Mr I Thomas v The Chancellors Group of Estate Agents Ltd: 3325505/2019
JUDGMENT
[1]The matter is adjourned at a date to be fixed.REASONS
Introduction
[1]This was a remote hearing which was not objected to by the parties. The form of remote hearing was a code “V” hearing, being conducted entirely by CVP video platform. A face to face hearing was not held because it was not practicable and no-one requested the same.[2]No previous case management hearing had been conducted in this matter and therefore the issues were determined at the outset of the hearing.[3]The claims brought are for constructive dismissal and unlawful deduction from wages or breach of contract. It is a central part of the claimant’s case that he suffered a drop in salary as a result of lower commission payments when he was moved from the High Wycombe office of the respondent’s business to the Amersham office in 2019. This is one of the breaches he relies upon to ground his claim for constructive unfair dismissal.[4]Mr Thomas raised at the outset of the hearing that he did not agree the contents of the bundle. A number of documents he wanted to rely upon had not been included and nor had they been disclosed to him. He had only received a hard copy of the bundle two days prior to the hearing, as it had been sent to the wrong postal address and he had not received the copy the respondent’s representative had sent by email.[5]Mr Thomas sought further disclosure of the respondent’s profit and loss accounts for the High Wycombe branch and the Amersham branch and also activity reports relating to himself in both branches. These were said to be relevant as they determined how much the claimant was paid both prior to his move to Amersham and after it. A number of additional documents were then disclosed by the respondent by way of email both to the Tribunal and the claimant. The respondent accepted that these further documents should have been disclosed, however considered that as the issues in the matter were not clarified prior to the hearing today they had not disclosed them.[6]The claimant was given an opportunity to read the documents. In his view the additional disclosure was limited and did not demonstrate the level of commission he was owed as the reports were personal to him and therefore did not capture the full extent of any commission owing as it did not include the commission due as a result of other sales made by staff in the office. He therefore made a further specific disclosure application for profit and loss reports that included the entire activity of the branch.[7]The respondent accepted that the documents disclosed were in fact in error, and produced and disclosed further reports which were corrected versions. However, it also accepted that the profit and loss reports and the activity reports disclosed would not capture the necessary data to demonstrate what commission was owed to the claimant. Mr Gilbert on behalf of the respondent submitted that the documents necessary to demonstrate this would bea. Cash mat reports andb. commission reports for the claimant. The respondent accepted that these documents fell within the test for disclosure, but said it would not be proportionate for the documents to be disclosed now as it would take them a matter of weeks to extract the information from their digital records.[8]In determining the application, I took account of the overriding objective and the need for the parties to be on an even footing. The claimant is unrepresented and does not have access to these documents. I also considered the proportionality of the request. I accept that it may take some time for the respondent to produce the documents, however they highly material to a central part of the claimant’s claim for constructive unfair dismissal, namely that the reduction in his salary was a breach of contract that led to his resignation. It is highly regretful that these documents were not provided at an earlier stage. However they appear to be highly relevant to one of the fundamental issues the tribunal is going to have to decide, namely, whether or not the claimant’s wages, or potential to earn commission, did reduce, and if so whether this was a breach of the claimant’s contract of employment. In my view this issue will not be able to properly considered without evidence as to the claimant’s earnings. As there is no other evidence before the tribunal that can properly elucidate the issue, I granted the application for further disclosure.[9]As the respondent was unable to produce these documents for a number of weeks, as it required a process of reconciliation of their records, the hearing was adjourned to provide the respondent will time to complete the disclosure exercise and for the claimant to consider the new disclosure.[1]The claimant commenced this claim on 11 November 2019. It came before an Employment Tribunal on 4 March 2021, but the hearing was adjourned to enable the respondent to provide further disclosure, which the claimant maintained was essential for the fair disposal of his case.[2]At the preliminary hearing which then took place on that date, the issues in the case were identified and recorded. I will set them out in detail below, but (in summary) the claimant claims constructive dismissal, unlawful deductions from wages and damages for breach of contract.[3]I heard evidence from the claimant himself and on behalf of the respondent from Mr Robert Bixby (the Regional Manager responsible for the claimant), Mr Robert Scott-Lee (the respondent’s managing director who disciplined the claimant on two material occasions and dealt with his grievance) and Mr Darren Simpson (the respondent’s operations director who dealt with a grievance appeal).[4]The claimant was in some ways an unsatisfactory witness. He seemed determined to tell what he saw as his story, rather than focusing on the questions asked of him in cross-examination. Furthermore, in his evidence he periodically made statements inconsistent with what was recorded as said by him in contemporaneous notes and was driven to suggesting that the notes were inaccurate, despite his having had the opportunity to check and correct them at the time. On one occasion he alleged that the answer to a question should have been recorded as “yes” and not “no”, despite this making a nonsense of much of the following notes and despite his never having queried the notes at the time.[5]Whereas contemporaneous notes recorded him accepting many failings on his part, he appeared determined to place the blame for any shortcomings at his branch on others when giving evidence.