Employment Judge L BrownMr Rozycki (instructed by Counsel) for claimantDate 11 October 2024
JUDGMENT
The judgment of the Tribunal is as follows: Unfair Dismissal[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 25 % in accordance with s 207A Trade Union & Labour Relations (Consolidation) Act 1992.[3]It is just and equitable to reduce the basic award payable to the claimant by 10% because of the claimant’s conduct before the dismissal.[1]The respondent shall pay the claimant the following sums:(a) A basic award of £5395.95. Case Number: 3311675/2022(b) A compensatory award of £93,878.00. Note that these are actual the sums payable to the claimant after any deductions or uplifts have been applied.[2]The Employment Protection (Recoupment of Benefits) Regulations 1996 apply:a. The total monetary award (i.e. the compensatory award plus basic award) payable to the claimant for unfair dismissal is £99,273.95b. The prescribed element is £6473.98.c. The period of the prescribed element is from 24 August 2022 to the 11 October 2024.d. The difference between (a) and (b) is £92,799.97. Non-compliance with ACAS Code[3]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 25% in accordance with s 207A Trade Union & Labour Relations (Consolidation) Act 1992. JUDGMENT having been sent to the parties on the 14 October 2024 and reasons having been requested in accordance with Rule 62(3) of the Rules of Procedure 2013, the following reasons are provided:
REASONS
[1]Due to repeated postponement applications by the Respondent, the details of which were set out in my written reasons for my case management order sent to the parties on the 31 July 2024 and which I do not repeat here, significant time was lost during the first hearing, and it went part-heard on the dates set out above.[2]As set out in my written reasons Mr Turpin recused himself part-way through the hearing, and as a result Mr Alculumbre took over representation of the Respondent during the last two days of the first hearing. In the relisted part heard liability hearing Mr Ocloo from Mr Peninsula was by then representing the Respondent once again.[3]Shortly after the hearing recommenced I was forwarded an email during the hearing by the administration centre sent by Mr Alculumbre dated the 18 July 2024 in which it was asserted that due to my refusal to adjourn the hearing that he suffered a heart attack on the Friday evening of the hearing concluding part-heard.[4]I drew this alarming email to the attention of Mr Ocloo and asked him whether the Respondents had any representations to make about it. He took instructions from Mr Alculumbre who was present at the reconvened hearing and then advised me that he had no representations to make to me and in particular I was not advised that the Respondents were alleging that I was biased against the Respondent. On that basis I proceeded once more with the reconvened hearing.[5]I had before me a bundle of 773 pages, together with a variety of other documents adduced by both parties throughout the hearing.[6]I had witness statements from the following witnesses: -6.1 The Claimant.6.2 Michael Alculumbre for the Respondent.6.3 Joseph Monroe for the Respondent.6.4 Annie Rickard for the Respondent.
Findings of Fact
[7]The facts of what occurred in this case are largely not in dispute. The cast list was as follows: - No. Name Job role
Findings of Fact
[1]Nigel Brabbins Former Director, Shareholder and Chief Executive Officer (the Claimant) Michael Alculumbre Company Secretary Russell Bavinton Former Shareholder[4]Richard Hargreaves Former Director and Shareholder Chris Hervey Director and Shareholder Graham Lee HR Manager Lord Jonathan Marland Shareholder Joseph Monro Majority Shareholder and Director[9]Ching Ng Company Accountant of CNG Associates[10]Derhem O’Neill Shareholder[11]Ed Pearce Director[12]Annie Rickard General & Compliance Manager[13]Andrew Scott Shareholder[14]Nicholas Shott Shareholder 8. Joseph Monroe was the largest shareholder of the Respondent and is now, following the Claimants dismissal, a board director. 9. Michael Alculumbre is the Company Secretary and is the Business and Development Technology Lead. 10. Richard Hargreaves was formerly the non-executive director until the 30 of June 2022 when he was also dismissed as a director. 11. Ching NG is the company accountant with Hentons being the company reporting accountants. 12. AEP stands for AE Pensions limited the former name of SSLP group limited the Respondent. Background 13. The Claimant was dismissed on the 7 July 2022 after starting employment on the 1 November 2015 so had 6 years’ service. He was the Former Director, Shareholder and Chief Executive Officer of the Respondent. 14. He resigned on the 28 June 2022 from his position as a board director. Richard Hargreaves was voted off the board on the 30 June 2022 and Jonathan Marland was reelected to the board and Mr Ed Pearce, Joseph Monroe’s son-in-law, was appointed a director as was Mr Chris Hervey on that date.
Background
[15]I reminded myself I must ask myself factually what was the reason for the dismissal of the Claimant and that I must consider the facts and circumstances that were taken into account and acted upon in the mind of the decision maker Mr Monroe who decided to terminate the Claimants contract of employment.[16]The Claimant says that R “failed to establish a sole or principal reason for dismissal” for dismissing the Claimant.[17]The Claimant was dismissed by way of a letter from Mr Joseph Monroe on the 7 July 2022, and Mr Monroe was by the time of dismissal a director, and was the majority shareholder of the Respondent, [P.458].[18]The letter of dismissal simply cited that the Claimant was in breach of various clauses of his service agreement and variously referred to ‘breach of fiduciary duty’, ‘breach of duty’, ‘breach of other activities during his employment’ ‘for cause’ and ‘persistent breach of Article 26 regarding information required to be provided to shareholders as set out in the Articles dated 3 June 2015.’[19]There was no detail or reasoning given at the actual time of dismissal as to how specifically the Claimant breached the various clauses of the Service Agreement dated the 1 June 2015 (‘the Service Agreement’) as cited in the dismissal letter.[20]I therefore looked further for the evidence that may have given rise to the decision to dismiss the Claimant at this time that the dismissal letter was sent by Mr Monroe and looked at the background information that led up to the decision to dismiss the Claimant. This background spanned some seven years, and it is necessary to go back to the beginning to understand the events that then transpired which lead to the Claimants dismissal.[21]The Respondent was formed in October 2014 and was originally named AE Pensions limited. It then changed its name to SSLP group limited. The trading activities were that it sold encryption software set up by Michael Alculumbre and was funded by a number of private investors, including Mr. Joseph Monro and Lord Marland.[22]Around this time G Crypt was struggling financially and the Claimant was introduced to G Crypt limited. Richard Hargreaves introduced the Claimant. The Claimant was seen as a pivotal figure in achieving an improvement in the outlook for the Respondent. The Claimant was initially employed as a consultant, but he was promoted to non-executive director and then chair [page 665 - 667 and 683-701].[23]After various restructuring attempts of G Crypt which failed and so the Claimant and Richard Hargreaves decided to purchase the assets of G Crypt and put G Crypt into administration and decided to use the Respondent company to trade with G Crypts assets, and inn effect G Crypt was now in administration was used as a springboard for a new company. In this respect I found the Claimant was one of the founding individuals of the Respondent. The board of G Crypt agreed to this plan, and it was agreed the Claimant would be CEO and that Michael Hargreaves would be the business development director. A consortium of investors was formed which included Lord Marland, Nicholas Shott and Andrew Scott.[24]In relation to G Crypt and the association between the Claimant and Mr Monroe and Mr Alculumbre at page 666 are minutes of G Crypt, on the 30 October 2014, reflecting discussions of the board at that time. Mr Alclumbre and Richard Hargreaves were both present at the meeting of G Crypt as Board Directors and the Claimant, who had been introduced by Richard Hargreaves to the company, was present also.[25]I found that following Chris Hervey tendering his resignation as Chairman and Director of G Crypt that the Claimant was identified as a replacement for him. At a further meeting of G Crypt (p.671) the Claimant was appointed as a non-executive director of G Crypt.[26]On the 13 January 2015 the Claimant attended another meeting of G Crypt at which Mr Monroe was present as the Chairman and together with Mr Alculmbre and Mr Hargreaves both of whom were directors. The Claimant was appointed at this meeting as Chairman of G Crypt.[27]An email was then sent casting doubt on the future viability of G Crypt by Mr Alculumbre (P.683) and setting out the Claimants role going forward. On the 11 March 2015 another board meeting of G Crypt was proposed with an agenda (p.688) where SSLP the Respondent was referred to by the Claimant. A further update was provided by the Claimant as CEO of G Crypt forecasting a million pounds turnover for the company.[28]There was then a meeting at the home of Lord Marland on the 14th of May 2015 - pages 703-704 of the bundle. At this point the new company was referred to as New Co. It was said the first six months were a trial. Terms were agreed and it was agreed that the Claimant and Michael Alculumbre would have founder shares at 10% each after the sixmonth initial period with a review date of the 15th of November 2015. It was said that the new structure was ’the last throw of the dice’ page 703. Lord Marland said he was not satisfied with the current board remaining on the board of Newco and he would accept the Claimant and Michael Alculumbre as executives and Richard Hargreaves as a nonexecutive director plus one appointee from’ their side,’ to ‘Protect their interests.’ [p.703] I found however that a director from the investors side was not then in fact appointed and this meant that the board was not quorate in terms of three directors.[29]The agreement reached at the meeting was then confirmed in writing by the Claimant [p.704]. In particular it said that; ’10. Board constitution of Newco – NB & MA (Executive Directors) RH (NXD) and 1 appointed from JM as NXD.’[30]However in the event Mr Alculumbre and also a director from the investors side were not then in fact appointed to the board but the Claimant and Richard Hargreaves were appointed as board directors, and this meant that the board, which now consisted of the Claimant and Richard Hargreaves, was not thereafter quorate throughout the period the Claimant was the CEO and board director as the Articles of Association required three directors for the board to be quorate.