Mr C Wilfert v Everycs Ltd (in administration) and Makersite GmbH: 2206852/2018
| Judgment Date | 07 October 2020 |
| Citation | 2206852/2018 |
| Published date | 19 October 2020 |
| Court | Employment Tribunal |
| Subject Matter | Unfair Dismissal |
Case Number: 2206852/2018
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EMPLOYMENT TRIBUNALS
BETWEEN
Claimant AND Respondents
Mr C Wilfert (1) Everycs Limited (in administration)
(2) Makersite GmBH
Heard at: London Central Employment Tribunal
On: 9, 10, 11, 15, 16 September 2020 (17, 18 Sept in chambers)
Before: Employment Judge Adkin
Ms Z Darmas
Mr D Carter
Representations
For the Claimant: Ms L Robinson, Counsel
For the Respondent: Mr T Cordrey, Counsel
JUDGMENT
(1) The claim of failure to inform and consult under TUPE 2006 (Transfer of
Undertakings (Protection of Employment) Regulations 2006) succeeds
against both the First Respondent and Second Respondent.
(2) The following claims succeed against the First Respondent:
a. The claim of unlawful deduction from wages in relation to the
Claimant’s salary in the period 1 – 28 August 2018.
b. The claim of failure to provide a statement of his particulars of
employment.
(3) The remaining claims are dismissed:
a. The claim of automatic unfair dismissal (reg. 7(1) of TUPE 2006) fails
for lack of jurisdiction.
Case Number: 2206852/2018
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b. The claim of unfair dismissal under section 98(4) of the Employment
Rights Act 1996 fails for lack of jurisdiction.
c. The claim of wrongful dismissal is not well founded.
d. The claim for holiday pay under regulation 14 & 16 of the Working
Time Regulations 1998 is not proven.
REASONS
Procedural matters
1. This hearing was a “hybrid” in the sense that the Tribunal members
were present physically in the Tribunal building throughout the hearing and
the Claimant and witness for the Second Respondent Mr Neil D’Souza
attended each day of the hearing remotely using video (CVP) technology.
2. Legal representatives attended on the first three days of the hearing
physically in the Victory House. Following the announcement that there had
been at least one positive Covid case in the administration staff in the
Tribunal building, by agreement the legal representatives attended by CVP on
15 and 16 September 2020. This meant that cross examination of the
Claimant was concluded using CVP. It was envisaged from the outset of the
hearing that submissions would be by CVP in any event. On 14 September
2020 the Judge heard another matter and representatives used this as a
submissions preparation day.
3. The CVP system is not designed for a hybrid hearing. Both Counsel
and the Tribunal improvised using speakers and muting microphones for non-
speakers to avoid feedback. We are grateful to all participants for their
forbearance in making this work. Other than a some minutes which were lost,
particularly on the last two days, in the main the system worked reasonably
well and it was possible to hear evidence with clarity from both witnesses and
submissions from both Counsel, and also see faces clearly.
4. The requirement for open justice was satisfied by the provision of a
screen in the Tribunal hearing room showing witnesses and representatives
and loudspeakers which conveyed sound. The Tribunal building was open
throughout the hearing. Only one observer attended the hearing, who was
doing judicial marshalling (a kind of work experience), who confirmed that she
was able to see and hear proceedings.
The Claim
5. The Claimant presented his claim on 29 November 2018.
6. An agreed list of issues is attached as an appendix to this claim.
Case Number: 2206852/2018
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Findings of fact
7. We are grateful to both Counsel who produced a consolidated
(although not agreed) chronology, containing the salient dates as each
representative saw it.
Background
8. We heard evidence from the two main protagonists, the Claimant Mr
Wilfert and Mr Neil D’Souza for the Second Respondent. The two were
known to one another from previous employment at Thinkstep AG.
9. The Claimant describes himself as an entrepreneurial executive with
broad experience in industry and information technology. He has had
management positions in a variety of technology businesses.
10. Mr D’Souza has experience in product management and software
development. His skills were in the development of the technology.
11. On 31 August 2015 the Claimant ceased to be an executive board
member of his previous employer Thinkstep AG but continued to be
employed for a number of months, on garden leave.
12. In December 2015 the Claimant and Mr D’Souza had discussions
about the possibility of going into business with each other and with Fabian
Hassel, another former colleague. Mr Hassel did not become involved
beyond the initial stages. The basis for the idea was “Makersite”, software
which is designed to help manufacturing companies analyse and improve
their products to make them more cost efficient, safer, compliant and
environmentally friendly.
2016
13. On 18 February 2016 the First Respondent company was
incorporated in England and Wales with a registered office in Weybridge,
Surrey. The Claimant lives in Weybridge. At all material times Mr D’Souza
lived in Germany.
14. Although the Claimant and Mr D’Souza were equal shareholders and
Directors of equal status, the roles that they adopted within the new business
were as Chief Executive Officer (CEO) and Chief Technology Officer (CTO),
respectively. Mr D’Souza’s role was to provide technical skills and oversee
software development and data integration. The Claimant’s role was to deal
with the other parts of running the business, namely sales, marketing,
administration and finance. He actively sought and succeeded in attracting
investment in the company.
15. In February 2016 Mr D’Souza, the Claimant and Mr Hassel were in
discussions about an appropriate equity split for the new venture. On 16
February 2016 Mr D’Souza sent over different proposed equity split using
several different online tools to propose various equity proportions. This
email set out that both Mr D’Souza and the Claimant were committing “100%
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