Mr C McCutcheon v Crucial Solutions (NE) Ltd – In Voluntary Liquidation: 6019715/2025

EMPLOYMENT TRIBUNALS

Case No 6019715/2025

Between

Mr C McCutcheonClaimant

Crucial Solutions (NE) Ltd – In Voluntary LiquidationRespondent

Before

Employment Judge T Knowles

In person for claimant

No appearance for respondent

Date 17 November 2025

JUDGMENT

[1]The Claimant’s claims for wages and holiday pay are dismissed upon withdrawal by the Claimant.

[2]The Claimant’s claim for a redundancy payment is not well founded and fails.

[3]Leave to amend to add a claim of wrongful dismissal is granted to the Claimant.

[4]The Claimant was wrongfully dismissed without notice.

[5]The Respondent is ordered to pay to the Claimant damages for breach of contract (net notice pay) in the sum of £3,725.

[6]The Claimant’s claim of unfair dismissal is well founded and succeeds.

[7]The Respondent is ordered to pay to the Claimant compensation for unfair dismissal as follows:a. A basic award in the sum of £3,500.00

b. A compensatory award in the sum of £25,533.00.

[8]The calculations in 5. and 7.b. above include a 25% increase for failure to follow the ACAS Code of Practice on Disciplinary and Grievance Matters. Case No: 6019715/2025

[9]The recoupment regulations do not apply. Approved by

REASONS

Issues

[1]The Claimant’s original claims were:a. Unfair constructive dismissal

b. Redundancy payment

c. Unpaid wages

d. Holiday pay due on termination of employment

[2]A claim of unfair dismissal incorporates a claim of wrongful dismissal. I added that claim by way of a relabelling amendment as it is in the interests of justice to do so.

[3]The Claimant had referred to a claim for a loan he made to the company which they had not repaid. That is not a claim which falls within the Tribunal’s jurisdiction and has not been dealt with.

[4]At the beginning of the hearing, the Claimant confirmed that he had received payment of wages and holiday pay. Those claims were withdrawn.

[5]The issues therefore are: Constructive unfair dismissal

[6]Did the respondent do the following things: 6.1. Remove his access to the bank account and accounting software. 6.2. Remove access to his work email account. 6.3. Create a Whatsapp group for communicating with staff excluding the Claimant 6.4. Contact staff or customers to say that Mr Jobson was now in control of all financial matters 6.5. Pay the Claimant late for September 2024 6.6. Pay the Claimant late for October 2024

[7]Did that breach the implied term of trust and confidence? The Tribunal will need to decide: 7.1. whether the respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent; and 7.2. whether it had reasonable and proper cause for doing so.

[8]What were the terms of the Claimant’s contract relating to duties and wages?

[9]Did the Respondent breach the Claimant's contractual terms in relation to duties and wages?

[10]Was the breach a fundamental one? The Tribunal will need to decide whether the breach was so serious that the claimant was entitled to treat the contract as being at an end.

[11]Did the claimant resign in response to the breach? The Tribunal will need to decide whether the breach of contract was a reason for the claimant’s resignation.

[12]Did the claimant affirm the contract before resigning? The Tribunal will need to decide whether the claimant’s words or actions showed that they chose to keep the contract alive even after the breach.

[13]If the claimant was dismissed, what was the reason or principal reason for dismissal i.e. what was the reason for the breach of contract?

[14]Was it a potentially fair reason?

[15]Did the respondent act reasonably or unreasonably in all the circumstances, including the respondent’s size and administrative resources, in treating that reason as a sufficient reason to dismiss the claimant?

[16]The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case. Wrongful dismissal

[17]What was the claimant’s notice period?

[18]Was the claimant paid for that notice period?

[19]If not, was the claimant guilty of gross misconduct or did the claimant do something so serious that the respondent was entitled to dismiss without notice? Redundancy payment

[20]Is the Claimant entitled to a statutory redundancy payment.

[21]If so, what is the amount of the redundancy payment.