[31]On the 22 May 2015 the Claimant as Chairman of G Crypt wrote to the Shareholders (p.705) proposing that the company would have to be put into liquidation unless a solution was found. It said that the restructuring solution identified was that they would use a new company named AE Pensions limited, whose name would then be changed to SSLP Group Ltd, who would purchase most of the assets of G Crypt and would provide ‘sufficient working capital to take the business forward on a reduced cost base. This cornerstone group supports the plan put to shareholders recently and are confident that Michael and I are the right team to take the new venture forward and make it succeed.’[32]It went on to say the cornerstone investors would invest a £150,000 in ordinary shares and would underwrite a further £90,000.00. They said the directors of G Crypt would invest £160,000 on the same terms totalling £400,000.00. It said that SSLP ‘should be eligible for EIS tax relief.’ It set out that in return for the sum of £750.00 the Claimant and Mr Alculumbre would be given a 10% shareholding each in the Respondent.[33]Crucially it then said (my emphasis added) [p.706]: - GCrypt shareholders have three options to consider: - 1. To remain a shareholder in Gcrypt in which case no action is needed. Over time there is a possibility that the company will return some value. At present we cannot put a timescale on that; or 2. To crysallise a loss for EIS tax relief purposes. We shall arrange an offer to buy shares at a nominal value. 3. Invest in SSLPost on the same terms as the cornerstone investors are willing to finance this new venture. SSLPost will continue to trade with GCrypts current customers and retain its entire existing product portfolio save for the Litera and Swivel Licence agreement, but with a clean balance sheet.[34]I found that the rationale behind the restructuring proposal was to offload debts owed by G Crypt and to obtain EIS tax relief and also SEIS tax relief for the investors and shareholders in G Crypt on the losses sustained by them and that this was an incentive to encourage them to agree to the restructuring plan being proposed by the Claimant in relation to the Respondent.[35]I found that the Claimant, Richard Hargreaves, Michael Alculumbre, and the consortium of investors, at this time were all signed up to the restructuring plan and all thought that it could work, albeit that one of the shareholders in the Respondent, Lord Marland said that ‘the new structure was the last throw of the dice.’ Clearly this comment was made in view of the losses sustained by G Crypt.[36]In relation to Michael Alculumbre the fact of him not joining the Claimant on the board with Richard Hargreaves was an issue that was most important as it was this that lead the Respondent to being inquorate, and was also caused by the consortium failing to appoint someone ‘to protect their interests’ as I found was initially intended from the start.[37]In particular evidence was given by the Claimant, which I accepted, that Michael Alculumbre did not want to join the board even though he was invited to join. There was an email inviting MA to join from the Claimant on the 2 October 2017 (in the additional disclosure from the Claimant0 but this was never taken up by him. Instead of accepting the appointment to join I noted that Michael Alculumbre sent an email to the Co Accountant Mr Ching dated the 2 October 2017 [in the additional disclosure] saying;- ‘Ching Please make me Co Sec and date back appointment as far as you can I will explain when we speak next as to why. Thanks Michael.’[38]In particular the Claimant explained that if it was seen by HMRC that there was an association between the shares held by Michael Alculumbre in G Crypt and the shares held by him in the Respondent that HMRC may then disallow the tax relief Michael Alculumbre had received. In short, I found it suited Michal Alculumbre not to join the board which was why he was simply company sec instead. Overall, in this case I preferred the Claimants evidence to that of Michael Alculumbre.[39]I found that Michael Alculumbre sought to criticise the Claimant for dealing with various board matters in the same way that he had, and with a laxity towards the dates of when things occurred on documents. However it was I found then Mr Alculumbre who asked for a backdating of his application as company secretary and it was he who later sought to criticise the Claimant for producing a document regularising a loan arrangement about the purchase of shares by him later than the date when the transaction occurred. This was described as ‘fraud’ by Michael Alculumbre when he was being cross-examined whereas I found the document in question in relations to the loans, and the irregularities were in fact simply a recital of the loan arrangement albeit after the event (Page 321).[40]In particular at page 321/322 of the bundle when Mr Monroe was asked about this the following was put to him in relation to the loan in cross examination. It was said that this document emanated in 2016, but in relation to which the Respondent said the Claimant had sought to pretend that the document regularising it, was in fact created in 2016 at around the time of the loan, but was they said in fact created in 2022. In cross examination the following exchange took place: Counsel - ‘Let’s look at issues you touched on earlier backdated loan note.’ Mr Monroe: ‘Yes loan date prepared but showed the metadata that it was fabricated as it refers to 2022 in metadata’. Counsel: ‘Fair to say this isn’t some sort of fabrication simply Claimant trying to remedy the unfortunate situation with the loan?’ Mr Monroe – ‘Could say this yes.’ Counsel – ‘This would have been relevant had you conducted a disciplinary investigation … that would have been imposed on the Claimant, wouldn’t it?’ Mr Monroe - Yes.[41]I found that the note at page 322 simply set out that the loan had been approved by the board on the 20/12/16. I did not find that in producing this document on the 9 May 2022, to record the fact that this had taken place in 2016, was evidence of fraud or concealment, as suggested by the Respondent in effect.[42]I also found that the Claimants attitude and understanding of quoracy was muddled. He gave evidence that in effect Michael Alculumbre was a ‘de jure’ director and everyone understood him to be a director. I also accepted and preferred the evidence of the Claimant that Michael Alculumbre did not want to be a director and had not come forward to be appointed but in effect acted in a ‘de jure’ director manner but I also found that there is no such thing at law. Putting that to one side however I found the Claimants understanding to be muddled.[43]The Claimant’s service agreement was dated the 1st of June 2015 – p.131 - and he said it was this company that ‘later became SSLPG' – [ paragraph 12 of witness statement].[44]In the first seven years of the Claimants involvement with SSLPG it was set out by him that there was not one complaint about his leadership – [ paragraph 4 of his witness statement]. This was not in dispute and I found that up until he received the letter of dismissal in May 2022, and then later when he received his letter of dismissal on the 7 July 2022, the Claimant was not formally criticised in any way about his performance as CEO of the Respondent, save that Mr Joseph Munroe had raised concerns about his salary he was being paid, but this was clearly not a performance issue per se.[45]I found that in 2017 Joseph Monro asked to be appointed as a director on the board of SSLG. I found that in effect the Claimant refused this request. In particular he said that, on the 5 September 2017 [page 223] in an email from Mr Monroe to Mr Hargreaves asking to be appointed as a non-executive director and then [page 225] the overall thrust in reply was that the Claimant said he didn’t agree to this and it would be unwise to do so without the consortiums blessing, and this was I found tantamount to a refusal in polite terms. I found that Mr Monroe the majority shareholder resented the Claimant from this point on and that a battle for control of the company ensued which culminated in 2022.[46]A loan agreement for the loans to the Claimant and Michael Alculumbre was prepared (p.205).[47]A further funding round then took place in December 2016, and this raised £251,172 (P.206). There were various funding rounds throughout the period of time up to the Claimants dismissal.[48]On the 11 April 2017 the Claimant emailed Richard Hargreaves asking for consent for him to join Gloucestershire Counselling Service as a Trustee which was agreed with a reference provided (. P.208 – 212). I found that the Respondent had full knowledge of this appointment and consented to it that the Claimant did nothing that could be in any way described as misconduct in this regard. On the 08 May 2017 the Claimant emailed Michael Alculumbre to confirm that he had joined Gloucestershire Counselling Service as a Trustee (P.213 – 217). There was no criticism levied to the Claimant at this time in relation to this issue.[49]On the 23 September 2017 Mr Joseph Monroe emailed and asked that he be appointed as a non-executive director – P.223. As a result, the Claimant advised Mr Joseph Monroe that he was aware of the funding by the consortium who he referred to as Lord Marland, Nicholas Shott and Andrew Scott (P.225), and that from inception the consortium wanted to appoint ‘their own board member’.[50]The Claimant went on to say that he would have to approach them about his request to be appointed as a board member. At this time Mr Monroe was not appointed to the board, and I found that Mr Monroe as the largest shareholder was frustrated by this as unless he was on the board he had no say in decisions taken that determined the future of the company at board level.[51]On the 9 October 2017 the Claimant advised Mr Monroe that there was insufficient backing on the board for him to join as a director and he responded by saying ‘Comments noted. I am still the largest single shareholder. What percentage of shareholders vote do I need? I am taking advice.’ (P.233)[52]On the 28 February 2018 the Claimant sent an email about payment for the installation of an office at his home and told Mr Alculumbre that he had put the claim in with vat paid and claimed, ‘as you suggested it was actual office costs (or home) that it complied with HMRC Rules as an allowable expense.’ The Claimant also gave evidence that the system for approving expenses was that he and Richard would approve one another’s expenses each month and that the accountants then recorded them. He stated that on this occasion it was a one-off expense claim. I found that this system for approving expenses was unremarkable in such a small company and that there was nothing improper about the Claimant claiming these office costs as a business expense, and I found that they were approved expenses. (P.238).[53]I found that in 2017 – 2018 the Shareholders then approved the proposal that the Claimant and Michael Alculumbre subscribe for £27,875 of shares each via a loan from the Respondent to maintain their shareholding incentive.[54]On the 06 March 2022 Joseph Munro emailed Richard Hargreaves regarding his concerns about the Director’s performances, duties and high costs for the Respondent (P 263 – 268) and he requested the Board of Directors call a general meeting of shareholders to discuss this and other issues. Mr Hargreaves replied suggesting an initial meeting to discuss this. Mr Monroe replied stating (P.268) ‘I did not invest to support a lifestyle business for someone else.’ I found that Mr Monroe was unhappy about the salary being paid to both the Claimant and Mr Hargreaves.