Employer's Conduct Leads to Constructive Unfair Dismissal

OUTCOME: Allowed

[NAME_1] No: 2407352/2023 2407361/2023

1

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

[NAME_3] (2)

Respondent:

[redacted]

Liverpool ON: 1 to 5 September 2025 (hearing) and 26 September 2025 (in chambers) BEFORE: Employment Judge Johnson

REPRESENTATION:

Claimant:

[redacted]

[NAME_5] (first claimant’s representative) Second claimant unrepresented

[NAME_6] (counsel)

JUDGMENT

The judgment of the Tribunal is that: The first claimant (1) The complaint of constructive unfair dismissal is well-founded. The claimant was unfairly dismissed. (2) The claimant’s agreed notice period ran from 4 April 2024 until the effective termination of employment on 4 May 2023. Any failure to pay the second claimant his correct notice pay for this period, will be addressed at the remedy hearing.

[NAME_1] No: 2407352/2023 2407361/2023

2

The second claimant (3) The complaint of constructive unfair dismissal is well-founded. The claimant was unfairly dismissed. (4) The claimant’s agreed notice period ran from 4 April 2024 until the effective termination of employment on 12 May 2023. Any failure to pay the second claimant his correct notice pay for this period, will be addressed at the remedy hearing.

The remedy hearing

(5) The [NAME_1] will be listed for a 1 day remedy hearing on a date to be confirmed before Judge Johnson.

REASONS

Introduction

(6) These proceedings arose from the first and second claimants’ employment as a sales manager and adviser respectively with the respondent and following the termination of their employment in April and May 2023. This occurred when they both resigned. They believe that their resignations arose from fundamental breaches in the trust and confidence that the claimants could reasonably be expected to have with the respondent as their employer.

(7) The first claimant presented a claim to the Tribunal on the 11 July 2023 following a period of early conciliation from 17 May to 12 June 2023. The second claimant presented the claim form on 12 July 2023 following a period of early conciliation from 16 May to 27 June 2023. They both presented complaints of constructive unfair dismissal and notice pay redundancy payment and unlawful deduction from wages.

(8) The first claimant also presented a second claim form under [NAME_1] number 2407390/2023 and bringing a complaint of whistleblowing.

(9) They respondent presented responses and grounds of resistance in respect of each claim on 6 September 2023. They disputed constructive unfair dismissal and redundancy and sought further particulars from the claimants.

(10) Following an initial proposal by Judge Allen on 9 August 2023, Judge Buzzard on 12 October 2023 confirmed that the complaints will be considered together. There was initially meant to be a preliminary hearing [NAME_1] management on 16 November 2023, but this was postponed.

[NAME_1] No: 2407352/2023 2407361/2023

3

(11) The next preliminary hearing [NAME_1] management PHCM took place before Judge McCarthy on 26 June 2024. A final list of issues was identified dealing with the complaints of constructive unfair dismissal and notice pay.

(12) The claimants agreed to withdraw the redundancy payment and unlawful deduction from wages complaints. The first claimant also agreed to withdraw the second claim that had been brought and withdrew the whistleblowing complaint.

(13) The respondents had presented an amended grounds of resistance in respect of the two claims. The first claimant had made an application seeking additional disclosure in relation to [NAME_7] messages which they believed were relevant and which had not been disclosed. I considered the application at the hearing today and refused it because the respondent had disclosed what documents that had relevant to the allegations within the list of issues that. There was a need to deal with this [NAME_1] in a proportionate way given that the hearing bundle was already in excess of 800 pages. However, I confirmed to the first claimant’s representative [NAME_2] that in the event it became clear during evidence that relevant documents were available which had not been disclosed, I would make appropriate orders for their disclosure so that witnesses could be cross examined upon them.

(14) I also heard from [NAME_2] regarding an application to amend the claim to include an additional complaint of automatic unfair dismissal relating to health and safety contrary to section 100 Employment Rights Act 1996 (ERA 1996). I refused this application because it was a fundamental and substantial amendment because:

a) It sought to include a new complaint that could have been brought at the same time as the whistleblowing complaint which was withdrawn at the earlier PHCM;

b) it was made significantly out of time;

c) that it was misconceived because it related to health and safety matters involving third parties and which should have been included as part of the original whistleblowing complaint under section 43B(1)(d) ERA 1996; and,

d) I also took into account the prejudice to the parties in allowing the application. I concluded that it would be significant because in all likelihood I would need to postpone the final hearing in order that the respondent would have additional time in which to review the complaint on the new list of issues, potentially prepare an amended ground of resistance, explore further disclosure and update their witness evidence. This would also result in a delay of the resolution of the second claimant’s claim and indeed the first claimant’s claim as well.

(15) Given the stage of the proceedings that we had reached, I concluded that it would be wholly unreasonable to allow the application. The balance of

[NAME_1] No: 2407352/2023 2407361/2023

4 prejudice was such that there was far greater prejudice to the respondent than to the second claimant in being denied the completion of this [NAME_1] during the current listing. This was compared with the first claimant being denied a complaint which had a number of problems including its substance and timing and where the first claimant still had two valid complaints including constructive unfair dismissal.

(16) It was also noted that the first claimant was partially motivated in making this application because of concerns about the statutory cap and the extent of damages that could be awarded as part of remedy. I explained that this was not a material reason for seeking to amend a claim at this late stage and the first claim would therefore proceed based upon the constructive unfair dismissal and notice pay complaints.

Issues

(17) The issues which the Tribunal has been asked to consider were included within the Annex to Judge McCarthy’s Note of [NAME_8] and for each claimant, identified the allegations leading to their resignations and their complaints of wrongful dismissal. Although remedy was also provided within the list, I explained that liability issues would be dealt with first and if relevant and sufficient time was available, I would then move onto remedy.

(18) It is not necessary to repeat the full list of issues within this section as they involve the usual format of questions that a Tribunal is asked to consider in relation to constructive unfair dismissal and wrongful dismissal. However, it is useful to include the claimants’ allegations concerning the treatment which led them to resign as a variety of matters are included.

The first claimant

(19) In the [NAME_1] of the first claimant, the allegations made in respect of breaches of the implied term of trust and confidence are as follows:

a) 1.1.1. Did the respondent do the following things:

1.1.1.1. Blame the first claimant for purchasing non-UK regulatory power cables;

1.1.1.2. Ask the first claimant and other members of the sales team to each pay the respondent £19,000 for the cable recall;

1.1.1.3. Threaten to deduct this sum (£19,000) from his salary;

1.1.1.4. Email the first claimant regarding the changing of his and the sales team’s commission structure when he and others did not agree to pay £19,000 for the cable recall. The first claimant alleges that such a change would have meant that he would have taken a “hefty” reduction in his pay and that he would not receive minimum wage;

[NAME_1] No: 2407352/2023 2407361/2023

5 1.1.1.5. Not respond to the first claimant’s advice to recall the cables due to safety concerns. The first claimant sent an email of 3 April 2023 about whether the company would be recalling the relevant cables and said he received no response;

1.1.1.6. At a meeting between the first claimant and [NAME_9] on 4 April 2023, [NAME_9]:-

– blamed the first claimant for buying the non UK regulatory power cables;

–wanted the first claimant to admit that he purchased these power cables;

-intimidated the first claimant and created a hostile environment, shouting at the first claimant and putting his finger in the first claimant’s face;

- [NAME_9] followed the first claimant outside to his car after the meeting and knocking on the claimant’s car window asking the first claimant to let him know that he had purchased the cables. The first claimant identifies this meeting as the “last straw”

