Mr A L MillerClaimantWildEarth Group LtdRespondent
Before
Employment Judge M OrdIn person for claimantDate 25 November 2024
REASONS
[1]This case came before me pursuant to an Order of Employment Judge Anstis on 16 November 2023 to determine whether the Tribunal has territorial jurisdiction to determine any or all of the Claimant’s complaints.[2]The Claimant worked for the Respondent (a company registered in the UK) as a Business Development Director. His Contract of Employment indicates his start date of 1 August 2021, but the Claimant maintains that his period of continuous employment began on 1 January 2021, (originally with a company from which his employment transferred to the Respondent). His employment ended on 24 March 2023. The question of the date upon which continuous employment began will be determined at another Hearing.[3]The Claimant’s address on the contract is a UK address. It was, I was told, his brother’s address because at the time he entered into the contract the Claimant had no permanent address. He was living in South Africa and looking to purchase a property.[4]The Claimant says that at all times he was registered as a UK Resident for Tax purposes.[5]The Claimant says that from the commencement of his employment in January 2021 the Respondent, in particular Mr Wallington and / or Mr Harrison were aware that he was relocating to and would work from South Africa. Indeed, at that time Mr Wallington was relocating in exactly the opposite direction from South Africa to the United Kingdom.[6]The Claimant took me to an email dated 28 December 2020 sent to Mr Harrison which referred to the start date of 1 January 2021 and said, “Although I am moving to South Africa… it is easiest… on both sides to continue being a UK Tax Resident.”[7]Although the Respondent has said before me that it did not know the Claimant was in South Africa, the only document which it referred to was from a third party employee (not connected to the Respondent other than commercially) who asked if the Claimant was in South Africa.[8]The Claimant accepts that from a date in 2021 until his employment ended, he lived in South Africa. Evidence[9]The following points emerged from today’s evidence and are relevant:- 9.1. The Claimant was employed by a United Kingdom company; 9.2. The Claimant was taxed in the United Kingdom and at the time his unchallenged evidence was that he was, for Tax purposes, resident in the UK and taxed as such; 9.3. The Claimant is an Italian citizen (although the relevance of that point is limited); 9.4. The Claimant’s Contract states that the Claimant’s normal place of work is “any location that does not restrict his ability to execute his responsibilities”; 9.5. The Contract is subject to the Laws of England; 9.6. Throughout the Claimant’s employment he was taxed under the United Kingdom Tax / PAYE system and his pay and deductions were made in pounds sterling, although the Contract states that his salary would be paid in US Dollars; 9.7. The Respondent seeks to rely upon the fact that on its own evidence, 95% of the Respondent’s content (wildlife safari filming) is created in South Africa, but the Claimant’s unchallenged evidence was that he was not engaged in Content Production and his Business Development role was entirely separate from the process of Content Creation, and 9.8. The claimant, in an email of December 2020 advised the respondent that he was moving to South Africa but would continue to be resident in the UK for tax purposes.[10]I have been referred by the Respondent to a First Instance decision of Employment Judge Gumbiti-Zimuto in the Reading Employment Tribunal (Case Number: 3305823/2021) which found on the facts of that case – applying the well known provisions of the case of Serco v Lawson [2006] UK HL3 - that the Employment Tribunal had Territorial Jurisdiction to consider a complaint of unfair dismissal from a UK Citizen who worked for a UK company in Indonesia, but who did not pay tax in either the UK or Indonesia under a contract which was subject to the jurisdiction of the Courts of England and Wales.[11]I reminded myself of the findings and principles laid down in Serco v Lawson.[12]I have heard evidence from both the Claimant and Mr Crawford-Brunt, Director of the Respondent company and on behalf of the Respondent Mr Dlamini made closing submissions. The Claimant also made submissions in writing which I received part way through the Hearing.[13]I have reached the following conclusions. Conclusions and The Law[14]The Employment Tribunal has jurisdiction to hear the case. This is a simple and straight forward matter as the Respondent is a company based in England and Wales, having its Registered Office in Dorset.[15]Under Rule 8(2) of the Employment Tribunal Rules of Procedure 2013, (following Regulation 1215/2012 of the European Parliament and Council) a complaint may be made to the Employment Tribunal in England and Wales if the Respondent resides or carries on business in the UK.[16]For this purpose “resides” is the equivalent of “domiciled” within the EU Regulations which includes a company having its statutory seat (i.e. its Registered Office) in England and Wales.[17]The more difficult question is whether the Tribunal has territorial jurisdiction and in particular whether under the Employment Rights Act 1996 the Tribunal’s territorial jurisdiction extends to the instant case.[18]The starting point is that the Employment Rights Act 1996 applies to employment in Great Britain. However, there are circumstances where it may cover working abroad. The question is whether the connection with Great Britain and British employment law is sufficiently strong to enable it to be said that Parliament would have regarded it as appropriate for the Employment Tribunal to deal with the Claim.[19]Where an employee works and lives wholly abroad the question is whether their employment relationship has a much stronger connection with Great Britain and British employment law than with any other system of law.[20]Where a person is posted abroad by a British employer for the purposes of a business carried on in Britain, the Tribunal would have jurisdiction to deal with the case of that person. On balance (although ultimately it does not matter) I find that the Claimant does fall into that category. He was, prior to joining the Respondent or the predecessor employer, living in the United Kingdom and later moved to South Africa. The Respondent and the predecessor company were United Kingdom companies and the predecessor company was related to the Respondent.[21]The Claimant, in any event, comes within the jurisdiction of the Employment Tribunal as there is a strong connection with Britain and British employment law. The employee was engaged on terms and conditions which show that English law and their terms were those which govern the arrangements.[22]The Claimant was entitled to work from any location. He chose, for family reasons, to work from South Africa. He was, on the face of the contract, entitled to do so and prior to any engagement on which he relies had made the Respondent aware of his intentions by his email of 28 December 2020.[23]The Claimant was registered for tax in the United Kingdom. He has a National Insurance number in the UK and his salary was paid to him in pounds sterling after deductions of PAYE Income Tax and National Insurance. I understand that the Respondent has applied for and obtained a refund of National Insurance contributions. I do not know how this was achieved, nothing has been provided to me in that regard. If the refund included those deductions made for employee’s National Insurance contributions then ultimately these should be refunded to the Claimant.[24]The law of England is the relevant law in the Contract. That is relevant but not determinative. Here this was a contract negotiated by the Claimant and I am not told that the Contract was in any standard form for the Respondent. On the basis that this was a tailored Contract which specifically refers to the Law of England, then that is fact which I weigh in the balance.[25]The Claimant therefore was employed by a United Kingdom company to work wheresoever he chose. He was taxed by the UK PAYE system, had a UK National Insurance Number and worked under a Contract with English law as the applicable law. There is no mention of any relevant or appropriate court to which disputes should be referred.[26]The Claimant, prior to 2021, on his evidence before me, lived in the United Kingdom.[27]Although the Respondent made much of the Claimant’s work location, and (although this is for another Hearing) that the Claimant’s Contract should be voided because of an alleged misrepresentation, there was nothing put before me to indicate that any and if so, which, jurisdiction should be preferred to that of the Courts of England and Wales. Other than the Claimant’s working location (and he was entitled to work anywhere) there was no connection with South African jurisdictions.