[55]On the 17 March 2022 the Claimant issued an update to shareholders on the current and future position of the Respondent (P.269 – 272).[56]Between 11 April 2022 to the 14 April 2022 there was then email correspondence between the Claimant, Joseph Munro and Michael Hargreaves regarding the provision of information on roles, staff salaries and forecasts then occurred(P. 276 – 278, 282, 283 – 285).[57]On the 28 April 2022 a presentation to the shareholders covering progress, performance, issues, challenges, costs and the roles and responsibilities of the senior management team was given by the Claimant (P.287 – 304).[58]Following this I found that in early May 2022 or thereabouts Joseph Munro then enlisted the support of the consortium to remove the Claimant as a Director and an employee. He gave evidence that he did not seek to influence other shareholders, but I found on this issue on the balance of probabilities that he did seek to influence other investors.[59]A variety of emails arrived from different shareholders in the same period (P308- 311, 314-316, 333-334) and in the email from Joseph Monroe on the 4 May 2022 it said that ‘I am in favour of holding an AGM to remove Nigel Brabbins as a Director and an employee.’ (P.308) This was the email at the heart of the decision to dismiss.[60]I found that at this point by the 4 May 2022 the dismissing officer Joseph Monroe took the decision to remove the Claimant from the board and dismiss the Claimant as soon as possible following a shareholder vote. I found that this reason for the dismissal, that later occurred on the 7 July 2022, two months later, remained the sole reason for his dismissal and was I found due to a battle for control between the majority shareholder Joseph Monroe and the CEO and Director the Claimant, and was due to a resentment by Joseph Monroe that having invested a lot in the Respondent he wasn’t getting value for money from the Claimant, that he felt that the Claimant was paying himself too high a salary and he was determined to put an end to that.[61]The Respondents in their Response at paragraph 59 and 60 (P.32) asserted that they dismissed him for misconduct but in the alternative for some other substantial reason. However, in their witness evidence and submissions they said the opposite and said that he was dismissed for some other substantial reason and in the alternative misconduct.[62]I found the Respondents position on why they dismissed the Claimant to be muddled and inconsistent, and the fact that the witness statements directly contradicted the Response they filed as to whether the sole or principal reason for dismissal was for misconduct or instead some other substantial reason to demonstrate, and I found, that the Respondents themselves did not know what their potentially fair reason was when they dismissed the Claimant.[63]I found the decision to dismiss was due to a resentment over his high salary by Mr Monroe for the reasons set out above. I did not find that this resentment over his salary could amount to some other substantial reason in any event as a potentially fair reason for dismissal.[64]On the 04 May 2022 Lord Marland emailed the Claimant stating that he supported Joseph Monro’s proposal to encourage the Claimant to step down - P309.[65]On the 05 May 2022 the Claimant emailed Lord Marland to confirm that his salary had been agreed at the outset and had since been reduced. P312. It was suggested that the representations he made about his salary to the investors were misleading. I did not find that they were and preferred the Claimants evidence on this issue.[66]On the 05 May 2022 Richard Hargreaves emailed the Claimant asking for a copy of the loan agreement and queried whether the loans were properly documented (P. 317 – 318). On this issue I found that whilst the loans had not been recorded correctly at companies’ house this was not deliberate on the Claimants part and was simply arose from a lack of attention to detail. I accepted his evidence that the error was unintentional and that he did not stand to gain from it. I also found that the error was then later corrected by the accountants as soon as the error came to light.[67]On the 12 May 2022 the Claimant contacted BPE solicitors, the company solicitors, for advice on the shareholding loan issue (P. 344 – 359). They gave him advice. Further emails transpired between the Claimant, Richard Hargreaves and Michael Alculumbre, and Michael Alculumbre came up with suggestions to correct the fact that the loans were not correctly recorded at companies’ house. He also dealt with the issue of looking at EIS forms sent to HMRC and said they would need to look at them (P.353). Michael Alculumbre then stated that ‘I don’t think these are loans in the normal traditional sense and calling them loans is unhelpful.’ He then on the 23 May 2022 set out a solution to this issue at page 359 of the Bundle.[68]On the same day, on the 23 May 2022, Richard Hargraves then emailed the Claimant and Mr Alculumbre saying that: ‘My cunning thought is to prepare a properly presented forward plan with a cash flow saying that we can reach cash breakeven with [£150,000.00] We can then call a rights issue of shares …we close the rights issue two days before the meeting allowing us to decide how many shares to take up before we update the share register, having subscribed for enough shares to give us the majority.’[69]By the 23 May 2022 this plan proposed by Mr Hargreaves to the Claimant was nineteen days after the email from Mr Monroe, on the 4 May 2022, to the Claimant stating that he was proposing to remove him as director and dismiss him. I found that this alleged ‘takeover plan’ cannot therefore have played any part in the decision by Mr Monroe to dismiss the Claimant, which finally executed on the 6 July 2022, though decided some two months earlier on the 4 May 2022, as set out in the pivotal email of that date. The decision to dismiss the Claimant as well as removing him from the board had taken place two weeks later prior to the email from Mr Hargreaves referred to as the ‘takeover plan.’[70]I did not find it was misconduct by the Claimant as the CEO and Director of the company to discuss with Richard Hargreaves his plan to ensure that the future of the company did not lie solely with the sub-group of investors hostile to the Claimant and Mr Hargreaves. The other investors, apart from the Claimant and Mr Hargreaves, who were not part of the ‘institutional investor’ group I refer to now as the ‘floating investors.’[71]As the Claimant pointed out in evidence, and I found, on each issue voted on by the shareholders in the future, the other sub-group of floating shareholders combined with the Claimant and Mr Hargreaves would, if the share issue went ahead, hold over 50% of the vote. As a result, on each issue the floating investors could then decide on each occasion who to vote with i.e. the Claimant and Mr Hargreaves or the remaining institutional investor group. The effect of this share issue therefore if it went ahead would be to stop the group of institutional investors hostile to the Claimant and Mr Hargreaves from controlling every decision. I found battles such as this between sub-groups of shareholders are a normal feature of corporate life and that it did not amount to a ‘takeover bid’ by the Claimant as described by the Respondent and I accepted the Claimants evidence that even if the rights issue suggested by Mr Hargreaves had gone ahead it did not amount to a takeover of the company by the Claimant.[72]The Respondents case that the Claimant somehow breached his fiduciary duty to the investor shareholders was not I found made out. I found that the fiduciary duty of the Claimant must be to the company as a whole and not just to one sub-group of shareholders i.e. the institutional investors.[73]On the 28 May 2022 further email correspondence between Joseph Munro, Richard Hargreaves and the Claimant regarding Joseph Munro’s concerns about the loans took place - P381 – 385.[74]On the 30 May 2022 Joseph Monro committed to carrying out an investigation into the Director loans, when appointed a Director of the Respondent (P.379), something I found that he subsequently did when he then appointed Mr Alculumbre to look into all matters and following which Michael Alculumbre then appointed Anni Rickard to look into specific matters at his request.[75]On the 01 June 2022 I found that there was a Board meeting held to rectify the loans issue in which shares were then corrected to their nominal value (P. 289). I found that the Claimant accepted that it was his responsibility to ensure that the shareholder register did reconcile with the company accounts (Para 37 of WS but he also said the company accountant was also at fault. I accepted his evidence that there was no attempt to deceive and no financial benefit to him and I did not find that this was intentional misconduct. I found at its highest that this was a performance issue that should have been managed through performance management processes. The Claimant pointed out Michael Hargreaves and accountants CNG didn’t notice it either at the time (page 258-261) of the bundle. He says he gives top level sign off when CNG accountants said they were ready for signing. I accepted this and found this to be the case.[76]Between the 07 – 14 June 2022 I found that the Claimant approved the resubmission of revised Forms SH01 and amended Forms CS01 from Michael Alculumbre (P398) to regularize the issue with the loans and how they were recorded at companies’ house. I found that as soon as the error was discovered the Claimant took prompt action as assisted by Mr Alculumbre.[77]On the 28 June 2022 the Claimant resigned as Director of the Respondent (P 414 – 417, 424 – 425). At this juncture I noted what was said about this. It was said that with an inquorate board the Claimant could not resign as the Service Agreement required him to resign with the consent of the board and an inquorate board could not give consent. Technically while it must be correct that an inquorate board cannot legally pass resolutions this had no bearing on the decision to dismiss the Claimant and I found the issue of inquoracy when he resigned that day played no part in the decision to dismiss, as Mr Monroe had already decided to dismiss him on the 4 May 2022. Quoracy Issue[78]In the stated written reasons for dismissal, it was said that the lack of quoracy was relevant to the decision by the Claimant to resign and that the acceptance of his resignation by the board was by, in effect, an inquorate board.[79]It was said that Article 19.1 of the Articles of Association dated 3 June 2015 (Articles) required that “the quorum for the transaction of business of the Board shall throughout the meeting be three” and that the only directors present at the board meeting on 28 June 2022 were Richard Hargreaves and the Claimant.[80]I was referred by Counsel for the Claimant to some advice by a barrister to the Respondents about this issue of quoracy, and it had been placed in the bundle with any privilege being waived by the Respondent (P.586). In any event I find that this issue did not amount to anything other than a mistake by the Claimant in relation to failing to attend to the quoracy issue and at most it could only be said he should have taken advice on the issue earlier. This was in any event I found a performance issue, and this was never addressed in any way by the Respondent, and upon it being discovered I find that any concerns about the Claimant should have been dealt with in performance management processes and not by conducting a secret investigation and then summarily dismissing him.