Mr J Pike v MYPINPAD Ltd — 2023

The claimant had previously brought ordinary unfair dismissal, detriment under s.47B ERA 1996 and automatic unfair dismissal under s.103A ERA 1996 claims, but the protected disclosure claims were dismissed on withdrawal, leaving the ordinary unfair dismissal claim. This hearing was listed as a preliminary hearing to decide the effective date of termination and the related issue of whether the without prejudice / protected conversations point remained relevant. The tribunal heard evidence from the claimant, Mr Forlee, Mr Syms, Mr Watts, Mr Ackerman and Ms Withers, and considered emails, handwritten notes and later messages.

The tribunal found that, before the 5 July 2021 call, there was an agreed plan to dismiss the claimant. It relied on the 25 June 2021 email exchange, the subsequent shareholder calls and handwritten notes, the involvement of HR and legal, and evidence that domains, patents and registrations were being checked in anticipation of the claimant's departure. It also took account of the evidence about the respondent's earlier exits of two former CEOs, which the tribunal said informed how the parties understood a loss-of-confidence conversation would operate within the business.

On the first Teams call on 5 July 2021, the tribunal preferred the claimant's near-contemporaneous note to his solicitor and found that Mr Forlee conveyed that the claimant was being asked to leave, that the decision had already been made, and that the claimant would not be allowed to continue in the role he had proposed. The tribunal found that Mr Forlee did not use the exact words that the claimant was dismissed, but that the language used would have been understood by an ordinary reasonable employee in that context as a summary dismissal with immediate effect. It also relied on later contemporaneous messages in which Mr Forlee referred to the claimant as being shocked, to severing ties, and to reasons for the decision.

The tribunal accepted supporting evidence from Mr Watts and Mr Syms that they understood the claimant to have been dismissed, and it noted that neither the respondent nor its advisers immediately disabused them of that understanding. It treated the later dismissal letter and the solicitor's letter of 30 July 2021 as a backtracking exercise rather than evidence that no dismissal had occurred on 5 July 2021. The tribunal therefore held that the effective date of termination was 5 July 2021, and on that basis the protected conversations issue fell away for the preliminary hearing. No monetary remedy was determined in this judgment.