Mr B XueClaimantEscendant LtdRespondentDate 14 November 2025
JUDGMENT
The complaint that the claimant was unfairly dismissed is struck out.
REASONS
[2]Section 108 of the Employment Rights Act 1996 requires a claimant to have not less than two years service to make an unfair dismissal complaint.[3]The claimant was employed by the respondent for less than two years.[4]Therefore the claimant is not entitled to bring such a complaint.[5]The claimant has failed to give an acceptable reason, despite being given the opportunity to do so, why the complaint should not be struck out.[6]Accordingly, the complaint of unfair dismissal is struck out. The claimant’s other complaints are not affected by this judgment. Approved by[1]Page numbering referred to in square brackets in these reasons are to pages in the 151 hearing bundle, unless otherwise stated.[2]This is a claim which involves an allegation of breach of a collateral contract between the claimant and respondent. The claimant was employed from 1 June 2022 to 7 February 2024 as senior deep learning engineer on a salary of £130,000. The contract of employment is at [35]. The claimant alleges that he was promised that he would be given a 2% shareholding in the respondent company in return for commencing employment with the respondent. He alleges that he was told that this could not be incorporated into the contract of employment itself but that he was nonetheless promised by Mr Murray of the respondent that the share transfer would take place in the near future upon him starting work with the company. As it transpired, he was dismissed before any transfer of shares took place.[3]For its part, the respondent denies any breach of contract. It maintains that what the claimant was promised that he would be a party to a share options scheme which the respondent planned to put in place for several of its staff. It denies that there was any agreement to make a transfer of shares to the claimant. It suggests that this would have made little commercial sense in the circumstances. Procedure, Documents and Evidence Heard[4]The Hearing took place on 27 June & 30 September 2025 The claim was heard in person at the Cambridge Employment Tribunal. I first of all heard testimony from claimant, Mr Xue. I also heard from the respondent’s witnesses namely Ms Jenni Henderson (co-founder and CEO of the respondent) and Mr Neil Murray (co-founder and director of the respondent). Each of the aforesaid witnesses adopted their witness statements and confirmed that the contents were true. They all answered questions put in cross-examination. I also had an agreed bundle of documents which comprises 151 pages (as amended for the purposes of the second day of the hearing (see below)). I also heard helpful submissions from the claimant and Mr Henderson, who both supplemented their written submissions.[5]At the outset of the hearing on 27 June 2025, I was invited to resolve a dispute between the parties relating to documents in the possession of the respondent which it was alleged by the claimant where disclosable. The respondent suggested that they were subject to legal privilege and/or were not relevant to the issues in the case. I was asked by the parties to read through a bundle of documents which comprised 49 pages in order to assess whether any should be disclosed. I agreed to do so. It was my judgment that none should be disclosed. I gave reasons for this during the hearing.[6]I should also clarify that the hearing bundle changed between the first and second days of the hearing. The claimant had sought to rely upon certain document on the first day which had been excluded from the bundle. By agreement, these were added in the interim. Unfortunately, this caused the pagination to change quite significantly, as they were not simply added to the end of the original bundle. In order to avoid any confusion, references to numbers in square brackets in this decision are to the pages of the 151 page hearing bundle.[7]In coming to my decision, I had regard to all of the written and oral evidence submitted, even if a particular aspect of it is not mentioned expressly within the decision itself.
