Mr A Hisherick v Advanced Innergy Group Ltd: 6025921/2025

EMPLOYMENT TRIBUNALS

Case No 6025921/2025

Between

Mr A HisherickClaimant

Advanced Innergy Group LtdRespondent

Before

Employment Judge Bradford

Mr A Ohringer (instructed by Counsel) for claimant

Mr A Roberts (instructed by Counsel) for respondent

Date 24 November 2025

JUDGMENT

[1]The Claimant’s complaint of unfair dismissal brought under Part X Employment Rights Act 1996 is not well-founded and is dismissed.

[2]The Claimant’s claim for wrongful dismissal is not well-founded and is dismissed.

REASONS

[1]In this case the Claimant, Mr Hisherik, claims that he has been unfairly dismissed, and brings a claim of breach of contract for his notice pay. The respondent contends that the reason for the dismissal was gross misconduct, that the dismissal was fair, and no notice pay was due as the Claimant was summarily dismissed.

[2]This has been a remote hearing which has been consented to by the parties. The form of remote hearing was by Cloud Video Platform. A face to face hearing was not held because it was not practicable, and all issues could be determined in a remote hearing. The order made is described above.

[3]I have heard from the Claimant, and for the Respondent I have heard from Mr John Drury, Chief Commercial Officer and Mr Andrew Bennion, Chief Executive Officer.

[4]There was a degree of conflict on the evidence. I found the following facts proven on the balance of probabilities after considering the whole of the evidence, both oral and documentary, and after listening to the factual and legal submissions made by and on behalf of the respective parties.

[5]Whilst I found the Claimant to be largely genuine in his account, I did not find him credible or reliable. This was because there were important inconsistencies between the various documents he had written with regard to the details of his dismissal, and further conflict between those and his oral evidence. For example, in his ET1 he said that on 25 March 2025 he was told his employment was not working out and was placed on immediate leave. In a statement dated 11 April 2025 prepared for the disciplinary hearing he said he had been informed at that meeting that he was being dismissed with immediate effect. These are contradictory.

[6]There were instances of the Claimant not paying attention to what was said, and hence misinterpreting or misrepresenting matters. One being that he maintained in his statement that it was alleged he had placed the order which became the subject of his dismissal when he was on leave, whereas the invitation to the disciplinary hearing referred to the order having been discovered whilst he was on leave.

[7]A further example was the clear disparity between what the Claimant said he was told about shares in 2018 when he joined the company, namely that he was given share options, whereas the letter that he relied on in support of that statement contained very different information.

[8]Overall therefore I found that the Claimant’s account generally reflected his subjective interpretation of what had been said, rather than being an objectively reliable account.

[9]In contrast, I found that the evidence of Mr Drury and Mr Bennion to be consistent with the contemporaneous documents and hence reliable. I found them both to have been honest witnesses, as they were consistent in their accounts of matters within their knowledge, and made concessions where appropriate.

Facts

[10]The claimant was, prior to events giving rise to this claim, employed by the Respondent between approximately 2010 and 2014. Following a break, he returned to the Respondent’s employment in May 2018 as Director of Topside Business Development. In 2020 he became Director of Business Development and in October 2024 he was promoted to Commercial Director.

[11]Upon his appointment in 2018, the Claimant took a salary cut in comparison to the salary he was earning prior to the move. His evidence was that this was compensated for by a sign-up bonus (not in dispute) and share options. The Respondent’s position was that the Claimant was never given share options. The document the Claimant relied upon in support of his position was his appointment letter. That stated that a private equity buy out was a distinct possibility and if that was to occur, it was normal practice to incentivise key staff with an equity stake. The letter continued “To be clear, it is impossible to offer shares to you while GCP remain our investor, and hence there can be no guarantee that what I have outlined above will happen, however, I believe it to be the most likely outcome”.

[12]The Claimant maintained in evidence that this letter was evidence of share options. I do not find that the Claimant was given share options, either upon appointment or subsequently. He referenced conversations in 2020 and 2024, but those were disputed by the Respondent and no evidence in support of his assertion was provided by the Claimant. He suggested he had been given share options in the event of an IPO (Initial Public Offering). In view of my findings as to witness reliability above, and in the absence of any evidence provided by the Claimant to support his position, I preferred the evidence of the Respondent on the point.

[13]Mr Drury became the Claimant’s line manager in October 2023. The evidence, from contemporaneous emails, was that in Mr Drury’s view the Claimant was not performing to the level expected for someone with his experience and seniority. Emails evidenced Mr Drury asking the Claimant to re-set Objectives such that they were SMART, and his failure to do so resulting in loss of part of his bonus; monthly reports in which the figures did not make sense to Mr Drury; a failure to produce a Recovery Plan in February 2025; and failing to follow sales processes and provide handover information of an acceptable quality. Additionally, Mr Bennion had raised with the Claimant in December 2024 that a Joint Venture (JV) business plan for Canada he had produced was unacceptable as it put the company in breach of a JV agreement in the USA.

