Mr P Brazier v Red Top Ltd t/a Simon Marden Estate Agents — 2020

The tribunal found that the claimant started work as a valuer on 1 March 2014 and that, on the evidence of the offer email, it was an express term of the contract that he would have a car for business and personal use, subject to Mr Bray infrequently borrowing it. It accepted that the claimant had previously been allowed to use the Peugeot 206 and later the Mercedes E350 for both business and personal use, and that no written statement of employment particulars had ever been provided.

On 29 and 30 May 2018, after the claimant and his wife returned from holiday, Mr Bray told the claimant he would no longer have the Mercedes, that he would instead use the Peugeot only as a pool car for business purposes, and that the vehicle would have to be parked at Mr Bray's home overnight. The tribunal found that the 30 May letter related to the pool car, not to the Mercedes arrangement, and that it did not amount to the claimant agreeing to vary his contract. It also recorded that Mr Bray asked for the return of the claimant's company credit card on or around 1 June 2018.

The tribunal held that removing the Mercedes and imposing the pool-car restriction breached an express term of the contract and, in any event, the respondent's conduct was a breach of the implied term of trust and confidence. It found that the claimant complained immediately, set out his concerns in his email of 3 June 2018, and resigned on 20 June 2018 because of that breach. It therefore found constructive dismissal and held the dismissal unfair under s.95(1)(c) ERA 1996. It rejected the respondent's case on capability or misconduct, found no basis for a Polkey reduction or a reduction for contributory conduct, and said the 3 June email should have been treated as a grievance, justifying a 25% uplift under s.207A TULRCA 1992.

The breach of contract claim for 30% of profits failed because the tribunal found there was no concluded enforceable agreement: the calculation method and payment timing were uncertain, and the claimant did not prove profits for 2017 or 2018. On the written statement issue, the tribunal accepted that the respondent had not provided the required particulars and said the claimant should receive the higher award of four weeks' pay under s.38 of the Employment Act 2002, but the judgment did not set a final figure because remedy was to be determined at a later hearing on 13 March 2020.