Member J McCaig Tribunal Member E Farrell Garry Kennie v Respondent — 2022

The three claimants were recruited in 2018 to senior roles in Texo Engineering on agreed salaries, car allowances, pension contributions and six months' notice. The tribunal found that the later draft service agreements sent in 2018 and January 2020 were not shown to be the same documents lodged in the bundle, and in any event were never agreed by the claimants. The tribunal preferred the claimants' evidence that they had been working under earlier verbal and email arrangements and had repeatedly said they would not sign the service agreement without the shareholders' agreement and articles of association.

On 17 March 2020 the respondent dismissed all three without notice, saying it reasonably believed they were working for MRDS and had breached fiduciary and contractual duties. The tribunal found there was no sufficient evidence that any claimant was working for MRDS. For Garry Kennie, the telephone call to MRDS did not justify the inference drawn by the respondent. For W James Allan, the tribunal accepted that his attendance at MRDS and the Teams call were explained by his Texo work, and it rejected the suggestion that he was employed by MRDS. For Andrew Kay, the tribunal accepted that his meeting with Mark Robertson and subsequent assistance were personal matters unrelated to MRDS.

The tribunal held that the respondent had not established a material or repudiatory breach of contract by any claimant and, even if the service agreement clauses had applied, the respondent had not carried out any proper investigation so any belief was not reasonable. It therefore found that all three claimants were wrongfully dismissed / in breach of contract by the respondent and awarded each claimant £25,000, being the agreed contractual cap. The respondent's counterclaim was withdrawn and dismissed.