The Second claimant

(20) In the [NAME_1] of the second claimant the allegations made in respect of breaches of the implied term of trust and confidence are as follows:

a) 1.1.1 Did the respondent do the following things:

1.1.1.1 In February 2023, stopped the second claimant from coming in half an hour later on a Monday morning so he could take his children to school (the only day he did not have cover);

1.1.1.2 question the second claimant’s integrity and whether he was actually ill when he returned to work having taken sick leave on 13/14 March 2023. The second claimant contends he was being called a liar after 23 years at work and that he was ill and unable to work due to the mental abuse of the respondent;

1.1.1.3 Ask the second claimant and others in the sales team to pay the respondent around £19,000 each for the recall of non- UK compliant power cables;

1.1.1.3[A] display threatening and abusive behaviour towards the second claimant - in a conversation between him and [NAME_9] on 29 March 2023, pushing him to accept a £19,380 deduction from his wages and saying “Please accept this as won’t be pretty. Things will only get much worse for you”; and -on 25 March 2023 [NAME_9] offered to promote the second claimant to purchasing manager but insisted that the second claimant accept the role with a backdated start date of 2018. When the second claimant said he would accept the position but only from the present day, [NAME_9] told him “no deal” and withdrew the promotion.

[NAME_1] No: 2407352/2023 2407361/2023

6 The second respondent contends that this was an attempt to manipulate him and an attempt to backdate his promotion to before the relevant cables were first purchased to enable the respondent to blame him for the purchase of the non compliant power cables (to “stitch him up”).

1.1.1.3[B] Email the second claimant regarding the changing of his and the sales team’s commission structure from 1 May 2023 when he and others did not agree to pay around £19,000 for the cable recall. The second claimant alleges that this change was totally unreasonable and, in some cases, unachievable. He says that such a change would have meant that his commission earnings would drop by 45% per month on average and that in quite a few months he would not receive minimum wage, and he had no choice but to leave. The second claimant contends that the decision to change the commission structure was to punish him indirectly for the cables;

1.1.1.4 [NAME_9] contacted the second claimant whilst he was on annual leave and informed him that the first claimant had resigned and said that he needed to know whether the second claimant was going to do the same. He accused the second claimant of having another job and conspiring with the first claimant. The second claimant said that he had thought about resigning (and had drafted a resignation letter before leaving for holiday) but had not made his final decision and felt forced into resigning by [NAME_9];

1.1.1.5 The second claimant identified the main reason he decided to resign as the change in the commission structure effective from 1 May 2023.

Evidence used

(21) As the claim involved constructive unfair dismissal, the claimants presented their [NAME_1] first and gave closing arguments last.

(22) The claimants both provided witness evidence and gave oral evidence on day 1 to 3 of the final hearing

(23) The respondent relied upon the witness evidence of the following individuals:

a) [NAME_10] (Finance and Operations Director) on Day 4; and, b) [NAME_9] (Managing Director) on Day 4 and 5.

(24) Documents were provided within an 833 page bundle which was only agreed shortly before the hearing. Although this bundle comprised of some of the [NAME_7] messages between the claimants and [NAME_10] and [NAME_9], it was understood that this was not complete. However, they appeared to deal with the correspondence involving the relevant issues and their content could not be considered favourable to the respondent and

[NAME_1] No: 2407352/2023 2407361/2023

7 unfavourable to the claimant. In this respect, they were relevant and not ‘cherry-picked’ to present an image of the respondent in the best light.

(25) I reminded the parties that the respondent’s legal representatives and the respondent’s owner/managers were aware of the duty to disclose all relevant documents regardless of whether it helps or hinders their [NAME_1].

(26) Having heard submissions from both sides, I accepted that the respondent had IT issues which would make retrieving all of the claimant’s requested [NAME_7] messages an arduous task, that they had provided documents which appeared to be relevant, that the breadth of the claimant’s total request for disclosure was expansive and amounted to a ‘fishing expedition’. It would be disproportionate to require the totality of the disclosure request to be allowed, but should it become clear as the [NAME_1] progresses that additional documentation is available and is required, I could consider this matter further.

(27) There was little additional disclosure as the [NAME_1] progressed except that on Day 3, [NAME_2] provided documentary relating to trading standards enquiries made by the first claimant in relation to the respondent with the local authority and national government. These papers were added to the bundle as documents ‘C1’. However, it was not necessary for much consideration to be given to them during the hearing.

Findings of fact

(28) The parties should note that the Tribunal’s findings of fact do not seek to deal with every point where the parties disagree, simply what is relevant to the issues which the Tribunal is being asked to consider. If the discussion of an incident or point is not referred to within these findings, it does not mean that it has not been considered by the Tribunal, simply that it is not relevant to the issues and the findings that we are required to make.

(29) In terms of the findings that we make, the Tribunal has reached its decision on what it considers to be on balance of probabilities the most likely way/reason in which an incident arose.

The respondent

(30) The respondent (‘[NAME_4]’), is a company which specialises in selling computer components. It was established by [NAME_9] and his partner in 1991. The business operates in Bury and expanded as the years progressed.

(31) [NAME_10] described the company at relevant time from 2020 to 2023 as consisting of around 15 or so employees. [NAME_9] is the managing director; [NAME_10] is the Finance and Operations Director and known within the business as [NAME_9]’s ‘right hand man’.

(32) Of relevance to this [NAME_1], was the Sales team which consisted at the material time of the first and second claimants and [NAME_12].

[NAME_1] No: 2407352/2023 2407361/2023

8

The claimants

(33) The first claimant ([NAME_2]) began his employment with [NAME_4] on 1 June 2004. From 24 May 2007, he was appointed as a Sales Manager with a basic rate of pay at £18,000. This figure would remain in place until his disciplinary hearing in July 2022 (see below). As the role was sales related, it provided him with an opportunity to earn significant amounts of commission. The contract of employment provided that the hours of work were 9am to 5:30pm, Monday to Friday. However, from time to time, he would work additional hours. The employer could give one month’s notice of termination, whereas the employee was expected to give six months’ notice.

(34) The second claimant ([NAME_3]) was employed as a Sales Adviser with [NAME_4] for many years. He worked in the same Sales team as [NAME_2] under similar contractual terms, but with a salary £12,000. His basic earnings were supplemented by commission on sales like [NAME_2].

(35) On 15 July 2022, [NAME_2] was subject to a disciplinary hearing which arose from allegations of suspected fraud against [NAME_4]. The alleged fraud involved attempts by [NAME_2] to ‘manipulate your figures once we hit a quiet period’. It was understood that this involved displacing sales figures into the quiet period so that [NAME_2] would not suffer a loss of bonus in subsequent months. Reference was made to the hearing in a disciplinary decision letter dated 18 July 2022 and which resulted in a final written warning being imposed for a period of 24 months. This was combined with a reduction of base salary from £18,000 to £12,000 which was the same figure as his other Sales Adviser colleagues, (p508). It is understood that [NAME_2] retained the Sales Manager role and while he was given a right of appeal, it is understood that he accepted the decision. However, I accepted that while [NAME_2] took the decision ‘on the chin’ (as [NAME_9] put it to him at the time), it nonetheless served to undermine his relationship with [NAME_4] during the remaining period of his employment.

