Mr M FENTEM v Outform Emea Limited — 2019

The claimant had long service dating back to October 1990 and, after a TUPE transfer to the respondent on 2 January 2019, resigned by letter dated 16 April 2019 on nine months' notice. His service agreement contained clause 19.5, which allowed the employer, where the executive had given notice, to terminate forthwith during the notice period by paying salary in lieu of notice, excluding bonuses. The tribunal found the effective date of termination was 19 December 2019, when the claimant was told his employment would end immediately and was later paid salary in lieu for the remainder of the notice period.

On the unfair dismissal issue, the tribunal rejected the submission that the resignation was converted into a dismissal. It held that the authorities, particularly Marshall (Cambridge) Ltd v Hamblin, were binding and applied to these facts: where the employee has resigned on notice and the contract gives the employer a power to bring the employment to an earlier end by paying in lieu, the exercise of that power does not amount to a dismissal. The tribunal also considered British Midland Airways v Lewis, John Brignell & Co v Bishop, and McLoughlin v Sutcliffe Catering, but concluded none of them displaced Hamblin on the facts before it. The unfair dismissal complaint was therefore dismissed.

The unlawful deduction from wages claim was also dismissed. The parties had agreed that the claim only arose if the respondent had placed the claimant on garden leave, which was not the respondent's case. In any event, once the tribunal found that the effective date of termination was 19 December 2019, the claimant did not satisfy the bonus entitlement conditions in clause 3.1 or 3.3 of schedule 1 to the service agreement. The tribunal therefore held that the wages/bonus claim must fail.