IN THE JERSEY EMPLOYMENT AND DISCRIMINATION TRIBUNAL

BETWEEN

Reference:                                      [2022] TRE 152A

Hearing date:                                  17 April 2023

Before:                                            Dr Elena Moran

Appearance:

For the Claimant:                             In person

For the Respondents:                      Advocate Michael Preston, Preston Legal

 

JUDGMENT

The entirety of the Claimant’s case is dismissed for breach of an unless order. 

REASONS

1.       Mr Ward resigned his employment on 28 July 2022.  The notice period in the contract was 8 weeks, meaning contractual notice expired on 22 September 2022.  On 31 August 2022 there was a further resignation with immediate effect.  Mr Ward commenced employment with Base Limited trading as Genesis AV on 5 September 2022. 

2.       The Claim Form was signed by Mr Ward on 2 September 2022 and received by the tribunal on 5 September 2022. 

3.       The first Case Management Hearing took place on 12 December 2022.  The Case Management Orders list the issues to be determined at the final hearing as follows:

a.    “Was there a breach of Article 3 because the Claimant was not given written terms of employment within 4 weeks of starting employment and if so, what compensation should be awarded? 

b.    Was the Claimant constructively unfairly dismissed and if so, should there be any reduction in the compensation payable to him on grounds of his conduct prior to his dismissal or his failure to institute a grievance? 

c.    Was the Claimant wrongfully dismissed and if so, what damages are payable considering the Claimant’s employment with Genesis. 

d.    Is the Claimant entitled to be paid for 10 days’ work done between 22 and 31 August 2022? The Claimant alleges that he worked at home on those days and the Respondent alleges that the Claimant is not entitled to be paid for these days because he was sick, working for Genesis/on matters outside the scope of his employment or working from home without authorisation.

e.    How many days holiday pay were owed to the Claimant on the termination of his employment on 31 August 2022? 

f.      Has the Claimant been discriminated against on the grounds of the protected characteristic of disability and if so, how much compensation is payable.”

4.       Order G contained the following disclosure order:

“No later than 5 pm on Monday 6 February 2023 the Claimant shall provide to the Respondent copies of all documents in his custody, possession, or control relevant to the issues in dispute.  For the avoidance of doubt, the Claimant does not need to include documents already provided to the Respondent under order D. above.  Unless they have already been disclosed under Order D. the Claimant must disclose documents evidencing the terms of his employment with Genesis, its start date and discussions with Genesis prior to the commencement of his employment.”  

5.       On 24 January 2023 Mr Ward sent an email to the tribunal setting out his employment timeline with Genesis.  The email states:

“28^th July 2022 – initial resignation email to Gary Whipp confirming 2 months’ notice period from 28^th July 2022

29^th July 2022 – Interview with Ian White of Genesis AV

1^st August 2022 – email from Ian White of Genesis confirming a job offer with Genesis AV

31^st August 2022 – formal notification to Mr Whipp confirming I am terminating my employment under constructive unfair dismissal.

5^th September 2022 – Started employment with Genesis AV (First Day)”

6.       On 29 January 2023 the Respondent applied to strike-out the claims for constructive unfair dismissal, wrongful dismissal, and disability discrimination under article 24 of the Employment and Discrimination Tribunal (Procedure) (Jersey) Order 2016.  

7.       On 6 February 2023 the tribunal received a letter from Mr Ian White the Managing Director of Genesis.  The letter states:

“I write to clarify events up to and including Mr Ward’s employment at Genesis Ltd:

Initial chat date: 29^th July 2022

Interview date: 29^th July 2022

Verbal Offer date: 1^st August 2022

Contract sent date: 2^nd August 2022

Contract signed by Mr Ward date: 2^nd August 2022

Start date: 5^th September 2022”

 

8.       Attached to the letter was a contract of employment between Genesis and Mr Ward signed by both parties on 5 September 2022 with a start date of 5 September 2022.  The earlier contract signed by Mr Ward on 2 August 2022 was not disclosed.   A contract signed by the parties on 2 August 2022 even with a start date of 5 September would create some difficulty for the Mr Ward’s argument that there was a constructive unfair dismissal on 31 August 2022.  It would be evidence that the Claimant never intended to work his full notice period.  A contract signed on 2 August 2022 is also relevant to the Respondent’s case that the Claimant was already working for Genesis between 22 and 31 August 2022.