(36) During January 2023, [NAME_10] emailed [NAME_2] as manager of the Sales team regarding [NAME_3] and his attendance during January. It referred to several late arrivals at work and days where he started late to drop his children off at school. It was understood that the school drop offs, and a late start had been an agreed arrangement, but that [NAME_10] wanted these arrangements to change. It was clear from the available evidence that [NAME_9] did not like flexible working. He held a belief that [NAME_3] had an ‘attitude’ about having the level of flexibility that existed at that time, (p522-3).

(37) However, it was not clear to me that this was a matter which was raised as a problem by [NAME_3] at the time. In any event, it appeared to have ceased to be an issue when the events of March and April 2023 arose, (see below). This appeared to arise from concerns on the part of [NAME_10] that [NAME_2] would be seeking similar flexibility to that which had been given

[NAME_1] No: 2407352/2023 2407361/2023

9 to [NAME_3]. Under the heading of ‘Possible Staff Issue’, [NAME_10] began his email of 25 January 2023, with the sentence:

‘Further to our conversation yesterday whereby you said you will be WFH [understood to mean working from home] for the next few weeks / months whilst your extension is built’, (p519).

[NAME_9] was the managing director and [NAME_4] was his company, he did not appear to be leading by example when it came to presenteeism in the office.

(38) [NAME_3] entered into a text message exchange with [NAME_9] regarding his sickness absence on or around 16 March 2023. [NAME_9] was sceptical about whether the illness was genuine or not and referred to a pattern of absences on Monday’s when [NAME_3] was performing well towards his sales target. However, he accepted that the data regarding his sickness absences did not support this belief. The messages were inconclusive, but clearly left [NAME_3] feeling that [NAME_9] would be sceptical whenever he reported sick, (pp533-537).

The cable incident

(39) On 20 March 2023, there was an exchange of [NAME_7] messages between [NAME_2] and [NAME_10] regarding copper coated aluminium wire being used in cables ostensibly supplied as containing 100% copper wire. A customer called [NAME_13] had raised a concern regarding the composition of the cables. [NAME_10] asked [NAME_2] to contact the customer personally by phone, (p791). The customer had concerns that the cables which had been supplied to them were copper coated aluminium and not 100% copper, (pp526-7).

(40) On 21 March 2023, [NAME_9] sent a lengthy email to the Sales team, [NAME_10], [NAME_14] who was a warehousing manager called ‘History of Power leads Prt 3’. It began with a rather menacing quote as follows:

“Any further Order you wish to Place will be on your Heads and You will pay the consequences.”

The email proceeded to go through a chronology of events beginning in October 2019 dealing with the ordering of power cables by [NAME_4] for sale in the UK, the issues which could arise with provenance, safety, [NAME_9]’s dislike of this particular product as a consequence and his belief that the Sales team would nonetheless try to purchase the cables to secure additional sales for UK customers. His conclusion was that each member of the Sales team would instruct [NAME_10] to arrange for a deduction from their wages of a large part of the losses arising from the most recent cable purchase/sale, (pp542-545).

[NAME_1] No: 2407352/2023 2407361/2023

10 (41) On 23 March 2023, an ill tempered conversation took place regarding this ongoing issue between [NAME_9] and [NAME_2] and it is worth repeating it below, (with spelling as per the document):

[NAME_9] – ‘in january 2021 you had 70k real cables just landed from [NAME_15]’, ‘why did you order in January 2021 with 70k in stock real cables with this arsehole ishen g WHY’, ‘that’s the only question you need to advise me.’

[NAME_2] – ‘all about the profit tom [[NAME_9]’s first name] is that what we are paid to do bring in as much profit as we can.’

[NAME_9] – ‘well you just answered your own question is ot all about profit now.’

[NAME_2] – ‘1.20 off [NAME_15] 1.09 off i sheng’. [understood to be US$].

[NAME_9] – ‘5 pence a cable woop’.

[NAME_2] – ‘we done the checks we could of sample was tested pi saying full copper.’

[NAME_9] – ‘bollox’, ‘you didn’t have time to chek a sample.’

[NAME_2] – ‘qc done on sample, and qc will have been done on first order.’ [‘qc’ being quality control].

[NAME_9] – ‘you just received 70k cables and reordered whilst i wasn’t in work and its not like you needed them’, ‘show me’ [in response to assurance that quality control carried out]. (p792)

(42) This discussion continued with [NAME_2] saying that the evidence of the quality control could not be found on the server. [NAME_9] queried what this would have achieved anyway given that to be sure of the provenance of the cables, more than 1000 checks would need to be carried out on cables for certainty. [NAME_2] disagreed that ‘qc’ would not have made a difference, which resulted in [NAME_9] becoming bad tempered and saying, (again, with spelling as per the original document):

‘SO QC DONE MAKES FUCKALL DIFFERENCE’,’FUCKALL DIFFERENCE’, ‘BECAUSE YOU BOUGHT OF A RANDOM STRANGER WHOS DISAPEARED INTO THIN AIR NOW.’

[NAME_2] continued to assert that ‘qc’ would have reduced the risk, to which [NAME_9] replied, ‘risk are all mine than you npw’, ‘me who gets fucked now’, ‘not you 3 # no no’, (p793).

(43) [NAME_9] reminded [NAME_2] that he was ‘500k out of pocket for the last CCA cables you bought but it clearly didn’t bother you as you didn’t have topay that bill back i did.’ [NAME_2] replied, ‘that’s bullshit’, ‘I work my arse off and do the best i can tom but u don’t think that’.

[NAME_1] No: 2407352/2023 2407361/2023

11

(44) As this conversation developed, [NAME_9] reminded [NAME_2] that ‘[NAME_15] are the manufacturer massive factory isheng sales is a rip off of [NAME_16] taiwan and they have never heard of this idiot’, (p794). [NAME_9] then explained to [NAME_2] that he would meet each of the 3 sales advisers individually at his house. He went on to say that [NAME_2] ‘created this situation’ and that he should ‘OWN IT’ and that ‘you and rob and [NAME_12] b all alone made that decisiion’. [NAME_2] confirmed that ‘we made the descion to buy the cables and we asked you could we get them u said yes, fact, see u 6pm’.

(45) By this point it was agreed that a meeting would take place, but amongst these messages, [NAME_2] was expressing concern that [NAME_9] was looking at deducting monies from their wages each month to cover the losses incurred. However, [NAME_9] did not confirm expressly that he would do so within the available [NAME_7] messages, (p795-6). What was clear however, was that [NAME_9] felt that [NAME_2] and his colleagues had not given full disclosure from were they were ordering the cables. Moreover, he believed that the Sales team’s need to maximise profit and competitive advantage had got in the way of proper due diligence and quality control. However, I noted that [NAME_9] had previously decided not to recruit any more purchasing managers and had decided that the Sales team would be responsible for purchasing, even though that could potentially create a conflict between the different activities.

(46) In response to [NAME_9]’s ‘History of Power leads Prt 3’ email, [NAME_10] emailed [NAME_12], [NAME_2] and [NAME_3] on 23 March 2023, stating that each had put their name to 19,000 cables at a value of £1.02 making a total figure of £19,380 which they would collectively repay to [NAME_4] over a period of 24 months. The tone of this short email was that the three employees were expected to agree to these deductions with each accepting a share of responsibility to the losses incurred and that they should confirm how it would be deducted from their gross wages each month. Despite what [NAME_9] suggested in his evidence, I concluded that this represented a serious intention and attempt to deduct money from the Sales team’s wages by seeking their agreement, (p542).

