Mr C Wightman v Fan Data Pools Limited — 2021

The tribunal heard three groups of monetary claims brought by Mr Wightman as the former CEO of Fan Data Pools Limited: salary top-up for the furlough period, car allowance during furlough, and employer pension contributions. It construed the furlough letter of 26 March 2020 as the operative agreement on salary during furlough, rather than reading it by reference to separate correspondence involving Ms Belo. On that construction, the company only undertook to top up wages once sufficient funding had been received from shareholders or CBILS.

Applying the contractual interpretation and discretion authorities it cited, the tribunal accepted that the respondent was entitled to decide whether sufficient funding had been received, subject to the limits identified in Clark, Keen, Hill and Braganza. It found the respondent was in serious financial difficulty, the CBILS application had been declined, and although R&D tax credits and some share funding were received, the company was not acting irrationally, perversely, or otherwise unreasonably in concluding that the trigger for salary top-up had not been met. The salary unlawful deduction and breach of contract claims were therefore dismissed.

On the car allowance, the tribunal found the £600 per month net allowance in clause 6.6 was remuneration rather than a separate contractual benefit. It relied on the placement of the allowance in the salary section of the service agreement and the CJRS context, and concluded that the allowance was covered by the furlough agreement. The unlawful deduction and breach of contract claims relating to the car allowance were dismissed.

The pension claim succeeded. The tribunal found that Mr Wightman had provided sufficient details of his designated pension scheme by January and March 2019 to trigger clause 6.5 of the service agreement, which required the company to pay 5% of salary into that scheme within 14 days of notification. It accepted that the forms were posted but likely lost in the post, and noted that the respondent later made pension contributions from June 2020 onwards even though the scheme allocation issue had not been resolved. The respondent was ordered to pay £8,333.40, calculated as 20 months at £416.67 per month.