[14]In evidence the Claimant disputed that there had been issues with his performance. He said his sales were 10% above target and what he was measured against was the bottom line. He accepted that the matters referenced in Mr Drury’s statement had been raised with him, but he did not believe that this meant there had been concerns about his performance.

[15]An objective reading of the emails exchanged suggested that Mr Drury did have concerns about the quality of work produced by the Claimant.

[16]The Claimant was placed on paid leave on 25 March 2025. It then came to the attention of Mr Drury that the Claimant had placed an order for a job for the USA (Premier Valve) with the Canadian JV partner. It was considered that this was in direct contravention of Mr Bennion’s directive that where non Canadian orders could be fulfilled elsewhere, the Canadian JV should not be used as that would reduce the Respondent’s profits by 50%.

[17]By letter of 11 April 2025 the Claimant was invited to a disciplinary hearing. The hearing was initially scheduled for 15 April, but postponed to 17 April at the Claimant’s request. The letter stated that the allegation was that the Claimant had wilfully refused to obey a reasonable management instruction or there had been serious insubordination in that he had placed a job with the JV partner in Canada despite a clear and reasonable directive explicitly prohibiting such action. The decision had resulted in financial implications for the company and created a risk of legal conflict with another JV partner in the USA. Five documents (emails and messages) were attached. These were the evidence that the Respondent relied on in support of the allegation. It was stated that the hearing would be held in accordance with the disciplinary process. The Claimant was invited to provide a written statement or call witnesses. He was informed of his statutory right to be accompanied. He was informed that the allegation was one of gross misconduct and the outcome could be summary dismissal.

[18]Within the documents relied on was an email from Mr Bennion to the Claimant dated 19 November 2024 with the subject ‘Canada Business Plan’. Mr Bennion had noted that there was a ‘large chunk’ of USA revenue in the draft Canadian JV plan. Mr Bennion said in the email that this needed to be removed because the Canadian JV was established to cover Canada only; there was a JV in the USA so the Canadian plan could not ‘steal’ revenue from that entity. The email further stated that in the event that the USA JV was dissolved, then USA work should be put into other AIS entities, not the Canadian JV because any job going through the Canadian JV would cost the company 50% of the [profit] margin. Mr Bennion said that this should be reflected in the final business plan.

[19]The Claimant, in evidence, when taken to the 19 November 2024 email, accepted that the email was a clear instruction not to use the Canadian JV for USA work. He was less clear when it came to what he did. The Claimant said he asked for approval to place a small order through the Canadian JV and did not get a response from Mr Bennion. His position was that the instruction contained in the email related to ‘major work’. As the Premier Valve order was small, he maintained that he had not disobeyed an order.

[20]I find that the value of the order was irrelevant. The Claimant relied on his general level of delegated authority regarding financial decisions. There was nothing further to support his contention that the instruction only applied to large orders. The Claimant accepted he was fully aware that non-Canadian/USA work should not be routed through the Canadian JV, and indeed this is supported by a message exchange between the Claimant and Mr Bennion on 12 March 2025, in which the Claimant proposed putting other work through the Canada JV. Mr Bennion’s response was “So why would we give away margin when we don’t need to? Makes no sense”. The Claimant suggested that there was a logic to his proposal. However when Mr Bennion asked for a justification, giving a view that other areas of the business were not particularly busy and could do the work, no justification was provided. There was a follow-up email exchange, in which the Claimant suggested that some orders would shortly be received in Canada to the value of around CA$200,000. Mr Bennion maintained that there was capacity in another area to fulfil the order the Claimant had approached him about, so he saw no need to give margin away to Canada.

[21]There was no evidence of the conversation relating to the Premier Valve order, but given Mr Bennion’s clearly expressed view when previously approached about making an exception to the position set out in the email of 19 November 2024, I find that the Claimant knew he was disobeying the instruction from Mr Bennion when he placed the Premier Valve Order through the Canadian JV.

[22]The disciplinary hearing took place on 17 April 2025. The Claimant had provided a statement dated 11 April 2025. That did not deal with the allegation.

[23]At the outset of the hearing the Claimant was invited to respond to the allegation of gross misconduct, on the basis that this had not been addressed in his statement. He replied “The allegation against me does not relate to gross misconduct and is futile. It is an effort to find an alternative way to terminate a strong performing employee over the past 7 years”. Mr Drury asked “Were you directly asked not to place a job in Canada?”, to which the Claimant replied “I don’t accept your comments”. The Claimant then referenced the scope for work in Canada and gave a view that the Respondent was missing wider context. The Claimant went on to deny he had acted against a direct instruction, he said he acted within policy.

