Mr C McCooey v Elopak UK Ltd: 2410949/2021
| Jurisdiction | England & Wales |
| Judgment Date | 04 September 2023 |
| Date | 04 September 2023 |
| Citation | 2410949/2021 |
| Court | Employment Tribunal |
| Published date | 20 October 2023 |
| Subject Matter | Unfair Dismissal |
Case Number 2410949/2021
EMPLOYMENT TRIBUNALS
Claimant: Mr C McCooey
Respondent: Elopak UK Limited
Heard at: Manchester (by CVP) On: 5,6(pm only) 7, 23(pm only)
June 2023 and (in chambers) on
31 July 2023
Before: Employment Judge Leach.
Representatives
For the claimant: Mr D Brown (counsel)
For the respondent: Ms L Gould (counsel)
JUDGMENT
1. The respondent was in breach of contract in failing to reimburse the claimant
fully for his employment related expenses.
2. The claimant was unfairly (constructively) dismissed.
REASONS
A. Introduction
1. The claimant has claimed that he was constructively and unfairly dismissed by
the respondent. He has alleged that the respondent’s actions over a period of
years, broke the essential term of trust and confidence (defined and referred to
below as the “Implied Term”).
2. The claimant also brought a complaint of unauthorised deductions from his
wages in that he was not fully reimbursed for his expenses. This was amended to
Case Number 2410949/2021
a breach of contract complaint on the morning of the first day of this hearing as
explained below.
B. The Hearing and the claimant’s application to amend the claim.
3. Mr Brown applied to amend the claim, substituting a complaint that there had
been unauthorised deductions from wages to a compliant that a failure to fully
reimburse the claimant for his fuel expenses, amounted to a breach of contract.
Mr Brown recognised that expenses are not included in the definition of wages for
the purposes of Part II of the Employment Rights Act 1996.
4. On behalf of the respondent, Ms Gould did not raise any objection.
5. I asked Mr Brown to identify the contractual term that, according to the
claimant, had been breached. Mr Brown identified it as the Implied Term.
6. After the evidence had been heard and in his submissions Mr Brown put
forward arguments that relied on another contractual term. He did so, having had
the benefit of the respondent’s evidence and also having been able to consider
the case of Benyatov v. Credit Suisse Securities Limited [2023] EWCA Civ
140. I note that the decision in this case is dated February 2023 and appeared in
the law reports after then.
7. The alternative contractual term that the claimant wanted to rely on was an
implied term that the respondent would fully reimburse the claimant’s fuel costs
genuinely incurred by him in respect of business travel. Mr Brown also noted that
an amendment to the existing claim was not required, it was always clear what the
breach was and. Further, a breach of the alternative term would also amount to a
breach of the Implied Term.
8. The respondent objected to this second amendment application.
9. Having considered submissions from both parties, I have decided that the
claimant does not need to apply to amend his complaint in order to rely on a term
by which the claimant would be fully reimbursed for his expenses.
10. As from the morning of day one of the final hearing, the claim included a
complaint that the respondent was in breach of contract because (according to the
claimant) it failed to fully reimburse his fuel costs. During Mr Brown’s cross
examinations of Mr Brassard and Mr Van Willegen, both accepted the respondent
should ensure that the claimant was not “out of pocket” in funding business travel.
The claimant has done no more than clarify the breach of contract claim in the
light of this evidence.
11. Further, it is clear that such a term was implied into the claimant’s
employment contract. In the last paragraph of his judgment in Benyatov, Underhill
LJ referred to an “uncontentious implied obligation of an employer to indemnify the
employee against expenses and liabilities incurred in the course of the
employment.”
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