Legal Framework
[8]As stated, this is a breach of a contract claim. In particular, it is alleged that by reason of conduct by the parties in terms of correspondence, that an agreement was formed between the parties which was collateral to the contract of employment itself.[9]The relevant legal principles regarding the recognition of pre−contractual promises or assurances as collateral warranties may be stated as follows. A pre−contractual statement will only be treated as having contractual effect if the evidence shows that parties intended this to be the case. Intention is a question of fact to be decided by looking at the totality of the evidence.[10]The test is the ordinary objective test for the formation of a contract: what is relevant is not the subjective thought of one party but what a reasonable outside observer would infer from all the circumstances. In deciding the question of intention, one important consideration will be whether the statement is followed by further negotiations and a written contract not containing any term corresponding to the statement. In such a case, it will be harder to infer that the statement was intended to have contractual effect because the prima facie assumption will be that the written contract includes all the terms the parties wanted to be binding between them.[11]In ‘Chitty on Contracts Vol. I. Chapter 16 The Terms of the Contract, para.16.018, 35th Edition’ it is stated: “It may be difficult to treat a statement made in the course of negotiations for a contract as a term of the contract itself, because the statement was clearly prior to and outside the contract, the incorporation of the statement is excluded by an entire agreement clause in the contract itself or because the existence of the parol evidence rule prevents its inclusion. Nevertheless, the courts are prepared in some circumstances to treat a statement intended to have contractual effect as a separate contract or warranty, collateral to the main transaction. In particular, they will do so where one party refuses to enter into the contract unless the other gives him an assurance on a certain point or unless the other promises not to enforce a term of the written agreement. ….. 10. The relevant paragraphs in ‘Chitty’ go on to state: ‘It is undoubtedly true that the courts are nowadays much more willing to accept that a pre-contractual assurance gives rise to a collateral contract, so that such collateral contracts are no longer rare. Where the assurance consists of a statement of present or past fact, there may now be less need to infer a collateral contract, since a remedy in damages may be available under the Misrepresentation Act 1967 for a representation of fact. But where the assurance is as to the future, the Act does not apply and in such a case the claimant must prove a collateral contract or fail completely. Lord Denning MR has said: “When a person gives a promise or an assurance to another, intending that he should act on it by entering into a contract, and he does act on it by entering into the contract, we hold that it is binding.”[12]In this case, the respondent relies upon a ‘whole agreement clause’ within the contract of employment. As Mr Justice Lightman put it in The Inntrepreneur Pub Company (GL) v East Crown Limited [2000] 2 Lloyd’s Rep 611 “The purpose of an entire agreement clause is to preclude a party to a written agreement from threshing through the undergrowth and finding in the course of negotiations some (chance) remark or statement (often long forgotten or difficult to recall or explain) on which to found a claim such as the present to the existence of a collateral warranty. The entire agreement clause obviates the occasion for any such search and the peril to the contracting parties posed by the need which may arise in its absence to conduct such a search. For such a clause constitutes a binding agreement between the parties that the full contractual terms are to be found in the document containing the clause and not elsewhere, and that accordingly any promises or assurances made in the course of the negotiations (which in the absence of such a clause might have effect as a collateral warranty) shall have no contractual force, save insofar as they are reflected and given effect in that document.”.[13]The operation of the clause is to denude what would otherwise constitute a collateral warranty of legal effect. Entire agreement clauses come in different forms. In Deepak v. ICI [1998] 2 Lloyds Rep 140, 138, affirmed [1999] 1 Lloyds Rep 387 the clause read as follows: "10.16 Entirety of Agreement This contract comprises the entire agreement between the PARTIES....and there are not any agreements, understandings, promises or conditions, oral or written, express or implied, concerning the subject matter which are not merged into this CONTRACT and superseded thereby ..." Rix J and the Court of Appeal held in that case (in particular focusing on the words "promises or conditions") that this language was apt to exclude all liability for a collateral warranty.[14]In Alman & Benson v. Associated Newspapers Group Ltd 20 June 1980 (cited by Rix J at p.168), Browne−Wilkinson J reached the same conclusion where the clause provided that the written contract "constituted the entire agreement and understanding between the parties with respect to all matters therein referred to" focusing on the word "understanding".[15]In the Entrepreneur case (cited above), the whole agreement clause was worded as follows (in so far as relevant): "14.1 Any variations of this Agreement which are agreed in correspondence shall be incorporated in this Agreement where that correspondence makes express reference to this Clause and the parties acknowledge that this Agreement (with the incorporation of any such variations) constitutes the entire Agreement between the parties.”[16]Mr Justice Lightman found that this formula was sufficient to exclude the defendant from relying upon an alleged contractual warranty (contract) that it would be released from its obligation under a tied house agreement. for He found that it constituted an agreement that the full contractual terms to which the parties agreed to bind themselves were to be found in the agreement and nowhere else and that what might otherwise constitute a side agreement or collateral warranty should be void of legal effect. He stated that this could be the only purpose of the provision.[17]In Springwell Navigation Corps v J P Morgan Chase Bank [2010] EWCA Civ 1221 (approved in AXA Sun Life Services PLC v Campbell Martin Limited and others [2011] EWCA Civ 133), it was decided that an entire agreement clause in a signed written agreement is effective in accordance with its terms.[18]In the AXA case, cited above, the Court of Appeal found that an entire agreement clause worded as follows “This Agreement and the Schedules and documents referred to herein constitute the entire agreement and understanding between you and us in relation to the subject matter thereof. Without prejudice to any variation as provided in clause 1.1, this Agreement shall supersede any prior promises, agreements, representations, undertakings or implications whether made orally or in writing between you and us relating to the subject matter of this Agreement but this will not affect any obligations in any such prior agreement which are expressed to continue after termination.” was effective too exclude collateral warranties or contracts.