[24]The outcome of the meeting was that the allegation of gross misconduct was substantiated and the Claimant was dismissed with immediate effect.

[25]Having established the above facts, I now apply the law. I begin with the admissibility of notes of a meeting on 25 March 2025 which the Respondent contends are inadmissible under s111A Employment Rights Act 1996 (ERA). The Claimant’s position was that evidence of that meeting is admissible, either because it did not come within the scope of s111A, or because there had been improper behaviour. Further or in the alternative, the Claimant’s position was that the meeting was held on a without prejudice basis and that privilege had been waived. Pre-termination negotiations and s111A ERA

[26]The relevant statutory provision is s111A ERA which states: 111A Confidentiality of negotiations before termination of employment (1)Evidence of pre-termination negotiations is inadmissible in any proceedings on a complaint under section 111. This is subject to subsections (3) to (5). (2)In subsection (1) “ pre-termination negotiations ” means any offer made or discussions held, before the termination of the employment in question, with a view to it being terminated on terms agreed between the employer and the employee. (3)Subsection (1) does not apply where, according to the complainant's case, the circumstances are such that a provision (whenever made) contained in, or made under, this or any other Act requires the complainant to be regarded for the purposes of this Part as unfairly dismissed. (4)In relation to anything said or done which in the tribunal's opinion was improper, or was connected with improper behaviour, subsection (1) applies only to the extent that the tribunal considers just.

[27]The ACAS Code of Practice states that settlement agreements may be proposed prior to undertaking any other formal process. The purpose of s111A is to enable an employment relationship to end on agreed terms and such negotiations or conversations cannot be used as evidence in an unfair dismissal claim. Confidentiality applies even where one party was unaware of any dispute or problem with their employment.

[28]The Code gives examples of improper conduct and includes bullying, harassment, intimidation, discrimination, and not allowing sufficient time to consider an offer, including saying if the proposal is rejected, the employee will be dismissed.

[29]S111A only covers conversations held before the termination of employment. Therefore as confirmed by the EAT in Basra v BJSS Ltd

2018 ICR 793

, EAT, establishing the effective date of termination (EDT) must be the starting point.

[30]The Respondent’s position was that the EDT was 17 April 2025. This was the date the Claimant put in his ET1, and indeed, that was consistent with his witness statement, in which he did not claim to have been dismissed on 25 March 2025. Rather he said he was told that his employment was not working out.

[31]With regard to admissibility, the Respondent’s position as set out in submissions was: Instead of commencing a performance disciplinary process (which could have led to the Claimant’s compulsory dismissal), The Respondent took the sensible step of seeking to have a protected conversation instead (precisely as the ACAS Code of Practice and Section 111A envisages). As a necessary component, the Respondent had to seek a settlement to end the employment relationship. Contrary to the Claimant’s position, a mutually agreed termination (and resolving to pursue it) is fundamentally different to deciding to dismiss an employee. That conversation is inadmissible as regards the Claimant’s claim for unfair dismissal. The Claimant’s attempt to circumvent this process is misconceived (as addressed below). During the meeting, the Claimant was very upset and emotional and a settlement was not reached. Instead, the parties agreed that the Claimant should be placed on leave. While the R may have suggested it, the Claimant did not object. This was a sensible step to allow the Claimant to calm down and see if a cooler head would prevail. Given the Claimant’s emotional response, the Respondent did not want the Claimant to contact clients, which again is an ordinary and sensible step. Indeed, the Claimant appears to have acknowledged the need to remain professional.

[32]Mr Roberts submitted that the Claimant’s pleaded case is not that employment was terminated on 25 March. He would need to amend his claim if that were his case. If the employment had terminated then, there could not have been a protected conversation. He submitted that s111A is designed to allow frank conversations; there is a difference between termination by mutual agreement and dismissal

[33]The Claimant’s position was less clear. In the statement he prepared for the disciplinary hearing he said that on 25 March 2025 he was informed he was being dismissed with immediate effect. Mr Ohringer echoed this in submissions made on the first day of the hearing when this matter was raised as a preliminary issue. He submitted that on 25 March the Claimant was told that his employment was being terminated and that the offer being made was final. The Claimant accepted these inconsistencies in evidence.

[34]Mr Ohringer submitted that the conversation was not protected as the Respondent had already resolved to dismiss the Claimant.