9.       On 24 February 2023, Advocate Preston sent a long email to Mr Ward asking for amongst other things a copy of the contract “that Mr White says you signed on 2 August 2022”.  Mr Ward responded on 27 February 2023.  In his email he says:

“I would like to clear up a point, which seems to be a sticking point for yourself, despite the clear timeline provided by Mr White.

The Employment Contract provided by Mr White, with regards to my employment with Genesis AV was never emailed but instead was posted to me and returned to the Genesis AV shop by hand.”

10.   The strike-out application was originally scheduled for 16 February 2023.  At the request of Mr Ward the hearing was adjourned and re-scheduled for 1 March 2023.  The application to strike-out was partially successful in that the claim for wrongful dismissal was dismissed.  The claims of constructive unfair dismissal and constructive unfair dismissal were allowed to proceed but on limited bases. 

11.   The judgment on the strike-out application was accompanied by varied Case Management Orders dated 3 March 2023.  Time for the Claimant to disclose documents was extended to 17 March 2023.  The order specifically states that the Claimant must disclose “all communications with any director, employee or agent of Genesis from 1 June 2022 to 5 September 2022.” 

12.   At the request of the Respondent the tribunal also made a witness order and document production order against Mr White.  The document production order covered amongst other things all communications between Genesis and Mr Ward regarding the start date of his employment with Genesis. 

13.   Mr White responded to the document production order on 22 March 2023 via an email to the tribunal.   The email refers to a diary entry for a meeting with a local charity on 30 August 2022 that was also attended by Mr Ward.  The email continues:

“3.  As per my letter dates(sic) 6^th Feb the actual offer made to Mike on 1^st August was verbal.

4.  I have attached an email from Mike dated 26.08.22 detailing a proposal based on him obtaining EvolvedComs from Mr Whipp.  This bid failed, hence the conversation on 29^th July and our subsequent offer to Mike as per the attached email dated 01:09.22 that was followed with the “official” phone call offer after verbally adjusting some details.

5.  There are no emails or letters dated 2^nd August 20922, there was a phone call to organise Mike to come in a (sic) sign his contract.”

14.   The dates of 26 August 2022 and 1 September 2022 referred to in point 4. of the email appear to be wrong.  The first attachment is an email from Mr Ward to Mr White sent from Mr Ward’s private email address on 26 July 2022 not 26 August 2022.  The subject of the email is “Mike Ward – Solutions Architect with Genesis”.   The email states “Hi Ian, As discussed, the attached is in line with what I am looking to bring to the table for Genesis.  Let me know when you are free for a catch up?”.   The attachment is a job description.  The second email is from Mr White to the Claimant and was sent on 1 August 2022.  The email reads “Thank you for your time last week, it was really helpful to try and understand the way forward.  Based on that and this email I think we need to progress as planned and get you on the team :). Do you want to catch up again and put a plan together of when, how etc?”

15.   On 27 March 2023, Advocate Preston wrote to the tribunal asking for an unless order against Mr Ward.  He highlighted that no communications with Genesis had been disclosed.  In response Mr Ward asked for yet another extension of time until 3 April 2023.  The tribunal granted the extension and the reasons were sent to the parties in an email from the Registrar dated 31 March 2023.  The email reads:

“In relation to the Respondent's complaint that the Claimant has failed to comply with his disclosure obligations, the Chair notes that the initial disclosure order was made on 12 December 2022 in order G.  Order G required disclosure of all relevant documents by 6 February 2023.  On 1 March 2023 following the strike-out application the deadline for the Claimant's disclosure was extended to 17 March 2023.  The relevant order specifically states that the Claimant must include all communications with any director, employee or agent of Genesis from 1 June 2022 to 5 September 2022.  