Findings of Fact
[19]Mr Xue was employed from 1 June 2022 to 7 February 2024 with a salary of £130,000 per annum. The company had been set up in March 2022 to develop an ‘App’ which would “help people tell the stories of their lives”. The claimant had had a role developing the artificial intelligence aspect of the ‘App’, which was (even at the time of the hearing) still in research and development. The company was therefore not trading.[20]I accept the evidence from the respondent that the claimant’s contract of employment did not include any express entitlement to shares or options. Indeed, Mr Murray had expressly told the claimant that this could not be the case and that he had received legal advice to this effect.[21]I also acknowledge that the contract of employment includes what is identified as an “entire agreement and former service agreement(s)” clause, at clause 23 [52]. It states, in so far as it is relevant, that “This Agreement together with any documents referred to in it constitutes the entire agreement and understanding between the parties and the Employee agrees that they have not been induced to enter into the Employment by and has not relied upon any Pre-Contractual Statement and explicitly stated that pre-contractual discussions were not binding.”.[22]The claimant was, at the time he was approached by Mr Murray, working for JP Morgan Chase Bank as a data scientist-senior associate. His terms and conditions were that he was paid £100,000 basic salary and a bonus of £20,000 in January 2022 and any subsequent January he remained in their employment [112]. He had received one such bonus by the time he resigned from this employment.[23]I found that the claimant was, at the time, susceptible to alternative offers of employment, as he was looking for a new challenge. It is clear that the claimant held some interest in shares at JP Morgan i.e. he held stock interest which were valued at in the region of $21,000. I find that the claimant was eager to explore similar share interests with the respondent.[24]The first indication of an approach by the respondent in terms of the evidence is at [113]. This was on 22 February 2022. Mr Murray stated “If you are still keen to join us, then I would like to define the basics of a draft employment contract. Please have a think about what you are potentially looking for in terms of remuneration and contract. In broad terms, I am happy to offer you a position which would include the following: - £100K base salary 2% company ownership options The startup standard these days is around 1% for the first 10 employees but I feel like this is low given what we are trying to achieve.”.[25]The claimant responded on 25 February 2022 [113]. “….The 2% ownership options is very generous, thank you very much for it. But I do want to ask for higher base salary based on multiple factors…..My current base salary is 100k but it’s written in my contract that i will receive no less than 20k bonus each Jan, and JPMC did give me 20k this year. They also give 6% pension contribution and extra 6% if i make 6% contribution myself. By switching job i’m also to throw away the RSU that i am to receive this October, it was valued at 15k last time i checked. I’m sure you’ve done some survey yourself on deep learning positions. But most of my friends/former colleagues in deep learning are receiving no less than 100k base salary, one of them is working in start up chip company and his former base salary was above 100k. It’s just a fact that in this industry there is a big variation in salaries. I don’t know your plans on other details in the contract such as pension contributions, health insurance etc. If it’s similar to mimecast benefits, then i would like to ask for 130k base salary. But if there’re plans on higher pension contributions etc, i’m happy to accept something less. I know what i’m asking is quite some difference to what you mentioned, but like what i said to simon when i joined mimecast: i’ll prove my value otherwise you are not bound to keep me….”.[26]It is apparent to me that the pre-contractual negotiations were not solely about share interests. It also concerned with salary. I find that the claimant asked for an increase of basic salary upon the initial offer, which Mr Murray raised to £130,000 [116]. I note that this was significantly more than the basic salary he had received at JP Morgan. I also find that the parties tended to use a variety of labels for the proposed share interest. This includes the phrase “ownership options” amongst others. The difficulty is that these terms are vague. In early correspondence, the parties are not specific as to whether the offer was for share ownership (i.e. out right and immediate equity ownership) or share options (an interest which may vest at a later date according to the terms of any scheme).