[35]In the alternative, he submitted the conversation was held improperly and it is just for it to be admitted in evidence pursuant to s.111A(4) considered in light of the ACAS Code of Practice on Settlement Agreements. He relied on the following points:a. The Claimant was given no warning of the meeting, believing he was attending a routine monthly operations meeting.

b. The Claimant was not told that the conversation would be a protected conversation.

c. The Claimant was told that the decision to dismiss him had already been made.

d. The Respondent made no attempt to commence performance management of the Claimant or a dismissal process in accordance with the ACAS Code on Disciplinary and Grievance Procedures.

e. The Claimant was expected to make a decision on the spot and was suspended from work when he refused.

f. The conversation was not just a discussion but also the permanent removal of the Claimant from the workplace. The Claimant’s removal was communicated broadly both inside and outside the Respondent.

[36]I first need to determine the EDT in accordance with Basra. In the ET1 the Claimant stated his employment was terminated on 17 April 2025. His evidence as a whole appeared to be that the decision to dismiss had been taken on or by 25 March, but was not formalised until he was sent the letter of 17 April 2025 following the disciplinary hearing. Within his Particulars of Claim he said that Mr Drury made clear from the outset of the 25 March meeting that the decision had been made and referred to unsubstantiated performance allegations. His IT access was removed and he was told not to contact clients or colleagues.

[37]In his witness statement the Claimant says, with reference to this meeting, that “It was clear from this point onwards that my employment would be terminated and that the final outcome had been determined”.

[38]Mr Drury’s evidence was that the purpose of the meeting was made clear, namely to have a confidential conversation. His evidence was that concerns that had previously been raised were repeated, an offer was made which was declined, and the Claimant was therefore put on paid leave. He hoped that after the Claimant had been given some time to consider the situation, a more productive conversation could be had.

[39]I do not find that the Claimant’s employment was terminated, nor that he was dismissed, on 25 March. I accepted the Respondent’s evidence that the conversation was with a view to terminating the Claimant’s employment on mutually agreeable terms. In so far as the Claimant relies on the content of the meeting as demonstrating a pre-determined view to dismiss him, I do not find that is supported by the note of the meeting. The Claimant relied specifically on a statement by Mr Drury “That’s the decision the business has come to”. He interpreted this as the decision to dismiss having been taken. However, the preceding discussion in the meeting had been around his performance. The Claimant had challenged the suggestion that his performance had been poor saying there was no tangible evidence. I find that the statement made by Mr Drury referred to the business having come to a decision that there were concerns about the Claimant’s performance, even though the Claimant disagreed. Later in the meeting Mr Drury said that a decision had been taken not to enter into performance management, in response to an assertion from the Claimant that no process had been followed. I find no process needed to have been followed as this was not a dismissal, rather it was a discussion around a possible mutually agreed termination.

[40]I accept Mr Drury’s evidence and find that the plan was to have a further conversation. This was supported by his comment in the meeting “Okay, we are unlikely to agree this today”. Had that not been successful and an agreement not been reached, then the plan was to follow the disciplinary policy with regard to the concerns raised. This is evidenced by a subsequent email form Mr Drury to Mr Nutt of HR with a list of concerns about the Claimant’s performance. This had been the plan according to Mr Drury’s oral evidence. However, the track changed when it was discovered on 26 March that the Claimant had, in the Respondent’s view, disobeyed a direct instruction from Mr Bennion. I find that Mr Drury reflected on how to deal with that over the following days. Ultimately, the disciplinary process that followed was based on a single allegation of gross misconduct, and the Claimant’s employment was terminated with immediate effect on the day of the hearing, 17 April 2025. This accords with the date he gives in his ET1.

[41]I find the effective date of termination, the date of dismissal, was 17 April 2025.

[42]I now move to consider whether the conversation on 25 March was a protected conversation within the meaning of s111A ERA; whether it was a discussion, before termination, with a view to termination on agreed terms.

[43]I find that in order for a protected conversation to be held, the Respondent was bound to have come to a view that it no longer wished to employ the Claimant. I accept the submission on behalf of the Respondent that there is a clear distinction between termination of employment and dismissal. There was no requirement to give the Claimant notice of the conversation. The Claimant has not produced any basis for this assertion. I find that the Claimant was told that the conversation was protected/without prejudice, as I had sight of the ‘script’ prepared for Mr Drury by Mr Nutt of HR. Noting the differences between that script and the note of the meeting, and Mr Drury having accepted that he probably did not ask the Claimant if he had any questions at the outset, (as was included in the script), I find the meeting note to be an accurate reflection of the opening given. I find Mr Drury said that he and Mr Nutt wished to have a without prejudice or protected conversation.

[44]This conversation was pre-termination (in view of my finding as to the date of dismissal) and was a pre-termination negotiation as defined by s111A(2). I accept the Respondent’s evidence that it was held with a view to terminating the employment relationship on mutually agreeable terms.

[45]I do not find there was any improper behaviour. This is a matter for the Tribunal’s judgment, but guidance is given by ACAS. As to the assertions raised on the Claimant’s behalf, set out above, I find:• There was no requirement to give notice, and indeed doing so risked causing an avoidable period of stress and worry.

