICR 673

and Peninsular Business Services Limited v Sweeney

[2004] IRLR 49

. I have duly considered these authorities.

[87]If the Tribunal does have jurisdiction to hear the first part of the Respondent's counterclaim there must be evidence before me to prove that there was a failure by the Claimant to abide by that clause in his contract. That is was he in breach of that clause. The evidence the Respondent seeks to rely upon is evidence of a downturn in the Claimant's performance figures as set out in their Schedule of Loss and augmented by the documents handed up to me prior to submissions. They say that this downturn and the knowledge they now have that the Claimant was preparing to set up in business on his own is sufficient evidence to support the assertion that he is in breach of his contract and that losses suffered by them as a result of that breach should be awarded to them as damages. Second Part of the Respondent's Counterclaim

[88]The Respondent argues that the Claimant is in breach of his contract of employment in failing to work the three months' notice he is duty bound to work under the terms of his contract of employment more specifically clause 2.2. The key will be whether I consider the Claimant was entitled to resign a second time on the basis of the Respondent's breach and whether he did so timeously.

[89]If I agree with the Respondent and conclude that he could not or did not resign in reliance on the employer's breach then I will need to determine the Respondent has adequately proven to me that they suffered loss as a result and if so how much. Conclusions - The Claimant's claim for constructive unfair dismissal The Claimant's First Resignation

[90]I conclude that there were no actions by the employer which constituted a breach of contract upon which the Claimant could consider himself to be discharged and resign claiming constructive dismissal on 3 September 2018.

[91]Where there is dispute as to the 25 July conversation I prefer the evidence of Alan Calder. I cannot see that the employer could possibly be in breach sufficient to enable the Claimant to treat himself as discharged from his contract 14 of 18 and resign. No breach occurred. The discussions with Alan Calder were nothing more than a scoping process as to a possible new global accounts role for the Claimant. Having discussed that role with the Claimant Alan Calder, because he considered rightly or wrongly that the Claimant was unresponsive or unenthusiastic, decided to pursue the possibility of employing someone else and ultimately did employ Bill Bailey. That course of action could not constitute a breach of contract by the employer. The threshold for such breach is not so low as to bring into the scope of a breach set out by the authorities such an action.

[92]Moreover even if there were such a breach, which I have found there was not, I have made a clear finding of fact that the Claimant did not resign in reliance upon it. The evidence that he resigned to go off and pursue his own business is overwhelming. He told not only Alan Calder that but also Steve Watkins. His resignation made no mention of the acts he subsequently relied upon and even when he raised those acts or some of them as a possible grievance he did not mention that those were the reasons he had resigned. Every aspect of the evidence in front of me including the Claimant's own admission to what he said at the time he resigned makes it clear that he resigned because he wished to go off and set up his own business.

[93]Therefore any claim purportedly arising out of a constructive dismissal on 3 September must fail. That would include any unfair dismissal claim and any wrongful dismissal claim. The Claimant's Second Resignation

[94]The Claimant's second resignation and in essence his second claim for constructive dismissal arises out of his resignation with immediate effect on 3 October.

[95]He relies either in whole or in part on the informal grievance which took place on 25 September. In my judgement the employer's conduct in managing and dealing with that grievance cannot and did not amount a breach of contract sufficient to entitle the Claimant to resign and claim constructive dismissal. It is clear that there were some negotiation/sparring going on during that conversation. It is not inappropriate for Mr Calder to remind the Claimant of his responsibilities under the restrictive covenants in his contract. The Claimant himself was seeking to negotiate short notice. It is unfortunate that Mr Calder gave a view as to the outcome of any more formal grievance but in my judgement that is still not sufficient to constitute a breach the Claimant seeks to rely upon.

[96]For the avoidance of doubt I do not consider that the conversation with Bill Bailey where Bill Bailey indicated to the Claimant that his accounts should be handed over during the notice period was sufficient to constitute a breach. It might have been if it had been made clear by Bill Bailey that this would deprive the Claimant of commission he otherwise would receive but there was not evidence before me that this was communicated to the Claimant. 15 of 18

[97]In any event I have made a finding of fact that I do not consider that the Claimant resigned in reliance on the above alleged incidents or either of them. He resigned because he was unhappy that he was unable to negotiate short notice and of course was keen to leave to set up his own business.