[27]Mr Murray sent a draft copy of the employment contract attached to a email dated 16 March 2022, in which he stated “It's a first draft from our lawyers so there might be some things that aren't spot on but I didn't spot anything obvious. Once you're happy or if any amendments have been made, then we can agree and sign.” [118]. The claimant responded “Thanks Neil, I've had a brief look at it. All looks fine, my surname is Xue and my first name is bin bin, I think it should be put as Bin Bin Xue rather than Xue Bin Bin. By the way, i didn't see any mention of the ownership option in the contract. Are we perhaps having some misunderstanding over that during our conversation or will that be put elsewhere? Let me know, thanks.” [118].[28]Mr Murray responds on 21 March 2022 [121] in which he states: “OK, so I had a fairly long chat with my lawyers and they have recommended that I do not place a shareholding percentage into the contract. They say that this is not done as an employment contract component but rather as a share options solution. The problem with this is that the share options plan has to be approved by HMRC and we are quite a way away from that point. I have asked them for some other wording on how we can include some guarantees in the contract and I'm waiting to hear back from them. I really want to wrap this up before the end of this week, but I wanted you both to know that it's underway.”.[29]This appears to be a reference by Mr Murray more specifically to a consideration of share options rather than outright ownership. The claimant responds as to his preparedness to sign the agreement on the same day, [121]: “Thanks for the update, in terms of the contract I have no question for it and I'm happy to sign it (electronically?). In terms of the ownership percentage option, this is the first time I join a start up so I don't have much knowledge over it. I have no doubt you will sort it out for me. I understand it takes time to set everything up, if it means this need to be signed later in a separate document I'm totally OK with it. Initially I thought it will be written into the contract, since the lawyer advised this should not go into the contract, does it change the nature of the ownership percentage option as in which form of options will be given to me? This is all new to me, it would be great if there's more information on it for me to learn. Anyway, no rush from my end. Thanks for the effort to come up with the contract. Looking forward to hearing from you.”.[30]The first thing to note here is that the claimant is happy to sign the employment contract notwithstanding that terms of his acquisition of any share interest are very much up in the air. There is express consent to matters being dealt by way of some other agreement. There is limited indication from the claimant that one is dependent on the other. Further, the claimant makes reference to an ownership percentage option, which is a different phrase again used by the parties to describe what is anticipated in relation to company shares. As I have said, it is confusing and lacking in clear intent at this stage.[31]However, on 28 March 2022 Mr Murray messages the claimant to say [122]: “I've completed all of the discussion I need to about the employment contract and share ownership. The summary is that I can't place company ownership in the contract, so you'll have to take my word for it. Here is what I propose: - My investment company will invest the sum of £1,000,000.00 in the company within the next month. Once that is done, I will then have a shareholders agreement drawn up and you will receive 2% ownership in the share cap table. This means that the shares are worth £20,000.00 (post investment). I need to do it this way because all existing shareholders (myself and Jenni as founders) must dilute to accommodate the investment and I want to ensure that you don't immediately dilute your holding when my investment company puts in the capital. I realise that it's hard to take this on faith, but you know who I am and I'm pretty sure my track record of keeping my commitments has been well documented by employees at Mimecast. If you agree, then please sign this contract so that we can move ahead and start to build something incredible. Once I have your signature I'll countersign and send the final version back to you for your records. After that, you will start employment on 1st June 2022 as discussed.”[32]In my view, this email is constitutes a clear promise by Mr Murray to transfer a ownership of a 2& shareholding in the company. It is much more specific in its wording than previous communications. Mr Murray expressly draws upon what he perceives as his personal reputation as someone of integrity In business. He is openly inviting the claimant to accept his word and to sign the employment contract on that basis. It is as clear an inducement as one might hope to see in my view. He is inviting the claimant to take him on faith. Mr Murray is offering share ownership, to take effect immediately after the investment of £1,000,000 “within the next month”. He even advances a valuation of the shares.