• I have found that the Claimant was told that the conversation was a protected conversation, notwithstanding that a failure to do so would not amount to improper behaviour, in view of the ACAS guidance.

• I do not find that the Claimant was told that the decision to dismiss him had already been made. There is conflation here between termination and dismissal.

• ACAS is also clear that such conversations can take place prior to any formal process. This is logical as a formal process may then be avoided.

• Nor do I find any undue pressure. The Claimant was not put under pressure to respond to the offer within a short timescale, rather he rejected it without hesitation being of the view that he had an entitlement to shares and hence any acceptable offer would have needed to be significantly increased. I do not find that the fact the meeting was unannounced amounts to undue pressure as submitted by Mr Ohringer. Indeed, Faithorn Farrell Timms LLP v Bailey

2016 ICR 1054

, EAT confirms that the matter being raised out of the blue is not improper conduct.

• The Claimant was not suspended because he refused to make an immediate decision. He immediately refused the offer and was placed on leave. He told his solicitor that he had been placed on leave, because ‘agreed leave’ was the language used in her subsequent email to the Respondent.

• The fact that leave continued and the Claimant did not in fact return, because he was disciplined for another matter, does not make the conduct of the Respondent improper.

[46]As such, the conversation on 25 March is inadmissible as evidence in the unfair dismissal claim because it was a protected conversation.

[47]I do not need to deal with the Claimant’s submission about common law privilege and waiver, as litigation was not contemplated by the Respondent on 25 March 2025. The fact of the meeting and its content is excluded from evidence by virtue of s111A. As to a subsequent email exchange between the Claimant’s solicitor and Mr Nutt, I find that is protected with regard to the unfair dismissal claim as it was clearly marked ‘without prejudice’. I do not accept the Claimant’s submission that privilege has been waived by that exchange having been put before the Tribunal in order for a decision on the admissibility of the 25 March meeting to be made. Unfair dismissal - Law

[48]The reason for the dismissal is asserted to be conduct which is a potentially fair reason for dismissal under section 98(2)(b) of the ERA.

[49]I have considered section 98(4) which provides “…. 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”.

[50]I have also considered section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992, and in particular section 207A(2), (referred to as “s. 207A(2)”) and the ACAS Code of Practice 1 on Disciplinary and Grievance Procedures 2015 (“the ACAS Code”).

[51]Potential reductions to the compensatory award are dealt with in section 123. Section 123(6) provides: "where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding."

[52]Applying Iceland Frozen Foods Limited v Jones

[1982] IRLR 439

EAT, the starting point should always be the words of section 98(4) themselves. In applying the section, the tribunal must consider the reasonableness of the employer’s conduct, not simply whether it considers the dismissal to be fair. In judging the reasonableness of the dismissal, the tribunal must not substitute its own decision as to what was the right course to adopt for that of the employer. In many (though not all) cases there is a band of reasonable responses to the employee’s conduct within which one employer might take one view, and another might quite reasonably take another. The function of the tribunal is to determine in the particular circumstances of each case whether the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band, it is unfair.

[53]The correct approach is to consider together all the circumstances of the case, both substantive and procedural, and reach a conclusion in all the circumstances. Applying British Home Stores Limited v Burchell

[1980] ICR 303

EAT, a helpful approach in most cases of conduct dismissal is to identify three elements (as to the first of which the burden is on the employer; as to the second and third, the burden is neutral):(i) that the employer believed the employee to have been guilty of misconduct;

(ii) that the employer had in mind reasonable grounds on which to sustain that belief; and

(iii) that the employer, at the stage (or any rate the final stage) at which it formed that belief on those grounds, had carried out as much investigation as was reasonable in the circumstances of the case. Applying Sainsbury’s Supermarkets Ltd v Hitt [2002] WECA 1588, the band of reasonable responses test applies as much to the question of whether the investigation was reasonable in all the circumstances as it does to the reasonableness of the decision to dismiss.

[54]In order to find gross misconduct, the tribunal must be satisfied on the balance of probabilities that there has been wilful conduct by the employee that amounts to a repudiatory breach of the employment contract, permitting the employer to accept that breach and to dismiss the employee summarily, see Wilson v Racher

[1974] ICR 428

and the decision of Lord Jauncey in Neary v Dean of Westminster

[1999] IRLR 288

. Application of the law to the facts

[55]Submissions on behalf of the Claimant were, in summary: The first question is whether the Respondent has demonstrated the reason for dismissing the Claimant and whether the reasons was a potentially fair one under s98(2) ERA. It has failed to do that: [the first two points related to a matter not in evidence] Even if the Respondent can show a potentially fair reason for dismissal, dismissal for that reason was not fair in the circumstances for the purposes of s.98(4) ERA. If the dismissal was for poor-performance (capability) then the Respondent should have:a. Followed its Disciplinary Procedure.

b. Adhered to the ACAS Code.

c. Initially addressed its performance concerns through informal discussions or routine appraisals.

d. Identified the areas where performance was unsatisfactory and placed the Claimant on a performance management plan setting out expectations and giving him time to improve.

