Ms S Garner, of Counsel For the v Mr W Clayton, Solicitor — 2020

The tribunal found that Ms Mee was contractually entitled to be paid commission on the Red Bull deal under the new commission model. Although the respondent’s policy required HR and Finance approval and Mr DeLacey and SH did not have actual authority to vary the commission terms, the tribunal held that Mr DeLacey had ostensible authority to make the commitment to the claimant, that she continued to give consideration by managing the account, and that she did not affirm the contract when the commission was not paid at the promised rate. The non-payment therefore succeeded as both breach of contract and unlawful deduction from wages.

In November 2018 the claimant raised that another employee, MM, was being paid a higher salary than she was. The tribunal found that this amounted to at least an implied allegation that the respondent was not complying with equal pay provisions, so it was a protected act for victimisation purposes. It also found that the claimant did not have a reasonable belief that the matter was made in the public interest, so the whistleblowing detriment complaint failed. The tribunal held that the disciplinary investigation, the warning and monitoring letter, the failure to give a formal response on the pay disparity, and parts of the December appraisal comments were detriments, and that the protected act played a more than trivial part in those decisions.

On constructive dismissal, the tribunal held that the commission dispute, the way the pay complaint was handled, the refusal of an eight-week sabbatical without discussion or reasons, and the December appraisal comments together breached the implied term of trust and confidence. It accepted that these matters caused the claimant to resign on 21 December 2018 and found that she had not affirmed the contract. The ordinary constructive unfair dismissal claim under s.98 ERA 1996 therefore succeeded. Because the pay complaint was not a protected disclosure, the automatic unfair dismissal complaint under s.103A ERA 1996 failed.

The tribunal also held that the constructive dismissal itself amounted to victimisation, because the protected act had a more than trivial influence on the detriments that fed into the breach of contract. Remedies were not determined in this judgment and were listed for a later hearing on 30 April and 1 May 2020. The tribunal also noted, for remedy purposes, that there remained an issue whether the claimant would have resigned in any event and, if so, when.