[81]At paragraph 61 of the Claimant's witness statement he stated that the Respondents reliance on 21.1.4 of the service agreement was an attempt by the Respondent to dismiss him without notice or payment. He also pointed out that following his resignation there are still only two directors which is Joseph Monroe and his son-in-law as Chris Hervey has resigned. I don’t however make any specific findings about due to lack of evidence and only have the Claimants assertion.[82]Whether or not the Company was entitled to terminate his employment with immediate effect in accordance with clause 21.1.4 of the Claimant’s service agreement on this issue only went to the issue of wrongful dismissal which was not a claim before me. This case was never put as a gross misconduct instant dismissal as Mr Ocloo only referred to two issues relied on for dismissal which was the quoracy issue and the alleged takeover bid and this was characterized as some other substantial reason. It was said that this meant the Respondent didn’t need to follow procedures and could instantly dismiss the Claimant.[83]In any event and in the alternative, I did not find that the Claimant had committed gross misconduct in relation to the alleged ‘takeover bid,’ or in any matters relating to how he ran the company.[84]On the 30 June 202 at a shareholder meeting, it was confirmed that Richard Hargreaves was voted off the board and Joseph Munro and Chris Hervey were elected to the board (P422 – 423). On the 30 June 2022 Joseph Munro asked the Claimant and Richard Hargreaves for a copy of their contracts of employment (P426).[85]At paragraph 1 of his witness statement JM also said that: - ‘The shareholders general meeting was held on the 30 June 2022, and I was appointed a director. Following the closure of the meeting, I immediately issued instructions to Michael to examine the circumstances under which the Claimant had resigned his Directorship on 28 June 2022, to look into the background of the Rights Issue of 31 May 2022, and to examine all details of the ‘loans for shares.’[86]Ms Rickard was then asked to investigate some issues at the request of Mr Alculumbre in relation to the Claimant. In particular she said (Paragraph 3 of her witness statement) that the following was requested when she was called by Michael Alculumbre on the 1 July 2022 and was told that:- ‘Joe requested all data be identified, compiled and filed regarding the subject of board quoracy throughout the tenure of the Claimant, especially the situation regarding Board Quoracy in June 2022. In addition, I was asked to look at the May 2022 Rights Issue. He also made me aware that there were concerns about loans/shares made to the Claimant from 2015 to date. I was asked to extract what data I could find on matters.’[87]I found that no terms of reference whatsoever were issued to her in relation to the investigation into the Claimant that she then carried out and as admitted by Mr Alculumbre it was all dealt with by him on the telephone between him and Ms Rickard. I found this was very unfair on the Claimant to be the subject of a secret investigation against him and which had no terms of reference. It was not in dispute that he was not involved in any way.[88]I also found that the decision having been taken on the 4 May 2022 by Mr Joseph Monroe to remove him from the board and dismiss him as soon as he could that this investigation by Ms Rickard was simply a ‘deep dive’ into the Claimants email archive to find what they could to justify the decision already taken to dismiss him by Mr Monroe on the 4 May 2022 and there was no fair or reasonable investigation carried out in which the Claimant was involved or even aware of from when Ms Rickard was appointed to investigate him on the 1 July 2022 and when he was then dismissed, and on the 07 July 2022 only six days later, and when the Claimant received his Letter of Termination on the grounds of breach of contract and Articles of Association (P457 – 458). As set out above there was no detail whatsoever about the details of the breaches of employment he was alleged to have committed, and clauses were referred to he was said to have breached.[89]On the 12 July 2022 the Claimant wrote a letter to the Respondent denying wrongdoing and requesting the reasoning for his dismissal (P.459).[90]On the 04 August 2022 the Respondent sent to the Claimant a letter of explanation of his dismissal.[91]I turn now to this issue of the reasons set out in his letter of dismissal.[92]In particular it said that the reasons for his dismissal were: -92.1 Resignation without consent of board i.e. not quorate. However as set out above I found the decision had already been taken by Joseph Monroe on the 4 May 2022 and I found this issue of how he resigned played no part in the reason for dismissing him. In any event in the closing submissions of Mr Ocloo for Respondent this is listed as a reason discovered post dismissal but does also rely on lack of quoracy throughout pre-dismissal, when he said that post dismissal it was discovered that the Claimant was ‘Deliberately changing the board minutes of 28th June 2022 to obfuscate the inquorate board.’ This cannot have been a reason for the dismissal of the Claimant, and I find that it was not.92.2 Issues with the director’s loan/unpaid share capital on shares – Mr Ocloo for Respondent accepted that this was discovered post-dismissal in his submissions and accepted that this cannot have formed part of the reason to dismiss. Having found that on the issue of the loans this was a mistake also not picked up by the accountants, in any event I found it played no part in the decision to dismiss the Claimant. I found the issue with the incorrectly recorded loans was simply a mistake on the Claimants part and was a performance issue and was not deliberate misconduct. In relation to the alleged deliberate non-disclosure of loans I accept the Claimants explanation as to why they were not set out as loans and that this was agreed with the other director at the time i.e., Michael Alculumbre in relation to the EIS and SEIS relief claimed from HMRC. He said this was not deliberate and Richard Hargreaves correspondence confirmed this, and I found that it was a genuine mistake by Michael Hargreaves, the Claimant and CNG associates and there was no financial benefit to the Claimant or impact on the Respondent. I preferred the Claimants evidence on this issue.92.3 The issue of costs incurred on LV Life Assurance policy - Mr Ocloo for the Respondent accepted that this was discovered post-dismissal when he referred to as ‘expenses discrepancies’ although it is not even expressly referred to in his submissions and I found that this cannot have formed part of the reason to dismiss the Claimant. In any event I did not find that the Claimant had behaved improperly in incurring this expense. He was the CEO and Director and the method of approving expenses i.e. Mr Hargreaves would sign off his expense was never challenged until after he left and on this issue of the costs of the LV Assurance policy dealt with in normal manner between the Claimant and Mr Hargreaves.92.4 It was said that there was a payment of £13.00 per month from Inform Direct for many years for 12 companies – this was referred to in the closing submissions of events discovered after dismissal by Mr Ocloo but in any event could only fall under the issue of ‘expenses discrepancies’ which was said by Mr Ocloo to have been discovered after the event so cannot have formed part of the reason to dismiss. I did not find in any event there was anything improper about the incurring of expenses with Inform Direct and I found that they were necessary expenses for the various companies in existence and I preferred the Claimants evidence on this.92.5 Overall, the Claimant provided an explanation in response to Annie Rickard’s analysis of his expenses (522 – 523) at Paragraphs 68 – 72 of his witness statement and I accepted the Claimants evidence on this issue of expenses clamed. This evidence was largely unchallenged evidence in any event.[93]On the issue of whether the Claimant acted improperly in seeking legal advice about his own position from the company solicitors, which the company paid for, I find that he did not. I found that at this time he was also seeking advice on company matters and there was a degree of overlap on this until the solicitors quite properly said they had a conflict of interest on this issue and stopped advising him. In any event this was not a matter that was said to be a reason for his dismissal, and I find that it was not. At para 32 of her witness statement Ms Rickard says that advice in relation to his employment issues with the Respondent were invoiced to the company and approved for payment by the Claimant (page 365).[94]I found that up until the point of the e-mail to the Claimant (page 365) that the legal advisors had paid all bills for legal advice to the company, but it was only at this point they said they had a conflict of interest and could no longer act in giving the Claimant advice. Up until the point the solicitor said they could no longer advise him on behalf of the company I found nothing improper in the Claimant passing the invoice to payment by the Respondent due to the degree of overlap of issues of his position on the board and the company issues relating to quoracy and other issues.[95]Being an active director and trustee of Gloucestershire Counselling Services – this was not specifically referred to in the Respondents submissions of matters discovered post dismissal though it may fall under ‘conflict of interests,’ but in any event I found it did not form part of the decision to dismiss by Mr Monroe. In any event I found that the Respondent gave the Claimant permission to take up this post and I preferred the Claimants evidence on this. The Claimant had obtained the approval of Richard Hargreaves to join the board of trustees of the Gloucestershire Counselling Service (GCS) [208] who was willing to provide the Claimant with a reference for this purpose [212], the level of commitment in any event being minimal [213]. It was not in dispute that Richard Hargreaves knew, and he was a member of the board. I didn’t accept that the fact that there had been no vote on this at board level did not mean the Respondent was ignorant of him working elsewhere as well as for the company, but I don’t in any event it formed part of the reason to dismiss. Events following Dismissal[96]On the 05 August 2022 the Respondent requested that the Claimant return all company assets, and he gave evidence he returned them (P465.) This allegation was never put to the Claimant that he failed to return company assets in cross examination but in any event, I found that he did return all company assets.[97]It was also alleged that the Claimant wiped his laptop before returning it rendering it unusable. I did not find that the Claimant did anything improper in this regard and preferred his evidence on this issue about following the manufacturer’s instructions and found that the Claimant not tried to damage the laptop rendering it unusable.