Evidence

[22]The parties had produced a joint bundle of documents, 119 pages.

[23]I heard evidence from the Claimant who affirmed. He produced a written witness statement.

[24]The Claimant produced witness statements from the following: 24.1. Mr G Seed, Facilities Manager, IKEA. 24.2. Ms S McCutcheon, former Personal Assistant at the Respondent. 24.3. Mr I McCutcheon, former Director at the Respondent.

[25]Those 3 witnesses did not attend the hearing.

[26]The Respondent produced a witness statement from Mr A Jobson, Director. Mr Jobson did not attend the hearing.

[27]In relation to those not attending the hearing, there is little weight I can attach to their evidence because they were not available to ask questions, nor was their evidence given under oath.

[28]The case was held on HMCTS’s CVP platform, a video hearing.

[29]The case concluded in one day rather than the scheduled two days.

Findings of fact

[30]I made the following findings of fact on the balance of probabilities. This is not a complete statement of the evidence which I heard. I set out here the core facts as found by me and from which I reached my conclusions.

[31]The Claimant was employed by the Respondent from 13 December 2018 as a Financial Controller and his employment ended on 8 November 2024.

[32]The Respondent had previously been run by two directors, Mr Jobson and Mr I McCutcheon, who is related to the Claimant.

[33]The directors had a disagreement over the future of the business and Mr I McCutcheon resigned as a director on or around 25 October 2024.

[34]Mr Jobson then, on 30 October 2024, removed the Claimant’s access to the bank account and to their accounting software. I find it more likely than not that Mr Jobson at the same time removed the Claimant’s access to work Outlook systems, preventing him accessing his email records.

[35]Mr Jobson also set up an all staff Whatsapp group excluding Mr I McCutcheon and the Claimant. To that group of remaining employees Mr Jobson confirmed that he was now in charge of all of the company’s financial matters.

[36]Mr Jobson told at least two customers / suppliers that the Claimant had left or was about to leave and to address financial matters to him.

[37]The Claimant was not paid at the end of October as he should have been. The Claimants wages for September were paid late too.

[38]The Claimant made representations over monies he was owed. It appears to be common ground that the Claimant was due wages, indeed the Respondent made a payment of monies owed after the Claimant left.

[39]On 4 November 2024 the Claimant raised a grievance by letter concerning his wages and a loan which had not been repaid. The Respondent did not arrange a grievance hearing.

[40]On 8 November 2024 the Claimant resigned by letter with immediate effect, citing monies due to him as his reason for leaving.

[41]Whilst the Respondent has made accusations in their response to the Tribunal against the Claimant, the Claimant went through them in evidence and disputed all of the points that the Respondent raised.

[42]Without anyone from the Respondent being here to question about the dispute, I am unable to find that the Respondent’s accusations concerning missed invoices, incorrect invoice categorisation and overpaid wages are likely to be true.

[43]There is no evidence of any substance in front of me suggesting that the Claimant would have been subject to disciplinary proceedings had he not resigned.

[44]The Claimant’s contract contained a clause which purported to grant to the Respondent the right to change the Claimant’s duties.

[45]The Claimant’s contract provided for a week’s notice per year of service. The Claimant was entitled to 5 weeks contractual notice.

[46]The Claimant was aged 32 at the date of his resignation.

[47]He had completed 5 years of service.

[48]His earnings were £804 per week gross.

[49]His normal take home earnings were £608 per week.

[50]The Respondent contributed to the Claimant’s pension at a rate of £21 per week.

[51]Had he continued to work, his earnings would have been slightly less in November 2024 as he was recovering from an injury and had agreed some time off which was unpaid sickness. That would have reduced his earnings for November by approximately £60 net.

[52]The Claimant sought to mitigate his losses by seeking alternative employment.

[53]The Claimant began new work for a 3rd party employer on or around 15 March 2025. His average earnings are now around £357 per week net and he hopes to have fully mitigated his losses in April 2026 when he expects his employment will become full-time.

