Mr E Cadden v Represented by: Mr R Turnbull - Solicitor New Forest Communications — 2018

Before reaching the merits, the tribunal resolved the preliminary issue of whether the claimant was employed by New Forest Communications or by Pointshift Ltd. It held that the exchange of draft contracts, the handbook, wage slips, the payment arrangements, and Mr Walker's level of control pointed to a contract of employment with the respondents, despite the claimant's access to the Pointshift bank account and his status as a director and shareholder. The tribunal therefore found it had jurisdiction over the claims.

On unfair dismissal, the tribunal held that the claimant was constructively dismissed under s.95(1)(c) ERA 1996. The contractual term in issue was payment of salary on or around the 20th of each month. It found that June 2016 wages were paid late, July 2016 wages were not paid by 28 July when the claimant first resigned with notice, and August and September wages were also unpaid when he resigned immediately on 20 September. The tribunal accepted that non-payment of wages was a fundamental breach and that it was a significant reason for both resignations; it rejected the suggestion that the £7,500 taken from the bank account defeated the claim, finding that it was used to reimburse agreed relocation expenses.

The tribunal then assessed remedy. It made a basic award, a compensatory award, and added £300 for loss of statutory rights. It accepted that the claimant had mitigated in part by setting up his own businesses, but held that he should have drawn income from IT work from around December 2016, reducing the compensatory element to two months' net pay of £7,000. It declined Polkey and contributory fault deductions, holding that the matters relied on by the respondents arose after the claimant had already accepted the repudiatory breach, and that the pre-resignation conduct did not justify a finding that dismissal would have occurred in any event.

The tribunal also upheld the unpaid wages claim, finding that August and September 2016 salary, £3,500 per month, had not been paid and that the claimant remained entitled to those sums. It upheld the breach of contract claim for relocation expenses, finding an agreement by Mr Walker to reimburse the claimant for moving to England and awarding the balance after crediting the £7,500 already taken from Pointshift's bank account. Finally, it upheld the Working Time Regulations claim for 8.5 days of accrued but untaken leave at termination. The final orders were £15,682.50 for unfair dismissal, £7,000 for unpaid wages, £1,514.14 for breach of contract, and £1,372.75 for holiday pay.