Mr G Spence v Cirrus Logistics Limited — 2021

Mr Spence was employed as a sales executive from late 2014 on a salary of £45,000 plus uncapped commission. The tribunal found that he consistently underperformed against targets over several years, including 2015, 2016 and 2017, and that the respondent managed his performance through regular reviews and then a capability process. It found that the targets and objectives set for him, including the First PIP and Final PIP objectives, were reasonable and were generally the same figures he had himself forecasted or agreed.

The tribunal rejected the claimant’s case that the respondent’s conduct, taken cumulatively, breached the implied term of trust and confidence. It found that moving him onto the updated capability procedure after the arrival of a new Head of HR was a reasonable step that gave him more time. It also found that the grievance investigation was thorough, that four misallocated leads were corrected, that the grievance outcome did acknowledge the error, and that the complaint about the timing of the April 2019 meeting around annual leave did not make the process unfair. On the complaint that Anton du Preez had been rude, the tribunal accepted that Mr du Preez was harsh, but found that he apologised and that this did not amount to a breach.

The tribunal also rejected the alleged final straw. It found that the Yara Fertiliser lead was reasonably passed to Ian Searle because it was treated as a chemical lead outside the claimant’s area, and it found that the resignation letter had been prepared before the final meeting. Applying Western Excavating, Malik, Kaur, Omilaju, Wood and section 91(1)(c) of the Employment Rights Act 1996, the tribunal held that there was no repudiatory breach and no series of acts that objectively justified resignation. It therefore dismissed the constructive dismissal claim. On commission, the claimant accepted that the Taranaki deal had not been invoiced during employment and that the contract only entitled commission on invoices raised during employment, so the unlawful deduction of wages claim also failed.