Mr O O’Connor v Tendable Ltd: 1402556/2022

Case No. 1402556/2022 EMPLOYMENT TRIBUNALS BETWEEN Claimant Mr O O’Connor Respondent Tendable Limited AND JUDGMENT OF THE EMPLOYMENT TRIBUNAL HELD AT BRISTOL EMPLOYMENT JUDGE ON 11 April 2023 J Bax Representation For the Claimant For the Respondent: Mr O O’Connor (in person) Ms E Afriyie (consultant) JUDGMENT Upon liability not being contested: 1. The Claimant was unfairly dismissed by the Respondent. 2. The complaint that the Claimant was subjected to detriment because he alleged that the Respondent infringed the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 was well founded. JUDGMENT ON REMEDY The Judgment on remedy is in two parts. The first part is the Judgment in figures net of tax (apart from the claim for loss of pension contributions). The second part sets out the calculation for the taxable part of the award providing a final grossed up figure. Part 1 1 Case No. 1402556/2022 The Respondent shall pay the Claimant the following sums in respect of the claim of unfair dismissal : 1. An agreed basic award of £1,713.00. 2. The agreed sum of £22,955.84 net in respect of loss of earnings. 3. The agreed sum of £2,354.15 gross in respect of loss of employer pension contributions. 4. The claim for a payment in respect of share options is dismissed. A total sum of £27,022.99. The Respondent shall pay the Claimant the following sums in respect of the claim of the detriment claim : 5. £7,000 in respect of injury to feelings. 6. Interest of £507.84 in respect of injury to feelings. A total sum of £7,507.84 Uplift for failing to follow the ACAS Code of Practice on disciplinary and Grievance Procedures 2015 7. The Respondent was in breach of the ACAS Code of Practice in respect of grievance procedures and it was just and equitable to increase the award to the Claimant by 10% 8. The total sums due to the Claimant (unfair dismissal and detriment) are £34,530.83 of which 10% is £3,453.08 and is added to the award making a total of £37,983.08. Grossing up and Recoupment 9. The total amount payable to the Claimant is £37,983.08 10. These figures are subject to grossing up. 11. The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 (“the Recoupment Regulations”) apply in this case. Part 2: Grossing up of taxable part of the award 12. By consent, the parties agreed that the awards should be grossed up as follows. 2 Case No. 1402556/2022 13. The loss of employer pension contributions was calculated gross of tax and is therefore not included in the calculation. 14. The total of the awards in respect of injury to feelings, associated interest, and loss of earnings is £35,628.93. The tax-free amount is £30,000. These are the taxable awards. 15. The taxable amount of the £35,628.93 is as follows: The total of the awards liable to taxation Less the tax-free amount £35,628.93 £30,000.00 Total amount of the award liable to taxation £5,628.93 16. The taxable amount needs to be grossed up to take into account 40% income tax. The gross figure of the taxable amount is £9,381.55 of which £3,752.62 is in respect of the income tax payable. 17. The total amount payable to the Claimant is as follows: + £37,983.08 (awards for injury to feelings, interest thereon, loss of earnings, loss of pension contributions and ACAS uplift) £3,752.62 (additional sum in respect of the taxable part) = £41,735.70 (after grossing up) to be paid by the Respondent to the Claimant REASONS 1. In this case the Claimant claimed that he had been unfairly dismissed and subjected to a detriment. The Respondent did not defend the claim in relation to liability but did in respect of remedy. The Claimant requested written reasons of the oral Judgment given on 11 April 2022. Background 2. The Claimant brought claims of automatically unfair dismissal, because he had been dismissed for asking for reasons for less favourable treatment due to his part-time worker status, and that he had been subjected to detriments because he had requested written statement of reasons for his less favourable treatment. Those detriments were refusing to allow him to return to work on 24th of May 2022, failing to progress his grievance dated 29 th of 3 Case No. 1402556/2022 April 2022 and failing to allow him to appeal against his grievance outcome. The Claimant had also said that his dismissal was a detriment, however it was accepted that a dismissal is specifically excluded as detriment under the Part-time Worker Regulations. 3. The parties agreed that the correct basic award was £1,713. It was further agreed that the Claimant’s loss of earnings was £22,955.84 net and his loss of pension contributions was £2,354.15 gross. Injury to feelings, loss of share options and ACAS uplift remained in dispute. The evidence 4. I heard from the Claimant, and from Mr Thornton on behalf of the Respondent. I was also provided with a bundle of 134 pages. The facts 5. I found the following facts proven on the balance of probabilities after considering the whole of the evidence, both oral and documentary, and after listening to the factual and legal submissions made by and on behalf of the respective parties. 