[54]The Claimant’s employment would not have continued after 25 March 2025 had he not left the Respondent. His employment would have ended then as the company entered into a creditors voluntary liquidation and it is more likely than not that the liquidator would have removed outgoings by terminating the employment contracts of employees. Submissions

[55]The Claimant made no submissions. He expressed his disappointment with the way his employment had ended with the Respondent, but felt that his claim had been covered through going through the evidence.

The Law

[56]Section 94 of the Employment Rights Act 1996 (the 1996 Act) sets out the right not to be unfairly dismissed. Section 95 sets out the circumstances in which an employee is dismissed, and at subsection (1)(c) provides that an employee is dismissed if the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct. This is commonly known as constructive dismissal. Where an employee has been dismissed, Section 98 provides the test of fairness. In summary the employer must show the reason for the dismissal and that it is a potentially fair one as provided for further in subsections (1) and (2). Where the employer succeeds in so establishing a potentially fair reason for the dismissal, a tribunal will then assess the fairness of the dismissal in accordance with the provisions of subsection (4).

[57]The principles of constructive dismissal have developed over many years and consequently there are many authorities that guide employment tribunals in determining these claims. Harvey on Industrial Relations and Employment Law puts the position as follows. ‘In order for the employee to be able to claim constructive dismissal, four conditions must be met:(i) There must be a breach of contract by the employer. This may be either an actual breach or an anticipatory breach.

(ii) That breach must be sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents which justify his leaving. Possibly a genuine, albeit erroneous, interpretation of the contract by the employer will not be capable of constituting a repudiation in law.

(iii) He must leave in response to the breach and not for some other, unconnected reason.

(iv) He must not delay too long in terminating the contract in response to the employer's breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract.’

[58]In this claim the claimant claims that the implied term of trust and confidence had been breached by the respondent. That term was refined by the House of Lords in Mahmud v Bank of Credit and Commerce International SA

[1997] ICR 606

[1997] IRLR 462

as providing that 'the employer shall not without reasonable and proper cause conduct itself in a manner calculated [or] likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.'

[59]In London Borough of Waltham Forest v. Omilaju

[2005] IRLR 35

, the Court of Appeal held that in order to result in a breach of the implied term of trust and confidence, a “final straw”, not itself a breach of contract, must be an act in a series of earlier acts which cumulatively amount to a breach of the implied term.

[60]In GAB Robins (UK) Limited v. Triggs [2007]

EAT/0111/07/RN

, it was held that the three questions to be asked in a constructive dismissal case (in which the claimant relies upon the trust and confidence term) are:(i) What was the conduct of the employer that is complained of?

(ii) Did the employer have reasonable and proper cause for that conduct?

(iii) Was the conduct complained of calculated or likely to destroy or seriously damage the employer/employee relationship of trust and confidence?

[61]Redundancy is defined in s 139 of the Act which says that dismissal shall be taken to be by reason of redundancy if it is wholly or mainly attributable to the fact that the employer has ceased to carry on the business for the purpose of which the employee was employed by him either generally or in a particular place or the fact that the requirements of that business for employees to carry out work of a particular kind, again either generally or in the particular place, have ceased or diminished or are expected to cease or diminish permanently or temporarily and for whatever reason. The case of Safeway Stores v Burrell

[1997] IRLR 200

fully explains these matters.

[62]In Abernethy v Mott Hay and Anderson

[1974] IRLR 213

Lord Justice Cairns said the reason for dismissal in any case is a set of facts known to the employer or may be beliefs held by him which cause him to dismiss the employee. In ASLEF v Brady

[2006] IRLR 576

it was said “Accordingly, once the employee has put in issue with proper evidence a basis for contending that the employer dismissed out of pique or antagonism, it is for the employer to rebut this by showing that the principal reason is a statutory reason. If the tribunal is left in doubt, it will not have done so. Conclusions Unfair dismissal

Conclusions

[63]The Claimant has established as a matter of fact that the Respondent did: 63.1. Remove his access to the bank account and accounting software. 63.2. Remove access to his work email account. 63.3. Create a Whatsapp group for communicating with staff excluding the Claimant 63.4. Contact staff or customers to say that Mr Jobson was now in control of all financial matters 63.5. Pay the Claimant late for September 2024 63.6. Pay the Claimant late for October 2024

[64]In my conclusion the respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent. The circumstances in this case are particularly weighty in support of this conclusion. The Respondent without explanation prevented the Claimant from undertaking work and began to communicate to people including his colleagues that he had, in effect, lost his job.

