Mr P Moore v Core Market Strategies Limited — 2021

The claimant resigned on 26 April 2019 after disputes about the respondent's dealings with Catalina and Prosperise, saying he had been excluded from discussions and decision-making. The tribunal accepted that Mr Gledhill and Mr Vickers had consciously kept him out of exploratory rescue discussions, but found that the respondent was facing acute financial difficulty and that those discussions were aimed at preserving the business. It held that, on an objective view, the respondent had reasonable and proper cause for not involving the claimant earlier because he had previously focused on protecting his own position in negotiations and his role was seen as unattractive to potential rescuers.

The tribunal placed weight on the business context: the respondent was a small investment business run by three experienced businessmen, with no written contracts of employment, and from January 2018 the claimant was not being paid and was doing little or no meaningful work. It found that the claimant's exclusion from exploratory talks about rescue options did not amount to a repudiatory breach of the implied term of trust and confidence. Although the claimant may subjectively have felt excluded, the tribunal held that the Malik test was not satisfied because the respondent's conduct was justified by the need to try to keep the business alive.

Because there was no repudiatory breach, the tribunal held that there was no constructive dismissal and did not need to go on to consider waiver or the fairness of any dismissal. The notice pay claim also failed because the claimant had resigned rather than been dismissed. The tribunal further found that monthly remuneration had been mutually suspended in January 2018, that there was no express agreement that salaries would resume once financial circumstances improved, and that no wages were properly payable when the claimant left, so the unlawful deduction from wages claim failed.

The holiday pay claim was also dismissed. The tribunal said the claimant had not given evidence that he had accrued but untaken annual leave in the final leave year. It added that, even if there had been such leave, any compensation under the Working Time Regulations would have been at the rate of a week's pay, and the claimant was not being paid by mutual agreement at that stage. No monetary award was made.