[56]In oral submissions it was suggested that misconduct was merely a ‘hook’, and was not the real reason for the dismissal. It was however conceded that the Claimant did not help himself at the disciplinary in that he did not provide an explanation as to why he routed the order through Canada.

[57]The Claimant’s case, in accordance with his statement, had included an assertion that he was dismissed so the Respondent would not need to give him the share options as agreed in 2018, however it was established during cross examination and I have found that he had not been given share options. There was no evidence before the tribunal as to the Claimant having the right to any shares in the event of an IPO.

[58]The Respondent’s submissions were: The Claimant was a highly paid, senior employee who had been identified as a “key member”. Naturally, he was expected to perform at a high level without the need for spoon-feeding. From October 2023, John Drury took over as the Claimant’s line manager. Over the following 12-18 months, Mr Drury had cause to raise performance concerns with the Claimant on repeated occasions, but with no commensurate improvement. While on leave, Mr Drury discovered that the Claimant had flagrantly breached a clear management instruction. That the Claimant was given the clear instruction is beyond rational dispute. Andrew Bennion clearly told the Claimant(a) that he needed to remove the “chunk of revenue for the USA” from the Canada plan, that he “cannot” steal work from the US JV, and, even if the US JV was dissolved, it “should” be placed with “other AIS entities, not the Canadian JV”. It is frankly absurd for the Claimant to suggest this was a policy he could simply ignore. Indeed, he knew full well he could not ignore it, hence why he sought (but did not receive) Andrew Bennion’s permission to do so on another project. The scope of the work agreed was $200,000, with an initial call-off from that scope being placed for $5,000. The Claimant has not disputed agreeing on the scope of work. He must have done so before 25/03/25. Arranging such a scope of work takes months. It is fanciful to suggest that the Claimant arranged that scope of work in the 6 days between 19/03/25 (the date the US joint venture was dissolved) and 25/03/25 (when the Claimant commenced leave). Even if he had, Mr Bennion’s instructions were clear. It should be placed with another AIS entity, “not the Canadian JV”. The Respondent was entitled to treat this as gross misconduct and to commence a disciplinary process. Mr Nutt investigated the matter by drawing together the key documents. Given the nature of the allegation, there were no other lines of enquiry that could reasonably have been taken (certainly not without the Claimant identifying any factual dispute). Despite having solicitors when he drafted his statement, the Claimant failed to provide any real explanation. He did not address the factual allegations against him. Instead, he offered a smoke-screen defence, suggesting it was about avoiding giving him shares ahead of the Initial Public Offering (IPO), despite the Claimant having no entitlement to shares in an IPO event. Similarly, the Claimant offered no meaningful defence during the disciplinary and still does not do so now. In his statement, the closest he came was in §27. That still fails to address (a) the clear fact that he was given a management instruction and

(b) the undeniable evidence that he wilfully disobeyed it by arranging a scope of work of $200,000. It is absolutely no answer to the charge of gross misconduct that the initial call-off was $5,000 or that the loss to R of that initial call-off was $1,900. First, the allegation is about wilful disobedience. The act, not the amount, is the primary issue. Secondly, wilful disobedience, in the sum of $5,000, constitutes gross misconduct. It would be no answer to a charge of theft, that it was only £100. Finally, what matters is the Claimant’s actions. The Claimant arranged a scope of work of $200,000. How much of that the company eventually placed was immaterial because they could have chosen to place it all or a significant chunk That not only could have cost the Respondent a considerable loss of revenue but also risk a claim from the US JV, not to mention serious reputational damage with other potential JV partners. It is telling that the Claimant has shown no insight into his actions whatsoever.

[59]I begin by saying that whilst some confusion appeared to have arisen on the part of the Claimant as to the Respondent’s reason for dismissal, it was apparent to me from the pleadings, contemporaneous documentary evidence and witness evidence that the Respondent’s case was that the Claimant was dismissed for gross misconduct. I found that there was some conflation on the Claimant’s part between concerns being raised about his performance, and then the reason for pursuing the disciplinary procedure and inviting him to a disciplinary meeting. Did the Respondent genuinely believe that the Claimant was guilty of misconduct

[60]On 26 March 2025, it was brought to the attention of Mr Drury that the Claimant had placed a USA order through the Canadian JV, contrary to a clear instruction from Mr Bennion. Mr Drury sought the view of the Head of Operations as to how to proceed with the order in view of this contravention. The Head of Operations view was to leave the initial part of the order as placed, but deal with expected future parts of the planned overall order in line with Mr Bennions’s instructions.