(47) On 25 March 2023, there was a lengthy exchange of messages between [NAME_3] and [NAME_9] about the cables and who was responsible. [NAME_9] clearly considered [NAME_3] to be the Purchasing Manager, whereas [NAME_3] believed he had never been appointed or announced to that role, nor given a pay rise to reflect the additional responsibilities. It then developed from a discussion about who was responsible for the cables to a curious exchange where [NAME_9] adopted a position that he had taken [NAME_3] to China, he had observed [NAME_9] conduct purchasing and had stepped in the purchasing role having been ‘trained by the master and bin to all factory’s [sic]’, (p553). The messages extended from around midnight on 25 March and into the early hours of 26 March 2023. [NAME_3] understandably wanted some sort of formality to this role (which he was clearly interested in having), but Mr

[NAME_1] No: 2407352/2023 2407361/2023

12 [NAME_9] was unwilling to commit to a formal appointment. A confusing ‘deal or no deal’ exchange regarding the roles then followed which could be treated as inconsequential banter, except that the underlying theme of this lengthy conversation was that [NAME_9] asserted that [NAME_3] should accept his responsibility for purchasing and agree to contribute towards the losses.

(48) There was no real conclusion to these messages and to some extent they reflected the oral evidence given by [NAME_9] on several occasions that [NAME_4] was like a family with many long serving employees who shared a great deal of time together. Unfortunately, based upon the available evidence, [NAME_9] appeared to blur matters of employment with those of family and friends. He relied upon concepts of what he considered to be duty and responsibility without having a formal structure in place so that employees agreed to clear roles and responsibilities and appreciated where they stood with him as employer. He had dispensed with a dedicated purchasing manager and had not formally appointed anyone to this role. Instead, [NAME_3] and other members of the Sales team would deal with purchasing (in addition to [NAME_9]), as and when required. I agreed that some of the bonds that might exist in a family were present by virtue of the lengthy employment relationships. However, as will become clear below, this produced a situation where employees could become confused regarding their role and responsibilities and the degree that they were managed.

(49) To some extent, the Sales team had a great deal of freedom, but the absence of clear systems of management, meant that they could make mistakes and when they did, [NAME_9] could react angrily and in a confusing way depending upon his temper. He gave evidence during the hearing accepting that this was the [NAME_1], but that the claimants and their colleagues understood his temperament and how to deal with it. However, this bore all the hallmarks of a paternalistic and controlling environment with chaotic tendencies. This inevitably meant that employees were left without clarity concerning where they stood with [NAME_9] and [NAME_4] as their employer. This became apparent from the events which took place over the next week or so.

(50) On Wednesday 29 March 2023, [NAME_10] chased [NAME_3], [NAME_12] and [NAME_2] as well as copying in [NAME_9] on the subject of Power Cables. He explained:

‘Hi Guys Just after the figures you would like deducted from March payroll, if you can let me know by Friday lunchtime. [NAME_12] you will need to let me know by tomorrow night as your off on Friday. If you want the same figure for all 24 months, then it would be a deduction of £807.50 per month.’

I concluded that whatever the intentions of [NAME_9] and [NAME_10], the Sales team were being given a clear impression that they were expected to agree to substantial deductions from their monthly wages with a view to recovering the losses on the cables, (p576).

[NAME_1] No: 2407352/2023 2407361/2023

13 (51) [NAME_3] was the first to reply on 29 March 2023 stating that he had simply ordered the stock required and was not responsible for the losses. He refused to accept any deduction from his wages, (pp571-2). [NAME_2] responded on 30 March 2023 and asserted that he was not responsible for any losses relating to purchasing or quality checking. He stated he did not agree to any deduction from wages and expected payment of his wages in full, (p573).

(52) There was also an exchange of messages on [NAME_7] on 29 March 2023 involving [NAME_3] and [NAME_9] where he said that he had done nothing wrong and that he would not agree to any deductions from his wages. [NAME_9] at 16:45 told [NAME_3], ‘Please accept as won’t be pretty, ‘Will only get worse for you’, (p568-9). [NAME_9] in evidence argued that this was not meant as a threat and that the implication was that the business would suffer if [NAME_3] refused to contribute to the losses. I did not find this a credible explanation. [NAME_3] did not accept the meaning given by [NAME_9] in evidence. On balance of probabilities, a recipient of this messages would assume that there would be personal consequences in refusing to comply. While I appreciate that [NAME_9] may have felt under a great deal of pressure when faced by these large and unexpected losses and he believed he had been let down by the Sales team, it was a wholly unreasonable message to send.

(53) However, at 8:51 on 30 March 2023, [NAME_10] emailed [NAME_9] to say:

‘…there was no legal mechanism to force people for this mistake and certainly not if they don’t agree to deduction. Therefore, I think we use this as a catalyst for changing the commission structure/targets, which we have discussed several times’, (p571).

He proposed a suitable way forward to [NAME_9] within this email.

(54) [NAME_10] replied in a discussion with [NAME_12] on 30 March 2023 and confirming that [NAME_4] would take the loss and he would not be responsible, (p573). [NAME_10] emailed [NAME_9] to explain that he had confirmed that the Sales team would not be liable for the cable losses, which explained why the targets would not be adjusted, (p575).

(55) On Thursday 30 March 2023 [NAME_10] sent an email to [NAME_3], [NAME_12] and [NAME_2] within the Sales team and copying in [NAME_9], (p614). Its subject was ‘Targets’ and opened by asserting that the team’s current targets would ‘not allow [NAME_4] to cover its overheads, let alone make any profit’. [NAME_10] stressed that targets had not changed for many years despite other changes taking place over the years. It is not necessary to consider the changes in detail, but it related to changes in the percentages and thresholds when each percentage of commission would be payable.

(56) [NAME_3] quickly replied and asked whether the team’s low basic salary figures would remain the same. [NAME_10] said that they would

[NAME_1] No: 2407352/2023 2407361/2023

14 remain the same, but if targets were not met and bonuses not received, [NAME_4] would ensure it complied with national minimum wage legislation. [NAME_3] responded by questioning whether he would still be required to carry out any purchasing while [NAME_2] emailed concerning how the changes would impact upon split sales.

(57) [NAME_9] emailed them all and copied in [NAME_14] on Saturday 1 April 2023 explaining that he wished to correct [NAME_10]’s email sent on 30 March 2023 and it is understood that the proposals regarding targets would not be progressed any further at that time.

(58) On 3 April 2023, [NAME_2] became received an email from a customer regarding the cables. [NAME_2] emailed [NAME_9], notified him and asked whether the cables would be recalled, (pp514-5).

(59) On 4 April 2023, [NAME_2] left the office following a discussion with [NAME_9]. There was a dispute concerning the nature of the discussion, but [NAME_2] said that the discussion was about the cables issue, that he explained he had no responsibility, but that [NAME_9] continued to discus the matter with increased volume and hostility. He said he left the premises in an attempt to deescalate the situation but was followed outside by [NAME_9] before leaving in his car. He regarded this incident as the final straw which led to his resignation, but following the sustained period of conduct described within the list of issues.

(60) [NAME_9]’s recollection was different to that expressed by [NAME_2], but on balance I found [NAME_2]’ description of the events that day to be more credible, especially taking into accounts the recent events and the way in which [NAME_9] had behaved during that period.

First and second claimants’ resignation

(61) [NAME_2] gave notice of resignation in his email sent to [NAME_9] on Tuesday 4 April 2023 at 2:32pm, (p604). In his short email he said the following:

‘As per our conversation please accept this letter as official notification of my resignation as Sales Manager from [NAME_4].

