Mr W Irish v Acorn Construction (Yorkshire) Heard by CVP in Sheffield — 2021

The tribunal found that Mr Irish had started work for Acorn Scaffolding on 4 March 2019 and that, after the transfer to the respondent under TUPE, the payroll records were consistent with him being paid 13 months' salary within the 2019/20 tax year rather than being overpaid. It rejected the respondent's case that he started in April 2019 and therefore rejected the alleged £5,000 overpayment defence to the November 2020 wage claim.

On bonus, the tribunal held that the statement of main terms and conditions gave Mr Irish a contractual entitlement to a £10,000 bonus at the end of March 2020. It rejected Mrs Nutter's evidence that payment depended on profit in March 2020 or on the claimant securing multi-year contracts, because those alleged conditions were not reflected in the pleaded case or the contract. The tribunal found that the claimant had delayed in asserting the claim, which amounted to waiver of the right to treat the contract as at an end, but not waiver of the right to sue for the bonus, so the bonus claim succeeded.

The tribunal also held that the employer pension contribution clause was not conditional on the employee first paying his 3% contribution. It found no waiver of the pension entitlement and awarded the unpaid employer contributions as damages for breach of contract. For the same reason, the claimant's complaint about non-payment of salary for 1 to 23 November 2020 succeeded, with £3,692.93 ordered as reimbursement of the unauthorised deduction, and the holiday pay complaint succeeded because the claimant had accrued untaken holiday at termination and the set-off argument failed.

On the respondent's counterclaim, the tribunal found that the claimant, while on furlough, had been involved in preparations for a competing business, had used the respondent's equipment for that purpose, and had sought to entice employees away, which it treated as breach of the duty of fidelity and the express non-solicitation term. The pleaded counterclaim nevertheless failed because the tribunal was not satisfied that the September 2020 quotation was sent to De Boer or that the January 2021 Triton work was the same work alleged in the counterclaim, so no recoverable loss was proved. The tribunal dismissed the counterclaim and ordered the respondent to pay gross sums totalling £17,657.55.