Mr N de Silva QC, Counsel For the v Respondent — 2018

The tribunal held that Commetric was liable for the conduct of Christofer Solheim and Raj Kulasingam because both had gone beyond ordinary shareholder influence and were acting as shadow or de facto directors. The dispute arose after the September 2018 Sigmai transaction and widened over governance, financial reporting, the pace of a possible sale, and the extent to which the Claimant could continue to act autonomously as CEO and director.

The tribunal found that the board protocol and related shareholder arrangements were implemented in a way that breached the implied term of trust and confidence. It relied in particular on Mr Solheim's 3 December 2018 email, which said the changes were intended to 'police and control' the Claimant, together with the increasing control exercised through the shareholder group and the 13 February 2019 email threatening immediate removal as CEO if the dispute could not be resolved. The tribunal also treated the pressure over the proposed appointment of Jesse Moore as part of the same pattern.

The tribunal further found that the February 2019 threats of civil and criminal proceedings lacked proper grounds, that the 19 March 2019 'Way Forward' process and the proposed Concordat were designed to test or suspend allegations of dishonesty rather than resolve the dispute through a proper process, and that Mr Solheim's email to the Claimant's wife on 1 March 2019 had no reasonable and proper cause. It accepted that the Claimant had not been fully transparent about the SDG proposal and that he had continued SDG discussions and made director appointments in breach of the final protocol, but held that those matters did not justify the escalation to legal threats and dishonesty allegations.

The Claimant first indicated in an unsent email on 24 February 2019 that he wanted to leave, but the tribunal found that he remained in post while seeking an exit deal. It held that the final straw was the Concordat circulated on 20 March 2019, and that he resigned on 28 March 2019 with effect from 12 April 2019, resigning as a director immediately. Constructive unfair dismissal succeeded, and the contractual notice-period claim also succeeded; remedy, including holiday pay, was left to a separate hearing.