[33]Mr Murray told me in his evidence that discussions about equity were informal and contingent on legal and board approval. There is no mention of the need for any approval in this email. It was my impression of Mr Murray that he was in change of these matters i.e. it was his business. II do not accept that in practical terms there was more needed than his approval of the transfer of shares.[34]Mr Murray also explained that the intention was always to offer options via a company share option plan (CSOP), not direct equity. It was his recollection that there was an acknowledgement of 2% ownership of shares, but that this was to be in the form of options and not guarantees. He said the entire agreement in the clause nullified any prior negotiations. It was Mr Murray’s view that the claimant had accepted a high salary and had accordingly agreed to a contract which excluded equity.[35]When asked in cross-examination specifically about the email at [122] in he accepted that it did not refer to “options” but that the subsequent correspondence did so. I did not follow this email. There was no subsequent relevant correspondence so fat as I could see. In my judgment, the agreement was to be found in the email of 28 March 2022. I accept that this email needs to be looked at in the context of what preceded it, and I have attempted to do that. However, I take the view that the 28 March email Is critical and clear in its terms. Mr Murray also suggested that the language in this email had been “imprecise”. I do not agree. He may now regret what he said in the email, but that it s different matter. He said that the granting of share equity had to be based on success and not failure. He had been conscious that an employee could leave after one day. It is my judgment that Mr Murray’s evidence is heavily tainted by the breakdown in their relationship in 2023/24. However, I am satisfied that in 2022, Mr Murray badly wanted to employ the claimant, and take advantage of his perceived expertise. He was therefore prepared to offer share ownership, especially when the claimant appeared to prevaricate about signing the employment contract.[36]In general, I found Mr Murray to be at times evasive and inconsistent. I do not accept that Mr Murray meant to offer share options in the 28 March email. The language is clear in that it offers the claimant 2% ownership in the company post the investment. Mention of the “share cap table” and of the risk of diluting share holdings is wholly inconsistent with his suggestion to me that this was about share options. So too is the reference to a value of the transferred share holding.[37]Mr Murray was asked about the value of the shares at the hearing. He gave rather confusing and contradictory answers in my view. At first he suggested that in February 2024, the shares would have had no value as the company had no value. He later explained that a 2% share holding would have been valued at £8,000, this being based on the company having £80,000 in its bank account. He then stated that the shares would have been valued at £1,600. It was not clear how he came to this final conclusion. In my view, the terms of the email at [122] clearly constituted an offer of outright ownership of equity.[38]The claimant responded to the email on the same day [123] in the following terms: “Thanks for the update, as I said I have no doubt you will sort it out sooner or later. I'm 100% confident to take your word for it and get the ownership signed later even if it takes couple of months. I cannot speak for Tom for this though. Anyway, I'll review the contract again and sign it.”. In other words, the claimant was taking Mr Murray’s word that he would received a transfer of share ownership in the company.[39]The claimant’s contract of employment is in the bundle at page 34, and is dated 28 March 2022. As far as I am aware, the parties concluded the agreement on that day, 28 March 2022. I have not been referred to a signed version of the contract. I accept there is nothing in the contract about shares.[40]In her evidence, Ms Henderson went onto explain that she had overseen Mr Xue’s employment and communications regarding employee benefits and the Company Share Option Plan. The company had begun to develop a formal share scheme (CSOP) during 2022–2023, which was legally adopted in 2024. In other words, it is suggested that there were plans to create a share ownership scheme in March 2022.