Mr P Bullivant (1) and Mrs A Bullivant (2) v Firebird Conference Systems Limited — 2022

The tribunal held that both Mr P Bullivant and Mrs A Bullivant were employees of Firebird Conference Systems Limited from 1 November 2018 until their resignations on 8 January 2021. Applying the Ready Mixed Concrete approach and considering control, mutuality of obligation and personal service, it found that both claimants worked under contracts of employment rather than as independent contractors. The Second Claimant’s employment began when she was put on the payroll, which meant she had the qualifying service required to pursue unfair dismissal.

On dismissal, the tribunal found that the Respondent’s failure to pay wages for October, November and December 2020 was a repudiatory breach of contract. It also found that the handling of the grievance correspondence, including the failure to invite the Claimants to a grievance hearing, was capable of contributing to a breach of the implied term of mutual trust and confidence. By contrast, it rejected the argument that the move to full furlough on 5 November 2020 was itself a contractual variation or a repudiatory breach. The tribunal further found that the First Claimant’s refusal to give access to the TransferWise account and the Ittium licence payment did not amount to reasonable and proper cause for the Respondent’s breaches.

The tribunal held that both Claimants resigned in response to those breaches and were therefore constructively dismissed. It upheld the unfair dismissal claims and the wrongful dismissal claims for both Claimants. On fairness, it accepted that the First Claimant’s conduct in signing the licence agreement and causing the Ittium payments was gross misconduct and therefore a potentially fair reason for dismissal, but it found that no reasonable investigation or disciplinary process had taken place, so the dismissal was unfair. It found no misconduct by the Second Claimant. There was no Polkey deduction for either Claimant.

For remedy-related findings, the tribunal said it was just and equitable to reduce the First Claimant’s basic award and compensatory award by 100% for contributory conduct, but made no reduction for the Second Claimant. No monetary award was quantified in this judgment. It also noted that neither Claimant had been provided with written particulars of employment and that holiday pay quantification was left for the later remedy hearing.