Mr P Femminile v Croner Group Ltd: 2602586/2018
| Jurisdiction | England & Wales |
| Judgment Date | 15 June 2021 |
| Citation | 2602586/2018 |
| Court | Employment Tribunal |
| Published date | 30 June 2021 |
| Subject Matter | Breach of Contract |
Case No 2602586.2018
Page 1 of 43
EMPLOYMENT TRIBUNALS
Claimant:
Mr Phillip Femminile
Respondent:
Croner Group Ltd
Heard at:
Leicester Hearing Centre, 5a New Walk, Leicester, LE1 6TE
By cloud video platform
On:
8, 9, 10, 11, 12 March 2021
27 April 2021 (deliberations, parties did not attend)
Before:
Employment Judge R Adkinson sitting with
Mrs K Srivastava
Mr A Wood
Appearances
For the claimant:
Mr L Varnam of Counsel
For the respondent:
Mr S Sansom of Counsel
JUDGMENT
After hearing the evidence from the claimant and from the respondent, and after taking
into account each party’s submissions, and after the claimant withdrew his claim for
breach of contract on the grounds that the respondent had failed to pay his commission
(for which a separate order has been issued), it is the unanimous conclusion of the
Tribunal that:
1. The claimant’s claim for breach of contract for payment in lieu of notice
succeeds. The respondent shall pay the claimant the sum of £6,666.66;
2. The claimant’s claim for constructive automatically unfair dismissal
pursuant to Employment Rights Act 1996 section 100(c)(ii) is dismissed;
3. The claimant’s claim for constructive automatically unfair dismissal for
making a protected disclosure is dismissed; and
4. The claimant’s claim for detriments as a consequence of making a
protected disclosure is dismissed.
Case No 2602586.2018
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REASONS
Introduction
5. The claimant (“Mr Femminile”) presented his claim to the Tribunal on 16
November 2018 following early conciliation between 31 October 2018 and
7 November 2018. He alleges that he has been subjected to a constructive
and automatic unfair dismissal for health and safety matters that fall within
the Employment Rights Act 1996 section 100(c)(ii) (“health and safety
dismissal”); for automatic constructive unfair dismissal for making protected
disclosures and that he has been subjected to detriments for making those
protected disclosures. In addition, he brings a claim for breach of contract
in which he alleges that the respondent (“Croner”) failed to pay to him the
right amount of payment in lieu of notice (“PILON”). He also alleged that
Croner did not pay to him all the commission he was owed. He withdrew
that at the hearing. It was not dismissed because he wanted to reserve his
right to pursue that claim in another jurisdiction. Mr Femminile lacks two
years of continuous service and therefore there is no ordinary unfair
dismissal claim for the Tribunal to consider. Having contested the amount
of the PILON due, Mr Femminile conceded in cross examination the value
would be £6,666 as Croner had always said.
6. Croner deny that they dismissed Mr Femminile. Instead, they say the
claimant resigned of his own freewill. They say that in any case even if he
were dismissed, it is neither a health and safety dismissal nor a dismissal
for a protected disclosure. Croner also denies that it subjected Mr
Femminile to any detriments.
7. As to the PILON Croner say they do not owe him any money because he
was overpaid at the end of his employment, and they are entitled to set off
whatever money is owed to him against that excess payment. Alternatively,
they are entitled to recoup it under the terms of the employment contract.
Hearing
8. Mr Femminile was represented by Mr L Varnam, Counsel, and Croner by
Mr S Sansom, Counsel.
9. We heard live oral evidence from Mr Femminile himself and on his behalf
from Mr R Fenn and Ms D Heatley. On Croner’s behalf we have heard from
Mr P Holcroft, who is the Associate Director of Operations, and Mr A Price,
who is Group Operations Director. We have taken into account their
evidence to the Tribunal in reaching our conclusions.
10. At the beginning of the case, Croner presented an opening note and at the
close of the case, both Croner and Mr Femminile presented written
submissions, which we have taken into account. We have also taken into
account the oral arguments that each party made at the end of the hearing.
11. The hearing itself proceeded by way of HMCTS’s Cloud Video Platform.
During the course of the hearing, there were a number of technical
problems, in particular connecting Mr Sansom into the hearing. This was
not Mr Sansom’s fault; it is just an unfortunate consequence of these sorts
Case No 2602586.2018
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of hearings. Nevertheless, it did cause a few delays to the hearing but did
not in our view have any significant impact. When there was a technical
problem, we paused to allow that to be resolved and the Tribunal’s
administrative staff provided as much support as they were able to do so.
During the course of the video hearings, in line with Health and Safety
Executive guidance, we took a short break every hour. The hearing started
at about 10 am and finished at about 4 pm, sometimes a little bit later if it
meant that we could complete the evidence of a witness. At lunchtime, we
took a break of one hour at about 1 pm.
12. The biggest delay in these proceedings, however, was the parties’ inability
to agree the list of issues until the start of the third day. Where the blame
lies is not something the Tribunal has the material to consider and in any
case is not relevant to the issues before it. The Tribunal can however note
that despite the difficulties, each party’s Counsel took the matter in hand
and worked hard to finalise the agreed list, neither party asked for
permission to amend their claim or response (as may be) and neither party
asked for an adjournment.
13. The Tribunal was able to use some of this time to read into the papers so
that we had a full understanding of the case. Nonetheless, it meant that the
hearing, which could ordinarily have been completed within the 5 days, only
had 3 days available, and they were required to hear the evidence from all
the witnesses.
14. Another consequence of the delay agreeing the list of issues was that both
parties, but particularly Croner, complained that as a result of the late
clarification and agreement of the list of issues, it has not been possible to
investigate all the necessary documents and therefore to detect if there are
extra relevant documents for the bundle. However,
14.1. we note that neither party has alleged that the other has failed to
comply with their disclosure obligations and therefore we
proceed on the assumption that everyone has acted reasonably
in disclosing that which was appropriate for them to disclose and
that neither party has withheld relevant documents;
14.2. notwithstanding that, there was an agreed supplementary
bundle prepared during the course of the hearing and late
disclosure even after that to deal with some issues that had
arisen on clarification of the list of issues; and
14.3. neither party at any time asked for an adjournment to seek new
evidence or to consider the issues in more detail. Croner did ask
permission to rely on a supplementary statement from Mr
Holcroft. We granted permission to Croner. Mr Holcroft produced
a supplementary statement and we took it into account.
15. We proceed on the basis that all relevant material has been put before us
and there is no extra material that might have proven a particular party’s
case one way or the other. We are after all not in a position to carry out
speculation as to what might exist: we can only deal with what we have.
16. Therefore, by the end of the hearing there was before us a bundle of
approximately 222 pages, a supplementary bundle of approximately 135
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