Case No: 2205071/2018

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EMPLOYMENT TRIBUNALS

Claimant: Mr R Atkin Respondents: 1 Apexx Fintech Ltd 2 Mr P Keenan Heard at: London Central On: 4, 5, 6, 7 & 8 March 2019 12 April (in chambers) Before: Employment Judge H Grewal Ms S Saggar-Malik and Ms M Jaffe Representation Claimant: In person Respondents: Mr A Robson, Counsel

JUDGMENT The unanimous judgment of the Tribunal is that: 1 The complaints of having been subjected to detriments for having made a protected disclosure are not well-founded; 2 The complaint of unfair dismissal under section 103A of the Employment Rights Act 1996 is not well-founded; and 3 The complaint of breach of contract/wrongful dismissal is not well-founded.

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REASONS 1 In a claim form presented on 21 June 2018 the Claimant complained of breach of contract (wrongful dismissal) and of having been subjected to detriments and dismissed because he made protected disclosures. The First Respondent is referred to as “the Respondent” in this decision and the Second Respondent is referred to by his name. The Issues 2 It was agreed at the outset of the hearing that the issues that the Tribunal had to determine were as follows. Breach of contract/wrongful dismissal 2.1 Whether the Respondent was entitled to terminate the Claimant’s employment without notice because the Claimant was in breach of his contractual and/or fiduciary duties and/or had repudiated the employment contract by:

(1) Using company funds to pay for his personal expenses (specifically in relation to the expenses claimed for the period from 16 to 23 January 2018);

(2) Repeatedly ignoring the Respondent’s expenses policy (specifically by staying in more expensive hotels than those permitted under the policy);

(3) Including incorrect information on the PCI DSS self-assessment

questionnaire that he completed in May 2017; (4) Making a secret profit by falsely claiming that Techforce was employing 10

full-time developers to carry out development work for the Respondent; (5) Failing to attend board and management meetings with little or no warning

or explanation; (6) Acting aggressively and inappropriately towards the directors, employees

and suppliers; (7) Deleting the source code repository of the Fintech Link platform in

November 2017 in order to force a payment that he considered was due to Xcordis Fintech Ltd.;

(8) Failing to arrange for Xcordis Fintech Ltd to repay the sum of £10,000 that

the Respondent had paid in advance for some IT development work; (9) Ignoring requests to share the login details of the domains/URLs for

Dimebox; (10) Operating in competition with the Respondent without authorisation

and misusing the intellectual property owned by the Respondent for his

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own purposes by permitting Xcordis Fintech Ltd. to exploit the IP that he had previously sold to the Respondent.

Automatic Unfair Dismissal 2.2 Whether at the Board meeting on 21 February 2018 or in his email of 8 March 2018 the Claimant disclosed the following information:

(1) Mr Keenan had (a) falsely claimed that the Respondent was spending ‘loads on technology’; (b) falsely claimed that the application for the Innovate UK grant was ‘work in progress’; and (c) provided misleading statements to the Board on the Respondent’s future cash positions and revenue projections;

(2) Mr Keenan had failed to honour the Respondent’s SEIS commitments of spending funds on developing its own in-house systems;

(3) Mr Keenan had (a) changed the Respondent’s business model without Board approval; and (b) misled shareholders and investors by seeking to raise funds in the market for a different business;

(4) Mr Keenan had lost the funding from Innovate UK causing a total loss to the company of over £500,000.

2.3 If he did whether they were “qualifying disclosures” under section 43B(1)(a) or (b) ERA 1996; 2.4 If the Claimant made protected disclosures, whether that was the sole or principal reason for his dismissal. Protected Disclosure Detriments 2.5 Whether the Claimant was subjected to a detriment by Mr Keenan dealing with the disciplinary proceedings against him; 2.6 If he was, whether the Respondents subjected him to that detriment because he had made protected disclosures; 2.7 Whether Mr Keenan subjected him to a detriment by dismissing his because he had made protected disclosures. Application to amend Response 3 At the start of the third day of the hearing the Respondent applied to amend its response to add following words at the end of para 21 – “Further, or alternatively, the Claimant’s claim of wrongful dismissal is denied because; 21.1 the Claimant failed to delete the source code as required by clause 1 of the agreement that he entered into with the First Respondent on 20 December 2017; 21.2 the Claimant made clandestine recordings of meetings and retained those recordings; and/or

