Mr Colin Rodger v Represented by:15 Mr Anderson - Solicitor Alexander Sloan Financial Planning Limited — 2022

The claimant, Mr Colin Rodger, was employed by Alexander Sloan Financial Planning Limited from late June 1999 until 22 June 2021. After an FCA supervisory visit in July 2018, the respondent temporarily relinquished its authorisation to carry out regulated financial business and the claimant could no longer carry on his previous role as financial adviser. The tribunal found that the respondent stopped paying his salary after September 2018, while he continued to work on the FCA investigation and compliance issues and remained ready and willing to work.

The tribunal found that the non-payment of salary from September 2018 onwards, and the later failure to pay once the claimant made a written demand, were fundamental breaches of contract and breaches of the implied term of trust and confidence. It accepted the claimant's evidence that he genuinely believed he could not lawfully be paid or resign during the FCA investigation, so he had not affirmed the contract. When he resigned on 22 June 2021 after the respondent failed to engage with his requests for payment, that resignation was in response to the breach and amounted to unfair constructive dismissal.

On remedy, the tribunal held that it was not just and equitable to award loss of earnings because the respondent was no longer authorised to provide the financial services that formed the basis of the claimant's role and he would likely have been made redundant in any event. It awarded a basic award of £16,320, calculated on the basis that the claimant was 65 at dismissal and subject to the statutory weekly cap, and a compensatory award of £250 for loss of statutory rights. It did not award any future or past earnings loss under the dismissal claim.

On the wages claim, the tribunal held that the claimant was contractually entitled to his full salary throughout the period in question and had not agreed to waive or reduce it. It found unlawful deductions from wages, but applied the two-year limitation period so that recovery ran only from 1 July 2019 to 22 June 2021. On that basis it awarded 23 months and 3 weeks' gross pay, totalling £123,348.80, payable gross with tax and national insurance to be accounted for by the claimant.