[28]I am satisfied that the contractual terms as recorded above and the facts of the matter as set out above, are sufficient to establish a close connection with the jurisdiction of England and Wales and I have not been directed to any other jurisdiction with a closer connection.[29]I am therefore content that the Tribunal has jurisdiction to entertain and determine the Claimant’s complaints. 13 February 2024[1]This was the hearing of a claim for unfair dismissal presented to the Tribunal on 12 June 2024. Early conciliation via ACAS began on 5 April 2023 and a certificate was issued on 17 May 2023. The Respondent filed a response defending the claim on 28 July 2023.[2]The Claimant was employed by the Respondent as a Business Development Director. That employment was terminated with immediate effect on 24 March 2023. The employment start date was a topic of factual dispute, being 1 January 2021 on the Claimant’s case and 1 August 2021 on the Respondent’s case; my findings on that point are set out below. Procedural history[3]The hearing took place in a hybrid format, with the Claimant and the Respondent’s witness, Mr Crawford-Brunt, attending the Tribunal in person. Mr Dlamini, the Respondent’s lawyer, attended remotely by CVP from South Africa, the relevant permissions having been granted prior to the final hearing.[4]In terms of previous hearings, there was a preliminary hearing to determine jurisdiction on 8 February 2024 heard by Employment Judge Ord. The list of issues contained in his subsequent Case Management Order was agreed at this hearing by parties as accurately reflecting the disputes requiring determination. Employment Judge Ord also made findings of fact and conclusions on the law at that hearing, some of which were relevant to the issues to be determined today, as outlined below.[5]There had also been various applications made primarily by the Claimant in respect of disclosure and subsequently by the Respondent over the months since the claim was issued. The Claimant had also made a Subject Access Request. These matters had generated lengthy correspondence over time between parties and the Tribunal, with orders being made for disclosure in respect of both parties.[6]The case had been originally listed for a three day final hearing but that date was vacated on 7 October 2024 by the Tribunal due to the Respondent’s witness being unable to attend for family reasons.[7]The Claimant has made a preparation time order application dated 1 October 2024, and subsequently updated, regarding time he says has been incurred in securing the Respondent's compliance with Orders made on 16 November 2023, 8 February 2024 and 16 August 2024, as well as preparation for the adjourned final hearing. That application fell to be determined at this hearing.[8]A core bundle was provided to the Tribunal totalling 492 pages. There were two supplementary bundles, of 27 pages and 23 pages. The latter was provided last week by the Respondent. The Claimant provided a chronology and no objection was taken to that document being admitted.[9]I heard sworn oral evidence from the Claimant and from Mr Crawford-Brunt on behalf of the Respondent. The oral evidence was tested in cross-examination by Mr Dlamini and by the Claimant.[10]Parties agreed during the hearing that only liability would be dealt with in evidence, given that the listing had been reduced to two days, with remedy to be dealt with at a further hearing, if necessary. The Respondent said it was not pursuing any Polkey or contributory fault arguments.[11]By the conclusion of the evidence late into the afternoon of the second day, we had completed all evidence and oral submissions but had insufficient time for deliberations followed by oral judgment. It was therefore agreed with parties that judgment would be reserved. It had also been agreed prior that only liability would be explored in evidence, due to the listing time, with remedy to be heard at another hearing if necessary. The Respondent said it was not pursuing any Polkey or contributory fault arguments.[12]Parties agreed a date of 5 February 2026 for a remedy hearing, in the event that the claim succeeded; the Claimant’s preparation time order application will also be determined at the remedy hearing. The Respondent then indicated it was likely to make a costs application against the Claimant if it were successful, which we agreed would be considered at the remedy hearing also.
The issues
[13]The issues falling to be determined were as follows: i. Was the Contract of Employment between the Claimant and the Respondent void as a result of misrepresentation by the Claimant? ii. If the Claimant’s Contract was not void, was he unfairly dismissed? In particular: a) What was the start date of his employment? b) What was the reason for the Claimant’s dismissal? c) Was that a potentially fair reason within sections 98(1) and (2) of the Employment Rights Act 1996 (ERA)? d) If so, did the Respondent act reasonably in dismissing the Claimant for that reason, within the meaning of s.98(4) of the Employment Rights Act 1996? e) If the dismissal was procedurally unfair, what was the prospect of the Claimant being dismissed under a fair procedure? f) Was the Claimant guilty of conduct permitting the summary termination of his Contract of Employment? g) If not, to what sum is the Claimant entitled for unpaid notice pay? h) At the time the Claimant was dismissed, was the Claimant due wages or bonuses which were unpaid and if so, in what sum? i) At the time of dismissal was the Claimant entitled to payment for accrued but untaken holiday and if so, in what amount? j) If the Claimant was unfairly dismissed, to what compensation is he entitled? The relevant law Unfair Dismissal
The relevant law
[14]The issues follow the legal framework that I am bound as a Tribunal to follow for claims of unfair dismissal.[15]The right not to be unfairly dismissed is set out in section 94 of the Employment Rights Act 1996 (ERA). The tribunal must consider whether the Respondent is able to establish a fair reason for dismissal, as defined by section 98. “Section 94(1) An employee has the right not to be unfairly dismissed by his employer...” “Section 98 (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it— (a)relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b)relates to the conduct of the employee, (c)is that the employee was redundant, or (d)is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.”[16]It is for the employer to show the reason for dismissal and that it is a potentially fair one, such as conduct: this is ordinarily not a high threshold for a Respondent. In Gilham and Ors v Kent County Council (No2) 1985 ICR 233, the Court of Appeal held as follows: “The hurdle over which the employer has to jump at this stage of an inquiry into an unfair dismissal complaint is designed to deter employers from dismissing employees for some trivial or unworthy reason. If he does so, the dismissal is deemed unfair without the need to look further into its merits. But if on the face of it the reason could justify the dismissal, then it passes as a substantial reason, and the inquiry moves on to [s98(4)] and the question of reasonableness.”[17]If the requirements of section 98(1) are fulfilled by the employer, the tribunal must consider then whether the dismissal was fair or unfair in accordance with section 98(4): “(4). Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a)depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b)shall be determined in accordance with equity and the substantial merits of the case.”[18]When considering fairness, the tribunal must consider all the circumstances of the individual case, having regard to the factual situation, and to the ‘size and administrative resources’ of the employer. This last point recognises that an employer of three people is not expected to follow the same procedures as an employer of 30 or 300 employees.[19]In conduct cases, the focus is on the process by which the employer came to dismiss the employee, rather than the truth or not of the allegations themselves at the time. This means legally it is possible for a person to be fairly dismissed for something they didn’t do, and unfairly dismissed for something they did do.[20]The first task of the tribunal is to decide the reason for dismissal, namely the factual events in the mind of the manager making the decision to dismiss. That person, it was agreed, was Mr Crawford-Brunt.[21]The tribunal must then, in light of that finding, decide whether a fair procedure has been followed. Following the case of Polkey v AE Dayton Services Ltd [1988] ICR 142, it is well established that fairness in procedure is a vital part of the test for reasonableness under s.98(4) ERA. A fair procedure does not require all possible steps to have been taken but should include compliance with the Respondent’s own procedure and with the ACAS Code of Practice on Disciplinary and Grievance Procedures 2015.