[6]I do not conclude that he was seeking to mislead or to be untruthful, but in his mind the events in question have become less nuanced over time and he has persuaded himself that nothing that went wrong was his fault. Hence, I have placed greater reliance upon the contemporaneous documents than upon his oral evidence given to the Tribunal.[7]All three of the respondent’s witnesses gave evidence in a calm and careful manner. They made clear when they could not recall a detail of events now over two years ago. They appeared to me to be attempting to give a balanced picture of the claimant, refusing to be drawn by him into generalised criticisms, rather pointing out his strengths and showing how they had sought to address his weaknesses.[8]Mr Scott Lee, in particular, gave clear and detailed evidence on the respondent’s software systems, accepting where difficulties could arise and noting the claimant’s past achievements.[9]In the circumstances, I accepted the evidence of all three of the respondent’s witnesses, particularly as it was, in the main, a commentary on events which they derived from their own detailed contemporaneous notes and other documents.[10]The hearing was conducted via CVP. This worked well, save for technical problems at the start of Day 2 and in the late morning of that day. As a result, time was lost, but the listing was increased to three days to enable the hearing to be completed without any significant adjournment.The facts
[11]The claimant was employed by the respondent as a Lettings Manager from 27 May 2014 until his resignation on 27 September 2019. He was employed at the respondent’s High Wycombe branch until April 2019, when he was transferred to the respondent’s Amersham branch. The respondent is a large, multi-office, estate agency business. Several of its 57 branches also have a lettings business conducted separately from the sales business. This was the case at High Wycombe and, upon his transfer, at Amersham.[12]The principal terms and conditions of the claimant’s employment were contained in a document signed by him on 19 April 2014 and certain other documents cross-referred to therein. These included the respondent’s Capability and Disciplinary procedures found in the employee handbook and the various commission schemes applicable from time to time to the claimant. New versions of those documents were circulated from time to time and, so far as the commission schemes were concerned, signed by the claimant.[13]There were express terms of the claimant’s employment, found in those documents, as follows:13.1 Whilst his place of work was High Wycombe, he could be required to work at any of the respondent’s locations within the UK as directed (clause 3 of the terms and conditions document).13.2 Commission was payable only once the monies from the client to which it referred had been banked. It would then be paid in the month following that banking together with that month’s salary, provided that the employee then remained an employee (the commission statement signed on 19 April 2014).13.3 If, when the claimant’s employment ended, he had taken more holiday than he was entitled to be paid for up to that moment in time, the holiday pay in respect of the excess days of holiday could be deducted from any final payment of his salary due to him.13.4 As part of any disciplinary penalty exacted, alternatively in response to issues relating to his capability, the claimant could be moved to more suitable work (s.2 of the Capability and Disciplinary Procedures).13.5 The claimant would forfeit any commissions, bonuses and incentives then remaining unpaid if he resigned without giving notice.[14]As Lettings Manager the claimant was responsible for the lettings side of the respondent’s business conducted from the branches where he worked. He was responsible for a team of negotiators at High Wycombe who would seek to obtain and then conduct lettings on behalf of clients. This could involve simply marketing the property to let, but might also include managing it on behalf of the owner. The business is highly competitive and dealing swiftly and efficiently with lettings enquiries and with potential tenants is fundamental to its success. To that end, the respondent had various systems and pieces of software designed to ensure that its clients were given a good service.[15]The claimant was head hunted to manage lettings at High Wycombe and from 2014 to sometime in 2017 he grew the business at that office. In early 2018 his line manager changed. His branch was then brought into the region for which Mr Bixby was the Regional Manager. At this time, the claimant’s lettings team was comprised of himself and three negotiators. Mr Bixby was aware of a high degree of staff turnover at the branch (relative to normal turnover within the respondent’s organisation) and his initial impression was that the branch was untidy and poorly organised.[16]Mr Bixby’s management style was (and is) to require strict adherence to company policies and procedures. To this end he met with the claimant at least quarterly to review progress. It is clear that the claimant resented this regimented approach by Mr Bixby, which stressed the need for managers to manage in accordance with those policies and procedures and to follow up on the various points which a regional manager might set out in notes made following quarterly meetings. The claimant’s view was that provided that he was meeting his objectives (looked at in terms of growing the business and making money) he should be left alone to get on with managing it.[17]The detailed notes of the quarterly meeting on 7 September 2018 set out detailed criticisms of various actions (and failures to act) on the part of the claimant. The issues are clearly identified, the claimant’s comments noted and analysed. Aspects of the claimant’s failings were described as showing “very poor leadership”. It was noted that he was not running the branch as he should, that he had not met expectations set out at previous meetings and that his failure to deal with action points raised previously amounted to a “dereliction of duty” which might result in further action. Mr Bixby made clear what he expected to happen in order for performance to improve. He also communicated his concerns to the respondent’s HR department and to Mr Scott-Lee as Managing Director.