Mr L Varnam, counsel For the v Respondent — 2021

The claimant was employed by the respondent from 1 August 2017 under a Director’s Service Deed on a salary of £100,000. The tribunal found that the parties agreed at the March 2018 Board Meeting to forgo salary on an indefinite basis, which meant that later salary claims failed as salary claims, although the respondent could not contract out of the national minimum wage. The tribunal also found that the claimant’s unpaid leave accrued and carried over because he was not permitted to take paid annual leave.

On the wages issues, the tribunal held that the claim for unlawful deductions from wages succeeded only from 1 January 2020 to 7 July 2020 in respect of non-payment of the national minimum wage. Earlier salary non-payments were not recoverable under the unlawful deductions claim because the claimant had agreed to forgo salary from March 2018, and the earlier 2017 and early 2018 pay disputes succeeded instead as breach of contract claims. The tribunal did not determine quantum in this judgment.

The unfair dismissal claim succeeded. The respondent relied on some other substantial reason, namely a breakdown in trust and confidence and in working relationships within a very small management team. The tribunal accepted that trust had broken down, but found the dismissal unfair because the decision to dismiss had effectively been made by the management team before the claimant had a proper opportunity to respond, the dismissing officer Mr Miller and appeal officer Mr Hall were not independent, and the respondent had not considered an alternative decision-maker despite its own procedure allowing for one.

The tribunal also found that the respondent had taken a closed-minded approach to possible solutions. It rejected the claimant’s willingness to attend mediation, to undertake a course through the Institute of Directors, and to consider an alternative role, without properly testing whether those steps might restore the relationship. The tribunal made no reduction for contributory fault and no Polkey reduction. It also found the written particulars claim succeeded because the respondent did not give written notice of the March 2018 change to the claimant’s employment particulars.