[22]Where the tribunal finds that misconduct is the reason, it should have regard to the guidance in a case called British Homes Stores v Burchell [1978] IRLR 379. It should ask whether the Respondent genuinely believed that the Claimant had committed the misconduct; and whether it did so on reasonable evidence, after a reasonable enquiry has taken place.[23]If there is a failure to adopt a fair procedure, whether by the ACAS Code’s standards, or the employer’s own internal standards, this will render a dismissal procedurally unfair.[24]Regarding dismissal for conduct issues, the reasonableness of the procedure rests fairly heavily on the reasonableness of the investigation, and the provision of opportunity for the employee to make his position, explanation and mitigation heard and understood.[25]At the final stage, the tribunal must consider whether dismissal was within the range of reasonable responses. A tribunal may find that a dismissal was harsh, but nevertheless within the range of responses.[26]At all stages, the tribunal must take care not to substitute its own view for that of the employer, ie I should not perform my own analysis of what I would have done if placed in the shoes of Mr Crawford-Brunt, Iceland Frozen Foods Ltd v Jones [1982] IRLR 439, Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23, London Ambulance Service NHS Trust v Small [2009] IRLR 563.[27]Applying the “range of reasonable responses” approach, requires the tribunal to understand that where judgment is to be exercised, there is often more than one right answer.[28]Finally, if the tribunal finds the dismissal to be unfair, it may consider whether the Claimant has in any respect brought dismissal on himself, or whether his conduct before dismissal was such that a reduction in an award is fair. Wrongful dismissal/breach of contract[29]This claim requires the tribunal to perform a different exercise when compared to the test under s98 ERA. Here, the question is, as a matter of fact, was there a breach of contract in that the employer failed to pay the employee their contractual notice pay?[30]This requires a tribunal to consider first whether the employee acted in a way so as to fundamentally breach their contract to enable the employer to summarily terminate the employment contract.[31]Unlike under a claim for unfair dismissal, regarding a wrongful dismissal claim, it is for the tribunal to make findings of fact as to the nature and extent of the employee’s conduct. The reasonableness of actions by the employer is irrelevant.[32]Therefore, a wrongful dismissal is not necessarily unfair, and an unfair dismissal is not necessarily wrongful, Enable Care and Home Support Ltd v Pearson EAT 0366/09. Unlawful deduction of wages[33]S27(1) Employment Rights Act 1996 defines wages as: “Any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise”.[34]The Claimant’s claim relates to his salary, which falls squarely within this section, and is not an excluded payment under s27(2) Employment Rights Act 1996.[35]S13(3) Employment Rights Act 1996 provides as follows: “Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.”[36]The question of what is properly payable generally requires the Tribunal to determine what payment the worker is entitled to receive by way of wages. This is an issue to be decided in line with the approach of the civil courts in contractual actions, Greg May (Carpet Fitters and Contractors) Ltd v Dring 1990 ICR 188, EAT.[37]In other words, the Tribunal must decide, on ordinary contractual and common law principles, the total amount of wages that was properly payable to the worker at the relevant time.[38]In determining the terms of the contract in question, it is necessary to take into account all the relevant terms of the contract, including implied terms – Camden Primary Care Trust v Atchoe 2007 EWCA Civ 714, CA. General approach[39]In this case, as in others, evidence touched on points about which I make no decision. That is not an oversight or an omission on my part; it reflects the reality that not everything that was brought up in this case was relevant to my decision-making.[40]In hearing and deciding this case, I should pay proper regard to my obligation to place the parties, so far as I can, on equal footing. That is always more difficult in a case where only one side has legal representation. I was mindful of that whilst conducting this hearing.[41]In approaching the witness evidence, I kept in mind the guidance in Gestmin SGPS -v- Credit Suisse (UK) Ltd [2013] EWHC 3560 which acknowledges the fallibility of the human memory. I make clear that where I prefer one account over another, I make no value judgement about a person’s wider character or integrity. Witnesses[42]In terms of the witness evidence, in general, I found the Claimant to be straightforward, consistent and honest; he referred to evidence which he had produced in the bundle to support most aspects of his claim and his case remained consistent during cross-examination.[43]I found the Respondent’s witness, Mr Crawford-Brunt, to be straightforward on issues that were not in contention, for example, the financial difficulties of the Respondent company and his role in overcoming them. However, in responding to the disputed issues in the case, I found him to be evasive. He referred to the legal action he intended to take against the Claimant in South Africa during his evidence at a number of points. He would often not answer questions directly but would refer back to his own broader interpretation of the case, which was rarely backed by supporting evidence. Indeed, the Respondent produced minimal evidence in this case, in comparison with the Claimant, believing they “did not need to” and that “the contract spoke for itself”.
Factual background
[44]As mentioned, Employment Judge Ord made a number of findings of fact and legal conclusions, based on hearing oral evidence from the Claimant and from Mr Crawford-Brunt on 8 February 2024. There was no appeal or reconsideration sought in respect of these findings, nor was there any suggestion by the Respondent that they were inaccurate. From the Claimant, there was said to be a single error which he corrected in writing shortly after the hearing regarding whether there had been a transfer of his employment between two different companies or within the same company under a different name (the latter being his case).[45]The following extracts from Employment Judge Ord’s Reasons I have found relevant: i. Para 9.1: “The Claimant was employed by a United Kingdom company; ii. Para 9.2. The Claimant was taxed in the United Kingdom and at the time his unchallenged evidence was that he was, for Tax purposes, resident in the UK and taxed as such; iii. Para 9.6: Throughout the Claimant’s employment he was taxed under the United Kingdom Tax / PAYE system and his pay and deductions were made in pounds sterling, although the Contract states that his salary would be paid in US Dollars; iv. Para 22: The Claimant was entitled to work from any location. He chose, for family reasons, to work from South Africa. He was, on the face of the contract, entitled to do so and prior to any engagement on which he relies had made the Respondent aware of his intentions by his email of 28 December 2020. v. Para 23: The Claimant was registered for tax in the United Kingdom. He has a National Insurance number in the UK and his salary was paid to him in pounds sterling after deductions of PAYE Income Tax and National Insurance. I understand that the Respondent has applied for and obtained a refund of National Insurance contributions. I do not know how this was achieved, nothing has been provided to me in that regard. If the refund included those deductions made for employee’s National Insurance contributions then ultimately these should be refunded to the Claimant. vi. Para 24: The law of England is the relevant law in the Contract. That is relevant but not determinative. Here this was a contract negotiated by the Claimant and I am not told that the Contract was in any standard form for the Respondent. On the basis that this was a tailored Contract which specifically refers to the Law of England, then that is fact which I weigh in the balance. vii. Para 25: The Claimant therefore was employed by a United Kingdom company to work wheresoever he chose. He was taxed by the UK PAYE system, had a UK National Insurance Number and worked under a Contract with English law as the applicable law. viii. Para 27: Although the Respondent made much of the Claimant’s work location, and (although this is for another Hearing) that the Claimant’s Contract should be voided because of an alleged misrepresentation, there was nothing put before me to indicate that any and if so, which, jurisdiction should be preferred to that of the Courts of England and Wales. Other than the Claimant’s working location (and he was entitled to work anywhere) there was no connection with South African jurisdictions. ix. Para 9.7: The Respondent seeks to rely upon the fact that on its own evidence, 95% of the Respondent’s content (wildlife safari filming) is created in South Africa, but the Claimant’s unchallenged evidence was that he was not engaged in Content Production and his Business Development role was entirely separate from the process of Content Creation. x. Para 9.8: The Claimant, in an email of December 2020 advised the Respondent that he was moving to South Africa but would continue to be resident in the UK for tax purposes.”