Mr G Nolan v 1) Phase II International Ltd 2) Scientific Education Support (SES) Ltd — 2023

Mr Nolan was employed by Phase II International Ltd, not Scientific Education Support (SES) Ltd, and all claims against the second respondent were dismissed. The tribunal accepted that Hamflo was the sole shareholder of the respondent companies and found that Mr Nolan had held a senior, highly autonomous role, but it rejected Mr MacLennan's evidence that Mr Nolan had been given a revised contract in 2016. The 2006 contract remained the only written contract Mr Nolan received, and the parties' discussions in 2020 about a Group Managing Director role, profit share and equity formed part of an ongoing restructuring process rather than a binding agreement.

The constructive dismissal claim failed. The tribunal found that Mr MacLennan did not unilaterally demote Mr Nolan or remove his responsibilities, but instead made a series of different offers as the group was being reorganised, including Deputy Group Managing Director and later Managing Director of SES with a salary of £120,000 and associated profit share terms. Although Mr Nolan was disappointed not to receive the Group Managing Director role, there was no contractual entitlement to that post. The tribunal also found that the £25,000 Oyster Bar bonus had been agreed on 21 September 2020, but by the date of Mr Nolan's resignation on 30 September 2020 there had not yet been an unreasonable delay in payment amounting to breach.

The tribunal held that the 20 November 2020 dismissal was unfair. It accepted that some of the allegations were serious enough to justify dismissal, especially Mr Nolan's copying of confidential business plans to his private email account and his false explanation for doing so during the investigation, and it also found the Gilead document issue was serious. However, it found that Mr MacLennan deliberately misled the external investigator and disciplinary decision-maker about his own use of the Managing Director title, the circumstances of the 2016 contract, and his discussions with Adam Smith, which meant he had a closed mind and had prejudged the outcome. The tribunal therefore found the dismissal procedurally and substantively unfair, while recording that a fair process could still have led to dismissal and applying a 50% Polkey reduction.

The wrongful dismissal claim failed because the tribunal found that sending confidential business plans to Mr Nolan's personal email on 14 October 2020 was gross misconduct and a breach of contract, even though Mr Nolan said he wanted to preserve documents for future litigation. It did not accept that the use of the Managing Director title, the Honoured Time material, or the Gilead issue displaced that conclusion. The separate bonus claim succeeded because Mr MacLennan had agreed to pay the £25,000 bonus and it was not paid, but this liability judgment did not determine the final compensation figure.