‘As agreed today my one-month notice will result in my last working day being Thursday 4th May.

‘I am happy to help with the transition to the best of my ability. I thank you and [NAME_4] for the opportunity to work for you.’

(62) [NAME_9] replied the same day at 14:08 according to the date stamp on the email, (p603-4). This date was not disputed by the parties, and I concluded that there was some sort of error in [NAME_9]’s device with regards to the correct time for the time zone he was then in, (believed to be Greenwich Meantime or GMT). I therefore treated this message as having

[NAME_1] No: 2407352/2023 2407361/2023

15 been sent at 15:08 which would logically follow the 40 minutes or so since the resignation email had been sent to him.

(63) [NAME_2] then sent a further email on 5 April 2023, thanking [NAME_9] for accepting his resignation and explained that he was ill and could not come into work. However, he asked [NAME_10] and [NAME_9] to look into a number matters that he identified within the email with the aim of providing ‘…a detailed update/resolution’. In summary, they were as follows:

a) Reducing his salary in July 2022 following his disciplinary but not reducing his workload. He acknowledged the final written warning but referred to an understanding that the reduction would end in 6 months. b) Changes to the way in which he received commission for split accounts from August 2022 imposed by [NAME_10]. He referred to [NAME_9] telling them during their discussion on 4 April 2023, that he had not authorised this revision. c) In relation to the cable outlay and its recovery, receiving an email from [NAME_10] changing the commission structure on 30 March 2023, following [NAME_2] refusing to agree to a deduction from his wages. While he acknowledges that [NAME_9] confirmed by email on 2 May 2023 that this was incorrect, he identified this as being illustrative of uncertainty and a cause of stress. He described that on 4 April 2023, he ‘…had to leave [NAME_4] and resign due to my mental health’, but did link this decision to the overall uncertainty in this senior management decision making and this had a consequential impact on his stress. He referred to this email as providing details of his resignation but confirmed he was currently unwell and could not return to work until his GP determined that he was fit.

(64) Having considered the witness evidence and the documentary evidence available, I concluded that [NAME_2] decided to resign on 4 April 2023 and communicated this to [NAME_9] the same day. He was stressed and unwell and with the support of his family, decided that for his own health he needed to resign. This decision was prompted by actions of his employer. While the salary reduction and commission change the previous year had undermined his confidence in the business, he had continued to work but identified them as concerns. However, it was the recent events which were important and the way in which the respondent had attempted to recover part of the cable losses from him, followed by a change of mind and quickly followed by proposed change in the commission structure. [NAME_2] explained clearly and credibly how these decisions caused him to resign, and I accepted that this was why he made the decision when he did, (p603).

(65) On 11 April 2023, [NAME_2] emailed [NAME_10] and [NAME_9] confirming that he was unfit for work and submitted a [NAME_17] fit note from his GP. This remained the [NAME_1] until his employment ended on 4 May 2023, (p636). He then sent a further email on 12 April 2023 expressing concern upon receiving no reply from either [NAME_9] or [NAME_10] to his email of 5 April 2023, (p626).

[NAME_1] No: 2407352/2023 2407361/2023

16 (66) There were a series of WhatsApp messages between [NAME_3] and [NAME_9] on 4 April 2023 within the bundle, (p624-). [NAME_9] apologised for messaging him while on holiday and informed him that [NAME_2] had resigned, and he wanted to know whether ‘…you intend to do the same’. [NAME_3] confirmed having written a resignation letter and he would hand his notice in when he returned from leave. However, as he had been messaged by [NAME_9] on this issue, he said he would send it immediately.

(67) Once the letter had been sent, [NAME_9] accused [NAME_3] that both he and [NAME_2] had found alternative work with competitors. [NAME_3] said ‘…I am leaving without a job or a plan. Make of that what you will.’ By way of rebuttal to the reasons given for [NAME_3]’s resignation, [NAME_9] suggested that no deductions from wages had taken place and the commission structure changes were not being implemented. He stated during a number of messages that ‘You [[NAME_3]] needed to accepts [sic] responsibility and I was never gonna take a penny off you when calm…’.

(68) [NAME_3] replied by suggesting that there were other reasons for the resignation such as being made a scapegoat, [NAME_10]’s behaviour towards him and how he was suffering and so was his family. He acknowledged how long he had worked for [NAME_4], but confirmed he was resigning. When he returned from leave on 7 April 2023, he messaged [NAME_9] with an offer to meet him, to which [NAME_9] said he was too busy on 8 April 2023 and despite further messaging from [NAME_3], no further replies were received, (p624-5).

(69) [NAME_3]’s letter had been drafted on 1 April 2023 but remained unsent until he received the messages from [NAME_9] on 4 April 2023 and sending it at 7:39pm, (p619).

(70) It gave notice of his resignation as Sales Advisor with his last day of employment being 12 May 2023. It was polite in tone and expressed regret in having to make the decision. He said ‘…I feel I have no option but to leave [NAME_4] due to many reasons over the recent past but mainly for my mental and physical health.’ He identified a number of detailed reasons why he had reached this decision which can be summarise as follows:

a) Threatening behaviour towards me and other members of staff. He referred to the [NAME_7] exchange where [NAME_9] said, ‘accept this or it will get a lot worse for you.’ He explained that this comment resulted from him being forced to accept something which he believed was nothing to do with him and yet involved him being punished. This was understood to be the attempt to recover the cable losses from employee wages as discussed above.

b) He moved on to identifying a fear of coming into work and opening emails and feeling ‘…in a constant state of second guessing you and its causing me loss of sleep and hours upon hours of worry about what is coming next and what else I will get blamed for and then subsequently penalised or worse.

[NAME_1] No: 2407352/2023 2407361/2023

17 c) He then referred to not being given clarity regarding his role which was told to be Purchasing Manager/Purchasing Director yet not formally announced and yet being forced to take responsibility for other people and work. He noted that his job title remained Sales Adviser and was paid at this level. He said that ‘…its very upsetting and embarrassing, like it’s a game for you.’

d) Attempts being made to force him and others to pay £19380 in respect of the cables which could not be sold. Then when realising the deduction could not be made, changing a commission structure change.

e) He said that he already made up his mind to resign before the commission structure change was imposed, but cited it as being something which confirmed he was making the right decision.

[NAME_3] concluded by confirming to [NAME_9] that he would be happy to discuss these points with him, should he wish to do so.

(71) On 5 April 2023, [NAME_9] emailed to accept the resignation but also asserting that no monies had been deducted from his salary and that [NAME_10] was not authorised to proceed with the commission changes that he had identified in his email of 30 April 2023. Having considered this explanation, [NAME_3] replied and said he would like to retract his resignation, (p601). [NAME_9] however, responded as follows on 8 April 2023:

‘Thank you For your email However, it doesn’t work like that I accepted your resignation, and we have all been trying to cope with the position we are left in ‘I Do not require you to attend [NAME_4] during your notice period or until I return from China. ‘I am available when I return to discuss anything with you and todays meeting is cancelled.’

Consequently, [NAME_3]’s resignation notice remained in place and his employment ended on 12 May 2025 as advised in his letter of resignation.

(72) From 11 April 2023, [NAME_9] and [NAME_10] began a series of discussions with customers regarding the recall of the power cables and the claimants did not play a part in this process, (pp638-671, pp676-683, pp686- 698, 702-713).

