Mr C Fagan Mr L Dickinson Respondent BES Metering Services Limited v Respondent — 2021

Mr C Fagan and Mr L Dickinson brought joined claims of constructive unfair dismissal arising out of the transfer of the metering business from the Access Install companies to BES Metering Services Limited. The tribunal found that each claimant was an employee with at least two years' continuous service, holding that continuity from 2015 had been preserved through the associated-company transfers and, alternatively, by TUPE. It rejected the respondent's case that the new contracts of 30 May 2019 broke continuity.

On constructive dismissal, the tribunal found that the respondent's conduct cumulatively frustrated and obstructed the claimants' ability to run the business and earn the deferred SPA payments. It relied on findings including intrusive management visits to the Liverpool office, demands for daily reporting, denial of financial and IT information, restrictions on authority, requirements to work at Fleetwood, the 13 and 19 September 2019 letters limiting the claimants' roles, and the suspension and lock-out on 1 October 2019 after the night-time removal of documents from the office. The tribunal held that the suspension was not a neutral act and, in context, amounted to a fundamental breach and a last straw.

The tribunal found that the claimants resigned promptly on 9 October 2019 and did not affirm the contracts. It held that the respondent had not advanced any reason for dismissal, so the unfair dismissal claims were well-founded under section 98 ERA 1996 and there was no need to assess reasonableness under section 98(4). The tribunal also rejected the respondent's reliance on alleged involvement with Callesti Energy Supply Limited or Ekavi Limited, and held that clause 10.1(c) of the SPA did not bar the tribunal claims. Liability only was decided in this judgment; the claims were listed for a remedy hearing.