Marchwood Engineering Ltd v Mr M Boncimino. — 2020

The proceedings were originally brought by Mr M Boncimino, who later withdrew his ET1 claims for notice pay, unpaid wages and holiday pay. The live issue at the hearing was Marchwood Engineering Ltd's employer claim/counterclaim against him, pleaded as a breach of contract claim for £33,812 said to comprise loss of income, missing parts and use of the company car.

The tribunal accepted Mr Boncimino's evidence that he had disclosed his own repair business at the start of his employment and carried it on in the evenings and at weekends. It noted that his contract contained no regular working hours, but required six calls each working day, later reduced by agreement. Marchwood produced no documentary evidence to support the alleged loss of profit, the allegation of damage to a customer's premises, or the suggestion that he had poached customers or retained payments.

The tribunal accepted that Mr Boncimino had used the company car for his own business as well as private use, but found that private mileage was allowed and that he had claimed mileage costs at 10p per mile and used the float only for miles driven when servicing Marchwood customers. The judge was not satisfied that he had breached any implied term of fidelity, and the employer's claim was rejected.

The tribunal also recorded Marchwood's failure to comply with tribunal orders, its failure to make reasonable attempts to contact the tribunal, and its non-attendance at the hearing. On that basis the judge said the claim was not actively pursued and had been conducted unreasonably, and that it would in any event have been struck out under Rule 37.