[98]On any analysis therefore his constructive dismissal claim under his second resignation must fail. Any claim for unfair or wrongful dismissal as a result must also fail. The Claimant's Claim in Commission for September

[99]Prior to the Claimant unjustifiably and in breach of his contract resigning with immediate effect on 3 October he worked the first month of his notice period between 3 September and 3 October.

[100]He is entitled to be paid under the terms of his contract during that period.

[101]The evidence is clear that he was entitled to basic salary plus commission based upon his contractual entitlement which was a commission payment made principally under the terms of the letter dated 17 September 2012 subject to changes by virtue course of conduct over the ensuing years. I do not accept the evidence of the Respondent that it was entitled to manage his exit by transferring accounts away from him which had the effect of depriving him of commission during September.

[102]I do not accept that there was an express contractual term or an implied term or an implied term by custom and practice that they were entitled to do this.

[103]The Claimant is entitled to commission for September.

[104]The amount of that commission is not in dispute and I therefore make an award to the Claimant in the sum of £3,653.73 in respect of that commission. The Respondent's Counterclaim under Clause 4.3.1 of the Claimant's Contract of Employment

[105]Having considered the Extension Order and more particularly Article 4(c) and the authorities in question I do conclude that I have jurisdiction to consider the Respondent's counterclaim arising out of clause 4.3.1. It is clear that the claim was potentially "outstanding" on the basis of the authorities before me.

[106]However, the Respondent has not produced sufficient evidence before this Tribunal to satisfy the burden of proof on the balance of probabilities to convince me that the Claimant was in breach of that term. The table and various figures produced to me in support of the assertion that he did not comply with that term are inconsistent and in some cases contradictory. The figures for new billed revenue in August, for example are not ad idem with the 16 of 18 table in the Schedule of Loss. No adequate explanation for that contradiction was put forward.

[107]In any event the Respondent's claim in this respect is only partially formed. No proper evidence was put before me to justify an argument that the Claimant was in breach. I am inclined to accept the Claimant's assertions that the Company was in difficulties during that period and that there was a general downturn. He gave evidence of the parlousness of the Respondent's position and its plummeting share price none of which was challenged. No evidence whatsoever was produced by the Respondent of other salespeople performing during the same or similar period to show a contrast with the Claimant's performance. The figures are vague and unsupported and appear to be based on income and not profit. Any attempt to convert them to profit by applying a blanket 70% profit margin to them was entirely unsupported by evidence and seems wholly unrealistic.

[108]For this reason the Respondent's counterclaim in this respect fails and is dismissed. The Respondent's Second Counterclaim for loss suffered during 3 October to 2 December

[109]The Claimant is in breach of his contract of employment in that he resigned with immediate effect on 3 October and did not work the two remaining months of his notice period. He was required to do so. Despite attempting to negotiate short notice the Respondent had clearly not agreed to short notice.

[110]My findings in respect of the Claimant's second resignation mean he was not entitled to so resign as a result of any breach on behalf of the employer and certainly did do so. Therefore he is in breach.

[111]On the face therefore the Claimant's second counterclaim for damages arising as a result has some substance.

[112]However, once again the Respondent's counterclaim is not well formed or put. There is insufficient evidence to support the assertion of loss as put forward by the Respondent in its counterclaim. We know that the initial attempts to do so are based on income and not profit. I do not accept the blanket calculation of 70% profit without further evidence to support it.

[113]Moreover, I do consider that Bill Bailey took over much of the Claimant's role at least in the short term and that his role was subsumed into Bill Bailey's new role. Therefore I do not accept that the Respondent suffered loss as a result of the Claimant's absence in October and November. They transferred the majority of his accounts to Bill Bailey in any event and any new leads could easily have been followed up by Bill Bailey or another employee.

[114]Whilst I was told attempts were made to replace the Claimant there was no evidence before me of this save for a vague assertion by Mr Calder which is insufficient to convince me. 17 of 18

[115]The Respondent has therefore not satisfied me on the balance of probabilities that actual loss was suffered and therefore I make no award in respect of the Claimant's breach in this respect.