[61]Mr Drury then emailed Mr Bennion the following morning, saying that the Claimant had gone against direct instructions (having had sight of an email from Mr Bennion to Mr Wilcock (Sales Manager)) which stated that under no circumstances were such orders to be placed with the Canadian JV. Mr Drury’s email stated that the Claimant had lined up Canada to take a Houston Job.

[62]I find that Mr Drury genuinely believed that the Claimant had acted contrary to a direct instruction from Mr Bennion. This was the allegation set out in the invitation to the disciplinary hearing, described as a wilful refusal to obey a reasonable management instruction or serious insubordination.

[63]When cross-examined, Mr Drury’s evidence was that the email forwarded to him from Mr Wilcocks (setting out the instruction) was that this message had be reiterated to the Claimant many times. The message had also been given to the Claimant by email of 19 November 2024. The Claimant accepted in evidence that this was a clear instruction from the CEO, Mr Bennion.

[64]As such I find that the Respondent had a genuine belief that the Claimant had acted contrary to a clear management instruction and was guilty of misconduct. Did the Respondent have reasonable grounds on which to sustain that belief?

[65]Mr Drury had received confirmation from the Head of Operations that the order had been placed with the Canadian JV. The Head of Operations had spoken to the Canadian JV company to see what had been agreed and relayed that in an email to Mr Drury, which Mr Drury in turn forwarded to Mr Bennion.

[66]Having spoken to Mr Nutt of HR, Mr Drury decided to pursue the matter down the disciplinary route. He sent a letter to the Claimant on 11 April 2025 inviting him to a disciplinary hearing, setting out the single allegation of gross misconduct, and providing the evidence the Respondent relied on.

[67]At the disciplinary hearing, the Claimant was invited to give an explanation, having been provided with the opportunity in advance to provide his response in a written statement. The Claimant did not do so. The Claimant was directly asked whether he had been instructed by Mr Bennion not to place jobs in Canada. The Claimant did not give a direct response, but suggested that Mr Drury was “missing the wider context”. He then said he had made a request to Mr Bennion, on the basis that there was sufficient work elsewhere to make putting work through Canada viable, and that he had not heard back. He disputed he had gone against a direct instruction. He said he did not believe the allegation amounted to gross misconduct.

[68]There was an adjournment, and upon returning Mr Drury considered that as the Claimant had not provided any explanation for what he had done (it was not in dispute that he had placed the order and was aware of Mr Bennion’s instruction), his conduct amounted to gross misconduct.

[69]I find that the documentary evidence (email from Mr Bennion of 19 November to the Claimant), the fact that the Claimant had placed the order with the Canada JV, combined with the Claimant’s inability or refusal to explain why he had done so, save for saying he had sought permission and had received no reply (indicating an awareness that this should not have been done without express permission), meant that the Respondent had reasonable grounds for the belief that the Claimant had acted in direct contravention of an order from Mr Bennion. Had the Respondent carried out as much investigation as was reasonable in the circumstances at the point the belief was formed?

[70]The extent of investigation is what is reasonable in the circumstances. Here, the email evidence of the instruction and the placing of the order, along with speaking to the Head of Operations was a reasonable investigation. This was not a matter where there were different accounts as to what happened, or different understandings as to what the instruction was.

[71]The investigation was carried out prior to inviting the Claimant to a disciplinary meeting, in accordance with the Respondent’s Disciplinary Procedure. This also accords with the ACAS Code.

[72]I find that the Respondent’s investigation was reasonable in the circumstances. Was the decision to dismiss a fair sanction, i.e. within the range of reasonable responses open to a reasonable employer when faced with these facts?

[73]The Respondent’s finding was of gross misconduct. This was based upon its Disciplinary Procedure. That give examples of gross misconduct, among them are a “wilful refusal to obey a reasonable management instruction or serious insubordination”. It had found this allegation proved, on the basis that the Claimant was aware of the instruction, had acted contrary to it, and had provided no meaningful explanation.

[74]It was put on the Claimant’s behalf that his actions were not sufficiently serious to amount to gross misconduct, due to matters including the limited value of the order and the Claimant’s position that the USA JV had dissolved, meaning that there was not a risk of legal action for contravention of the Respondent’s obligations to the USA company.

[75]The value of the order was irrelevant. Mr Bennion’s email of 19 November 2024 made no exception for small orders, it was a blanket prohibition.