[98]On the 23 September 2022 the Claimant responded to the further allegations against him - P501 – 503.[99]On the whole I found the Respondents allegations against the Claimant were sprawling in nature and I accepted submissions by Counsel for the Claimant that many of the other issues raised by Annie Rickard in her witness statement, such as the alleged backdating of documents, breaches of data protection, and postemployment conduct, were complex in nature, and had never been put to the Claimant prior to his dismissal, and on many occasions not even in the course of the present trial, and as such, I accepted the Claimants evidence on all these issues as set out in his witness statement.[100]Despite the dismissal letter citing misconduct reasons for his dismissal, Mr Ocloo said the opposite in his closing submissions. In the closing submissions he made quite clear that the only two matters relied on by them in dismissing the Claimant were: -(i) the Board of directors being inquorate throughout the tenure of the Claimant; and(ii) the Claimant’s and Mr. Hargreaves attempted take-over of the company.[101]In any event for the avoidance of doubt on the remaining matters set out in the submissions of Mr Ocloo on matters that they admitted were only discovered following dismissal and insofar as these are relevant to conduct discovered following dismissal I found as follows where they are not already dealt with above: -(i) Backdating a deed – it was said by Michael Alculumbre in his evidence that the Claimant had backdated a Deed this being his Service Agreement. I did not find on the balance of probabilities that he had backdated the deed. In any event this was not put to the Claimant by Mr Ocloo in cross examination.(ii) Breach of multiple fiduciary duties breaches – this was a vague undefined allegation and so I make no findings on this.(iii) Disregarding the Articles, - Good/bad leaver provisions - I did not find anything inappropriate was done when the Claimant and Michael Hargreaves discussed amending the articles of association to have good and bad leaver provisions in there, but this was never put to the Claimant in cross examination in any event.(iv) Disregarding the Companies Act, Computer Misuse Act, GDPR and Data Protection Law. I found that the Claimant did not deliberately disregard the Articles of Association. The issue of whether the board was quorate was something that the Respondent took advice on from Counsel on as late as December 2022 after his dismissal. It was also said the Claimant somehow changed the Articles of Association to his benefit – this was a vague allegation and was not put to him in cross examination. The computer misuse act was a reference to him wiping his laptop and as set out above I preferred the Claimant’s evidence on this issue.(v) The reference to GDPR was a reference to the Claimant forwarding work emails to himself at his personal email address. I was not satisfied the Claimant did this in some deliberate sense knowing he was breaching GDPR but in any event I accepted his evidence that he forwarded many emails so that he had evidence to bring this claim. In any event it in no way formed part of the reason for his dismissal.(vi) Mishandling the loans/shares issue over multiple rounds and years – this was another vague allegation and apart from the findings I made above on the specific loan for the issue of shares to the Claimant and RH and which I find mistakes made by co acct in recording loans at companies house I make no findings on these further undefined allegations.(vii) Expenses discrepancies – Neville Johnson, software, Inform Direct, personal legal advice etc. – I found the issue of expenses was dealt with properly by the Claimant at all times.(viii) I found the Claimant did not deliberately change the board minutes of 28th June 2022 to obfuscate the inquorate board.(ix) It was said that he deliberately removed the recommended paragraphs of the resignation letter to remove all company protection clauses, but this was never put to the Claimant in cross examination and I found that he did not do this.(x) In relation to the allegation of transacting company business for seven years without a quorate board of directors this was said to be a matter relied on in dismissing him and I dealt with this above but found that this was not a reason for dismissal.(xi) It was said he failed to carry out or document standard shareholder resolutions whilst making business changes but this was never put to the Claimant in cross examination and so I do not find he did this.(xii) It was said he failed to gain shareholder approval for service agreement as required under the Companies Act – this was never put to him in cross examination and so I do not find he did this.(xiii) It was said that he fabricated internal audits and internal audit compliance but this was never put to him in cross examination and I, so I do not find he did this.[102]In relation to the alleged incorrect filing of the Respondents annual accounts and their alleged falsification for six years which this was said to be a breach of his general statutory duties as a director and fiduciary duties as CEO, the Claimant gave evidence and I found that Michael Aculumbre the company secretary and Ching NG always prepared the annual schedules and returned them to Hentons for the completion of statutory accounts and Companies House filing. He pointed out statutory accounts were Michael's Alculumbres identified responsibility and both Ching Accountants, and he had no such qualifications. He only received the final set of accounts for sign off and trusted the underlying information and schedules supplied by two Chartered Accountants had been correct. I accepted the Claimants account of this to be accurate and I prefer the Claimants evidence on this matter and find there was no breach of the Claimants duties as a director and CEO in this regard.[103]Breaching multiple clauses in his service agreement regarding responsibilities, conduct and interests – this was a vague allegation in closing submissions but aside from failings over properly recording loans and the issue of quoracy on which I make findings above I do not make specific findings on this vague allegation.[104]Failing to inform shareholders the board was not quorate – I have dealt with this, but this specific allegation was never put to him but in any event I find that there was no deliberate intention on the Claimants part in this regard and did not form part of the decision to dismiss him.[105]Failing to inform shareholders of the mishandling of the loans for shares, - I found that the matter was rectified upon it being discovered and, in any event, did not form part of the decision to dismiss him.[106]Excluding himself from all company policies, rules and guidelines, - this was a vague allegation never put to him.[107]Fabricating board meetings of 1st June 2022, 12th December 2016 and 1st May 2020 – I did not find he fabricated any board meetings.[108]When the Claimant received his letter of dismissal on the 7 July 2022, he had not been warned in any way whatsoever prior to this letter of dismissal that he may be dismissed following an investigation. No disciplinary process was followed whatsoever in relation to misconduct allegations. The Law Unfair Dismissal
The Law
[109]The Claimant was continuously employed by the Respondent for more than two years and in those circumstances had the right not to be unfairly dismissed by it (section 95 of the Employment Rights Act 1996).[110]Section 98 of the Employment Rights Act 1996 (‘the Act’) provides that: 98 General(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) … (b) relates to the conduct of the employee, (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.[111]The correct approach for the Tribunal to adopt in considering section 98(4) of the ERA (as set out in Iceland Frozen Foods v Jones [1982] IRLR 439) is as follows: “… 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.[112]The ACAS Code of Practice on Disciplinary and Grievance procedures sets out matters that may be taken into account by tribunals when assessing the reasonableness of a dismissal on the grounds of conduct, as follows: 'Employers and employees should raise and deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions. Employers and employees should act consistently. Employers should carry out any necessary investigations, to establish the facts of the case. When investigating a disciplinary matter take care to deal with the employee an affair and reasonable manner. The nature and extent of the investigations will depend on the seriousness of the matter and the more serious it is then the more thorough the investigation should be. It is important to keep an open mind and look for evidence which supports the employee’s case as well as evidence against it. Be careful when dealing with evidence from a person who wishes to remain anonymous. In particular, take written statements that give details of the time, place, dates as appropriate, seek cooperative evidence check that the person's motives are genuine, and assess the credibility and weight to be attached to their evidence. Employers should inform employees of the basis of the problem and give them an opportunity to put their case in response before any decisions are made. Employers should allow employees to be accompanied at any formal disciplinary or grievance meeting. If it is decided that there is a disciplinary case to answer, the employee should be notified of this in writing. This notification should contain sufficient information about the alleged misconduct. And its possible consequences to enable the employee to prepare to answer the case of the disciplinary hearing. It would normally be appropriate to provide copies of any written evidence, which may include any witness statements within the notification. At the meeting, the employer should explain the complaint against the employee and go through the evidence that has been gathered. The employee should also be given a reasonable opportunity to ask questions, present evidence, and call relevant witnesses. They should also be given the opportunity to raise points about information provided by witnesses. Employers should allow an employee to appeal against any formal decision made.” Polkey[113]In the event of an unfair dismissal the Tribunal must determine what would have been likely to have occurred if a fair procedure had been adopted, in accordance with the guidance in Software 2000 Ltd v Andrews [2007] IRLR 569. The EAT stated: “If the employer seeks to contend that the employee would or might have ceased to be employed in any event, had fair procedures being followed, or alternatively, would not have continued in employment indefinitely, it is for him to adduce relevant evidence on which he wishes to rely. … However, there will be circumstances where the nature of the evidence which the employer wishes to adduce or on which he seeks to rely, is so unreliable that the Tribunal may take the view that the whole exercise of seeking to reconstruct what might have been so riddled with uncertainty that no sensible prediction based on that evidence can properly be made.”a. Recent case law has moved away from the distinction between a finding of Unfair Dismissal on procedural grounds as opposed to dismissal on substantive grounds such as in Gover and ors v Propertycare Ltd. [2006] ICR1073, CA; Thornett v Scope [2007] ICR236, CA; Software 2000 Ltd v Andrews and Ors [2007] ICR 825, EAT; and Contract Bottling Ltd v Cave and Anor 2015 ICR146, EAT.b. There are two stages in determining whether a dismissal is fair pursuant to s.98 ERA 1996: i. Firstly, it is for the Respondent as employer to establish the reason or principal reason for the dismissal and that it is a potentially fair reason under either s.98(1)(b). ii. Secondly, for the purposes of s.98(4), the Tribunal must consider whether, in the circumstances, including the size and administrative resources of the employer’s undertaking, the employer acted reasonably or unreasonably in treating the reason (as established at the first stage) as a sufficient reason for dismissing the employee. This is to be determined in accordance with equity and the substantial merits of the case (s.98(4)(b)). When considering this second stage, the Tribunal should apply the familiar “range of reasonable responses” test in order to decide whether dismissal was an option that a reasonable employer could have adopted in the circumstances. Procedural factors fall to be considered at this stage.