Mr M Baxendale v UK Healthcare Corporation Limited t/a D-Energi — 2019

The notice pay claim was withdrawn at the outset and dismissed on withdrawal. On the pay issue, the tribunal found that the parties had agreed in late August 2018 to a temporary commission cap of £1,750, but that the September payroll still should have paid that amount rather than £696.12. Although the respondent had concerns about Smart Energy Review contracts, those contracts were only suspected to be fraudulent at the time, and there was no contractual term authorising the withholding. The tribunal therefore held that £1,750 was properly payable for that pay period and that the shortfall of £1,053.88 gross was an unlawful deduction from wages.

On dismissal, the tribunal accepted that the claimant was summarily dismissed on 4 October 2018, reinstated on appeal on 1 November 2018, and then received an abrupt response from Mr Ahmed when he tried to discuss his return to work. It held that the dismissal, the final written warning, and the later communication formed a course of conduct that breached the implied term of trust and confidence and was repudiatory. The claimant resigned on 21 November 2018 and had not affirmed the contract.

At the outset, the tribunal allowed the claimant to rely on his 7 September 2018 conversation with Zico Ahmed as the relevant assertion of statutory right. It found that he had alleged an infringement of the right not to suffer unauthorised deductions from wages, and that the emails from Zico Ahmed and Mr Ahmed showed the dismissal process was triggered by that complaint. The tribunal held that the principal reason for dismissal was that assertion of statutory right, so the claimant was constructively dismissed and the dismissal was automatically unfair under s.104 ERA 1996. A remedy hearing was left to be listed.