 

The Claimant has therefore had more than ample time to comply with his disclosure obligation.  A failure to take advice earlier and a heavy workload are not satisfactory explanations for the breach.  A Claimant that chooses to bring proceedings before the Tribunal must prioritise compliance with any orders made.  Notwithstanding, the deadline for the Claimant's disclosure will be extended to 5 pm on Monday 3 April 2023.  The extension will be subject to an unless order under Article 25 of the Employment and Discrimination Tribunal (Procedure) (Jersey) Order 2016 so that if the documents are not disclosed by the deadline the entirety of the Claimant's claim will be dismissed without further order.”

 

16.   The revised disclosure order dated 31 March 2023 contains an unless order as set out below:

“The deadline for the Claimant to disclose all documents in his custody, possession or control relevant to the issues that remain in dispute after the strike-out application is extended to 5 pm on Monday 3 April 2023.    As part of his disclosure the Claimant must include all communications with any director, employee or agent of Genesis from 1 June 2022 to 5 September 2022.  For the avoidance of doubt, the Claimant does not need to include documents already disclosed.

If the documents are not disclosed by the deadline the entirety of the Claimant's claim will be dismissed without further order under Article 25 of the Employment and Discrimination Tribunal (Procedure) (Jersey) Order 2016.”

17.   On 4 April 2023 Advocate Preston wrote to the tribunal alleging a failure on the part of Mr Ward to disclose any communications with Genesis.  He asked for the claims to be struck-out in accordance with the terms of the unless order.   The Claimant disputed that there had been any breach of the order.  In an email to the tribunal sent on 5 April 2023 he wrote “I believe that all relevant information with regards to my Genesis Employment timeline and communication has already been provided by Mr White…”

18.   The case was listed for a further hearing on 17 April 2023 to determine if there had been a breach of the unless order.  Article 25(1) provides that if an unless order is not complied with by the date specified the claim “must be dismissed without further order”.

19.   At the hearing Advocate Preston referred to two breaches of the unless order that he said could be proved from the documents before the tribunal.  First, he referred to the diary entry for the meeting with the local charity Mr White says took place on 30 August 2022.  Advocate Preston said that no documents have been disclosed by Mr Ward in relation to that meeting.  Mr Ward said that there was no meeting on 30 August 2022, the meeting took place on 24 August 2022 and to the extent that any documents exist they have been disclosed.  In the bundle of documents for the strike-out hearing is correspondence relating to a meeting with the charity on 24 August 2022.  I am prepared to accept that Mr White made a mistake about the date of the meeting which means Advocate Preston has not demonstrated there is a breach of the unless order in relation to the meeting. 

20.   Second, Advocate Preston said that the contract with Genesis signed by Mr Ward on 2 August 2022 has not been disclosed.  The only contract disclosed is the contract signed on 5 September 2022.  Advocate Preston argued that even if the Claimant did not have a copy of the 2 August 2022 contract, he had the right to obtain a copy from Genesis, so the document was in his control. 

21.   In support of his argument that the 2 August 2022 contract exists, Advocate Preston relied on the following documents:

(i)       Mr Ward’s resignation letter dated 28 July 2022 in which he states “I think it is only fair to tell you that I have been approached by a competitor with an exciting new role.  I consider this opportunity to be a progression in my career due to the high levels of responsibility and new ventures within the industry.”

(ii)     Mr Ward’s covering email to his resignation letter also sent on 28 July 2022 in which he says “I have been offered an amazing position with a competitor that until yesterday I hadn’t considered seriously, …”

(iii)    An email from Mr Ward to the Respondent sent on 1 August 2022 that says “As you have not yet acknowledged my resignation and I have also not heard anything from you in regards to purchasing the customer base, I will be accepting the offer of a full time position elsewhere as of tomorrow morning as I think it is only fair to them as they have been waiting for me to confirm.”