[46]Returning to the factual background regarding this hearing, the Claimant is an Italian national with indefinite leave to remain in the UK. He has a National Insurance number and pays tax in the UK.[47]It was common ground that the Claimant worked in a self-employed consultancy capacity for at least six months before commencing full-time employment with the Respondent, first contact being made between parties on 3 February 2020, when the Claimant sent a LinkedIn message to then CEO and founder, Graham Wallington.[48]Mr Crawford-Brunt is now the current CEO and Director of WildEarth Group, the Respondent company. The company is a wildlife broadcasting company which specialises in livestreaming wildlife and nature safaris to online viewers, currently said to be around 7-8 million per month on 20 platforms globally.[49]Mr Crawford Brunt replaced Mr Wallington as CEO following his resignation on 6 January 2023 and began to take over duties on a phased, incremental basis up until the Claimant’s dismissal.[50]Mr Wallington was the person who entered negotiations with the Claimant about becoming a full-time employee with the Respondent.[51]It was common ground that the Respondent was in financial difficulties at the time Mr Crawford-Brunt took over as Director and became an investor. Much of his role was “sorting out house” and trying to remedy the company’s financial difficulties upon his arrival. This included implementing salary cuts among senior staff and limiting costs elsewhere to reduce spending. Contract start date – 1 January 2021 or 1 August 2021?[52]The first key factual dispute between parties is whether continuous employment began on 1 January 2021, as the Claimant claims, or on 1 August 2021, as the Respondent claims.[53]Much time was spent on this topic by parties because if the Respondent is right, it means the Claimant had not served the requisite two year period to bring an unfair dismissal claim.[54]The Respondent’s case was that the written employment contract between parties itself cites the start of employment as 1 August 2021, not 1 January 2021; the contract was signed on 17 August 2021. They say 1 August 2021 accordingly reflects the true start date. The Respondent clarified its case today was that the Claimant was continuing to work as a self-employed consultant, as per the previous arrangement, up until 1 August 2021.[55]Mr Crawford-Brunt accepts that he was not privy to negotiations at the time of entering the contract itself and could not directly speak to the issue of what was in the mind of the Respondent as it entered the contract.[56]The Claimant’s case was that the date is an error, because it does not reflect the reality of the agreement reached between parties prior to 1 August 2021. Nor does it reflect parties’ intentions, as he was in fact working and being paid as a full-time, salaried employee from 1 January 2021. The later date arises from the Respondent changing its name from WildEarth Group to Escape to Nature, the name of its UK holding company, and other issues, such as the Respondent’s EIS/SEIS applications, which meant the contract could not be formally signed until the August date; it was nonetheless intended he would start as a full-time employee from 1 January 2021.[57]The evidence he relies for his position includes: i. Email titled ‘Offer response’ dated 17 September 2021 from the Claimant to then CEO, Mr Wallington, where the Claimant is discussing and negotiating terms of his employment contract. It says: ‘I wanted to thank you again for your offer and opportunity to be a part of the WildEarth team….it has been a pleasure collaborating with you during these months’. ii. The same emails sets out the negotiated arrangement so far as: “3 months consultancy 1 October to 31 December at 20,000 to be paid upon completion of three months; Full time Employment – 8000/month starting January 2021 subject to WE [WildEarth] finances… open for discussion and once again, excited to be part of the team”; iii. An offer letter sent attached to an email dated 8 October 2020 titled “Andrew Miller employment at WildEarth offer,” from Graham Wallington says: “Please find attached our offer of employment to you. Thank you very much for all your effort so far. All of us at WE are super excited at the prospect of you joining the team on a full-time basis in the new year.” iv. The offer letter itself, dated 8 October 2020, explicitly says: “WildEarth hereby offers Andrew Miller the position of business development director of the WildEarth channel with full time employment by our UK-based holding company from the 1st of January 2021 and a consulting arrangement prior to that.” v. The same letter goes on to say: “From the 1st of January 2021 Andrew Miller is to be employed full time in WildEarth as a business development director focused on maximising the carriage of and revenue generation from the WildEarth channel. The total monthly remuneration [package] paid to Andrew will be $8,000 [gross, i.e. before any statutory deductions]. This is a senior management role and therefore Andrew will manage his own work hours, location and holidays.” vi. A draft contract was sent to the Claimant via Google Docs with an invitation to edit on 12 December 2020; vii. An email from Ian Harrison, the Respondent’s employee, to the Claimant dated 12 December 2020 then discusses the draft contract, noting that it is based primarily on UK employment law, and says: “I am looking into one or two things still so there may be a change from our side still but I think it is almost 100% done.” viii. On 28 December 2020, the Claimant then chased Ian Harrison about finalising the contract, noting its commencement in January 2021. He chases again on 12 January 2021 saying: “It would be great to get this officially signed off within the week”. ix. On 12 January 2021, Mr Wallington then responds, cc-ing in Ian Harrison, saying: “Is this agreement in E2N [Escape to Nature]? if so this agreement cannot be signed until the EIS/SEIS applications are in etc. @Ian Harrison please can you explain this to Andrew but say that WE will treat this agreement as signed but it can only be signed along with other employment contracts.” x. The Claimant also points to the renumeration section in his employment contract dated 1 August 2021 mentioning “January 1, 2022” and “January 1, 2023” as the annual salary commencement date.[58]Bearing all this in mind, it is clear to me that the intention of the parties was that the start date of the employment contract would be 1 January 2021. The reason for the delay in signing the contract, and thus the later date of 1 August 2021 being entered, is for various reasons on the Respondent’s side, including a name change and EIS/SEIS applications. The intention, however, was to begin the contract notwithstanding these delays. That is clear from the email of Mr Wallington whereby he explicitly says, “WE will treat this agreement as signed.”[59]The Respondent argued that these emails could not be relied on to evidence the intention of parties and had little evidential value; the date in the contract supersedes any such communications and stands as the true intention of parties. However, intention is to be inferred from all surrounding documents and circumstances at the formation of the contract. The Respondent’s interpretation directly contradicts the correspondence at the time which expressly deals with the delay in signing. Nowhere was it suggested by the Respondent that because of these delays, the Claimant could not begin fulltime employment as planned.[60]The Respondent, for the first time in oral evidence, raised the fact of ‘WildEarth Media’ being included in the footnote of the headed paper, which they said meant that WildEarth was not the entity entering into the contract, rather it was WildEarth Media, a company later dissolved. This is despite no other communications mentioning WildEarth Media or suggesting that WildEarth Media would be the legal party to the contract. For these reasons, I do not accept that reading of the communications.