Hello again and welcome back to our case of the week. As the weather is getting warmer and we get closer to our third bank holiday of the month we hope you are all doing well. Last time we were looking into how lay members of the tribunal have been recused on account of their social media political stances, which you can find here. This week, we are going to be looking at a recently decided case involving a sales manager seconded to Canada and how a Judge has gone on a frolic of their own!

The Claimant, Mr Davis, was employed as a sales manager for the Respondent company, Ebury Partners UK Limited. From 2017 he was seconded to Canada and his employment contract had been varied to reflect this change. The side letter making the amendments stated that ‘terms of this side letter shall apply for 12 months and will continue on a rolling basis until the parties agree otherwise. Upon the terms of this side letter ceasing to apply, the terms of the contract of employment shall apply instead.’ The issue arose as the commission made up a large portion of his earnings and while it was stated to be discretionary under the original contract, it was a contractual entitlement under the terms of the amendments.

In 2019  Mr Davis was informed that he would no longer be receiving his commission, after which he resigned and brought a claim for constructive dismissal arguing that the company had breached the terms of the amended contract.

In the initial hearing it was found that the amended contract only allowed for commission to be payable for a period of 12 months, which had expired at this stage, along with finding that there had not been a breach of the implied terms of trust and confidence to allow the constructive dismissal claim to succeed either. However, upon reconsidering the decision at another hearing, it was found that the company had breached the duty of trust and confidence in the way in which they had withdrawn the commission payments and allowed the dismissal claim.

The company, unhappy to say the least on the reconsidered position, decided to bring an appeal. They argued that the Judge in the first instance should not have carried out the reconsideration at all. Mr Davis also brought a cross-appeal, stating that the Judge’s conclusion on the interpretation of the contract was incorrect.

The Appeal Tribunal allowed the appeal from the company but dismissed the cross-appeal. The EAT found that the Judge had failed to properly consider whether the interests of justice was being best served by reconsidering the case, arguing that it should not have been reconsidered at all, as this would go against the principle of finality of decisions. If the Claimant had wanted to present arguments to the tribunal, they should have constructed them ready for the initial hearing.

In making their decision, the EAT described the Judge as having reconsidered the case on a basis that was not part of the application and that no party had argued. They had gone on a frolic of their own in deciding the outcome and the basis for reconsidering the case.

Takeaway Points

The first, most important point here is concise drafting. Ensuring that the side letter was drafted in such a way as to make certain the company’s position to their employee could have prevented this entire claim, saving hours of time for both parties and their costs. Certainty in your objectives when drafting as well as ensuring documentation is kept up to date to reflect the intentions of both parties can ensure that the situation never deteriorates to the point of litigation.

While this may show how Judges are human like the rest of us and can occasionally make mistakes, ensuring that you are prepared when bringing your case forward will help tremendously. The arguments that the Judge had used to convince themselves of the position, while not presented by either of the parties, had they been advanced properly in the initial hearing could have been persuasive enough to secure a decision in the Claimant’s favour. If you are looking to present an argument before the tribunal you will need to ensure that you are prepared to do so going in – not after the fact.

The final point is more of a legal point that a practical one; one cannot bring an appeal to the EAT simply because they do not like the decision. Emphasis was placed on the finality of decisions being handed down and it should only be in exceptional circumstances or in the interest of justice that the same case will be heard more than once. No second chance at a first impression, make it count!