(73) On 4 May 2023, [NAME_3] received his next payslip, and he immediately responded challenging the level of commission awarded, (p673- 4). [NAME_10] replied and explained that he had applied ‘…10% on the profit achieved on your accounts of £7400.14’. [NAME_3] then sought a breakdown of the month, but [NAME_10] declined arguing that:

‘We are not willing to share confidential information with you in relations to the split on the accounts profits.’

[NAME_3] questioned this decision, observing that he:

[NAME_1] No: 2407352/2023 2407361/2023

18

‘…never ever failed to hit the minimum 10k in my life and I have not dropped below 17k in way over 6 years, so to told my accounts have accumulated £7400 in a month is pretty shocking to me…especially as if I had been allowed to work the final full month of my notice period I would have achieved more.’

No further correspondence was received from [NAME_10] in reply. Instead, [NAME_3] requested confirmation from him on his last day of work with [NAME_4] (12 May 2023), when he would receive his final payslip. [NAME_10] confirmed that it would be 5 June 2023 in accordance with the ‘…start of the June run’, along with his P45, (p699).

Law

Constructive Unfair Dismissal

(74) Section 95(1)(c) of the Employment Rights Act 1996 provides that an employee is dismissed by his employer 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.

(75) In [COMPANY_18] v [NAME_19] 1978 ICR 221 it was held that in order to claim constructive dismissal an employee must establish:

(i) that there was a fundamental breach of contract on the part of the employer or a course of conduct on the employer’s part that cumulatively amounted to a fundamental breach entitling the employee to resign, (whether or not one of the events in the course of conduct was serious enough in itself to amount to a repudiatory breach); (note that the final act must add something to the breach even if relatively insignificant: Omilaju v Waltham Forest LBC [2005] IRLR 35 CA). Whether there is breach of contract, having regard to the impact of the employer’s behaviour on the employee (rather than what the employer intended) must be viewed objectively: Nottinghamshire CC v Meikle [2005] ICR 1.

(ii) that the breach caused the employee to resign – or the last in a series of events which was the last straw; (an employee may have multiple reasons which play a part in the decision to resign from their position. The fact they do so will not prevent them from being able to plead constructive unfair dismissal, as long as it can be shown that they at least partially resigned in response to conduct which was a material breach of contract; and,

(iii) that the employee did not delay too long before resigning, thus affirming the contract and losing the right to claim constructive dismissal.

(76) All contracts of employment contain an implied term that an 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: Malik v BCCI [1997]

[NAME_1] No: 2407352/2023 2407361/2023

19 IRLR 462. A breach of this term will inevitably be a fundamental breach of contract; see Morrow v Safeway Stores plc [2002] IRLR 9.

(77) The gravity of a suggested breach of the implied term is very much left to the assessment of the Tribunal as the industrial jury.

(78) It is open for an employer to argue that, despite a constructive dismissal being established by the employee, that the dismissal was nevertheless fair. The employer will have to show a potentially fair reason for the dismissal and that will be the reason why the employer breached the employee’s contract of employment; see [NAME_20] v [COMPANY_21] 1985 ICR 546 CA. The employer will also have to show that it acted reasonably. If an employer does not attempt to show a potentially fair reason in a constructive dismissal [NAME_1], a Tribunal is under no obligation to investigate the reason for the dismissal or its reasonableness; see Derby City Council v [NAME_22] 1979 ICR 731 EAT.

(79) [NAME_6] in his submissions referred to the [NAME_1] of Kaur v Leeds Teaching Hospitals NHS Trust [2019] ICR 1. He highlighted the guidance given by the Court of Appeal in paragraph 55 stressing that the law of constructive unfair dismissal should not be treated as complicated and that in normal cases, the following is sufficient:

a) What was the most recent act of omission by the employer that caused the resignation. b) Whether the employee affirmed the contract since that act or omission. c) If not, whether that act or omission was a repudiatory breach of contract d) If not, whether it was part of a course of conduct involving several acts and omissions when viewed cumulatively, amounted to a repudiatory breach of trust and confidence and if it was, no separate consideration of a possible previous affirmation. e) Whether the employee resigned wholly, or partly response to that breach.

(80) [NAME_2] referred me to the above cases and also the cases of [NAME_23] and [NAME_23] (see above).

Wrongful dismissal (81) The Employment Tribunals Extension of Jurisdiction Order 1994 provides that proceedings for breach of contract may be brought before a Tribunal in respect of a claim for damages or any other sum (other than a claim for personal injuries and other excluded claims) where the claim arises or is outstanding on the termination of the employee’s employment.

(82) A claim for notice pay is a claim for breach of contract; [NAME_24] v [NAME_24] 1992 ICR 483 HL.

Discussion

(83) In terms of jurisdiction, it was accepted that both complaints were presented in time and that both claimants had been continuously employed by

[NAME_1] No: 2407352/2023 2407361/2023

20 the respondent for more than two years prior to the effective date of termination in accordance with sections 111 and 108 of the ERA respectively.

(84) In terms of the evidence given by the witnesses in this [NAME_1], I was conscious that both claimants at times appeared to be anticipating the questions that were being asked of them in cross examination. This meant that cross examination took longer than should reasonably have been expected and it contributed to my having insufficient time to deliver an oral judgment in what had been a reasonably generous listing for a [NAME_1] with complaints of constructive unfair dismissal.

(85) What I did consider was whether the way in which the claimant’s answered the questions was an indication of a lack of credibility or reliability. My conclusion was that although it took some time to get clear and unequivocal answers from the two claimants during their evidence, I did find any dishonesty on their part or anything which undermined their overall reliability as witnesses.

(86) Both of the respondent witnesses were clear in their answers, and I did not consider that they had been dishonest in the answers given and they genuinely believed that they had behaved reasonably towards the claimants. However, when it came to evaluating the conflicting recollections of what had happened, I concluded that the respondents reviewed the claimant’s treatment through ‘rose tinted spectacles’. [NAME_9] in view genuinely believed that the business operated like a family and there was no doubt many happy and comradely occurrences during the claimants’ time with the respondent. Unfortunately, [NAME_9] appeared to manage in an intuitive and inconsistent way. I acknowledged that the respondent was a relatively small business in terms of staffing, but it operated with a not insignificant turnover and the lack of structure and process appeared to be the issue.

First claimant

(87) [NAME_2] argued that [NAME_4] did not want him to remain with the company and this forced him to leave because of the allegations within the list of issues. This resulted in his resignation, and it was effectively a dismissal.

(88) I accepted that he had been blamed as part of the Sales team for purchasing cables which were not compliant with UK regulations because they consisted of copper coated aluminium wires rather than the safer and more fire resistant 100% copper wires. This was evidenced by the [NAME_7] conversations referred to above and the lengthy emails leading up to the final discussion on 4 April 2023. Although there was blame placed upon the first claimant, no capability or even disciplinary process had taken place and this would have been a proportionate and appropriate way to deal with this matter, carried out of course in accordance with fair processes. This was not done and while as manager of the Sales team, the first claimant may have held some responsibility, the manner in which [NAME_9] raised this issue was an unreasonable act against him.

[NAME_1] No: 2407352/2023 2407361/2023

21 (89) The first claimant was also asked along with other members of the Sales team to pay £19,000 in respect of the losses arising from the cable recall. This included a threat that it would be automatically deducted from in instalments from their monthly salaries. It is perhaps understandable that this emotional response was made by [NAME_9] given the history that he described in his email discussed in the findings of fact, above. However, he should have known that there was no contractual provision for this request to be made of the Sales team members and to do so without authority of the employees would have amounted to an unlawful deduction from wages. Nonetheless, that was the impression that he gave the claimants and while [NAME_9] may not have believed he would have carried out that threat, I accepted that the claimants would quite reasonably believe that he was deadly serious at that time. This would have caused the first claimant a great deal of anxiety and his evidence which I accepted left him feeling distressed by events.