[114]Lord Prosser in King and ors v Eaton Ltd (No.2) observed that the courts are increasingly drawing back from the view that there is a clear dividing line between procedural and substantive unfairness, and as a result that line is no longer used to determine when it is and is not appropriate to make a Polkey reduction. Lord Prosser observed: ‘[T]he matter will be one of impression and judgement, so that a tribunal will have to decide whether the unfair departure from what should have happened was of a kind which makes it possible to say, with more or less confidence, that the failure makes no difference, or whether the failure was such that one cannot sensibly reconstruct the world as it might have been.’[115]The employer will be unable to satisfy the second stage if the reason relied on is neither established in fact nor believed to be true on reasonable grounds (Smith v City of Glasgow District Council [1987] IRLR 326 at Para 872).[116]It is established principle that a reason for dismissal is “a set of facts known to the employer, or it may be beliefs held by him, which cause him to dismiss the employee” (per Cains LJ in Abernethy v Mott Hay and Anderson [1974] IRLR 213). For these purposes, the ‘reason’ is said to connote the factor or factors operating on the mind of the decision-maker, which causes them to take the decision, or what ‘motivates’ them to do what they do (per Underhill LJ in Beatt v Croydon Health Services NHS Trust [2017] IRLR 748).[117]The importance of procedural safeguards to the consideration of s.98(4) has been emphasised by the higher courts, in particular by Lord Bridge in Polkey v AE Dayton Services [1987] IRLR 503 who emphasised that, even in a case where a potentially fair reason is established, an employer “will in the great majority of cases not act reasonably in treating the reason as a sufficient reason for dismissal unless and until he has taken the steps, conveniently classified in most of the authorities as ‘procedural,’ which are necessary in the circumstances of the case to justify that course of action.”[118]In respect of a dismissal by reason of (mis)-conduct, if the Tribunal concludes that the Respondent dismissed the Claimant for this reason, it will no doubt be familiar with the guidelines set down by the EAT in British Home Stores v Burchell [1978] IRLR 379, namely whether the employer has established: i) the fact of the belief that the misconduct had occurred, ii) that it had in its mind reasonable grounds upon which to sustain that belief and iii) that, at the stage at which it had formed that belief on those grounds, it had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. Following a change to the burden of proof since Burchell was decided, the burden is not on R to establish points ii) and; iii) that burden now being neutral.[119]The importance of procedural safeguards in cases of misconduct was emphasised by Stephenson LJ in W Weddell & Co Ltd v Tepper [1980] IRLR 96. In respect of employers, he remarked as follows at Para 101: “If they form their belief hastily and act hastily upon it, without making appropriate inquiries or giving the employee a fair opportunity to explain himself, their belief is not based on reasonable grounds, and they are certainly not acting reasonably.”[120]It is an established principle that the employer should take into account any extenuating or mitigating circumstances (see, for example, the comments of Browne-Wilkinson J in Sillifant v Powell Duffryn Timber Ltd [1983] IRLR 91). As Megarry J cautioned in John v Rees [1970] Ch 345, it is highly unlikely that it could properly be concluded that a hearing would have made no difference, even in those cases which might initially appear to be ‘open and shut.’ In particular, he cautioned as follows: “As anybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determination that, by discussion, suffered a change.”[121]In Ezsias v North Glamorgan NHS Trust [2011] IRLR 550, the EAT recognised the fine distinction between a dismissal by reason of conduct and by reason of the fact of a breakdown in a working relationship to which such conduct might have given rise or contributed. At Para 50, the EAT commented that “the fact that Mr Ezsias might have been in the main to blame for that might have been part of the history, but it was immaterial to why the trust chose to take action against him.” However, at Para 58, it cautioned as follows: “We have no reason to think that employment tribunals will not be on the lookout, in cases of this kind, to see whether an employer is using the rubric of ‘some other substantial reason’ as a pretext to conceal the real reason for the employee’s dismissal.” I find that this is what occurred here in this case.[122]While the EAT acknowledged that the approach adopted was consistent with the previous decision in Perkins v St George’s Healthcare NHS Trust [2005] IRLR 934, it equally thereby acknowledged that it should not become an easy escape route for employers. Caution is particularly justified in cases, like C’s, where the alleged breakdown in trust and confidence interacts with allegations of misconduct, lest it be used by an employer to side-step the procedural safeguards relevant to the operation of s.98(4).[123]In Governing Body of Tubbenden Primary School v Sylvester UKEAT/0527/11, the EAT emphasised the need for a Tribunal to consider the whole history leading up to the alleged breakdown of trust and confidence, which is relevant to a consideration of fairness in all the circumstances (s.98(4)). In particular, it said as follows at Para 37: “Where the substantial reason relied on is a consequence of conduct (and in this case it can be no other), there is such a clear analogy to a dismissal for conduct itself that it seems to us entirely appropriate that a tribunal should have regard to the immediate history leading up to the dismissal. The immediate history is that which might be relevant, for instance, in a conduct case: the suspension; the warnings or lack of them; the opportunities to recant and the like; the question of the procedure by which the dismissal decision is reached. It cannot, in our view, always and inevitably be trumped by the conclusion that there has been a loss of confidence without examining all the circumstances of the case and the substantial merits of the case, as s 98 would require.” (Counsel’s emphasis)[124]It went on to caution at Para 38 that: “We are not at all unhappy, as a matter of principle, to reach the view that that is so, because as a matter of principle if it were to be open to an employer to conclude that he had no confidence in an employee, and if an Employment Tribunal were as a matter of law precluded from examining how that position came about, it would be open to that employer, at least if he could establish that the reason was genuine, to dismiss for any reason or none in much the same way as he could have done at common law before legislation introduced the right not to be unfairly dismissed … It was to prevent the injustice of that that the right not to be unfairly dismissed was introduced.”[125]The above case established that mere consideration of the alleged breakdown in trust and confidence, therefore, without considering those issues which might be relevant to a case classified as one of conduct, risks the Tribunal falling into the error of side-stepping its proper consideration of the statutory test in s.98(4) and the statutory right not to be unfairly dismissed being lost.[126]Pursuant to the familiar Polkey principle, I may reduce the compensatory award to reflect the chance that the employee may have been dismissed in any case at some point. To this end, the Tribunal may either make a finding as to the period it would have taken to dismiss fairly or make a percentage ‘loss of chance’ deduction to compensate the employee for the lost chance that they would not have been dismissed. This assessment must be made by reference how the employer (i.e. R itself) would have acted, rather than a hypothetical reasonable employer (Health and Safety Executive v Jowett [2022] EAT 151).[127]I had regard to the case of Cobley v Forward Technology Industries plc 2003 ICR 1050, CA, where in this case the Claimant, the chief executive of FTI plc, was removed from the board of directors following a successful takeover. His position as chief executive was conditional on his remaining a director of the company and he was therefore dismissed. The Court of Appeal found that his dismissal was for SOSR. It was found that the dismissal was fair given the Claimant’s position and the commercial realities of the situation, of which he had been well aware.[128]Under the ERA 1996, s.122(2), the Tribunal has a broad discretion to reduce the basic award by reason of the employee’s conduct, but it must make findings of fact about the conduct in question and give reasons for any reduction (Nairne v Highlands and Islands Fire Brigade [1989] IRLR 366). The impugned conduct need not have any influence on the decision to dismiss (Optikinetics Ltd v Whooley [1999] ICR 984). The conduct in question must be found to have been in some way culpable or blameworthy (Sanha v Facilicom Cleaning Services Ltd UKEAT/0250/18). In that regard in relation to the basic award by 10%.[129]As for the compensatory award, under s.123(6) ERA 1996, the Tribunal shall reduce the amount of compensation by any amount which it considers just and equitable if it finds that the employee has, by any action, caused or contributed to his dismissal. In contrast to reductions to the basic award, the conduct in question must be known to the employer prior to the dismissal. As with the basic award, the Tribunal must give reasons for any reduction (Nairne, above) and any conduct must be found to have been culpable or blameworthy (Sanha, above).[130]More broadly, pursuant to s.123(1) ERA 1996, the Tribunal’s duty is to award what is just and equitable in the circumstances (as confirmed in Devis v Atkins [1977] IRLR 314). Any loss must have been sustained in consequence of the dismissal.