[18]The claimant then and now blamed many of the problems on lack of staff. He also suggested that Mr Bixby was over obsessed with process and procedure, whereas the real question was how healthy was financial performance. It is clear that Mr Bixby recognised that the claimant did have some staffing issues, but that this did not excuse his poor management and his failures in diary and opportunity management in particular. Some leavers were critical of the claimant. Furthermore, Mr Bixby correctly identified that the financial performance of the lettings part of the branch was now deteriorating, having previously been on an upward trend. This related both to the claimant’s own performance and of that of the branch more generally.[19]On 19 September 2018 a disciplinary hearing took place in respect of the claimant’s various failures and on 28 September the claimant was given a written warning in consequence. Mr Scott-Lee noted the claimant’s various failings in the outcome letter of the disciplinary process. He set out the claimant’s explanations and the reasons for rejecting them. The claimant had complained that Mr Bixby had not done his job properly, hence the branch being under-resourced. Mr Scott-Lee investigated this allegation and provided a detailed basis for rejecting it. In short, he found that the claimant had not managed the branch in accordance with company guidelines and had not acted in accordance with Mr Bixby’s instructions. He was warned of the need to do both in the future, or risk a more severe disciplinary penalty.[20]Mr Bixby did not consider that the claimant had made progress in these regards by March 2019 and he met with the claimant on 4 March to address his concerns. Mr Bixby’s principal concerns centred on four key areas. However, he saw these as being manifestations of a more general failure of the claimant’s management of the branch. The four areas were key audits, property management inspections, staff management and communications with Head Office.[21]A branch will hold many sets of keys for client properties. The claimant was repeatedly chased to undertake and report on a key audit in the fourth quarter of 2018. When he eventually produced the audit, it was inadequate. In particular, 20 sets of keys were missing.[22]The branch had a significant backlog of some 42 property management inspections. Despite this being pointed out to the claimant these had not been carried out as they should have been. The claimant’s branch had done 46 inspections by early March 2019, whereas undertaking all 88 inspections would have been expected. Despite prompting, the claimant had not produced a strategy designed to clear the backlog.[23]The claimant was supposed to have a morning meeting each day with all staff to review the previous day and determine how the current day would be utilised. He frequently either failed to have such a meeting, had it late (due to his own late arrival) or failed to review the previous day and organise the current one during such meeting.[24]The claimant had been instructed to undertake regular review meetings with his team, especially his junior negotiator, but failed to do so. Hence, his junior negotiator was unable to perform tasks she should have been able to complete and failed to make progress in her role.[25]Clients were complaining about response times and about the claimant’s effectiveness and communication with them. Departing staff noted the claimant’s management failures as one reason for their leaving.[26]In consequence of all of the above, it appeared clear to Mr Bixby that the claimant was not managing his branch effectively.[27]At their meeting on 4 March, Mr Bixby went through each of the above points and the claimant accepted that he was not meeting the required standards. Mr Bixby warned him that he was considering removing the claimant from his position and the claimant agreed that this would be reasonable should his performance not improve. Having reflected on the claimant’s performance, Mr Bixby again referred the claimant to Mr ScottLee with a view to formal disciplinary process.[28]As a result, the claimant was invited to a disciplinary meeting on 8 March 2019. Again, the claimant sought to explain his failures. Again, Mr ScottLee considered his explanations and rejected them, giving his detailed reasons in a letter of 22 March which gave the claimant a final written warning.[29]The claimant maintained in evidence that at this disciplinary meeting he had accused Mr Bixby of having bullied him. The detailed notes do not show this and I consider that he did not do so. Mr Scott-Lee’s consideration of the claimant’s management of the branch showed that the claimant’s failures in communication and management went beyond matters in respect of which he inter-related with Mr Bixby. They extended to his dealings with others within the respondent and to clients, several of those in both categories having expressed frustration with the claimant’s efforts.[30]Mr Scott-Lee did not consider that Mr Bixby had acted other than entirely appropriately towards the claimant. Having heard from both Mr Bixby and the claimant and having looked at the contemporaneous documents, I share his view. The difficulties in their relationship stemmed from the claimant’s reaction to being required to follow procedures, his efforts in that regard being monitored and his being taken to task for repeatedly failing to do so. As already noted, he resented Mr Bixby’s approach.[31]The claimant had sought to appeal the original written warning, but did so only several days out of time, hence no appeal was considered. He made no effort to appeal against the final warning.[32]Mr Bixby reflected on the claimant’s performance in the light of their meeting on 4 March and the final warning. He decided that leaving the claimant at High Wycombe was unsatisfactory. The claimant had failed to improve despite detailed guidance given to him and the branch’s financial position was deteriorating. Hence, he decided to move the claimant to the Amersham branch.[33]The Amersham branch was smaller with fewer transactions (albeit at a significantly higher average value) and offered scope for building a successful letting branch in a rather less busy situation. He hoped that a fresh start in such circumstances would enable the claimant to succeed. He was aware that the claimant might need some initial financial protection, given the current state of the Amersham branch lettings business.[34]Mr Bixby’s evidence was to the effect that his decision to move the claimant was a provisional one and that he would have been open to being persuaded to take a different course by the claimant. I accept that, but I consider that the prospect of Mr Bixby being persuaded to act in any other manner was remote. The theoretical prospect existed, but I consider that Mr Bixby had, to all intents and purposes, made his mind up, as is confirmed by the fact that he had a draft letter already prepared which confirmed the move which he intended to discuss with the claimant at a meeting.