Mr A Kenney v Infor (United Kingdom) Limited — 2022

Mr A Kenney brought claims framed as unfair constructive dismissal and an unlawful deduction from wages, but the unlawful deduction claim was later removed from the case. The tribunal heard evidence over 1 to 4 June 2021 and decided the matter on the balance of probabilities. It preferred the claimant and Mr Berry on the key issue of whether a commission exception had been agreed for the JD Sports Fashion PLC contract.

The tribunal found that the claimant had been told by his line manager, Jason Berry, and senior management that a compensation exception had been approved for the JD Sports deal, so that commission would be paid on the basis of a three-year-plus arrangement rather than a two-year break clause. It accepted that emails in August 2019 supported that understanding, including messages referring to a comp exception being agreed at the highest level and to Charles Phillips approving standard compensation on the deal. The respondent's later position was that no such agreement had been made before 21 August 2019, but the tribunal found that the respondent reneged on the exception notified to the claimant and tried to recreate different terms after the contract had been signed.

The tribunal also found that the grievance was not handled satisfactorily. The claimant raised a grievance on 2 November 2019 about the unpaid commission, but by 17 January 2020 it remained unresolved, and the respondent had not provided an outcome by the deadline set by the claimant's solicitors. The tribunal held that the failure to pay the commission in accordance with the exception agreement, together with the failure to deal with the grievance promptly and in good faith, breached the implied term of trust and confidence and amounted to a fundamental breach. It rejected the suggestion that the claimant resigned principally because he had obtained alternative employment with Google.

Applying the questions it set itself on constructive dismissal, including whether there was a fundamental breach, whether the breach caused the resignation, whether the contract had been affirmed, and whether the dismissal was fair within section 98 of the Employment Rights Act 1996, the tribunal concluded that the claimant had not affirmed the contract and resigned in response to the breach. It therefore found constructive unfair dismissal. The judgment did not decide remedy; it listed the case for a one-hour telephone case management discussion and then a remedy hearing.