[131]Under s.123(4) ERA 1996, the Tribunal must consider C’s duty to mitigate his loss. To the extent that R asserts that there has been a failure to mitigate, it bears the burden of proving such failure as the maker of the allegation (Bessenden Properties Ltd v Corness [1974] IRLR 338 per Roskill LJ). The duty of a dismissed employee is to act reasonably (as confirmed in A G Bracey Ltd v Iles [1973] IRLR 210). This has been expressed as being “to act as a reasonable man would do if he had no hope of receiving compensation from his employer” (Archibold Freightage Ltd v Wilson [1974] IRLR 210). Applying the Law to the Facts Reason for dismissal[132]Firstly, it is for the Respondent as employer to establish the reason or principal reason for the dismissal and that it is a potentially fair reason under either s.98(1)(b); I find that they failed to do this.[133]I find no fair reason was established. They asserted that it was either for some other substantial reason in their submissions, or misconduct. However, I did not find the some other substantial reason defence was made out. They asserted it was the breakdown of trust and confidence that led them to dismiss the Claimant i.e., the alleged takeover bid. However, I found they had decided to dismiss the Claimant two weeks before finding out about the email from Mr Hargreaves to the Claimant about this proposal, and so I did not find that the reason for dismissal was a breakdown in trust and confidence. I found it was due to the clear fact I found which was that Mr Monroe felt he was funding a ‘lifestyle business’ and that the Claimants salary was too high, and he wanted to remove him.[134]As set out above the confusion in this case over why the Respondent dismissed the Claimant was marked from the outset with the letter of dismissal, the response, the witness statements and submissions all saying different things i.e. variously it was misconduct or some other substantial reason (‘SOSRA’). Whilst accepting there is often a degree of overlap between SOSRA and misconduct I did not find that SOSRA was established as a reason for dismissal as the issue of board quoracy was discovered after Mr Monroe decided he was going to dismiss him on the 4 May 2022. The issue of quoracy was also investigated after the decision to dismiss on the 4 May 2022 in addition. I make the same findings on the alleged takeover bid. This also transpired after Mr Monroe decided to dismiss him on 4 May 2022.[135]The only finding of fact I made was the real decision to dismiss him was due to Mr Monroes evidence the Claimant was being overpaid and in effect was a bad investment on his part and that he was in effect ‘funding a lifestyle business’.[136]I therefore found that the R failed to establish a sole or principal potentially fair reason for dismissal and I simply found it was motivated by Mr Monroes resentment at the Claimants salary.[137]In any event regardless of the above the dismissal lacked all and any basic tenets of fairness. In reaching this decision I had regard to the events that subsequently occurred after the 4 May 2022 when the email was sent by Mr Monroe as set out above [P.315]. As pointed out by Mr Rojitsky Counsel for the Claimant in his submissions, at paragraph 34, in Mr Monroes oral evidence to the Tribunal, he stated that he did not realise that he needed to explain his reasoning in greater detail within this letter of dismissal as to why the Claimant was being dismissed, as he had no legal experience. However, I found the Respondents had the benefit of advice from legal advisors at the time of dismissal and in any event could have accessed it if they wanted to.[138]Joseph Monroe also had, as he explained in his evidence, access to the internet and was able to consult the ACAS website, and I found that Joseph Monroe had extensive experience with numerous companies in line with his oral evidence to the Tribunal and would have been aware of basic HR procedures.[139]I did not find it credible that he did not know he had to provide reasoning in the letter of dismissal. Instead, I found that he was simply treating the dismissal as a contractual matter i.e., that because he believed the Claimant was in breach of his service agreement he could dismiss for these perceived breaches without following any procedures, and also because of their reliance on the case of Cobley above which they asserted meant there was no need to follow any procedure prior to dismissal. However, in that case the dismissal of a director followed the takeover of the company whereas in this case I found the decision to dismiss was taken prior to any knowledge by Mr Monroe of the purported attempted takeover of the company by the Claimant and Mr Hargreaves and this case can therefore be distinguished from Cobley.[140]Having found that Mr Monroe had already decided to dismiss the Claimant on 4 May 2022 [P.311] the production of the letter by Mr Monroe sent on the 6 July 2022 when he dismissed him was, I found simply a box ticking exercise by way of justifying after the event the clauses they said entitled them to dismiss without notice. I found that Mr Monroe did not even consider whether it was fair to treat the Claimant in this way but was instead focused on avoiding paying him his notice pay this being something that is not before me in this claim.[141]In making this finding I also had regard to the clear inconsistencies in the evidence of Mr Monroe as accurately summarized by Counsel for the Respondent as follows and as set out by Counsel when he said the following: -a. In Mr Monroes written evidence to the Tribunal (JM WS Para 11 with subparagraphs), he refers to the issues of “board quoracy” (about which I heard extensive evidence throughout the trial) and an alleged “takeover bid” by the Claimant as being either examples of Claimant’s misconduct, in the sense that the Claimant was alleged to have breached his fiduciary duties to the company, or some other substantial reason for his dismissal. The matters are said to have been based on evidence which had emerged out of the extensive, albeit undocumented, investigation which had been conducted by Annie Rickard and Michael Alculumbre. The SOSR reasons are put as being “a single action, in breach of his service agreement (that included clear consequences), that contributed to my decision to dismiss him” (Para 11 a vii) of JM statement and that “The new Board felt that, in the circumstances, the Claimant would not support any proposed changes to the executive make-up or management of the Company, having failed in his bid to gain control of the Company” (Para 11 b viii).b. The reasons given in both Mr Monroes written and oral evidence differ in material ways to the reasons put forward retrospectively in Mr Monroes post-dismissal letter to C dated 4th August 2022 [461 – 464] in response to C’s letter to JM following his dismissal dated 12th July 2022 [459]. In this letter, Mr Monroe puts forward the reasons for the Claimant’s dismissal as i) C’s resignation as director without consent of the board, ii) the issue of the director’s loan / unpaid share capital on C’s shares (discovered postdismissal) and iii) miscellaneous “other reasons” which were not referred to either in the dismissal letter or JM’s oral evidence. The “takeover bid” is not alleged in the 4th of August 2022 letter.[142]As suggested by Counsel for the Claimant there was a complete lack of consistency in Mr Monroes reasoning in dismissing him.[143]Whilst I find that Mr Monroe was a credible witness on some issues in that he reasonably conceded some issues I also did not accept many parts of his evidence. Overall, not only did I prefer the Claimants evidence to that of Mr Alculumbre I also preferred the evidence of the Claimant to that of Mr Monroe. I therefore accepted the submission that Mr Monroes evidence was lacking in consistency.[144]To the extent that Mr Monroe relied on the findings or ‘conclusions’ of the Annie Rickard and Michael Alculumbre investigation, I found that this was not credible evidence. It was confirmed in evidence before the Tribunal that this investigation commenced on 1st July 2022, and therefore some six days before the Claimant’s dismissal. It was further confirmed that, to date, the investigation has not ‘concluded’ as such. It cannot therefore be possible as I found above that Mr Monroe could have formulated the decision to dismiss the Claimant based on the ‘conclusions’ of such an investigation, and I found that in fact he decided to dismiss him on the 4 May 2022.[145]I concluded after having regard to the state of mind of Mr Monroe when he dismissed the Claimant that the investigation, such as it was, was quite simply I found wide-ranging not defined and ongoing at the date of the Tribunal and highly unfair to the Claimant. There was nothing in writing whatsoever about the ambit of what Ms Rickard had been asked to do.[146]I found that the investigation was simply a hunt for inculpatory evidence against the Claimant after the event of deciding to dismiss the Claimant on the 4 May 2022 and I found that after this date everything uncovered by the Respondent against the Claimant was simply an attempt to shore up a decision already taken by the Respondent and Mr Monroes decision to dismiss him and none of the stated reasons for dismissing the Claimant in fact formed any part of the reason for dismissing him.[147]If Mr Monroe felt that the Claimant was not earning his salary he should have dealt with it by commencing performance management procedures, and either before, or after Mr Monroe was appointed as a director on the 30 June 2022, and not by deciding summarily to dismiss him without giving the Claimant any opportunity to take place in the ‘secret investigation.’[148]Having found that a sole or principal potentially fair reason has not been established by the Respondent then this claim for Unfair Dismissal succeeds.[149]In any event no fair investigation and procedure was followed. This was an investigation and disciplinary procedure outside the reasonable band of reasonable disciplinary procedures and investigations of any other employer, and the decision to dismiss was outside the reasonable band of responses of any other employer. Polkey[150]No Polkey reduction can be considered by me where a fair reason has not even been made out by the Respondent. I cannot ‘recreate the world as it would have been’ as referred to in Eaton above i.e., in a world where they had in fact established a fair reason for dismissal and then followed a fair procedure and that he would have been dismissed in any event. This would involve a high degree of imagining a world that did not in fact exist and would involve imagining a world where the decision maker Mr Monroe had not already decided he must be removed as an employee and a director due to the level of his salary.[151]In the alternative even if I could consider Polkey when I have found no fair reason by the Respondent was established then I accepted Counsels submissions that, based on the Respondent’s evidence, I could still not properly make any Polkey assessment. Jospeh Monroe had confirmed to the Tribunal that he would himself have conducted any disciplinary procedure, but such procedure could not have been fair given his stated attitude towards the Claimant and I found it would have been infected by pre-determination and I cannot find that a fair procedure would have resulted in a chance of hm being fairly dismissed.[152]The Respondents also stated in evidence that the investigation was said to be ongoing to the date of the hearing and as such it was clearly impossible for me to recreate the world as it would have been and make a Polkey assessment when the investigation had still not been concluded into the alleged misconduct by the Claimant and the way he ran the company up to the date of this hearing, as per the case of Eaton.[153]In addition, I accepted Counsels submission that the Respondent had not provided any indication as to when the investigation might conclude and hence when the Respondent might properly have taken any decision to dismiss the Claimant fairly.[154]Whilst undoubtedly, and as I found there were, areas of concern about the Claimants performance a performance management process and/or disciplinary process would have to have been embarked upon before any decision to dismiss him could be fairly taken. I asked myself whether that would that have resulted in his dismissal? I simply did not know. It may have been he would have been given a final written warning and given targets to improve upon.[155]I therefore find I cannot recreate the world as it would have been and make no reduction for Polkey. Contributory Fault[156]The law on contributory fault reducing compensation in an unfair dismissal claim is primarily governed by section 123(6) of the Employment Rights Act 1996. This provision mandates that if a tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it must reduce the compensatory award by such proportion as it considers just and equitable as per the Employment Rights Act 1996 (1996 c 18). I may also reduce the basic award to reflect the Claimants conduct and for that I do not need to find the Claimant contributed to his dismissal to do so.[157]I do not find that any of the matters the Respondent accused the Claimant of caused or contributed to his dismissal, having found that the only reason for his dismissal was resentment by Mr Monroe towards him over his salary, and frustration by Mr Monroe that he had made a bad investment in the company and also that he wished to be on the board of the Respondent.[158]In summary, whilst the tribunal has a statutory obligation to reduce the compensatory award in cases of contributory fault, this reduction must be just and equitable based on the specific circumstances of the case and I found it was not just and equitable based on the evidence before me to make any reduction to the compensatory award when none of the allegations against the Claimant formed part of the reason to dismiss him.[159]I have found that the Claimants performance was in some respects, i.e. board quoracy, attending to company accounts and the correct recording of loan notes with companies house, lacking, and merited potential performance management procedures, I therefore conclude that the Claimant was not entirely blameless and therefore I make a 10% reduction to the basic award for these matters. Compensation Mitigation of Loss
Compensation
[160]I did not find the Claimant failed to mitigate his loss.[161]Following dismissal, he applied for eight jobs as set out in his witness statement – para 7. Put simply it was said that those job applications which were unsuccessful were the only efforts he made to mitigate his loss in two and a half years and the Respondent said this amounted to a wholesale failure to mitigate his loss. They referred to a list of vacancies in the main bundle that they said showed 60 jobs he could have applied for [P.664 of main bundle]. In fact it did not show 60 jobs it showed a list of 24 jobs. The Claimant was taken to them and commented that it was a list of jobs but didn’t show the organization and so he couldn’t say if his experience was suited to the roles.[162]I found that the list such as it was did not show the actual details of the vacancy or in most cases the organisation and so the Respondents did not demonstrate that these were roles he could have applied for in order to prove as they must that the Claimant failed to mitigate his loss.[163]I accepted that many of the roles on the brief description were outside the Claimants field of experience. In cross examination it was not established that any one of the roles fitted the Claimants work history.[164]In any event this was simply a list compiled by the Respondent and was not the original evidence I needed to see. I did not accept that the inclusion of the original adverts would have produced a bundle too large for the remedy hearing.[165]In addition throughout the period to the date of the hearing the dismissal has caused the Claimant to become unwell with anxiety and he gave evidence he has felt suicidal. He has had to drawdown a large chunk of his pension and is having to sell his house and now owes family a large sum of money and has a large credit card debt. He gave evidence and I find that the effect of the dismissal and the overall effect on his health has been very serious, and it has in effect hampered his ability to apply for work.[166]He also gave evidence which I accepted that he would have been able to work full time if he could find a home-based role, or three days a week if he had to travel somewhere to work as his ill health would make full time work and travelling impossible. He also gave evidence which I accepted that his mental health has been very poor and is now on the maximum amount of anti-anxiety medication for his age that can be prescribed. He also gave evidence which I accepted that the litigation has taken up a large amount of his time since dismissal and that his ill health goes up and down.[167]I find that simply put the Claimant throughout has been too unwell to work and this is a result of the dismissal and has largely meant; despite wanting to work, he has not been able to mitigate his loss and make a larger number of job applications.[168]I find that he would have applied for the eight jobs he applied for at times when perhaps he thought he was feeling better and able to cope with applying for work but that then the strains of the litigation, suicidal thoughts and dark days, and being unwell would then set him back again in effect. I find it was commendable the Claimant tried to find work when in fact, and for the majority of the time, he was too unwell to work. As Counsel for the Claimant put it he could have simply said he was too unwell and not made any applications at all. In making these findings he was too unwell to work I relied on the GP records and the DWP records.[169]I do not therefore find there was a failure by the Claimant to mitigate his loss and therefore make no reductions to the award for this. ACAS[170]I also find that the utter lack of any procedure in deciding to dismiss the Claimant meant that the Claimant should be awarded the maximum ACAS uplift. It was a secret investigation that the Claimant was entirely excluded from and as I said in my judgment this was very unfair on the Claimant. There was also no disciplinary procedure whatsoever. 171. s.207a of TULCRA establishes I have a discretion to make an uplift where I find an employer has unreasonably failed to comply with the ACAS code.[172]I found the Respondent failed to follow any fair investigation or procedure and that this was very unfair on the Claimant.[173]I also found in the alternative even had SOSR or misconduct been established there would have been no fair procedure followed in any event due to the pre-determination mindset of Mr Alculumbre.[174]The Respondent referred to the case of Slade v Biggs 2022 on the first question – the question asked there is whether it is just and equitable in this case to award an uplift and I find plainly it is in this case due to the high level of unfairness. I found that the potential findings of misconduct against the Claimant involved matters in which he was never involved i.e. the secret investigation by Annie Rickard and that it is plainly just and equitable to award the maximum uplift.[175]I therefore award an uplift of 25% due to the wholesale breach of the tenets of the ACAS code, as this was an investigation conducted in secret, and then a number of allegations were extrapolated from that, but none of which were put to him before dismissal, and which was highly unfair and many were not even put to him during this hearing either.[176]I found that there was no fair reason established but that in any event even if SOSRA or misconduct had been established as a fair reason that the disciplinary procedure would have been conducted by Mr Monroe and that process would have been riddled with a pre-determination mindset as it was found by me that Mr Monroe decided on the 4 May 2022 to dismiss the Claimant and so any such procedure thereafter would have inevitably have been unfair.[177]Mr Ocloo submitted that the initiation by Mr Monroe to meet with the Claimant and to discuss a settlement with him amounted to offering a right of appeal. It was clear to me that this was not the Respondent offering a right of appeal and I found that it was not. It was simply a meeting at which Mr Monroe wished to discuss settlement and the Claimant was entitled to reject this meeting and did so. Specific sums awarded[178]On the issue of the loss of a life policy, and that the Claimant ought to have arranged a life policy that had the Respondent as a beneficiary when in fact he arranged for the beneficiary to be himself, meant that somehow he could not claim this loss of a benefit as a result of his dismissal i.e., needing to replace this lost benefit as it was never meant to benefit him, I found that, as this was not put to the Claimant in cross examination, the Claimant should t be able to claim this loss of this benefit and I award this as a loss of a benefit, and the cost of a replacement of this policy is set out below. Working from Home[179]I make no award for the loss of the benefit of working from home. I heard no evidence about this from the Claimant and although it is not disputed, he did work from home there was no evidence before me that this was a contractual right and so I make no award for this element of loss claimed. Figures[180]The figures for my award I make were agreed on the net and gross figures for loss of earnings agreed between the parties at the remedy hearing.[181]It was agreed that from the date of dismissal to the date of today hearing there were 118 weeks in which the Claimant sustained losses from his dismissal.[182]The agreed figures were as follows: -a.£2,289.81 gross weekly payb.£1387.97 - Net weekly pay.c.£1320.84 - annual pension contributions by the Respondent into the Claimant’s pension/52 = £25.41 per week x 118 = £2998.38 – pension loss) this is agreed on 118 weeks.d. Basic award calculated on the weekly cap of £571.00 and multiplier of 10.5 applied to the sum of after reduction of 10% of £599.55 = £5395.95[183]I therefore award the following: - Basic Award £5,395.95 (after reduction of 10%) Compensatory Award Loss of net earnings Number of weeks (118) x Net weekly pay (1,387.97) 163,780.46 Plus, loss of statutory rights 500.00 Plus, Medical insurance 4063.92 Plus, loss of pension 2998.38 Total compensation (immediate loss) 171,342.76 Plus, failure by employer to follow statutory procedures @ 25% Compensatory award after adjustments 214,178.45[184]The statutory cap limited what could be awarded to the Claimant as follows: -(a) A basic award of £5395.95.(b) A compensatory award of £93,878.00. (c ) The total monetary award (i.e. the compensatory award plus basic award) payable to the claimant for unfair dismissal is £99,273.95.