[35]Although the respondent had the power to transfer the claimant to more suitable work either as a disciplinary penalty, or in the face of issues relating to his capability, Mr Bixby did not act on that basis. Instead, he intended to exercise the contractual right to move the claimant to another branch found in the mobility clause in the claimant’s contract. In seeking a move from High Wycombe to Amersham, Mr Bixby took into account that the claimant would now have a longer journey to work. He lived in High Wycombe and the branch was some five to ten minutes away. Whereas, a commute to Amersham would take some 20-40 minutes (depending on the time of day and the traffic conditions). Mr Bixby viewed this as a manageable commute.[36]The claimant walked out of the meeting at which Mr Bixby informed him of his desire to have him moved to Amersham. He was then signed off with stress from 4 to 29 April 2019. The claimant not having discussed the matter of the move with Mr Bixby, but having walked out of the meeting, Mr Bixby instructed him to move by sending to him the draft letter he had prepared. When he returned to work it was to the Amersham branch.[37]Mr Bixby met with the claimant on 10 May to discuss remuneration and agreed with him a package which would preserve his earnings at High Wycombe levels for a period of four months, after which it was anticipated that the claimant should have been able to establish himself in Amersham. They also discussed the claimant’s concerns about his new job, but those concerns are best dealt with after a consideration of the claimant’s grievance which he lodged whilst off sick.[38]The claimant raised his grievance on 12 April 2019 and it was heard by Mr Scott-Lee on 29 April. He complained of:38.1 An unfair and abusive use of the mobility clause with a likely drop in earnings and the stress of moving locations.38.2 Lack of assistance and support at High Wycombe leading to an unrealistic and overwhelming workload.38.3 Mistakes regarding commission payments.38.4 Harassment and bullying by Mr Bixby who provided no support and assistance.[39]Mr Scott-Lee considered each of those matters in turn at a hearing on 29 April and reflected on them thereafter. From what the claimant said then and from parts of his evidence to the Tribunal, it is clear that the claimant did not then object to the move to Amersham as such. His objection was to it being imposed as a disciplinary sanction against a background of what he considered to be unfair behaviour by Mr Bixby and a lack of support from him. However, despite making this clear when taken to the notes of the meeting, which are to that effect, when cross-examining the respondent’s witnesses and in closing submissions the claimant became ever more animated as to the unsuitability of Amersham and that he would never ever had agreed to go there.[40]Central to the claimant’s grievance was his assertion that it was Mr Bixby who was inadequate and ineffective and that he, the claimant, was being punished for Mr Bixby’s failings. This was, in effect, a rather more extreme version of the assertions which he had made during the course of the previous disciplinary hearing.[41]At the conclusion of the grievance meeting, Mr Scott-Lee investigated whether the claimant was saying that he could not work with Mr Bixby any longer. The claimant made clear that he was not saying this. Mr Scott-Lee then discussed how they could take their relationship and the handover of the High Wycombe lettings business forward.[42]On 10 May (the day the claimant and Mr Bixby met, as referred to above) the claimant was given the outcome of his grievance. In a four page letter Mr Scott-Lee dealt with each of the claimant’s four points and rejected each of them. However, the structure of the letter did not seek to separate these points out, rather Mr Scott-Lee chose to inter-relate the claimant’s complaints with the reasons for his being issued with a final written warning. The two were closely related and, unsurprisingly, Mr Scott-Lee relied upon his conclusions regarding issues which he had investigated when dealing with that disciplinary matter. He pointed out that the claimant’s important concern about the impact of the move on his pay had not been dealt with hitherto because he had walked out of the 3 April meeting and had not been present since because he had been off sick. However, Mr Scott-Lee was clear that it was not intended that the claimant’s pay would be adversely affected.[43]The claimant’s meeting with Mr Bixby on 10 May dealt with the issue of pay, but its scope was wider than that. The claimant complained about the move to Amersham saying that he didn’t like the office, the ‘sleepy’ village of Amersham, the people, the clients (which he said he found annoying) and the commute. I consider this to be a reaction to the, as yet, unfamiliar environment from someone still persuaded that he was being disciplined by being moved and that the failings of the High Wycombe branch represented, at least in part, a failure of Mr Bixby’s management of him. Having seen the contemporaneous documents and heard from (in particular) Mr Bixby and the claimant himself I am satisfied that he was wrong. He had previously recognised some of his own failings, as the notes of meetings and reviews show and his efforts to portray Mr Bixby’s memos, notes and lists of key tasks as bullying and harassment were unconvincing when he gave evidence.[44]The outcome of the 10th May meeting was that a way forward in key action points for developing the Amersham branch were agreed. The agreement as regards renumeration was confirmed in a letter of 16 May. That letter also noted the claimant’s comments on Amersham and its clients and the context of the move (being the claimant’s failings at High Wycombe) and urged the claimant to build the Amersham business and establish client relationships there.[45]The claimant appealed against the rejection of his grievance. This was heard by the respondent’s operations director, Mr Simpson, on 22 May 2019. The claimant again maintained that the responsibility for any downturn in business at High Wycombe rested, at least in part, with Mr Bixby. The claimant asserted that Mr Bixby should have left him to run the High Wycombe letting business, but also complained that Mr Bixby’s input was essential and that he had failed to provide it. Mr Simpson found this to be a contradictory attitude. That his appeal involved such a contradiction was something that the claimant did not seek to challenge in crossexamination or explain in his evidence.