[76]As to the dissolution of the USA JV, there was some evidence this took place in around March 2025. However there was no evidence as to when the Premier Valve order was negotiated or placed. I did not accept the Claimant’s oral evidence that the negotiation period would have been around 1.5 weeks in view of the lack of any evidence to support this position. There was no direct evidence either way, but an inference I drew from the Respondent’s evidence was that the period would have been significantly longer. Nor was there evidence as to when the Respondent’s obligations to its former JV partner ceased. So whilst the Claimant maintained that legal action was not a real risk, the view of the Respondent was that it was a risk. Given that it was the Respondent which was at risk, and given the unreliable nature of the Claimant’s evidence generally, I preferred the evidence of the Respondent. It was put to the Claimant in cross examination that his actions brought a risk of both litigation and reputational damage. His response was that he had no idea where the risks lie, but maintained he did not put the company at risk.

[77]In other words, the Claimant demonstrated no insight into the potential consequences of his conduct, either at the tribunal hearing or at the disciplinary hearing. He considered it was justified based on cost, notwithstanding that the instruction made no reference to value, but clearly covered the situation in the event that the USA JV dissolved. The Claimant therefore did not accept that disobeying a direct instruction from the CEO was misconduct.

[78]The disciplinary outcome letter, which confirmed the Claimant’s dismissal, stated that having put the allegation to the Claimant at the hearing, his explanation was not acceptable. Having considered the representations he made at the hearing, there were no mitigating circumstances. In view of the seriousness of the misconduct, he was summarily dismissed on the ground of gross misconduct. The gravity of the misconduct was such that trust and confidence had been completely undermined. The Claimant’s actions resulted in financial implications for the company and created a risk of legal conflict with another JV partner in the USA.

[79]I am satisfied that this finding was reached based on evidence and having given the Claimant ample opportunity to defend himself. He accepted he had placed the order. There was no logic as to his assertion that it did not amount to misconduct or gross misconduct, having accepted (implicitly) that he had disobeyed the CEO’s instruction. He justified his action on the basis that it was, in his view, in the best interests of the company. There was an obvious difference of view as to what was or was not in the interests of the company, and ultimately that was not a decision for the Claimant to make.

[80]I find that it was open to the Respondent to determine that the Claimant had committed gross misconduct in accordance with the Disciplinary Procedure and as such, summary dismissal was within the range of reasonable responses. Did the Respondent adopt a fair procedure

[81]The Claimant’s challenges to the fairness of the process were that there had been no investigation; that the nature of the instruction had not been established; and on the basis that the financial significance of the order or the consequences for the USA JV had not been established.

[82]I find these challenges either baseless or irrelevant. There had been an investigation; the Head of Operations had been contacted to confirm that the order had been placed in Canada, and to see if there was any reason. Emails and messages including evidence of the direct instruction not to do this had been compiled. It follows that the instruction referred to was clear from the documents sent to the Claimant with the invitation to the disciplinary. The financial significance or the impact on the USA JV do not go to the fairness of the procedure.

[83]I find that the process was conducted in accordance with the Respondent’s disciplinary procedure. There had been, as I have found, such investigation as was warranted in the circumstances. There was then a disciplinary hearing. The Claimant was given notice in writing, which set out the allegation, attached the evidence, informed him of his rights and the potential outcome.

[84]When the outcome was communicated, the Claimant was informed of his right to appeal.

[85]This is in line with the ACAS Code.

[86]A final challenge to the process was that the Respondent proceeded on the basis that there was no justification for the Claimant’s actions. The Claimant failed to provide any genuine justification, having accepted he placed an order in Canada, and having accepted an awareness of Mr Bennion’s instruction that this should not be done. The Respondent was therefore pretty much bound to find there was no justification, notwithstanding that the Claimant, because he disagreed with Mr Bennion’s approach, considered his conduct was justified.

[87]I find that the Respondent followed a fair procedure.

[88]I do not therefore need to consider contributory fault or any arguments based on Polkey v AE Dayton Services Ltd

[1987] UKHL 8

[89]Accordingly, I find that the claimant’s dismissal was fair and reasonable in all the circumstances of the case, and I therefore dismiss the claimant’s unfair dismissal case. Wrongful dismissal (notice pay)

[90]The question here is whether the employment contract has been breached. As set out in Enable Care and Home Support Ltd v Pearson EAT 0366/09 the question is “was the employee guilty of conduct so serious as to amount to a repudiatory breach of the contract of employment entitling the employer to summarily terminate the contract?”

[91]I find, in view of the dismissal letter, that the Respondent had lost trust and confidence in the Claimant. A justified finding of gross misconduct, as here, amounts to a repudiatory breach of contract which entitles an employer to summarily dismiss and hence notice pay is not payable. I have found that it was within the band of reasonable responses to categorise the Claimant’s misconduct as gross misconduct and as such it follows that the Claimant was not entitled to notice pay and there was no wrongful dismissal.

[92]The Claimant’s claims are dismissed in their entirety.