[61]In my view, there was a clear and unambiguous intention for the Claimant’s employment to begin on 1 January 2021, which is further evidenced by the Claimant working and receiving a salary as stipulated in that contract throughout January to July 2021. It is clear that was not on a consultancy basis as the communications directly refer to the period his consultancy covered, which was to end in January 2021.[62]The Respondent sought for the bare inclusion of the date of the contract to effectively trump the evidence of the intention of the parties expressed through their communications. This was not legally or factually sustainable. Did the Claimant fraudulently misrepresent to the Respondent that he was living and working in the UK?[63]Regarding location for work, the employment contract states at Clause 18/19: Place of Work: The Employee’s primary place of work will be at the following location: 1. the employee may work from any location that does not restrict his ability to execute his responsibilities.[64]It says at Clause 20/21: Time of work: the Employee’s normal hours of work, including breaks, are as follows: 9am to 5pm, however the role is a senior management position and the employee is expected to be available at all times to meet the business needs of the Employer and work sufficient hours to deliver KPI’s.[65]The misrepresentation by the Claimant is said to be that he was resident in the UK when in fact he was living in South Africa throughout the course of his employment. The Respondent points to the fact that a UK address: 10 St Stephen’s Gardens, London, is written in the employment contract. They say the respondent therefore relied on this, and took this to mean, that the Claimant was actually living and working in England; they did not understand this could or did mean being a tax resident in England.[66]Mr Crawford-Brunt gave evidence that the construction of the terms of the contract clearly mean that the Claimant was expected to be actually resident in the UK and that it would not be permissible to live and work primarily from South Africa as he did.[67]It was the Respondent’s pleaded case on its ET3 that the Claimant: Failed to disclose his move to South Africa to the company which he should have done, enabling us to comply with local rules and laws.[68]In its amended response, the Respondent further writes: The Claimant was not tax resident in the UK. There is no evidence supporting this assertion. All that the Claimant did was to mislead the Respondent that he was residing in London when he was not resident in London. It is on this version that the contract of employment was concluded. In fact, the Claimant warranted that he was legally allowed to work in the Country of England – which warranty was not only false, but also misleading. In any event, clause 99 of the employment contract excludes any representations falling outside the express provisions of the employment contract… It was a condition of the employment that the Claimant was not only to be resident in the UK, but also allowed to work in the country of England.[69]In his witness statement, Mr Crawford-Brunt writes: In the circumstances, given the role of the Claimant in a senior management position, it would have been impossible for the Respondent to allow – let alone employ – the Claimant had the Respondent been aware that the Claimant never resided, nor had the intention of residing in England.[70]It was further contended that the Respondent was: Labouring under the understanding and belief that the Claimant sometimes visited his family [in South Africa]– albeit intermittently.[71]In evidence, and seemingly in his second witness statement’, Mr CrawfordBrunt conceded that the Respondent’s staff knew about the Claimant’s relocation to South Africa. This was after being taken to various emails and communications which show the Claimant explicitly telling the Respondent’s staff of his intention to relocate to South Africa, including: i. To Mr Wallington in February 2020; ii. To Ian Harrison by email on 28 December 2020, which states: “I am moving to SA [South Africa], I have decided that it is easiest on both sides to continue being a UK tax resident for at least the first 6 to 12 months until everything is more settled. I will give you at least 30 days notice if and when that were to change.” iii. A letter dated 23 March 2022 from the Respondent to the Claimant titled, “Pension Scheme Contributions”, which cites the Claimant’s address as being “Durban, South Africa”. iv. A Whatsapp message from the Claimant to Mr Crawford-Brunt dated 26 July 2022 which suggests his primary base is South Africa: “I’m away now visiting family but back in SA on Monday”.[72]A fraudulent misrepresentation is a knowingly false assertion intended to mislead another and make them agree to a contract because of that misrepresentation; it is a misrepresentation where the representor, ie the Claimant, knows the statement is false.[73]It was entirely clear from the documents outlined above that the Claimant expressly and unambiguously told the Respondent of his intention both to relocate to South Africa at the commencement of his employment and that he would be a tax resident in the UK. This reflects the reality of what happened; he lived and worked in South Africa and was a tax resident in the UK.[74]The Respondent relied primarily on the contract itself which contains the Claimant’s brother’s address. Again, as with the contract start date, this position required me to discount the surrounding evidence containing the parties’ intention when looking at this fact ie the correspondence. This approach raises the question of who, then, represents the mind of the Respondent at the point of entering the contract in August, if not the same staff with whom the Claimant had been communicating with about his contract throughout.[75]At no time had the Claimant told the Respondent he would be living and working in England. Nor was there any supporting evidence to suggest that was what the Respondent in fact expected.[76]The only evidence aside from the contract that the Respondent relied on in support of its position was an email between the Claimant and Loren Baxter dated 23 January 2023, in which Ms Baxter enquires whether the Claimant is based in South Africa, and the Claimant replies: “It is hot and steamy South Africa at this moment in time but do go back to Europe from time to time.”[77]This communication, however, is consistent with a person residing and working primarily from South Africa and travelling at times to England. Indeed, it suggests that South Africa is the base but that the Claimant travels to Europe from time to time, as was his case in oral evidence, as he was a tax resident in the UK.[78]Mr Crawford-Brunt conceded there were no performance issues raised in the two year period of work prior to the Claimant’s dismissal. This undermines Mr Crawford Brunt’s position that performance of the Claimant’s role would be “impossible” if living in South Africa.[79]Indeed, when telling the Respondent of his intentions regarding his work location and plans to be tax resident in the UK, there was no pushback or problem identified in response; rather the Claimant had a welcome lunch with other senior staff in Johannesburg, including Mr Wallington, the day after his contract began.[80]Mr Crawford-Brunt also acknowledged that, in any event, there were no physical offices in the UK from which any member of the Respondent’s staff worked. This makes the suggestion that, as a matter of construction, the Claimant was obviously expected to work in and from England difficult to sustain.[81]The Respondent points to the seniority of the Claimant’s role itself as evidence that the contract would permit only residence in England. However, this is unconvincing as the offer letter from Mr Wallington suggests that it is precisely the seniority of the role that warrants the degree of flexibility afforded to the Claimant in choosing his location.[82]The ordinary reading of the wording in the contract is that a clear discretion was given to the Claimant to work from any location providing it did not interfere with his ability to carry out his responsibilities. That caveat cannot be said to impliedly include a term that he must live and work in the UK.[83]I find that as the contract says, “any location”, the Respondent would have had to include an express term requiring the Claimant to physically reside in and work from the UK, if that indeed was the expectation. It cannot be imputed from the contract itself, especially in light of the surrounding correspondence.[84]Furthermore, it is an agreed fact that unlike other members of staff, the Claimant’s work could be carried out entirely remotely, without the need for a physical location.