In Person For the v Respondent — 2020

The claimant, Mr J Hind, was employed as the respondent’s finance director under a written contract executed on 23 October 2017. The contract provided for three months’ notice under clause 14.4, but also allowed automatic termination in some circumstances and termination without notice for gross misconduct under clause 14.2.6. The claim was pleaded as breach of contract because Mr Hind did not have the qualifying service needed to bring an unfair dismissal claim.

The tribunal found that on 15 April 2019 Mr Hind received an email appearing to come from Robert Willey, asking about the bank cut-off time for outgoing payments and then requesting an urgent payment of £6,225 to a new bank account. Mr Hind accepted that he saw the sender address was not Mr Willey’s usual work address, assumed it was a personal account, and did not apply the due diligence checks he normally used for other payments. He passed the request to the finance manager, who asked what it was for, but Mr Hind said he did not know and authorised the payment anyway.

The tribunal accepted that Mr Hind was the victim of a fraud and that the scam was sophisticated in one sense, but it held that there were numerous warning signs that should have prompted enquiry. It found there was no satisfactory explanation for why obvious questions were not raised, particularly given the unusual nature of the request, the new payee, and the fact that Mr Hind knew the email address was unfamiliar. It also found that Mr Hind made a positive decision not to undertake the due diligence that would otherwise have accompanied such a request, and that this failure was central to his role as finance director.

Applying the repudiatory breach analysis, the tribunal held that the conduct so undermined the trust and confidence inherent in the employment contract that the respondent was entitled to terminate without notice. It concluded that the respondent was not obliged to give Mr Hind notice, either because the circumstances fell within clause 14.2.6 or because, at common law, the respondent was entitled to accept the repudiation. The breach of contract claim was therefore dismissed, and no monetary award was made.