(90) Fortunately, [NAME_10] recognised the legal issues arising from a unilateral decision by [NAME_4] to make the proposed deductions. The decision was therefore rescinded and the claimants notified, but the way in which the matter escalated from demand for contribution, to a threat of deductions from monthly wages to a sudden retreat, was both high handed and unreasonable.

(91) [NAME_10] realised and advised [NAME_9] that the deduction of wages could not be imposed, a consequential change to the commission structure was proposed to the Sales team very quickly afterwards. [NAME_10] may genuinely have believed that this was something which was long overdue, and it may have been the [NAME_1] that it would need to be discussed in the not-too-distant future. But it would have had an impact on the team’s salaries and needed to be raised in a measured way once the cable issue had been resolved.

(92) Instead, the proposal’s proximity to the deduction of wages issue and the way in which [NAME_10] raised it with [NAME_9] and then the Sales team, quite reasonably left them in a position where an alternative from of punishment was being carried out because of the cables being unsaleable. [NAME_9] withdraw the proposal shortly after the Sales team began to challenge it with [NAME_10], but this simply added to the overall perception by the claimants that they were under attack, and they were uncertain as to their ongoing position within the business. This was a further example of unreasonable behaviour on the part of the respondent and one which added to the undermining of the trust and confidence that the claimants could have in their employer.

(93) In terms of the first claimant’s alleged ‘advice’ to recall the cables due to safety concerns, I concluded that this did not amount to advice, a disclosure or safety request. It was more a questioning of next steps because of customer emails about cables and I did not hear evidence which persuaded me that the failure to respond to [NAME_2]’ email of 3 April 2023 amounted to unreasonable behaviour on the part of [NAME_4].

[NAME_1] No: 2407352/2023 2407361/2023

22 (94) I accepted that at the meeting on 4 April 2023, [NAME_9] still blamed [NAME_2] for the cable issue. The full extent of what was discussed and how it was discussed was not entirely clear. However, I considered that [NAME_9]’s behaviour towards [NAME_2] at the meeting on this day was sufficient to make him feel intimidated and that he needed to leave. [NAME_2] may have reached the end of his tether and was becoming unwell. But in any event, [NAME_9] had a responsibility to gauge how best to deal with [NAME_2] and the issue and manage him in a proportionate and reasonable way. On balance his behaviour towards [NAME_2] was inappropriate and I accepted that this allegation happened as alleged and was the last straw.

(95) This last straw was because of the series of events relating to the cables in March 2023 and which individually and collectively amounted to acts which undermined the trust that [NAME_2] could reasonably have in the respondent as his employer.

(96) I concluded that while the events of the meeting on 4 April 2023 were not in itself significant grounds alone to make resignation a reasonable response, when considered cumulatively with the other unreasonable acts, the respondent had no reasonable grounds to behave in the way that they did. When viewed objectively, this series of behaviours of acts was likely to destroy or seriously damage trust and confidence. While it may not have been a series of calculated acts designed to undermine trust and confidence on the part of [NAME_9] and [NAME_10], it was reasonable to conclude that this was the inevitable effect that they would have on [NAME_2].

(97) I appreciated that [NAME_9] wanted [NAME_2] to stay and did value what he perceived to be the family relationships within the business. But even families can experience inappropriate behaviours and in this [NAME_1] those discussed above had been disproportionate and unreasonable. (98) Consequently, in the [NAME_1] of [NAME_2], the fundamental breach was the aggregate of the events in March 2023 relating to the cables involving blame, attempts to recover the losses and concluding with the ill-tempered meeting which prompted the decision to resign.

(99) [NAME_2] did affirm the earlier issues relating to the disciplinary action and the first review of commission in 2022. However, he did not acquiesce in relation to the cable issues which formed part of the series of acts leading to his resignation. Indeed, matters began and concluded within a matter of weeks and I was not persuaded that [NAME_2] affirmed the contract following the breaches in question. These breaches caused the resignation, and it was a decision that took place quickly and without delay.

(100) Finally, there was no evidence that had [NAME_2] not resigned, [NAME_4] would have dismissed him because of the incident relating to the cables. Despite the poor behaviour during March 2023, I accepted that [NAME_9] did not want to terminate Mr [NAME_2]’s employment and had no intention of considering conduct or capability process.

[NAME_1] No: 2407352/2023 2407361/2023

23 (101) In terms of the claim for notice pay, I did discuss the asymmetric notice periods applying to employer and employee within the contract of employment. However, [NAME_2] gave notice on 4 April 2023 that his employment would end the following month on 4 May 2023. This was accepted by the respondent and his employment ended on that date. I understood that because of sickness absence, [NAME_2] was unable to work his notice period, but in terms of notice pay, he was entitled to his pay for that one month’s notice period. The quantification of this loss will be a matter for a future remedy hearing.

Second claimant

(102) The second claimant [NAME_3] argued that [NAME_4] did not want him to remain with the company and forced him to leave as a result of the allegations within the list of issues. This resulted in his resignation. I will deal with each allegation in turn below.

(103) I accepted that in February 2023, that the respondent stopped [NAME_3] from coming in half an hour later on a Monday morning so he could take his children to school. This was the only day he could not rely on his partner to provide cover for this activity. [NAME_9]’s decisions to work from home himself during building work at his home, he appeared to have a reluctance to allow much flexible working from the employees and there was clearly an unhappiness concerning [NAME_3]’s working patterns at this time.

(104) This was not a [NAME_1] where flexible working regulations had been raised as an issue and ultimately, I accepted that while the allegation happened as alleged and may have seemed unfair, management did not behave unreasonably in seeking to stop the delayed start at work. In any event, the second claimant did not pursue this matter and acquiesced to the decision. He therefore affirmed the contract in this instance. (105) Similarly, I accepted that there was a challenge of the second claimant by [NAME_9] regarding his sick leave on 13 and 14 March 2023. However, this was a matter which while inappropriate, did not amount to mental abused as alleged. Importantly, the second claimant did not pursue this issue any further with [NAME_9] and affirmed the contract in this instance as well.

(106) My greater concern like that with the first claimant, lay with the treatment of the second claimant in relation to the cable issue in March 2023. I would repeat my findings made in respect of the first claimant [NAME_2] as they are broadly the same as those raised by [NAME_3]. The demand for £19,000, the threat to unilaterally deduct wages and the aborted proposed change to the commission structure all amounted to a series of unreasonable acts which were closely connected. They served to undermine [NAME_3]’s trust and confidence in his employer [NAME_4].

(107) An additional factor was the way in which [NAME_9] engaged with [NAME_3] by stating that he should accept the deduction ‘…as wont be pretty’ and the late night ‘deal or no deal’ late night messaging conversation.

[NAME_1] No: 2407352/2023 2407361/2023

24 These actions were a mixture of blame, threat and using the purchasing role as a device to pressurise [NAME_3] into accepting he should pay £19,000 or so. as I have already mentioned, whatever [NAME_9]’s ultimate intentions were, the series of behaviours identified by [NAME_3] in relation to the cable issue combined to amount to unreasonable behaviour which undermined his trust and confidence in [NAME_9] and [NAME_4] as his employer.