[41]There are no documents in the bundle which evidence this process until the CSOP document itself at [55]. If there was a dialogue going on between the respondent and its legal advisors as to the transfer of share options to the claimant, or other staff, in March 2022, then the respondent has chosen not to rely upon it. Ms Henderson stated that she had had discussions with the claimant and other staff about the creation of CSOP. She clarified that these had been verbal discussions and that there was no email evidence of them. I do not accept this evidence. I infer from the lack of evidence on this point from the respondent that such documentation does not exist, or that it does not support the respondent’s case. It is the claimant’s case that he remained of the understanding that he would receive equity, and not share options, until he was dismissed. I accept his evidence on this point.[42]What I do know is that on 17 August 2023, Ms Henderson sent a general email [127] to employees (including Mr Xue) informing them that shares would be allocated to them. It stated: “Dear all, Congratulations! You all now have your promised shares in our company! It will take a little bit of time to get the official documentation over to you all as the legalities take a little bit of time, so bear with me. I'll keep you all updated.”.[43]The claimant relies on this email. He asserts that it is consistent with his case that he had been offered share equity in March 2022. If true, it would also suggest that several other members of staff had been made the subject of a similar offer. When asked about it, Ms Henderson stated that the email was “forward looking” but also that it was “premature”. She had clarified that legal documentation would follow, and that no share documentation had ever issued to the claimant.[44]Ms Henderson went on to make the point that Mr Xue followed up on 23 November 2023 [128], asking if the documents had been sent. He stated : “Hello Jen: just double checking about the shares in case I missed the legal documents (my posts went missing sometimes). You said the shares have been assigned, have you already sent out the legal documents by any chance or are you still working on them? My local post office is quite unstable and I have no idea where some of my documents have gone, so I thought I should drop a quick line here to double check. Let me know, thanks.”.[45]Ms Henderson argued that this email indicated that the claimant knew shares had not yet been legally executed. She stated that she had been waiting for lawyers to create the CSOP and to provide her with the necessary documents. She described her email in August 2023 as “silly” and admitted that there as much to be done at that stage[46]It is my view that, at least in broad terms, the email from Ms Henderson is consistent with the claimant’s case. I am afraid I do not accept Ms Henderson’s explanation for her email. She seemed to me to be an intelligent and professional person. In other words, not prone to telling several staff that they all now had their “promised shares” [my emphasis] in the company. What promise? When was it made? It makes no reference to share options but to shares. On balance, at least in the claimant’s case, I found that this was a reference to the email at [122] and the promise therein. I note that the respondent has not called evidence from the other employees named in this email, what their reaction to it was, or whether they received share interests. I was told by Ms Henderson that another member of staff, Natalie Massoni, had left the respondent in February 2024, and she had not received share interests either. I do not make findings about this in the absence of further evidence.[47]Ms Henderson set out that the claimant’s employment was terminated on 7 February 2024 [129]. It seems that the situation between Mr Murray and the claimant had soured. It has not been possible for me to make reliable findings as to the causes of this deterioration in their relationship. Mr Xue was placed on gardening leave. The termination letter noted that any shares (if allocated) would be subject to the respondent’s share allocation policy which includes provision for buy back and lapse on exit. Ms Henderson added that she stated that she was not legally trained.[48]The claim was lodged with the Employment Tribunal on 10 March 2024. Decision and Reasons[49]The first thing for me to decide is whether the intention of the parties in relation to shares in the company can be ascertained. A pre−contractual statement will only be treated as having contractual effect if the evidence shows that parties intended this to be the case. Intention is a question of fact to be decided by looking at the totality of the evidence.[50]The test is the ordinary objective test for the formation of a contract: what is relevant is not the subjective thought of one party but what a reasonable outside observer would infer from all the circumstances. In deciding the question of intention, one important consideration will be whether the statement is followed by further negotiations and a written contract not containing any term corresponding to the statement. In such a case, it will be harder to infer that the statement was intended to have contractual effect because the prima facie assumption will be that the written contract includes all the terms the parties wanted to be binding between them.