6. The Respondent employed the Claimant from 1 October 2019 to 31 May 2022 as Chief Product Officer. The Claimant worked part-time from 1 January 2022. 7. The Claimant was offered a share option, to which he agreed on 1 October 2019. The Claimant’s contract of employment was amended to include clauses 5.2 to 5.4 of the Share Option agreement. 8. When the Claimant went part time, a negotiation took place as to his share options. The Respondent bought back a third of his share options at 50%, which it paid as a bonus. The Claimant relinquished a further third and retained the final third of the options. The Claimant then held 10,000 share options. The Claimant’s employment did not end. His pay was reduced to take into account his part time status and became £80,000 per annum. 9. The Share Option agreement in force at the time of the termination of the Claimant’s employment provided: 5.1 The Optionholder and the Grantor which employs the Optionholder hereby agrees that clauses 5.2 to 5.4 shall form part of the employment contract of the Optionholder and that the definitions in clauses 5.2 to 5.4 shall have the same meaning as in the Plan. 4 Case No. 1402556/2022 5.2 The Optionholder shall not form part of any past, current or future entitlement to remuneration or benefits which the Optionholder may have under any contract of employment with the Company or Group Company nor form part of any such contract of employment. Moreover, neither the Option nor the existence of such contract of employment between any person and the Company or any present or past Group Company shall give such person any right or expectation to have an Option granted to him in respect of any number of shares in the capital of the Company either subject to any condition or at all. 5.3 The rights and obligations of the Optionholder under the terms of his office or employment with the Company or any other past or present Group Company shall not be affected by his participation in the Plan. In particular, no benefits under the Plan shall be pensionable. 5.4 The Optionholder shall have no rights to seek equitable relief or to receive compensation or damages for any loss or potential loss which the Optionholder may suffer in connection with the Option or any rights or entitlements under the Plan which loss or potential loss arises in consequence of the Optionholder being unable to work or as a result of the loss or termination of his office or employment with the Company or any Group Company for any reason whatsoever and however that termination may be occasioned (including, without limitation, wrongful or unfair dismissal). 10. Appendix 1 provided that the exercise price was £1.22 per share. It further provided that appendix 2 set out how and when the option could be exercised. 11. Appendix 2 provided: 5. NATURE OF PARTICIPATION 5.1 An Option shall not form part of any Eligible Employee’s or Optionholder’s entitlement to remuneration, benefits or entitlements pursuant to his contract of employment with any Group Company. Moreover, the existence of a contract of employment between any person and any present or past Group Company shall not give such person any right to have an Option granted to him in respect of any number of Shares either subject to any condition or at all. 5.2 Except as otherwise provided for in this Rule 5, the rights and obligations of any Eligible Employee or an Optionholder under the terms of his office or employment with the Company or any other present or past Group Company shall not be affected by his participation in this Plan. In particular, no benefits under this Plan shall be pensionable. 5 Case No. 1402556/2022 5.3 An Optionholder shall have no rights to seek equitable relief or to receive compensation or damages for any loss or potential loss which the Optionholder may suffer in connection with any Options or any rights or entitlements under the Plan which loss or potential loss arises in consequence of the loss or termination of his office or employment with any Group Company for any reason whatsoever and however that termination may be occasioned (including, without limitation, wrongful, unfair or otherwise unlawful termination). 7. EXERCISE EVENTS 7.1 Subject to Rules 7.2, 7.3, 8, 11 and 13, an Option may be exercised in full: 7.1.1 at any time after a Listing; 7.1.2 for a period of 30 days following a Change of Control; 7.1.3 after the Board serves notice on every Optionholder that a Change of Control is likely to occur or that the Company proposes to pass a resolution for voluntary winding up, but such exercise shall only take effect immediately prior to the Change of Control occurring or the passing of the resolution; by the court between the Company and its members under sections 895 to 901 of the Companies Act 2006 (power of...