(108) I accepted that by the time [NAME_3] began his annual leave in April 2023, he had become distressed and with his family’s support, he had drafted his resignation letter. He did not intend sending it to [NAME_9] until his return from leave. However, prompted by [NAME_9] contacting him while on leave, he responded immediately and confirmed that he had decided to resign and as consequence of being approached, he would send his notice of resignation immediately.

(109) [NAME_3]’s allegations in terms of their dates were slightly confusing given that he gave notice of his resignation on 4 April 2023. Additionally, in his resignation letter he said that he already made up his mind to resign before the commission structure change was imposed, but cited it as being something which confirmed he was making the right decision. However, having considered the evidence heard during this final hearing, I accepted on balance that the allegations relating to the deduction of £19,000 and concluding with the final straw of the proposal of the commission structure change on 30 March 2023 were the reasons for [NAME_3] deciding to resign. On balance, while [NAME_3] was contemplating resignation before the commission change as proposed on that date, it was the tipping point which persuaded him to draft his letter and begin his holiday knowing that resignation was the next step he would take in response to what had happened a few days before.

(110) [NAME_2], I accepted that [NAME_3] resigned because of these allegations and that collectively they amounted to a fundamental breach of contract, sufficient to justify resignation. [NAME_3] did not delay following the final straw on 30 March 2023 as he prepared his resignation letter on 1 April 2023 and sent it to [NAME_9] when asked whether he was resigning on 4 April 2023. Consequently, he did not affirm his contract in relation to these allegations.

(111) I also accepted that while [NAME_9] questioned [NAME_3] concerning whether he was proposing to resign and subsequentlyrefused the later withdrawal of notice, I was not persuaded that he was proposing to dismiss him by reason of conduct, capability or any other reason. Having considered the messages which took place between them during the material time, I concluded that despite everything, [NAME_9] envisaged [NAME_3] remaining in employment with him. His failure to agree to meet following [NAME_3] giving notice of resignation was more akin to a fit of pique rather than representing an underlying belief that employment would need to be terminated by the respondent.

[NAME_1] No: 2407352/2023 2407361/2023

25 (112) Finally, in terms of notice pay, I would repeat my comments made above in relation to [NAME_2]. In this [NAME_1], [NAME_3] gave notice in his email confirming his resignation sent on 4 April 2023, of a termination date of 12 May 2023. The claimant was entitled to his notice pay for that period but any failure would be a matter for the remedy hearing.

Conclusion

(113) Accordingly, the judgment in this [NAME_1] is as follows: The first claimant (114) The complaint of constructive unfair dismissal is well-founded. The claimant was unfairly dismissed. (115) The claimant’s agreed notice period ran from 4 April 2024 until the effective termination of employment on 4 May 2023. Any failure to pay the second claimant his correct notice pay for this period, will be addressed at the remedy hearing. The second claimant (116) The complaint of constructive unfair dismissal is well-founded. The claimant was unfairly dismissed. (117) The claimant’s agreed notice period ran from 4 April 2024 until the effective termination of employment on 12 May 2023. Any failure to pay the second claimant his correct notice pay for this period, will be addressed at the remedy hearing.

The remedy hearing

(118) The [NAME_1] will be listed for a 1 day remedy hearing on a date to be confirmed before Judge Johnson.

(119) The parties must cooperate and agree [NAME_1] management orders to ensure that updated schedules and counter schedules of loss, remedy documents and witness evidence and a remedy hearing bundle are available for the remedy hearing.

_____________________________

Employment Judge Johnson

Date: 26 September 2025

[NAME_1] No: 2407352/2023 2407361/2023

26

JUDGMENT SENT TO THE PARTIES ON

12 November 2025

FOR THE TRIBUNAL OFFICE

Notes

Public access to employment tribunal decisions

Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a [NAME_1].

Recording and Transcription

Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here:

https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice- directions/

[NAME_1]: 2407352/2023 & 2407361/2023

1

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

[NAME_3] (2)

Respondent:

[redacted]

Liverpool ON: 12 March 2026 BEFORE: Employment Judge Johnson

REPRESENTATION:

Claimant:

[redacted]

[NAME_6] (counsel)

JUDGMENT ON REMEDY (made pursuant to the Judgment on liability dated 26 September 2026)

The judgment of the Tribunal is that:

(1) The first claimant’s claim is successful, and the respondent shall pay the claimant the sum of £39,859.79 (Thirty-Nine Thousand, Eight Hundred and Fifty-Nine Pounds 79 Pence only) in full and final settlement of the successful complaint of constructive unfair dismissal and as discussed in the paragraphs below.

(2) The second claimant’s claim is successful, and the respondent shall pay the claimant the sum of £18,946.56 (Eighteen Thousand, Nine Hundred and Forty-Six Pounds 56 Pence only) in full and final settlement of the successful complaint of constructive unfair dismissal and as discussed in the paragraphs below.

[NAME_1]: 2407352/2023 & 2407361/2023

2 (3) This judgment is calculated on the following basis, applying relevant just and equitable principles under the Employment Rights Act 1996, as applied below:

UNFAIR DISMISSAL (First Claimant – [NAME_2]) Subtotal/Total A. Basic Award

£10,003.20 B. Compensatory Award 1. Immediate loss of earnings 2. Loss of statutory rights

£29,356.59 £500.00 Total Award (First Claimant) £39,859.79

UNFAIR DISMISSAL (Second Claimant – [NAME_3]) Subtotal/Total A. Basic Award

£9378.00 B. Compensatory Award 1. Immediate loss of earnings 2. Loss of statutory rights

£9068.56 £500.00 Total Award (Second Claimant) £18,946.56

Recoupment of benefits The award is subject to the application of recoupment provisions in accordance with the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 (SI 1996/2349).

It is understood that the claimants have not claimed relevant benefits and therefore the recoupment provisions do not apply.

Approved by: Employment Judge Johnson 12 March 2026 Judgment sent to the parties on: 27 April 2026 For the Tribunal: ……………………………………

[NAME_1]: 2407352/2023 & 2407361/2023

3

Notes Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. If written reasons are provided they will be placed online. All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimants and respondents. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found at www.judiciary.uk/guidance-and-resources/employment- rules-and-legislation-practice-directions/

[NAME_1]: 2407352/2023 & 2407361/2023

4

NOTICE

THE EMPLOYMENT TRIBUNALS (INTEREST) ORDER 1990 ARTICLE 12

[NAME_1] numbers: 2407352/2023 & 2407361/2033

Name of cases: [NAME_2] [NAME_3]

v [COMPANY_4] is payable when an Employment Tribunal makes an award or determination requiring one party to proceedings to pay a sum of money to another party, apart from sums representing costs or expenses.

No interest is payable if the sum is paid in full within 14 days after the date the Tribunal sent the written record of the decision to the parties. The date the Tribunal sent the written record of the decision to the parties is called the relevant decision day.

Interest starts to accrue from the day immediately after the relevant decision day. That is called the calculation day.

The rate of interest payable is the rate specified in section 17 of the Judgments Act 1838 on the relevant decision day. This is known as the stipulated rate of interest.

The Secretary of the Tribunal is required to give you notice of the relevant decision day, the calculation day, and the stipulated rate of interest in your [NAME_1]. They are as follows:

the relevant decision day in this [NAME_1] is: 27 April 2026

the calculation day in this [NAME_1] is:

28 April 2026

the stipulated rate of interest is:

8% per annum.

For the Employment Tribunal Office