[65]There was no reasonable and proper cause for the Respondent to do so. The Respondent has not made out a case that there were unpaid invoices beyond invoices delayed in the ordinary course of the Respondent’s business.

[66]The Claimant was employed as Financial Controller.

[67]It was not within the ambit of the Claimant’s contract to completely remove his core responsibilities of managing the bank account and accounting software. The flexibility clause requires reasonable application and would not cover the complete undermining of the Claimant’s core responsibilities.

[68]The Claimant was entitled to be paid. It was a breach of contract to pay him late.

[69]These were clearly fundamental breaches of contract on all three counts, a breach of the implied term of trust and confidence, duties and wages.

[70]All of the breaches are significant and go to the heart of fundamental aspects of the employment relationship.

[71]Cumulatively, the relationship was irretrievably broken by the Respondent’s actions.

[72]In my conclusion the breaches were so serious that the claimant was entitled to treat the contract as being at an end.

[73]The breaches of contract were the reason for the claimant’s resignation; there are simply no other reasons at play in this case.

[74]There is no evidence that the claimant’s words or actions showed that they chose to keep the contract alive even after the breach.

[75]The reason or principal reason for the breaches of contract appear to me to be that Mr Jobson no longer wanted to work with the Claimant and was forcing him out.

[76]No potentially fair reason has been pleaded Respondent or established.

[77]The dismissal was therefore unfair. Wrongful dismissal

[78]There is no evidence that the claimant was guilty of gross misconduct or did anything so serious that the respondent was entitled to dismiss without notice.

[79]The Claimant was wrongfully dismissed. Redundancy payment

[80]I do not consider that there was any diminution in the Respondent’s requirements for a Financial Controller and in those circumstances the Claimant’s claim for a redundancy payment is not well founded.

Remedy

[81]I calculated remedy as follows:

[82]Wrongful dismissal; 82.1. 5 weeks pay at £608 (net) minus £60 for reduced earnings in November 2024 equals £2,980. 82.2. Plus 25% for failure to follow the acas code of practice on discirplinary and grievance matters (see below), £745. 82.3. Total is £3,725.

[83]Unfair dismissal;

[84]Basic award – 5 weeks pay at the statutory maximum of £700 per week equals £3,500.

[85]Compensatory award:

[86]Losses are calculated from the termination date 8 November 2024 to the date on which it is probable that the Claimant’s employment would have ended anyway due to the liquidation, 25 March 2025, 32.5 weeks. The calculation is ended at that point under the principles set out in Polkey v AE Dayton Services Ltd

[1987] UKHL 8

[87]I concluded that there should be an increase of 25% under Section 124 of the Employment Rights Act 1996 owing to the Respondent’s failure to follow the ACAS Code of Practice on Disciplinary and Grievance Matters. The Respondent failed to offer the Claimant or to hold a grievance hearing to resolve the issues which caused him to resign. PRESCRIBED ELEMENT Losses to date of assessment 32.5 X £608 minus £60 reduced £19,700 earnings in November 2024 Minus 1 week’s earnings in new (£357) employment 25% s124 increase £4,836 TOTAL PRESCRIBED ELEMENT £24,179 NON-PRESCRIBED ELEMENT No future loss of wages Loss of statutory industrial rights £400 Loss of pension rights 32.5 X £21 £683 25% s124 increase £271 TOTAL NON-PRESCRIBED £1,354 ELEMENT GRAND TOTAL £25,533 Approved for issue by