[85]In terms of the contract’s requirement to “warrant” that the Claimant “is legally allowed to work in the country of England”, that evidence was provided to the Respondent at the time by way of the Claimant’s UK visa, which grants him settled status under the EU Settlement Scheme and permits him to legally work in England. Mr Crawford-Brunt could not suggest in oral evidence what other kind of evidence would satisfy the requirement of Clause 10. He nonetheless did not accept the Claimant had complied with it.[86]The Respondent throughout proceedings accused the Claimant of saying he was resident in England to avoid paying tax in South Africa. The Claimant denied this, saying it would have been easy for him to work from South Africa if so required by the Respondent, he would have just needed a sponsorship letter from Mr Wallington.[87]If the Claimant’s status caused the Respondent tax difficulties or financial implications, at no time did they say this to the Claimant or raise it as an issue with him before entering the contract; throughout his employment; or prior to his dismissal. Indeed, Mr Harrison specifically examined the relevant labour law when the Claimant told him his position and found no issue. In the absence of any clear wrongdoing, the onus was on the Respondent, not the Claimant, as Mr Crawford-Brunt suggests, to ensure their interests and position were protected.[88]For all of these reasons, I find there was no fraudulent misrepresentation made by the Claimant to say that he was living and working in England, when in fact he was based in South Africa. He was open and transparent about his position and intentions with the Respondent throughout. Salary reductions[89]The Claimant’s contractual salary was $8,800 per month from January to December 2022.[90]In March 2022 it was reduced to $5,650. This was agreed to by the Claimant in discussions with Mr Wallington on the understanding it would be temporary for the period up to and including August 2022 because of the Respondent’s financial difficulties at the time.[91]That is confirmed in an email dated 27 June 2022 to Willem Kleynhans, cc’ing in Mr Wallington and Will Fox, all members of the Respondent’s team: “I have agreed with Graham to take a 30% cut to 5000 pounds till August 2021. In September, my salary returns to the previously agreed amount.”[92]In September 2022, the Claimant’s salary was not reinstated but increased slightly to £6,000 per month and the Claimant was referred to as an executive for the first time. He objected to this on 22 September 2022.[93]In December 2022 his salary was increased to £6,200 to include some of the hire costs of his co-working space, as authorised by Mr Crawford-Brunt.[94]In January 2023, his salary was meant to increase to $9,680 but he received £6,200 for January up until February 2023.[95]By email dated 17 January 2023, the Claimant wrote to Mr Crawford-Brunt to express his dissatisfaction that his salary had not been reinstated as previously agreed.[96]Mr Crawford-Brunt’s email response, dated 18 January 2023, says: “As agreed today we will sit with you in mid-March (post fund raise) to agree an improved salary plus options.”[97]It was common ground between parties that the Claimant’s salary had been reduced, the dispute was whether this was on a temporary basis or on a continuing and consensual basis. The Respondent’s case was that the Claimant agreed to the reductions, as other senior colleagues did, knowing the financial climate at the time made them a necessity. At September 2022, the company was running a deficit/spend rate of over £200,000 per month.[98]The correspondence about this matter shows that the Claimant sought reimbursement for the salary reductions from September 2022 onwards, when they became due.[99]An email from Mr Wallington dated 21 September 2022 says: “I know that we had agreed that your salary from WEG would return to $8,800/month from September 2022 [this month], but unfortunately WildEarth has not developed the revenue [or anywhere close to the revenue] we had expected by this time….” “I have spent some considerable time speaking to Andre and Kim about this and they have agreed to increase your gross salary from GBP5,000 to GBP6,000 per month.”[100]Mr Wallington goes on to apologise for not being able to honour the agreement outlined above and mentions a desire to get to point where the company can pay the Claimant his full salary.[101]The Claimant replies in an email on 22 September 2022 saying the contents of the email is “upsetting” and that further discussions need to be had; it includes: “I know my value and If I am to agree on any temporary cut then I need to understand what role you foresee in me at WildEarth now, a year from now, five years from now.”[102]The Respondent accepts that any deduction in wages needs to be authorised in writing and relies on this email as its evidence of written authorisation.[103]However, I find that this email dated 22 September 202 was not written authorisation for the deductions; rather it indicates that further discussions were required before any ongoing reduction could be agreed to by the Claimant. It is not, on its face, an agreement in writing to the reductions suggested by the Respondent, though I accept that the Claimant did not resign immediately as a result of this email. His wife was pregnant at the time and he references the need for security.[104]An undated Whatsapp message between Emily Wallington, partner of Graham Wallington, and the Claimant suggests that some senior colleagues did agree to the ongoing salary reductions and that they had to sign a new contract to authorise that, as required by their original contract. There was no such document in respect of the Claimant and the Respondent refused to disclose any ‘new’ contracts, saying they did not exist.[105]I therefore find that as a matter of fact the Claimant did not agree to salary deductions beyond August 2022, up until the time of his dismissal. Dismissal[106]From September 2022 onwards, discussions continued with the Claimant about how to increase his salary in line with the agreement reached with Mr Wallington.[107]Mr Crawford-Brunt said for the first time in oral evidence that in February 2021, he became aware of potential visa issues self-disclosed by the Claimant in a telephone call between them both. This was not mentioned in his witness statements. Mr Crawford-Brunt’s case was that he then undertook some investigations. Also not mentioned in his witness statements. I find from his evidence that these appeared to be his own private investigations into the matter with a view to finding grounds on which to dismiss the Claimant. This is consistent with the fact that Mr Crawford Brunt mentioned nothing of his concerns to the Claimant prior to the date of dismissal, despite negotiations taking place regarding a new employment agreement two days prior to dismissal. Further, no supporting evidence of that investigation has been provided by the Respondent, notwithstanding the burden of proof being with them to establish the reason for dismissal. Mr Crawford-Brunt also said in evidence that they were under no obligation to involve the Claimant in any investigation.[108]There is an email in the bundle dated 13 March 2023 from Rachelle Reyneke, Department of Home Affairs in South Africa, to say that the Immigration Act 2002 in South Africa does not require a foreign national to be in possession of a work visa to perform work remotely for a foreign company.[109]An email dated 15 March 2023 was sent to Mr Crawford-Brunt in which the Claimant mentions a phone call between them and writes: The purpose of the call was to finally ‘agree improved salary plus options’ as written in your email shown below of January 18th. The meeting was held because of the unilateral and unapproved changes in my employment agreement implemented in April 2022. Unresolved matters include: 1. Unpaid salary of approximately $30k from April 2022 to current 2. Re-instatement of contractually agreed salary 3. Confirmation of achieved KPI’s and certificates of new share 4. New KPI’s[110]On 15 March 2023, Mr Crawford-Brunt then responds essentially refusing the request to reinstate the Claimant’s salary, and notes he is sorry the Claimant “appears to be aggrieved” towards him.[111]A further email titled, “Clarifying Status of Employment Agreement,” was sent by the Claimant to Mr Crawford-Brunt on 16 March 2023 in which he references the remaining reductions in salary as an, “obvious ongoing breach of an agreement,” and references agreeing an exit plan. This was seemingly not responded to.[112]I find that Mr Crawford-Brunt did not want to increase the Claimant’s salary in any way; rather he wanted to secure a reduction in the salary, in line with other colleagues, and with his objective to reduce the outgoings of the company. He is likely to have been frustrated by the Claimant’s ongoing pressure to increase his salary.