[51]It will be apparent from my findings above that it is, in my judgment, plain that a reasonable outside observer, looking at the email of 28 March 2022, would have concluded that Mr Murray had intended to offer the claimant a transfer of share equity in the company. It was clear in its terms and as to when it would take place i.e. 2% share ownership to take effect immediately upon the £1,000,000 investment in the company. I am also satisfied that the claimant’S email demonstrated an intention to accept that offer, and that he immediately signed the contract on that understanding. This what a reasonable outside observer would have understood from the inter parties correspondence.[52]Of course, the question of what the parties intended must be looked at in the context of what followed in terms of the whole agreement clause. It is the respondent’s case that notwithstanding my findings of fact, that the effect of any collateral contract is excluded by clause 23 of the contract of employment i.e. the whole agreement clause. I am satisfied on the evidence that The claimant did not read the contract in any detail, and certainly had not read or understood the significance of clause 23. He is not a lawyer and did not seek legal advice before signing the agreement. Perhaps this was imprudent in the circumstances, but that is an observation made with the benefit of hindsight. Of course, the underlying message of the email of 28 March was that Mr Murray could be trusted to keep his word.[53]Of course, as a matter of law, matters are different. Once he has signed such an agreement, he is deemed to have read and understood its terms, properly construed. In this case, clause 23 is very specific in how it relates to the question of pre-contractual negotiation. It states in the clearest of terms that the claimant has “not been induced to enter into the Employment by and has not relied upon any Pre-Contractual Statement and explicitly stated that pre-contractual discussions were not binding.”.[54]In deciding the question of intention, one important consideration will be whether the statement is followed by further negotiations and a written contract not containing any term corresponding to the statement. In such a case, it will be harder to infer that the statement was intended to have contractual effect because the prima facie assumption will be that the written contract includes all the terms the parties wanted to be binding between them. This is clearly a significant factor in this case.[55]However, I first of all note that the draft contract preceded the email at [122]. In other words, the whole agreement clause comes before the offer of 2% share equity to the claimant i.e. the draft contract existed before the email of 28 March 2022. What is more, it was expressly understood that the agreement to offer shares was to fall outside of the terms of the employment contract as a result of legal advice that the respondent had received. Put another way, the terms of the email at [122] ,as I have found them, expressly conceded that the employment contract did not contain the whole of the agreement as it related to terms upon which the claimant was to join the respondent. I find that this was the clear intention of the parties, and would have been the understanding of any outside observer.[56]The said email also contained (as I have found it) an express inducement by Mr Murray i.e. sign the contract of employment on the basis that he was personally promising to give the claimant shares in about a month’s time. In other words, the whole agreement clause was inconsistent with the clear expressed intention of the parties as reflected in the 28 March email and the response by the claimant.[57]Accordingly, it is my judgment that had a reasonable observer been shown the email at [122] and also clause 23, he/she would have been likely to conclude that the whole agreement clause could not have related to those negotiations relating to the offer of share equity. To conclude otherwise, would have been to have rendered the email as having no effect. If Mr Murray had intended clause 23 to have effect over the discussions about shares, then he would be accepting that the terms of the 28 March email were disingenuous. Put another way, clause 23 did not reflect the intention of the parties in respect of the share issue.[58]In conclusion, I find that there is a collateral contract here and that clause 23 as not applying to those negotiations, and the offer/acceptance, relating to the offer of share equity. I find that the respondent was in breach of that collateral contract by not transferring 2% of the company’s share ownership to the claimant.[59]This will make it necessary to have a remedy hearing. I will issue case management orders in respect of this’s hearing shortly. Approved by: Richard Wood