[46]Mr Simpson felt the claimant would not accept responsibility for his own failings as a manager and accepted that Mr Bixby had moved him to Amersham as a supportive measure. He rejected the claimant’s contention that Mr Bixby had been rude and unprofessional towards him, concluding that the emails that he had been shown demonstrated that the claimant had responded to Mr Bixby’s appropriate guidance and instructions by being rude towards him.[47]Mr Simpson rejected each of the claimant’s grievance points in a detailed outcome letter of 3 June 2019. He recommended that the claimant and Mr Bixby meet with a mediator to try to establish a better working relationship. This then took place.[48]In evidence the claimant asserted that meetings with Mr Bixby had regularly become heated and that on one occasion he had sworn and been abusive towards Mr Bixby. He criticised Mr Bixby for failing to reflect this in his notes of (in particular) that particular meeting. I accept, as did Mr Bixby, that the claimant did become angry in meetings and periodically swore at Mr Bixby, but that Mr Bixby did not note this, or criticise the claimant for it, as he did not feel threatened. He understood that the claimant was behaving in this way because he found it difficult to accept that Mr Bixby’s suggestions and instructions were appropriate, because he could not accept that there was a problem arising from his own failings. Mr Bixby had high regard for the claimant as a letting agent, but not as a manager. It was this and the claimant’s apparent inability to manage under the pressure of a busy branch that had led him to move the claimant to Amersham where he had sincerely hoped and expected him to succeed. I reject the claimant’s contention that the move to Amersham was designed as part of a sequence of measures by which the claimant was to be (to use his words) “managed out of the business”. The respondent believed that the claimant could succeed and wanted him to do so.[49]From the rejection of his grievance appeal on 3 June until his resignation on 27 September, nearly four months later, the claimant worked at the Amersham branch. He says that he was there “under protest” but the protests were taken no further after 3 June. Indeed, after that point in time they were not repeated.[50]Unfortunately, the claimant did not make a success of his move to Amersham. Mr Bixby gave the claimant a period to settle in and then met with him on 26 June. Once again, Mr Bixby found the claimant not to be acting in the ways he would have expected from a senior manager. Mr Bixby took the claimant through various areas of concern and followed this up with a set of meeting notes, these notes explained what actions the claimant should be taking. In particular they referred to the claimant’s failure to use the software which the respondent provided to enable an almost instant report to be given to a client on the viewing of a property. The claimant was told to use this software. He was also reminded of the expectation in respect of the number of calls that he should be making in a day. He was falling well short of that and he had a number of clients and prospective clients whom he had failed to call. A review in a further month’s time was set up.[51]On 27 July Mr Bixby met the claimant to review the second quarter of 2019. Again, problems were identified and a set of 12 key actions set out in the notes sent to the claimant, together with further actions on particular issues. Once again, the claimant’s failure to use the viewing report software was noted and he was instructed to use it. He was still making only 20% of the expected calls per day and still had a considerable backlog of clients and prospective clients to be called.[52]A further meeting took place on 28 August. The claimant had failed to action various of the key points previously identified (and referred to above). He still had a backlog of calls not made, he was making too few calls and not always using the reviewing report software.[53]The claimant went on annual leave after this meeting. On his return Mr Bixby wrote to remind him that he needed immediately to address the various action points previously identified. Despite this, he did not do so and Mr Bixby felt compelled to inform Mr Scott-Lee of this.[54]Consequently, Mr Scott-Lee reviewed the situation and invited the claimant to a further disciplinary hearing, eventually rescheduled for 1 October 2019. The letter to the claimant in regard to that hearing identified eight specific failures on his part to carry out Mr Bixby’s instructions, or deal with the action points identified in the three meetings referred to above. These included failures to make calls, allowing substantial backlogs of properties not put on the market to accumulate and the failure to address other matters. It was noted that he was still not using the viewing report software. Various documents were annexed to the letter and the claimant was warned that his employment was now at risk. This, of course, repeated warnings that had previously been made to him, albeit not in so stark a way.[55]The letter to the claimant was dated 26 September. The claimant resigned by letter of 27 September. He cited the forced relocation to Amersham and the loss of income consequent upon it as amounting to fundamental breaches of contract. He was asked by Mr Scott-Lee to reconsider and given an opportunity to say that he had acted in haste, but he ignored two letters to that effect.[56]I consider that his resignation was triggered by the invitation to the disciplinary hearing and the realisation that he could not adequately answer the allegations made in that letter. He resigned against the background of his having been moved (against his will) and his having failed to make a success of the Amersham branch. His four month period of income protection had ended and his failures had placed him in a position where he was not yet able to earn similar sums to those earned at High Wycombe. Nothing in the evidence before me (including the claimant’s evidence) persuaded me that the respondent was wrong in its view that if he had acted in accordance with Mr Bixby’s guidance and instructions, he could have made a success of the Amersham lettings business and that this would have yielded an income equivalent to, or greater than, that at High Wycombe. The fact of the matter is that he did not do so.[57]As the claimant resigned on 27 September and the pay for September was paid to all staff on that day, he was paid for days in September which he did not work. The respondent sought to claw that sum back from sums otherwise due to him when his employment terminated. In particular, a tax rebate of £219.40 had been received, but was (for that reason) not paid to the claimant.