[113]I find that when it became clear that the Claimant was not going to consent to this and was going to continue to push for his salary to be reinstated, Mr Crawford-Brunt began looking for grounds to dismiss the Claimant.[114]On 22 March 2023, emails were exchanged between the Claimant and Kim Hullet, an investor and employee of the Respondent tasked with a Human Resources function; despite the turnover of the company, there seemingly was no designated human resources department or team. The emails cc-in Mr Crawford-Brunt, which suggests discussions were underway about reaching a new employment agreement as mentioned above. Ms Hullet asks, among other things, if the Claimant would change his employment status from employed to a consultant to save the company paying National Insurance contributions on his behalf.[115]On 24 March 2023 at 9.11am, the Claimant wrote to Ms Hulett, cc-ing in Mr Crawford-Brunt, saying that he would be taking a few days of accrued unclaimed annual leave to assist his wife in hospital. In oral evidence he said he had referred in another meeting to the fact that his five month old son was critically ill at the time, having ongoing respiratory issues and having developed pneumonia.[116]Mr Crawford-Brunt initially denied knowing that the Claimant’s son was in hospital. When taken to Whatsapp communications between himself and the Claimant, he conceded he knew but, “did not think it was serious.”[117]At 10am the same day, Mr Crawford-Brunt telephoned the Claimant and gave him four weeks notice of termination of his employment. Mr CrawfordBrunt accepted that the Claimant’s account of that phone call in his witness statement was accurate; he told the Claimant he needed to provide a letter confirming he had a right to work in South Africa and said he would, “go after” the Claimant if he did anything to compromise the Respondent. I find that Mr Crawford-Brunt was verbally aggressive to the Claimant in this phone call and threatened him with legal action.[118]The phone call was followed up by an email from Mr Crawford-Brunt the same day at 14.39pm, terminating the employment contract with immediate effect. It also requested proof from the Claimant that he had a South African work permit by 27 March 2023, (which was the Claimant’s pay day).[119]For the first time in oral evidence, Mr Crawford-Brunt suggested that he had discussions with human resources about dismissing the Claimant following the telephone conversation with him in February 2023. The Respondent has provided no evidence of any such communication with human resources. Mr Crawford-Brunt’s evidence was vague on this point. He said he spoke to human resources involved with other companies he works with. There was no paper trail of any kind provided and he said all conversations were verbal, not in writing. Again, nothing of this was mentioned in his witness statements.[120]Ultimately, Mr Crawford-Brunt in evidence said he received advice from his lawyer, Mr Dlamini to dismiss the Claimant on 24 March 2023 which is what he did. He added that he stands by that decision, as he wanted to protect the company by acting quickly. Discussion Reason for dismissal
Discussion
[121]The first question the Tribunal must answer is what the reason was for the dismissal, namely the factual events in the mind of the person making the decision to dismiss, in this case, Mr Crawford-Brunt.[122]I have had careful regard to the chronology of events when determining the reason for the Claimant’s dismissal. In reaching my conclusions I also acknowledge that whilst the burden is on the Respondent to show the reason for dismissal, it is ordinarily a low hurdle to cross.[123]I find that there were significant omissions in Mr Crawford-Brunt’s witness statements, which contained very little information about the dismissal and the information before him at the time; much of the evidence arose in his oral evidence. I find that lessens the credibility of his account.[124]In light of the findings I have set out above, I find that the reason for the Claimant’s dismissal was that the Claimant refused to agree to a reduction in his salary and continued to press the Respondent to meet its earlier agreement to reinstate his salary with benefits. This is not a potentially fair reason for the purposes of s.98 of the ERA.[125]I do not accept that Mr Crawford-Brunt genuinely believed the Claimant had committed an act of fraudulent misrepresentation at the time of his dismissal, because it was common knowledge, substantially evidenced, that the Claimant lived and worked from South Africa throughout his employment and that his contract permitted him to do so.[126]There is no contemporaneous paper trail of any kind to evidence a genuine belief that misconduct had been committed; rather the emails two days before the dismissal suggest that Ms Hullet, with Mr Crawford-Brunt being cc’d in, was discussing a new employment agreement which resulted in fewer national insurance contributions for the Respondent; there was no suggestion that he had committed any wrongdoing or behaved improperly.[127]Nor was there any contemporaneous evidence produced by the Respondent to show that at the time, ie prior to the dismissal, Mr CrawfordBrunt had reasonable grounds to believe the Claimant to be illegally working in South Africa. The case advanced by the Respondent has emerged after the dismissal and still is lacking in evidence. The burden of proof lies with the Respondent to evidence its reason for dismissal.[128]Mr Crawford-Brunt refers only to oral conversations he had with Mr Dlamani, his lawyer; the basis for his belief has not been evidenced as I have said, beyond including a copy of the Immigration Act 2002.[129]Whilst it was not a matter for the Tribunal to finally determine the actual illegality or not of the Claimant’s work status for the purposes of unfair dismissal, the evidence produced by the Claimant suggests there was no legal restriction on his ability to work remotely for a foreign company. The Respondent relied on the Immigration Act 2002 to show the Claimant could not have been working legally on a Relative’s Visa but the Claimant’s letter shows someone in his circumstances, ie working remotely for a foreign company, would not be required to have a visa of any kind. The only challenge to the Claimant’s letter in this respect was that it was titled, ‘To Whom It May Concern,’ and not addressed to the Claimant specifically.[130]In any event, the Respondent’s case rests on its assertion that the Claimant fraudulently misrepresented his position to the Respondent, a position which I have found to be untenable.[131]Therefore, I do not accept Mr Crawford-Brunt had a genuine belief that the Claimant had committed misconduct sufficient to justify summary dismissal. Procedural fairness[132]Even if I were wrong about that, and Mr Crawford-Brunt genuinely believed either that the Claimant had committed fraudulent misrepresentation or that by putting a UK address on his contract, the Claimant was illegally working for the Respondent, the Respondent must reach that conclusion on reasonable evidence after a reasonable investigation.[133]I consider that no reasonable investigation took place prior to the Claimant’s summary dismissal, nor was any kind of disciplinary process followed, because: a) At no point was the Claimant informed of any of the Respondent’s concerns related to his work location and/or misconduct prior to the phone call dismissing him; b) There is no evidence of an objective internal investigation taking place; c) The Claimant was not invited to attend any form of disciplinary hearing; d) The Claimant was not given a reasonable opportunity to respond to any allegations or concerns the Respondent had, having not been informed of them; e) The Claimant was told he had three days to produce proof of his South African work permit after he was terminated with immediate effect by the same email. f) The Respondent terminated the Claimant whilst he was on leave to assist his ill child in hospital; no reasonable employer would have taken this moment to terminate the Claimant in the manner it did in the telephone conversation of 24 March 2023; g) It appears Mr Crawford-Brunt was the same person carrying out any investigation, if indeed there was one, and the dismissal, with no other person from the Respondent being invited to review, or participate in, the decision-making. h) There was no opportunity afforded to the Claimant to appeal against the decision to terminate. i) There was no evidence of any consideration being given to alternative, less severe options other than summary dismissal. j) There is no suggestion that the Respondent’s actions were in line with its own disciplinary procedures, about which the Tribunal heard nothing.