(iv)   The email from Mr Ward to Mr White dated 26 July 2022 in which he says, “the attached is in line with what I am looking to bring to the table for Genesis” and attached a proposed job description.

(v)     The email from Mr White to Mr Ward dated 1 August 2022 in which Mr White says that they need to progress as planned and get Mr Ward on the team.

(vi)   The email from Mr Ward to the tribunal dated 24 January 2023 in which Mr Ward says that he was interviewed by Mr White on 29 July 2022 and offered a job on 1 August 2022.

(vii)  The letter from Mr White to the tribunal dated 6 February 2023 in which he says that an oral offer was made on 1 August 2022 and a contract was sent and signed on 2 August 2022.

(viii)The email from Mr White to the tribunal sent on 22 March 2023 in response to the production order in which Mr White confirms that an oral offer was made on 1 August 2022 and that on 2 August 2022 there was a phone call to Mr Ward to organise for him to come in and sign his contract.

22.   In relation to points (i), (ii) and (iii), Mr Ward said at the hearing that his statements about accepting a position elsewhere were untrue.  He said such false statements are the kind of thing that employees say when leaving employment. 

23.   In relation to points (iv) and (v) Mr Ward said that there were discussions about working for Genesis at the end of July/early August, but they did not reach fruition in terms of an agreed contract until September 2022.  He argued that he was negotiating with the Respondent for the purchase of the Evolvedcoms business during August 2022 and it didn’t make sense for him to accept a job with Genesis while those negotiations were ongoing. 

24.   In relation to point (vi), Mr Ward said that he supplied incorrect information to the tribunal.  He was mistaken about the dates and there was no job offer on 1 August 2022.  Mr Ward said his lack of legal representation put him at a disadvantage and a lawyer would have noticed his mistakes and put them right. 

25.   In relation to the two communications from Mr White to the tribunal at points (vii) and (viii) the second of which was in response to a production order, Mr Ward said that Mr White also supplied incorrect information to the tribunal.  Mr Ward sought to take the blame for this: he said that he provided information to Mr White for Mr White to include in his communications with the tribunal.  

26.   I find that there was an employment contract signed by Mr Ward on 2 August 2022 and Mr Ward’s failure to disclose the contract amounts to a breach of the unless order.  I do so for the following reasons:

(i)       Mr Ward’s own statements in his resignation letter, covering email and email of 1 August 2022.  I find Mr Ward’s suggestion that he lied to the Respondent in these documents unconvincing. 

(ii)     The email correspondence between Mr White and Mr Ward shows negotiations had started prior to 26 July 2022 and a decision had been taken by Mr White to recruit Mr Ward by 1 August 2022.

(iii)    The investor for the purchase of the Evolvedcoms business was Genesis.  It was not inconsistent for Mr Ward to accept an offer of employment with Genesis on 2 August 2022 and then negotiate with the Respondent for a Genesis backed purchase of the Evolvedcoms business.  His employment with Genesis was not dependent on the purchase by Genesis of the Evolvedcoms business.  This is evidenced by the fact that the sale did not happen, but Mr Ward still started work for Genesis in September 2022. 

(iv)   Mr Ward informed the tribunal that he was interviewed on 29 July 2022 and offered a job on 1 August 2022.  Mr Ward was aware of the importance of the timeline of his employment with Genesis and I find it highly unlikely that he got the dates wrong even without the assistance of a lawyer. 

(v)     I also find it highly unlikely that Mr White provided inaccurate information to the tribunal.  Even if he was provided with dates by Mr Ward, it seems improbable that faced with a production order from the tribunal he did not independently check the dates on the timeline. 

27.   Having found Mr Ward to be in breach of the unless order I must dismiss his claim.  Mr Ward has the right under article 25 to apply to the tribunal to reinstate his claim on the basis that it is in the interests of justice to do so. 

 

Dr Elena Moran, Chairman                                                                                              Date: 25 April 2023