[58]The claimant has alleged that he was not paid a 5% commission in respect of lettings at Thame House Ltd. His witness statement does not deal with the detail of this claim, nor did he provide any detail by way of putting documents showing the basis and make up of his claim to the respondent’s witnesses. At one stage the claim appeared to relate to commission due in respect of invoices rendered to that company in November 2018, but when questioned he asserted that further sums (apparently relating to later invoices) were due.[59]His evidence in this regard was confused and did not provide any sufficient basis for me to find facts to substantiate his claim. Furthermore, it remains unclear whether any of the transactions to which this relates gave rise to invoices and client payments made within such a period as to give the Tribunal jurisdiction to consider the claim without the delay in claiming being appropriately explained. Despite the issue of delay being raised in crossexamination, the claimant did not explain the delay. Indeed, as already noted, as he did not particularise his claim so as to enable me to understand when and how it arose on a paid invoice by paid invoice basis, it is unclear whether there was delay. I note that it was in order to enable him to deal with such matters than the very considerable further disclosure was ordered at the previous hearing. Large numbers of documents appeared in the bundle before me, but the claimant appeared unable to utilise them so as to make good his claim. On occasion he asserted that this was because the documentation was either incomplete or had been redacted. However, it does not appear that he asked for further documentation in advance of this hearing, or sought the un-redaction of appropriate documents or part documents.[60]The claimant initially alleged that he was owed holiday pay, although this claim was abandoned at the Preliminary Hearing in March. In fact, it is clear from the evidence which I heard and saw that he had taken 29 days holiday in the holiday year in progress at the time of his resignation. He was entitled only to 25.5 days, such that the respondent was entitled to claw back the pay in respect of the extra days in accordance with his contract of employment.The law
[61]As noted in the record of the Preliminary Hearing in March, there is no dispute between the parties that the claimant’s contract of employment contained the usual implied term as to trust and confidence. The respondent would be in breach of it if it behaved, without lawful cause, in ways calculated or likely to destroy or seriously damage the necessary trust and confidence between employer and employee. Any such breach of that implied term would be repudiatory of the contract of employment. Here, as in respect of various points of law noted below, the claimant did not dispute the core propositions advanced by the respondent in its submissions, sometimes in response to questions from me. The respondent cited no authorities and given that I regarded the propositions set out below to be straightforward and properly uncontentious, I did not draw the attention of the parties to any authorities.[62]If an employer acts in breach of any express term of the contract of employment the employee will be entitled to bring the contract to an end if the breach of that term was sufficiently serious as to be repudiatory. A repudiatory breach is one of such seriousness that it shows an intention on the part of the employer no longer to be bound by the contract of employment. A breach of a term relating to remuneration is likely to be repudiatory, but the circumstances of the breach remain relevant when considering whether this is so, in particular both the amounts in question and whether or not the breach was deliberate are relevant.[63]In order to accept a repudiatory breach of contract, so as to give rise to a constructive dismissal, the employee must resign in response to the breach. Furthermore, an employee cannot accept an otherwise repudiatory breach and bring the contract to an end if he has previously waived that breach and affirmed the contract. Waiver and affirmation will be found if the employee has chosen to continue to perform the contract despite the breach, albeit that the period of performance, whether or not it was accompanied by further protests and whether or not the continued performance actually involved the operation of that part of the contract said to have been breached by previous conduct, are relevant when considering waiver and affirmation.[64]Hence, a distinction is to be drawn between a case, such as the present one and a case where an employee protests about conduct said to amount to a breach of the contract, but future performance does not engage with that conduct previously complained about.[65]A number of matters may cumulatively amount to a breach of contract, in particular a breach of the implied term as to trust and confidence. This is so even where the matters in question, if looked at individually, would not amount to such a breach.[66]If the claimant can establish a constructive dismissal, then the respondent can seek to demonstrate that this dismissal was for a potentially fair reason, but no such claim is advanced in this case.[67]Where the respondent operates a mobility clause, the mere presence of that clause does not mean that its operation cannot amount to a breach of contract. If what the respondent requires of the claimant is so disadvantageous to the claimant and/or so unreasonable, the operation of that clause in those circumstances may give rise to a breach of the implied term as to trust and confidence. Alternatively, there may be a specific implied term of the contract governing the operation of a mobility clause (such as that in this case) expressed in very general terms.[68]The burden of proof in relation to establishing a constructive dismissal is on the claimant. The claimant must satisfy the court or tribunal that there were repudiatory breaches of contract and that he resigned in reliance upon them. There would then pass to the respondent a burden to show that the claimant had waived the breach and affirmed the contract.[69]A deduction from an employee’s wages will be unlawful under Part II of the Employment Rights Act 1996 unless the deductions fall within one of the exceptions found in s.14 of the 1996 Act. These include:69.1 Deductions to achieve reimbursement of an overpayment of wages.69.2 Deductions permitted by a term in the employee’s contract of employment, provided that the employee has signified in writing his agreement to such a term.