[134]In light of the extensive evidence to show that the Claimant did not fraudulently misrepresent his work location to the Respondent, and in the absence of any other evidence before Mr Crawford-Brunt at the time, I find there was no reasonable evidence to conclude that the Claimant had committed misconduct at the relevant time.[135]I consider that no reasonable investigation took place and no ACAS Code compliant disciplinary process was followed. The dismissal was carried out quickly and decisively by Mr Crawford-Brunt, with little, if any, consideration of fairness being given to the Claimant. I have considered the size and administrative resources of the Respondent in making this assessment; it had a considerable turnover and spent £200,000 per month, yet there appears to have been no designated Human Resources team or formal Human Resources advice sought.[136]In reaching this overall conclusion, I have been mindful not to substitute my view for that of the Respondent’s and have considered the band of reasonable responses. The Respondent’s failure to follow the ACAS Code and the findings I have made in respect of the fraudulent misrepresentation allegation, satisfy me that the reason for dismissal was not a fair reason for the purposes of s.98(1),and even if it had been, there was no fair procedure. Wrongful dismissal/breach of contract[137]Given my findings in respect of fraudulent misrepresentation, I find that the Claimant was not guilty of conduct permitting the summary termination of his Contract of Employment. The Respondent mentioned the employment contract giving permission to terminate the contract summarily if there is ‘Just cause’, effectively mirroring the misconduct provisions in UK law. Indeed, the contract was subject to UK law at all times.[138]As outlined above, the Claimant was transparent to the Respondent regarding his work location. If Mr Crawford-Brunt later learned that his arrangement was costing the company unnecessary money, it was the responsibility of the Respondent to identify and seek to renegotiate, as it appears to have done on 22 March 2023. It was a flawed approach to accuse the Claimant retrospectively of deliberately misrepresenting, and indeed inducing, the Respondent to enter the contract, when the Claimant had previously disclosed his circumstances.[139]I do not accept that the evidence provided by the Respondent, namely the Immigration Act 2002, is sufficient proof that the Claimant was illegally working. The letter from the Department of Home Affairs provided by the Claimant in response suggests that someone in his position would not require a visa. In addition, based on my findings regarding fraudulent representation and my rejection of the Respondent’s case, I have found the Claimant’s account to be more credible on this point.[140]For these reasons, I find there was no breach of contract by the Claimant and he should not have been summarily dismissed without notice. The notice pay owing is four weeks pay which is 4 x £1784.84, totalling £7,139.37. Unlawful deduction of wages[141]In light of the findings I have made above, I find that the Respondent did make unlawful deductions from the Claimant’s wages from September 2022 until dismissal. There was no written authorisation obtained from the Claimant to continue the salary cuts in the way the Respondent did. Based on the as yet unchallenged appendix produced by the Claimant, the amount owing from these salary deductions during this period appears to be $21,044 (not including interest), though as remedy has not yet been determined, I make no final determination on the figure owed.[142]The precise amount, and extent, of these deductions, including consideration of other benefits and income such as KPIs, will be further considered at the remedy hearing. Holiday pay[143]It seems that the Respondent disputes this aspect of the claim only on the basis that the Claimant was guilty of misconduct/fraudulent misrepresentation and therefore it was not liable to pay him anything. Five days of accrued leave were permitted to be carried over from previous leave years and the Claimant therefore seeks 4 days leave, totalling £1,427.88.[144]It seems this amount is therefore owing, though as with the unlawful deductions, the precise amount of holiday pay owed will be explored at the remedy hearing, if the calculation is disputed. Polkey/Contributory fault[145]Mr Dlamini said that the Respondent was not running arguments of Polkey/Contributory fault and so those matters were not considered in oral evidence. The Tribunal has a duty in any event to consider whether there has been any contributory conduct on the part of the Claimant and for the reasons outlined above regarding the Claimant’s conduct and my findings in respect of fraudulent misrepresentation, I do not find that there was any blameworthy conduct on the Claimant’s part capable of justifying a reduction for contributory fault.
Conclusion
[146]In conclusion, I have found that the reason for dismissal was not a fair one for the purposes of section 98(1) and (2); even if I had found it to be a fair reason, the dismissal was procedurally unfair, because no disciplinary process appears to have been followed, other than to call the Claimant on the day of dismissal terminating his contract with immediate effect; no prior mention of any concern was made to the Claimant, and no opportunity given to him to adequately respond to the concerns raised, or the decision to terminate, before dismissal. There was no breach of contract by the Claimant to justify summary dismissal and the failure to pay notice pay. Unlawful deductions were made from September 2022 onwards as there was no agreement in writing to authorise this deduction. Remedy will be determined at a hearing on 5 February 2025 listed for 1 day. REMEDY JUDGMENT The judgment of the Tribunal is as follows: Unfair Dismissal
Conclusion
[1]The complaint of unfair dismissal is well-founded. The Claimant was unfairly dismissed.[2]The respondent unreasonably failed to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures 2015 and it is just and equitable to increase the compensatory award payable to the claimant by 20% in accordance with s 207A Trade Union & Labour Relations (Consolidation) Act 1992.[3]The respondent shall pay the claimant the following sums:(a) A basic award of £1,427.50(b) A compensatory award of £56,453.20 net.[4]The total “grossed up” combined figure of the basic and compensatory award owing to the claimant is £64,850.86, see table below. Note that these are actual the sums payable to the claimant after any deductions or uplifts have been applied. The compensatory award is calculated as follows: Loss of future Over an 8 month period (£7,917.27 x 8) = earnings £63,338.16 (gross)) = £43,776 net Less mitigation £43,776 - £7,234.92 (3 months x earnings £2,411.64/$3000 USD) = £36,541.08 Loss of pension £54.81 x 4 weeks = £219.24 benefits New business £5,524.09 expenses Loss of statutory £500 rights Total £42,784.41 (net) ACAS uplift @ £8,556.89 20% HMRC refund £5,111.90 Grossing up The tax-free element of the award is £30,000. The combined total of basic and compensatory award is £57,880.69. The figure upon which tax needs to be paid is therefore £27,880.69 (57,880.69-30,000). The grossed-up compensation of £27,880.69 divided by 0.8 = £34,850.86. The total grossed up award is therefore £64,850.86 (34,850.86 +30,000) Total £64,850.86 Holiday Pay[5]The complaint in respect of holiday pay is well-founded. The respondent made an unauthorised deduction from the claimant's wages by failing to pay the claimant for holidays accrued but not taken on the date the claimant’s employment ended.[6]The respondent shall pay the claimant £1,461.64 (4 days accrued leave from 2023 x £365.41). The claimant is responsible for paying any tax or National Insurance. Unauthorised deductions from wages[7]The complaint of unauthorised deductions from wages is well-founded. The Respondent made an unauthorised deduction from the Claimant's wages in the period from September 2022 to March 2023.[8]The respondent shall pay the claimant £20,526.37, which is the gross sum deducted. The claimant is responsible for the payment of any tax or National Insurance. Notice pay[9]The complaint of breach of contract in relation to notice pay is well-founded.[10]The respondent shall pay the claimant £7,308.24 (4 x £1827.06 weekly pay) as damages for breach of contract. This figure has been calculated using gross pay to reflect the likelihood that the claimant will have to pay tax on it as Post Employment Notice Pay. Preparation Time Order[11]A Preparation Time Order is made in favour of the claimant for 24 hours of preparation time. The hourly rate is set by Rule 77 of the Employment Tribunal Procedural Rules 2024 at £44. The total amount owing is therefore £1,056 (24 x 44). Grand total: Unfair dismissal £64,850.86 Holiday pay £1,461.64 Unauthorised deductions from £20,526.37 wages Notice pay £7,308.24 PTO £1,056 Total £95,203.11 Approved by: