Mr Ben Summerfield v ITEC Connect Limited — 2022

Mr Summerfield's service agreement, made in April 2018, reduced his salary to £75,000 and provided for an annual performance-related bonus of up to £75,000, with the bonus terms to be notified by the board at the start of the financial year. The respondent said he had agreed, in the course of the Xerox transaction and later documents, to waive or suspend the 2020/2021 bonus arrangement. The tribunal found that he had not agreed to waive or suspend his contractual right to be notified of the bonus scheme or to be paid a bonus for that year.

On the breach of contract claim, the tribunal held that clause 9.12 of the SPA dealt with past claims at completion and did not amount to an agreement to vary the employment contract for future bonus rights. It also found that the deed of resignation as a director did not remove rights arising under the employment contract. The service agreement's no-oral-modification clause meant that any alleged oral variation would not be effective. Using the 2019/2020 bonus scheme as the best guide, and relying on the 2020/2021 sales gross profit figures, the tribunal assessed damages for the bonus claim at £18,750.

Unfair dismissal liability had been conceded before the hearing. The tribunal awarded a basic award of £8,608 and a compensatory award of £74,449.39, including £500 for loss of statutory rights. It accepted the claimant's mitigation evidence, declined any Polkey reduction or contributory fault reduction, and did not apply an ACAS uplift. The unlawful deduction from wages claim was dismissed because the claimant could not identify a specific sum properly payable for the purposes of section 13 ERA 1996.