[70]The definition of wages in s.27 of the 1996 Act makes clear that it includes bonuses and commissions or any other emolument referable to the employment, whether paid under the contract of employment or otherwise. That is wide enough to cover a tax rebate which is made within the operation of the PAYE scheme, as this represents a sum which was previously deducted from wages which would otherwise have been paid to the claimant.[71]I need not set out the law in respect of the primary and secondary limitation periods for unlawful deduction claims (which also apply to breach of contract claims) because of the findings of fact which I made above in respect of the commission said to be due in respect of Thame invoices and the findings which I set out below in respect of one other generalised part of the claim in respect of which they might otherwise have proved relevant.[72]The employment tribunal’s jurisdiction was extended by the Extension of Jurisdiction (England and Wales) Order 1994 to include damages for breach of contract which (so far as is presently relevant) arise or are outstanding as at the termination of the employee’s employment. That would cover commission or other contractual payments not yet paid to the claimant, albeit that some might also be recoverable under part II of the 1996 Act as the failure to pay all wages due amounts to a deduction (see s.13(3)).[73]There is no need for me to set out the provisions in the Working Time Regulations relating to payment of holiday pay outstanding at the termination of employment as none is now claimed. The respondent’s position is of overpayment. Application of the law to the facts[74]I turn first to consider whether the claimant was constructively dismissed. A number of matters are relied upon, individually and cumulatively to amount to a repudiatory breach of contract. These were identified at the preliminary hearing in March.[75]I deal first with the various matters said to amount to breaches of the implied term as to trust and confidence.[76]The claimant relies, firstly, upon the move to the Amersham office. This was a move which the respondent was entitled to require under the mobility clause in the claimant’s contract of employment, subject to a consideration of the circumstances in the context of the implied term as to trust and confidence.[77]I do not consider that to require such a move against a background of poor performance and where Mr Bixby reasonably believed that the move was needed both in the interests of the respondent and the claimant, would amount to such a breach in this case. This is because the commute from High Wycombe to Amersham was a reasonable one and the claimant had his earnings protected for a sufficient period to enable him to develop the Amersham business. I note, as set out in my findings of fact, that at the time the claimant was not averse to a move to Amersham, his principal complaint, made contemporaneously in his grievance and, at times, in his evidence to me was that this was being used to discipline him.[78]Next, the claimant relies upon the lack of consultation prior to the move. There was a meeting prior to the move. I consider that the claimant was unlikely to have deflected Mr Bixby from that course had he participated in the discussion, rather than walking out. There was no obligation on the respondent to consult in the sense of negotiating an agreed relocation. The respondent had the power to move the claimant given by the contract of employment. The key question is whether it exercised that power in a way which breached the trust and confidence implied term.[79]I do not consider that it did. It sought to address the concerns giving rise to the move over a long period and with some care and in detail. It sought to discuss the move with the claimant and was prepared to (and eventually did) reach an agreement to protect his income.[80]Next, the claimant relies upon an alleged change of duties by increasing the amount of time he would have to spend dealing with tenants. It is clear that the claimant’s duties at Amersham would, to an extent, differ, at least in the short term, from those at High Wycombe. His managerial role would diminish and his client facing activities would increase. This was because the respondent had reasonably concluded that he was struggling to manage the High Wycombe letting branch, but was capable of being very effective if he had less managerial duties in a smaller branch. To move him to a role which achieved that rebalancing against a background of poor performance and with income protection in place was not, in my view, a breach of the implied term as to trust and confidence. He was not being told to do things which fell outside the scope of his contract (or associated job description) rather the balance, or mix, of the various duties was being changed for good reason. I consider that this was an operation of the respondent’s management prerogative done in the context of invoking its rights under the mobility clause. In short, he was not being demoted from the position of lettings manager. Rather, he was to be Lettings Manager at a smaller branch with fewer, but higher value, lets.[81]He next complains of reducing his salary or capacity to earn. I have dealt with this in the findings I have already set out above. Had no income protection been put in place, he would have suffered a short term drop in earnings, but it was. Thereafter, had the claimant performed as he could and should have done, his earning potential was substantially unchanged.[82]He also relies on the failure to give him proper notice of a variation to his contract of employment in 2019. He relied upon an invitation to increase the period of notice which he would have to give to the respondent. This change was offered in return for an increase in annual leave. Whether to accept that variation was his choice. Some in the company declined to do so. He chose to accept the change, signed a variation letter and took his extra holiday entitlement. There is no breach of contract here and I note that these events took place in late 2018 and early 2019, long before his resignation.[83]Finally, he relies upon an alleged failure to deal fairly with his grievance. I consider that the grievance was dealt with fairly. It was carefully investigated by Mr Scott-Lee and reconsidered on appeal. The letters from Mr Scott-Lee and Mr Simpson show that they had each looked carefully at every aspect of the grievance and provided a reasoned rejection of each. Its consideration was both procedurally and substantively fair. In particular, having heard the evidence and seen the contemporaneous documents they had before them, I consider that they had a reasonable basis for reaching the decisions that they did.