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Sales manager wins unfair dismissal case after being told to ‘pretend to resign’ to avoid acquiring employment rights

Makbool Javaid, Partner - Simons Muirhead Burton

In the case of Mr D Wade v Jansen UK Ltd Mr Wade began working for Jansen UK Ltd as a Sales Manager on 1 July 2019. Mr Wade’s role involved selling poultry farming systems and equipment. He met his sales target in 2020 but fell far short in both 2019 and 2021.

In May 2021, Mr Lisle, a manager at Jansen, had a discussion with Mr Wade about dismissal. Mr Wade was told he was to be dismissed because he had worked for Jansen for one year and eleven months and they did not want him to acquire employment rights. In a second conversation, it was agreed that Mr Wade would “pretend to resign” and that he would be reinstated after one month. The resignation and reinstatement went ahead.

In 2022 Mr Wade was given a sales target of selling three to four systems (i.e. between £750,000 to £1 million of sales). By the end of January 2022, he had made sales of £244,048 and was on track to achieve his target. Despite his positive sales figures, at the end of February 2022, Mr Ryan, Jansen’s Managing Director, called Mr Wade without warning and dismissed him, ostensibly for “poor performance”, without following any sort of dismissal process. Mr Ryan then said that he would set Mr Wade the challenge of selling another system by the end of March – and if he did that then they would reconsider the dismissal. This was later set out in an email. Mr Wade replied expressing shock but received no reply. A couple of days later, Mr Ryan called Mr Wade again to berate him about work and he asked him if he wanted him to “wipe his arse for him”.

In March, Mr Lisle called Mr Wade and offered to extend his notice by a month. Mr Wade refused on the basis that there was no guarantee of reinstatement and he felt it would be better to spend his time looking for a new role.

Mr Wade brought a claim for unfair dismissal. Jansen conceded at a Preliminary Hearing that the resignation in May 2021 was a sham, and that Mr Wade had the two years’ service needed to proceed with the claim.

The Employment Tribunal found that the true reason for dismissal was not poor performance but an ongoing dispute about a contractual bonus owed to Mr Wade, which the company did not wish to pay. Jansen conceded that the dismissal was unfair as it had not followed a fair procedure prior to dismissal.

The Tribunal awarded Mr Wade £37,560 in compensation and £1,632 for a basic award.

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