Leading employment law provider unfairly dismissed senior employee, tribunal finds

Call: MD shouted down phone at claimant

The leading unregulated provider of employment law services unfairly dismissed a senior employee, an employment tribunal has found.

The tribunal ruled that Peninsula, which describes itself as the UK’s “largest and leading” employment law firm, breached the employer’s implied duty of trust and confidence in imposing new terms and conditions on the claimant. Peninsula has appealed.

However, claims of age and disability discrimination were dismissed.

Peninsula Business Services, based in Manchester, employs 1,000 people in the UK and has offices in Ireland, Australia, New Zealand and Canada.

According to the ruling of Employment Judge Langridge – issued last May but only recently published – Mr L Tarbuck began working as a salesman for Peninsula in 1999 and throughout his employment had health problems, mainly relating to his heart.

The judge said Peninsula had knowledge of the heart condition at least from an episode in 2008, and certainly had knowledge of the chronic issues by 2013.

Mr Tarbuck and a colleague who had suffered a heart attack became the first members of a new sales team in 2013, called the ‘Ambassadors Team’ – created in part because of their health issues and length of service.

“The respondent wanted to retain these experienced and successful members of their sales team and, given their successful track record, it was also important that they be retained so as not to lose them to a competitor.”

Two key changes to their employment contracts meant that the pair no longer faced “disciplinary consequences” for failing to meet sales targets, and commission would be paid in full even if they failed to achieve a minimum amount of sales.

The team reported directly to Peninsula founder and managing director Peter Done.

However, Judge Langridge said Peninsula’s position changed in early 2014 when finance director Peter Swift investigated the Ambassadors Team, and was “unhappy” about the special commission arrangements.

A quarterly sales meeting took place “at which Mr Done said that everyone had misunderstood the terms”, and “around that time Mr Done telephoned the claimant about the uplift target, shouting down the phone and expressing his anger”.

Judge Langridge went on: “On 24 January [2014] a meeting took place between the claimant and Mr Done at which the claimant was put under undue pressure to sign the terms, being told that his ‘days will be numbered’ if he did not.

“Mr Done made it plain that he could not and would not keep to the original agreement, and the claimant was put in a position where he had no choice but to accept the terms. He was told by Mr Done that his future employment with the company would be at risk if he did not sign.”

The judge said that following the meeting with Mr Done, Mr Tarbuck was signed off sick with chest pains. He resigned in July 2014.

Judge Langridge found: “The claimant consented, under pressure, to the new terms and conditions presented to him unilaterally in January 2014. Accordingly, there was no breach of the express terms of his contract.

“However, in its handling of this issue the respondent did breach the implied duty of trust and confidence entitling the claimant to resign.”

The tribunal said Peninsula “disingenuously” attempted to say the salesman’s existing contract of employment was “ambiguous” and “sought to blame the claimant for misunderstanding the position, when he had not”.

He observed that Mr Done stopped speaking to or contacting Mr Tarbuck, even though they had an ongoing line management relationship. “That conduct was plainly a reaction to the claimant’s attempts to assert his right to have his contract terms honoured.

“The respondent knew the claimant had a heart condition but took no steps to alleviate the stress which would inevitably be caused by its attempt to renege on the previously agreed terms.”

Judge Langridge concluded: “In reality this was not a straightforward commercial decision to alter contract terms. It was rather an exercise in resiling from terms recently agreed with the claimant. No potentially fair reason was established by the respondent.”

He held that the claimant was entitled to outstanding commission payments and holiday pay, to be calculated at the remedy hearing for the unfair dismissal claim.

A Peninsula spokesman said: “The decision is currently the subject of an ongoing appeal to the Employment Appeal Tribunal so it would be inappropriate for us to comment at this time.”

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