[84]Hitherto I have looked at each of the matters individually. Considered as a whole, do they amount to a breach of the implied term as to trust and confidence? They do not. This is not an instance of behaviour which looked at individually does not reach the required threshold, but which cumulatively could do so. As I have already made clear, I find no fault with the respondent’s behaviour.[85]A breach of the commission scheme is also relied upon as a fundamental breach of contract. The claimant was unable to point to any breach of any of the commission schemes applicable to him. He did rely upon a statement made at the start of the hearing that in re-examining his commission entitlements for the purposes of this case the respondent had found that a few small payments (totalling £106.38) had inadvertently not been paid to him due to a malfunction in the operation of the respondent’s accounting software. Other emplyees had similarly been the victim of that malfunction.[86]Given the small sums involved and the reason for the non-payment, I do not regard the breach of contract in failing to make those payments to be repudiatory. It did not evince any intention no longer to be bound by a term of the contract. Furthermore, the claimant did not resign in reliance upon this breach which neither he, nor anyone else, had appreciated, despite the fact that he and his fellow managers had access to the underlying records on a regular basis with a view to them establishing whether appropriate sums had been paid. The claimant told me that he carefully checked all of the records on an annual basis. He did not spot the errors.[87]In all of those circumstances I do not consider that the respondent was in repudiatory breach of any term of the claimant’s contract of employment and, hence, he cannot have been constructively dismissed.[88]In any event, even if the claimant could show breaches of contract, the only two he relied upon in his resignation letter were the forced relocation and the resulting loss of income. Further, I am not satisfied that he resigned in response to those matters. I consider that his resignation was a response to his being invited to a disciplinary hearing to answer allegations of poor performance and ignoring instructions, with which allegations he knew he could not deal adequately and the respondent’s decision in respect of those allegations was likely to be, in his view, his dismissal.[89]Furthermore, I consider that the claimant had waived any breach of contract arising from his move to Amersham by performing his contract at Amersham from the beginning of June to 27 September 2019. After his grievance appeal was dismissed, he did not protest further about the move, instead he did his job at Amersham, meeting Mr Bixby for formal review meetings at which Mr Bixby sought to help and to develop the branch. I also consider that he waived and affirmed in respect of any breach of contract that he might be able to evidence as regards the changes to his remuneration package. This is because he reached agreement with the respondent as to an income protection programme for four months.[90]The claimant was paid all sums he was entitled to at the ending of his contract of employment. Because of an overpayment of salary arising from his having left before the end of September and having been paid (on his resignation day) for the full month, that sum could lawfully be deducted from any amount otherwise owed to him. Hence, he did not receive the tax rebate he would otherwise have received and he had taken more paid holiday than he was entitled to and his contract permitted this to be clawed back. This would also amount to a lawful deduction, the contract having been signed by him. Even taking into account the £106.38 now found to be owing, this would not leave a positive balance in his favour.[91]The claimant’s claim in respect of the Thame House commissions must fail. As I have already set out, it is completely unparticularised. The respondent maintained that the client paid some invoices late and some not at all. The claimant’s contract is clear that his entitlement to commission would arise only once the respondent had been paid. The respondent’s evidence was that he had been paid in the following month when any invoice was paid. As I have already found, despite extensive disclosure, the claimant was not able to point to any single instance of an invoice which was paid and in respect of which he was not then paid commission then due to him.[92]The respondent also relied upon the fact that it is an express term of the claimant’s contract that he lost his entitlement to any unpaid commission if he resigned without giving due notice. Given the findings that I have already made I need not consider whether that term of his contract applied to all unpaid sums or only to sums in respect of which the entitlement to payment had not yet arisen as at the time of termination (either because the invoice had been paid too recently for the entitlement to arise or because the invoice had not been paid at all). On a literal reading of the contract the term would appear to apply to all payments not yet made (including any which should have been paid many months previously), but I consider it possible that it could successfully be argued that this is not the correct interpretation or that an implied term existed to deal with payments which ought already to have been paid. It might even be argued that if it is to be read widely the clause would amount to a penalty clause. However, I was not addressed on these matters and I say no more about them.[93]The claimant also claimed two property management bonuses. He asserted that these had not been paid at the time of his resignation. They had not been paid because the entitlement to payment had not yet arisen. Hence, as the claimant resigned in breach of contract, he would no longer have any entitlement to them. Mr Scott-Lee asserted the relevant facts in his witness statement and the claimant did not cross-examine him on this, nor did he address me on the matter. Hence that claim must fail.[94]The claimant also alleges non-payment of commission owed to him in 2019. Other than as dealt with above the claimant provided no details whatsoever of this claim and it must be dismissed.[95]In all of the circumstances each and every aspect of the claimant’s claim fails and must be dismissed.