Ms L Robinson, Counsel For the v Respondent — 2020

Mr Wilfert and Mr D'Souza developed the Everycs/Makersite business from 2016. The tribunal held that Mr Wilfert was not an employee in 2016: there was no written employment contract, no salary was paid for that period, and the parties were still treating the venture as something that might fail. It found that he was a worker throughout, but became an employee only from January 2017 when regular salary payments and tax/NIC deductions began. Because he had less than two years' continuous service by the August 2018 dismissal, both the automatic unfair dismissal claim under regulation 7(1) TUPE and the ordinary unfair dismissal claim under section 98(4) ERA 1996 failed for lack of jurisdiction.

The tribunal nevertheless considered the dismissal reasoning in the alternative. It found that the dismissal was not solely or principally because of the TUPE transfer, although the planned administration and pre-pack sale affected the timing. The principal reasons were the tribunal's view that Mr Wilfert had repeatedly increased his salary without authority, that the level of remuneration was unsustainable and disputed by the investor, and that relations between the founders had broken down over some months.

On the ordinary unfair dismissal analysis, the tribunal accepted that Mr D'Souza believed Mr Wilfert was guilty of misconduct, but said the investigation was incomplete because payslips were not checked. It held that the procedure fell outside the range of reasonable responses because the decision to dismiss had effectively been predetermined, there was no appeal, and a PowerPoint presentation containing new material was shown at the disciplinary hearing. The tribunal also found very high contributory fault and said any compensatory award would have been reduced by 100%.

The tribunal rejected the wrongful dismissal claim. It found that the repeated salary increases were a repudiatory breach and gross misconduct, and that deletion of versions of the financial plan on 18 July 2018 was blameworthy and supported the view that the claimant knew the documents would matter in the disciplinary process. It upheld the TUPE failure to inform and consult claim, rejected the special circumstances defence under regulation 13(9), upheld the unlawful deduction claim for salary between 1 and 28 August 2018 against the First Respondent only, and upheld the claim for failure to provide written particulars. The holiday pay claim under the Working Time Regulations was not proven. Quantum for the successful TUPE, wage deduction, and particulars claims was left to a later remedy hearing.