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21.3 the Claimant failed to disclose to the First Respondent and/or misled the First Respondent as to the extent of the profit made by him or his companies by reason of his/their arrangements with the First Respondent.” 4 The Respondent had already sent out in its response a number of matters which it claimed amounted to a breach of the Claimant’s contractual and/or fiduciary duties and/or a repudiatory breach of his contract of employment. It was seeking to add three further matters which it claimed, either individually or cumulatively with the earlier matters, amounted to a repudiatory breach. The first two were new matters. The third one was an extension of a matter that was already before the Tribunal. The Respondent had already claimed that the Claimant was in breach of his contractual and/or fiduciary duty by making a secret profit (i.e. one that was not disclosed to the Respondent) by falsely claiming that Techforce was employing more people to carry out development work for the Respondent than it in fact was (paragraph 2.1(4) above). It was seeking to expand that to include an allegation that he had also failed to disclose that he and his companies had charged the Respondent considerably more for development service than he/they had paid Techforce for those services. The Claimant opposed the application. 5 The application to amend was made at that late stage because the Respondents had just become aware of the additional matters. The first two had come to light as a result of the answers that the Claimant gave in cross-examination. The third had come to light as a result of the disclosure which the Tribunal had ordered on the second day of the hearing. The Respondents had been seeking that disclosure for some time prior to the start of the hearing and the Claimant had refused to disclose those documents. The documents disclosed were the invoices that the Claimant’s companies had sent to Techforce for the period when Techforce was doing work on behalf of the Respondents. 6 We considered that substantial prejudice would be caused to the First Respondent if we refused the application because it would be denied the opportunity to rely on matters that provided it with a good defence to the Claimant’s claim for wrongful dismissal. No prejudice would be caused to the Claimant as long as he was afforded the time and opportunity to obtain any evidence that he needed to deal with the additional matters. He had already dealt with the first two by giving evidence about them. He had explained why he had done what he had and why he believed that he had not done anything wrong. In respect of the second matter the Claimant’s evidence had been that the recording of Board meetings had been authorised at a Board meeting and he said that he would need to check the minutes of the meetings to see whether that had been recorded. We dealt with that by making an order for the Respondent to supply those minutes. 7 We asked the Claimant what evidence, other than his oral evidence, he would wish to adduce to deal with the additional matters. The Claimant did not identify any such evidence but said that he would need to seek legal advice on whether there was a fiduciary duty on him to disclose to the Respondent any profits that he and/or his companies made in dealings with it. He said that he would need two days to do that and asked case to be adjourned for two days. That, however, was not a new issue that arose out of the amendment. The issue of fiduciary duty and failure to disclose/make secret profits was already an issue before the amendment was made (paragraph 2.1(4) above), and he had had plenty of time to seek legal advice on that legal issue. The Respondent’s counsel had produced at the start of the hearing a

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copy of a section of the Companies Act 2006 (which dealt with the duties of directors) and an extract from a text book setting out the duties of directors. 8 We, therefore, gave leave to the Respondent to amend its response and adjourned the case at 12 noon until 10 a.m. the following day for the Claimant to adduce any further evidence that he wished in respect of those issues. 9 On the following morning the Claimant renewed his application to adjourn the case. He said that the Respondent had not sent him the written amendment until 3.30 the previous day. The Respondent’s counsel had read the amendment in the Tribunal when he made the application and the Claimant had had the opportunity to take a note of it as the Tribunal had done. The Claimant said that in the short time available he had not been able to get legal advice on the issue of fiduciary duties and the failure to disclose profits. We repeated what we had said the previous day, namely that that had already been an issue in the case and did not arise because of the amendment. It was not a new issue and if the Claimant had wanted to seek legal advice on it he could and should have done so before case started. 10 The Claimant also applied for an adjournment because he said that he would not have sufficient time to cross-examine the Respondent’s witnesses and it would, therefore, not be possible to have a fair trial. We did not agree. The time-table that we had proposed would mean that he would have the same amount of time to cross-examine the Respondent’s two witnesses as the Respondents’ counsel had to cross-examine him. We, therefore, refused the application to adjourn. The Law 11 Section 43B(1)(b) of the Employment Rights Act 1996 (“ERA 1996”) provides,

“… a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following – … (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation which he is subject.”

12 Section 47B ERA 1996 provides,

“(1) A worker has the right not to be subjected to any detriment by an act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. (1A) A worker (“W”) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done –

(a) by another worker of W’s employer in the course of that other worker’s employment, or (b) an agent of W’s employer with the employer’s authority,

on the ground that the worker has made a protected disclosure.” 13 Section 103A ERA 1996 provides,

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“An employee who is dismissed shall be regarded for the purpose of this Part as unfairly dismissed if the reason (or, if there is more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.”

14 Section 177(1) of the Companies Act 2006 (“CA 2006”) provides,

“If a director of a company is in any way, directly or indirectly, interested in a proposed transaction or arrangement with the company, he must declare the nature and extent of that interest to the other directors.”

Section 182(1) CA 2006 provides,

“Where a director of a company is in any way, directly or indirectly, interested in a transaction or arrangement that has been entered into by the company, he must declare the nature and extent of the interest to the other directors.”

In “Company Directors: Duties, Liabilities and Remedies” (Ed Simon Motimore QC (3rd Edn) it is stated (at paragraphs 1721 and 17.22),

“The requirement is for full and frank disclosure. Disclosure must be for the purposes of allowing the board to consider and approve the contract, that is, it must be more than a mere presentation to the board of a fait accompli. Similarly, informal disclosure made piecemeal, or proof of the knowledge of individual board members does not comply with the formal requirements of disclosure tot eh board, which would involve an opportunity for consideration of the matter by the board as a body. … Authorities … indicate that what is required is a full and frank declaration by the director not of ‘an’ interest but of the precise nature of the interest… The burden is on the director to show that his declaration was adequate disclosure.”

15 In Gwembe Valley Development Co Ltd v Koshy [1998] 2BCLC 613 Harman J stated that if the director (who was the defendant in that case)

“is to make out a case that although there was a dealing where interest on the one side and duty on the other were in conflict, as in my judgment there plainly was here on the admitted facts, yet the dealing was proper because of full disclosure and the opportunity to consider it, then the onus must be on his to prove those facts. If the evidence is uncertain the fact is not proved.”

He concluded that the director had failed to prove that. He said,

“The alleged facts would not, if proved, establish knowledge and consent by all directors or shareholders of GVDC of the precise, or even approximate, amounts of profit being made by Lasco from the dollar payments by GVDC. General and vague understanding cannot be a sufficient disclosure of profits.”

16 It is an implied term in any contract of employment that neither party will “without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the employer and the employee”. The test of whether there has been a breach of the implied term of trust and confidence is objective (Malik v BCCI SA [1998] AC 20).

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The breach of the implied term may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the implied term, although each individual incident might not do so. The last action of the employer which leads to the employee leaving need not itself be a breach of contract. The question is whether the cumulative series of acts taken together amount to ab breach of the implied term (Lewis v Motorworld Garages Ltd [1986] ICR 157). The last straw must contribute, however slightly, to the breach of the implied term of trust and confidence (LB of Waltham Forest v Omilaju [2005] ICR 481). Those principles apply mutatis mutandis when it is the employee who is said to be in breach of the implied term of trust and confidence (Kearns v Glencore UK Ltd [2013] EXHC 3697). 17 An employer is entitled to dismiss an employee summarily if the employee is guilty of gross misconduct (a repudiatory breach) before the summary dismissal. The summary dismissal may be justified by reliance on facts not known to the employer at the time of the summary dismissal, but only discovered subsequently, even after the proceedings began (Boston Deep Sea Fishing and Ice Co v Ansell [1888] 39ChD 339 and Cavenagh v William Evans Ltd [2012] IRLR 679). Furthermore, where there has been a repudiatory breach of the contract of employment by the employee, and there has been no affirmation or waiver of repudiatory breach, the employer is not prevented from relying on that breach as justifying summary dismissal because it had itself decided to breach its contractual obligations or was looking for a reason to justify dismissal or was motivated by its own financial interests (Williams v Leeds Utd Football Club [2015] IRLR 383). The Evidence 18 The Claimant gave evidence in support of this claim. Peter Keenan and Per Bjorgas gave evidence on behalf of the Respondents. Having considered all the oral and documentary evidence the Tribunal made the following findings of fact. Findings of Fact 19 The Respondent is a small start-up financial technology company which provides software (initially called Fintech Link and later renamed Apexx Core) which enables e-commerce retailers to process credit and debit card transactions. It was incorporated on 19 April 2016 and the Claimant and Rodney Bain each held 50% of the shares. Mr Bain was appointed Director at that time and the Claimant was appointed a Director in July 2016. The Claimant’s employment with the Respondent commenced on 19 April 2016. 20 The Claimant was at that time also the main shareholder and director of two other companies – Xcordis Fintech Ltd (“Xcordis”) and The Payments Corporation Ltd (“TPC”). He was in the business of developing and selling software. The Claimant and his companies used a company in India called Techforce to develop software. 21 The Claimant and Mr Bain agreed that the Respondent would use Techforce to develop the Apexx software but it did not enter into an agreement with Techforce for the provision of its services. The arrangement was that Techforce invoiced Xcordis for the work that it did and Xcordis in turn invoiced the Respondent.

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22 Between May and October 2016 Techforce invoiced Xcordis for a total of £32,318. That was for work that it did for the Respondent and for Xcordis. Over the same period Xcordis invoiced the Respondent for a total of £31,550. Initially the Respondent paid Xcordis around £5,000 a month. After a couple of months that was increased to around £7,000 per month. 23 On 1 November 2016 the Respondent entered into an agreement with TPC whereby it was agreed that TPC would provide certain services and support to the Respondent and that the Respondent would pay TPC £15,000 a month for those services. Although there was no reference to Techforce in the agreement, it was understood by both parties that the support and services would be provided by Techforce and that Techforce would invoice TPC for the work that it did and TPC in turn would invoice the Respondent. 24 At the end of 2016 Per Bjorgas took on the role of non-executive chairman of the Respondent. 25 Peter Keenan joined the business in January 2017. He acquired a shareholding in the business. It was agreed that he would be the Chief Executive Officer, Mr Bain the Managing Director of Product and the Claimant the Chief Information Officer. Everything was agreed verbally at this stage and there were no written agreements. There were no written service agreements, no job descriptions, no shareholders’ agreement and no articles of association. 26 At about the same time the Claimant moved to live in his home in Spain. He visited London from time to time and communicated with his colleagues mainly by telephone and email. 27 Mr Keenan’s initial priority in his role was to ensure that the business was properly funded by securing investment from venture capital funds along with a grant from Innovate UK (the UK Government grant awarding body). That involved preparing a business plan and putting in place the systems and structures that were necessary to attract venture capital investment. 28 The Respondent started recruiting staff in the early part of 2017. Torensen Lloyd was appointed Chief Commercial Officer in February 2017 and Tara Farrer VP of Operations in June 2017. 29 As a business which processed card transactions the Respondent was under an obligation to comply with the Payment Card Industry Data Security Standard (“PCI DSS”). PCI DSS is an information security standard for organisations that handle branded credit cards. PCI compliance was very important for the Respondent because it was a key requirement of client partners and because security was critical for its clients. PCI compliance is generally confirmed by the completion of a self-assessment questionnaire (“SAQ D”). The Claimant was tasked with completing the questionnaire for the Respondent. The questionnaire sets out 416 requirements that need to be in place in order for a company to be PCI DSS compliant and the testing procedures to determine whether they are in place. When filling in the form the Claimant either said that the necessary requirements were in place or that they were not applicable. At the end of the form the Claimant ticked a box to indicate that based on the results documented in the questionnaire the Respondent was compliant. This signified, “All sections of the PCI DSS SAQ are complete, all questions answered

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affirmatively, resulting in an overall COMPLIANT rating; thereby Apexx Fintech Ltd has demonstrated full compliance with the PCI DSS.” The Claimant signed the form on 1 May 2017 to confirm that that statement was correct. 30 In the course of 2017 Mr Keenan raised concerns about the level of fees being paid to Techforce and the Claimant’s response was that the fee was set at that level because Techforce had ten developers working full-time on behalf of the Respondent. Mr Keenan understood that to mean that there was a charge of £1,500 for each individual. When the Respondent asked to see the invoices sent to the Claimant, he complained,

“unbelievably to me, you ask to see my historic invoices like you don’t believe the costs I have told you. Most people wouldn’t anyone could do all that my team has achieved for Apexx at anything like the amount Apexx has paid. It has been an incredible deal for Apexx …”

31 In July 2017 Val Sorrano Keating and Kash Shah were appointed non-executive members of the Respondent’s Board. Shortly after their arrival the Respondent was able to secure provisional offers of investment from three Venture Capital firms. There then followed a period of intensive negotiations before the deal was ultimately closed on 9 November 2017. 32 In the summer of 2017 there was a discussion between the Claimant, Mr Keenan and Mr Bain, in which they agreed that in order to secure venture capital investment it would be necessary for the contract with Techforce to be moved from TPC to the Respondent and for Xcordis (which owned the intellectual property rights in the technology) to assign the rights to the Respondent. 33 Around the same time Mr Keenan and Mr Bain were in discussions with the Claimant about commissioning Techforce to build a Hosted Payment Page (“HPP”) together with an application called Optimiser. They provisionally agreed that the price for the HPP would be £50,000. The Claimant immediately issued an invoice for that amount. Mr Keenan informed the Claimant that they had not agreed to pay in advance for the work and that they would need to agree the specification for HPP before they would be in a position to agree payment terms. They reached a compromise whereby it was agreed that the Respondent would make an advance payment of £10,000 pending further discussions on the specification of the HPP. The advance payment was made. 34 The Respondent also applied for a grant from Innovate UK. Larger grants were available if two companies applied to work together on a joint project. In order to obtain a larger grant, it was agreed that the Respondent and Xcordis would submit a joint application for a grant to fund the development of the Apexx platform. On 24 August 2017 they were informed that their application had been successful and that they would be awarded a grant of £454,968 subject to various terms and conditions. They were also advised that the two companies needed to enter into a formal Collaboration Agreement setting out their respective obligations in relation to the project. The agreement was signed in early September 2017. 35 On 14 September 2017 in an exchange of emails the Claimant and Mr Keenan agreed the following – (i) For HPP the Respondent would pay Xcordis £30,000 within seven days of the fundraising and £20,000 on completion, expected in December

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2017; (ii) For the licence to use BOSON and the Intellectual Property in Core the Respondent would pay Xcordis a total of £100,000, £50,000 would be paid after the fundraising and £50,000 out of the first £50,000 of revenue that the Respondent generated. It was understood that VAT was payable on those amounts. 36 At some stage after that email Mr Keenan took the view that it made sense for the build of the HPP to form part of the work that would be covered by the grant that they were expecting to receive from Innovate UK. He informed the Claimant that, rather than paying the first instalment of £30,000 following the fundraising, the whole amount would be paid once HPP had been completed and delivered. The Claimant was unhappy with that arrangement. 37 In accordance with the agreement reached in summer of 2017 the Claimant stated in a note prepared for the Board meeting of 20 September,

“Team of 10 and formal project management is moving to direct Apexx management from 1st Oct”.

38 The Claimant signed a service agreement wit the Respondent on 9 October 2017. The Claimant is referred to as “the Executive” in the agreement. The following clauses are relevant to the issues in this case:

“2.1 The Appointment under this Agreement shall commence on the date of this Agreement and shall continue, subject to the terms of this Agreement, until terminated by either party giving the other not less than 3 months’ written notice. 2.2 The Executive’s employment with the Company which commenced on 19 April 2016 counts towards the Executive’s period of continuous employment with the Company.” “3.1 Subject to clause 3.2 and clause 3.4, during the Appointment the Executive shall not, except as a representative of the Company or with the prior written approval of the Company, whether paid or unpaid, be directly or indirectly engaged, concerned or have any financial interest in any Capacity in any other business, trade, profession or occupation (or the setting up of any business, trade, profession or occupation, except for those interests outline in Schedule 3.” “3.4 The Board recognizes that the Executive owns and runs an external software development agency, and is involved in a number of external businesses. The current list is set out in Schedule 3. The Executive is to keep the Board informed of any relevant changes, which shall be subject to the approval of the Board, in advance of any change.” [Xcordis Fintech Ltd and The Payments Corporation Ltd were listed in Schedule 3.] “5 SCOPE OF APPOINTMENT 5.1 The Executive shall: 5.1.1 act as a director of the Company;

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5.1.2 devote the necessary amount of time, attention and skill to the performance of his duties; 5.1.3 perform such duties and exercise such powers as may from time to time be reasonably assigned to or vested in him by the Company or the Board; 5.1.4 comply with the Articles of Association (as amended from time to time) of the Company; and 5.1.5 abide by any statutory, fiduciary or common-law duties to the Company including but not limited to the duties set out in the Companies Act 2006.” “7 EXPENSES The Company shall reimburse (or procure the reimbursement of) all reasonable expenses wholly, properly and necessarily incurred by the Executive in the proper performance of his duties, subject to the production of receipts or other appropriate evidence of payment as the Company may require within 28 days of expenditure and provided the Executive has complied with the policies of the Company on expenses as communicated to him from time to time.” “15.1 The Company may terminate the Appointment with immediate effect without notice and with no liability to make any further payment to the Executive (other than in respect of accounts accrued due at the date of termination) if the Executive: 15.1.1 is proven guilty of any serious breach or non-observance of any code of conduct or Company policy or procedure or provision as set out in any Staff Handbook or otherwise, as in force from time to time; or 15.1.2 has deliberately acted in breach of his fiduciary duties; or … 15.1.7 is guilty of any other proven material or repeated breach of his obligations under any of the terms of this Agreement.”

39 The Claimant’s job description as Chief Information Officer provided that he reported to Mr Keenan and that his role was “to devise the Company’s IT strategy and ensure that all systems necessary to support its operations and objectives are in place.” It was not entirely clear when the job description was drawn up but it was likely to have been around this time because most of the formal paperwork was created in October and November 2017.” 40 The Claimant was provided with a copy of the Respondent’s Employee Handbook on 19 October 2017. The handbook contained the following provisions:

“Where an overnight stay is required staff may book an appropriate class of hotel independently. This is defined as a three star hotel in the UK and the equivalent overseas. APEXX will pay for the cost of the room and the subsistence in accordance with the Subsistence Rules.”

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“Employees may extend their business trips or conferences for non-business reasons (e.g. holiday, personal research) however it is not expected that the duration of the personal part of the trip will exceed the business part. APEXX will only meet those costs which are wholly and necessarily incurred in respect of the business element of the trip… In the event of the personal element of travel exceeding the business element, the employee will be expected to meet an appropriate percentage of the cost of travel.”

41 In early October there was a misunderstanding between Tara Farrer and one of the Respondent’s suppliers called Forgenix. Joshua Hillier at Forgenix was led to believe that the Respondent’s PCI DSS SAQD form, claimed that Forgenix had, as Qualified Security Assessor, verified the responses given in the questionnaire. Forgenix had performed a particular test for the Respondent and its involvement was acknowledged in the section where the QSA would normally sign. Mr Hillier said in an email that any suggestion that Forgenix had verified the questionnaire as QSA fell “under the realms of forgery.” Ms Farrer looked into the matter and clarified how the misunderstanding had arisen. Mr Atkin then repeatedly asked Mr Hillier to withdraw his libelous statement immediately and ultimately sent a letter saying that the Respondent would commence legal action for libel against him personally and against Forgenix that Thursday, but that if Mr Hillier unreservedly withdrew his accusation and paid his costs to date of £450, he would stop the action. The Claimant had not incurred any legal costs. 42 By October 2017 Messrs Keenan and Bain had established promising leads with a number of potential customers. However, Apexx Core was not fully functional at that stage. They decided that it made sense as an interim measure to licence an off-the-shelf payments platform called Dimebox which would enable them to sign up customers sooner rather than later. The Claimant was opposed to the idea and felt that IT decisions should be made by him as the CIO. Messrs Keenan and Bain explained to the Claimant why they thought that it was necessary; he remained unconvinced. When it became clear to the Claimant that they intended to proceed with it notwithstanding his objections, he told them that they would need to get Board approval to use Dimebox because it would probably jeopardise the investors’ ability to obtain tax relief under the Enterprise Investment Scheme (“EIS”). Mr Bain responded that they had only engaged with a noncommittal Letter of Intent while they vetted out the commercial and other impacts that Dimebox might have on their business. He said that once the process was complete, the solution would be presented to the Board for approval. On 26 Ocotber he sent the Claimant and Mr Keenan an email in which he explained why he thought that they were EIS compliant. 43 On 11 October Mr Keenan sent the Claimant the relevant documents to transfer the IP in Fintech Link and the Techforce team to the Respondent. He said in that email,

“It goes without saying you cannot use the Fintechlink code and you must not keep a copy of the code.”

The Claimant responded that he would keep a copy of the code, not least to cover the situation in case the Respondent went into liquidation. Mr Keenan replied that the code would be kept in escrow for that purpose and emphasised again that the Claimant must not keep a copy of the code because it would become the Respondent’s asset on the date of the transfer.

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44 By 18 October Mr Keenan had not heard from the Claimant about the transfer of the Techforce team. He contacted the Claimant and the Claimant told him that he was no longer in favour of handing over control of the Techforce team to the Respondent. Mr Keenan told him that they had already told the Venture Capital investors and the Board that the Techforce team would transfer to the Respondent before the close of the fundraising and that buying the IP was virtually worthless without the team that had written the code. He sent the Claimant an email the following day and asked him to confirm that he was happy to proceed as planned, i.e. transfer the Techforce contract to the Respondent as soon as possible and to formally hand over control to them. The Claimant responded that things had not progressed as per their three-way discussion that summer and he was being excluded from important IT decisions. He said,

“The sole reason for me to consider wrapping my team into AX was to minimize friction between us. The actuality is that this hasn’t worked and in fact has been ignored to the extent that my executive role in the company has now been largely usurped. Clearly that doesn’t work for me.”

45 On 6 November 2017 the Claimant, Xcordis and the Respondent signed a Software Assignment and Licence Agreement. Under that agreement Xcordis assigned to the Respondent all Intellectual Property Rights in FinTechLInk (including but not limited to the source code and object code thereof). The assignment did not include the brand name FinTechLink and it was agreed that the Respondent would re-brand FinTechLink after the assignment. Under the agreement Xcordis also agreed to grant a perpetual, royalty-free licence of BOSON to the Respondent. The Claimant, as the founder and principal shareholder of Xcordis, was a party to the agreement to ensure that the assignment of FinTechLink contemplated by the agreement was fully effective. Clause 2.3 of the Agreement provided,

“Xcordis shall as soon as reasonably practicable and in any event within 5 Business Days of the date of this agreement, subject to payment of the instalment of the Consideration payable pursuant to clause 3.2(b)(i), provide to APEXX: (a) copies of all Source Code Material relating to BOSON and FinTechLInk.

Clause 3.1 provided,

“The aggregate consideration payable for the assignment of the Assigned Rights and the grant of Licence is the sum of £100,000 (“Consideration”) which shall be apportioned as follows: (a) £80,000 in respect of the assignment of the Assigned Rights; and

(b) £20,000 in respect of the grant of Licence.”

Clause 3.2(b) provided, “subject to clause 3.2(c), the Consideration shall be payable as follows:

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(i) As to the sum of £50,000, within 7 days of the completion of a subscription for equity in APEXX by one or more persons raising at least £800,000 (“Fundraising”); and

(ii) As to the balance of £50,000, within 7 days of receipt by APEXX of the first £50,000 of trading income received by it, as received in part not delayed until the whole amount is received, following a Fundraising;”

46 The fundraising agreement was completed on 9 November 2017. Three Venture Capital firms invested almost £2 million in the Respondent. On completion of the fundraising Mr Keenan was formally appointed to the Board. New Articles of Association were adopted. Clause 21.4 provided,

“Pursuant to Section 175 (and subject to Sections 175(3) to (6) of the Act a Director must avoid a situation in which he has, or can have, a direct or indirect interest that conflicts, or possibly may conflict with the interests of the Company…”

The Claimant and Mr Keenan and Mr Bain also entered into a Shareholders’ Agreement on 9 November 2017. 47 On 14 November 2017 Xcordis invoiced the Respondent for the first payment of £50,000 (+ VAT) under clause 3.2(b)(i) of the Software Assignment and Licence Agreement. The Respondent was given access to the source code and on 17 November 2017 it made a payment of £50,000 to Xcordis. The payment was £10,000 short because of a daily limit on the Respondent’s account. The Claimant sent an email on the same day in which he said, “Thanks for the part payment due under the IP transfer agreement.

That leaves Apexx in a position of breach of contract which can now be terminated. Additionally there is £50k now due under the HPP and Optimiser agreements, invoice now resent.”

He then set out a number of demands and said that he would withhold the contract termination notification until 6 pm the following day subject to them agreeing his demands. 48 The balance of £10,000 was paid a few minutes after the Claimant sent his email. Mr Keenan informed the Claimant of that and said that the Respondent was in full compliance with the terms of the Agreement. In respect of HPP Mr Keenan said that they had agreed to defer any charges pending the start of the Innovate Grant process once the product was complete and live. He said that in any event they needed a working product which had not yet been delivered. He also asked him to confirm that no copies of the FinTechLInk code had been retained by any third party. 49 On 20 November the Claimant responded. He said that as the Respondent had not honoured the agreement with respect to HPP the contract was closed. He would

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arrange a demo if they still wished to see it and they could then come to some arrangement on pricing. 50 On 21 November Mr Bain circulated to the Board members a proposal for the Respondent to use Dimebox explaining why they wanted to do so. He said that it would probably incur costs of £80,000 plus a year. He asked them if they approved it to do so by email. Some of the Board members raised some queries but by 22 November they had all approved it. 51 On 23 November 2017 there was a three-way discussion about the outstanding issues. Mr Keenan said that the Respondent was still interested in HPP and intended if satisfied with it to buy it. Mr Bain and Mr Keenan said that they were not happy with Xcordis profiteering/marking up fees on the Innovate grant and were considering other options on how to get most out of the spend. That would probably mean that they would not use Xcordis going forward but they had not yet decided. The Claimant said that he had told Snehal in Techforce to deal directly with Messrs Keenan and Bain to transfer his team with immediate effect as soon as an agreement was inforce and that Snehal was happy to do that. There were also discussion about Sunil who was due to join the Respondent as Chief Technical Officer. They agreed that it was for the Claimant to decide where he would fit in his team and how the responsibilities would be divided between them. 52 On 28 November Snehal Shah from Techforce informed Mr Keenan that Techforce did not want a contract directly with Apexx and preferred to continue the existing arrangement, i.e. dealing with the Respondent via Xcordis. 53 On 1 December the Claimant sent an email to Mr Bjorgas and another director of the Respondent. He said that the agreement between Xcordis and the Respondent in respect of the Innovate grant had been terminated by the Respondent and they would, therefore, lose the grant of £450,000. He warned them that Xcordis would seek damages for breach of contract. He also said that the £50,000 paid by the Respondent on 17 November had been apportioned between the HPP and the Core intellectual property agreements. As a result, there was still £60,000 outstanding. He said that the Respondent was in repudiatory breach of both contracts and they were both rescinded. Damages would be sought for that breach too. 54 On the same day he sent an email to Snehal Shah at Techforce in which he said that all contracts with the Respondent were the subject of legal action and that none of the software relating to Apexx now belonged to the Respondent and they should only take instructions from him relating to those systems. He also instructed Techforce to block the Respondent’s ability to access the Core source code repository and not to enter into any conversations with the Respondent relating to Core and BOSON. Mr Keenan was due to travel to India the following week to meet the Techforce team and have discussions with them. On receipt of that email from the Claimant, Techforce cancelled the meeting with Mr Keenan. 55 Over the following two weeks there were discussions between the Claimant and Messrs Keenan and Bain to attempt to resolve their differences. 56 On 20 December 2017 the Claimant, Messrs Keenan and Bain, the Respondent, Xcordia and TPC signed an agreement to resolve their differences. They agreed that:

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(i) The Respondent would pay the remaining £50,000 for transfer of Core IP and the BOSON licence as soon as possible after the signing of the agreement;

(ii) Upon payment, the Respondent would have full ownership of Core and the source code would be provided by the Claimant to the Respondent. Xcordix, TPC, the Claimant and any entity associated with them would destroy all copies of the source code of the Core platform and any other material containing or referring to the core platform;

(iii) The relationship between the Respondent, Xcordis and TPC would cease from 1 March 2018 and the Claimant would support the new entity chosen to replace Xcordis in the Innovate UK grant that had been awarded;

(iv) The Respondent would pay TPC £16,000 a month for January and February 2018. During that period, a new Apexx team would be hired direct with Techforce. From 1 March that team would include five named individuals working for TPC in Techforce;

(v) The Respondent would purchase Optimiser V.2 from TPC for a fee of £25,000, half of which would be paid immediately and the other half on completion of the version;

(vi) The Respondent would provide the Claimant with an office in Spain with a budget of £450.

57 It was clear from exchanges between the Claimant and his colleagues in January 2018 that the relationship had not improved. On 13 January Mr Bain asked him whether a payment of £898.80 made by the Respondent to London Blockchain related to him. The Claimant responded “yes” but did not provide any further information. When Mr Bain suggested that that was not an appropriate response the Claimant replied “Up yours?” Between 16 and 23 January 2018 the Claimant used his Company card to pay £1849.21 on hotels in London and £201.82 to pay for travel to London. During that week he only attended the Respondent’s office once – for the last ten minutes of a meeting. There was no evidence that he had been engaged in any business for the Respondent during that week. 58 In January 2018 the Respondent commissioned an external PCI specialist to conduct an audit of Core. Its report revealed that a large number of the responses that the Claimant had given in the PCI self-assessment questionnaire the previous May were incorrect. Out of a total of 416 requirements, over half the answers were wrong because what the Claimant had attested was in place was in fact not in place, or not fully in place, not tested or unknown. The result was that, contrary to what the Respondent had said to its customers, Core was not PCI compliant. 59 At the end of January Mr Keenan saw that FinTechLink was still being advertised on the Xcordis website. FinTechLink was the same as Core. Mr Keenan suspected that, contrary to the agreement of 20 December, the Claimant had retained a copy of the Core source code. His suspicion was confirmed when the Claimant confirmed in cross-examination that he had not destroyed copies of the code. That was the last straw for Mr Keenan and he had discussions with his fellow-directors about exiting the Claimant from the company. 60 On 1 February Mr Keenan sought advice from a firm of solicitors on how to deal with the problems with the Claimant. This was followed up by another telephone call and email on 6 February. In the email Mr Keenan set out the concerns that they had with the Claimant. These included the fact that he was unmanageable and referred to

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the CEO as a dictator, Pol Pot and a Communist, that he did not follow the Employee Handbook on claiming expenses and regularly made large transactions on the Company card without permission, his actions had led to a DDOS attack on the Respondent’s servers which had resulted in a bill from IBM amounting to US $28,000, he had claimed that ten people were working on Apexx in Techforce when it appeared that there were only five people working on it, FinTechLink which the Respondent had purchased from him still appeared on his website and he had not returned the £10,000 which the Respondent had paid him for HPP in August 2017. In an email to Mr Bjorgas on the same day he said “The situation with Rob is becoming intolerable”. 61 In early February 2018 Mr Keenan discovered that when the Claimant had set up the URLs for Dimebox he had used a domain name which was owned by him personally rather than the Apexx official domain name. On 8 February he asked the Claimant to transfer all the Apexx domains that were registered in his name to Operations in the Respondent. The Claimant was on holiday at the time and took the view that any decisions relating to IT should be made in discussions with him. On 9 February the Claimant sent Mr Keenan an email in which he said,

“From your comments it is obvious that you have no knowledge of domain name management and the complications therein and so it’s highly inappropriate that you should issue instructions on changes to the system, particularly without the courtesy of a prior discussion with me. … You are clearly out of your depth in managing the company so I will be requesting a vote of no confidence in you at the next board meeting – please add that to the agenda.”

62 On 19 February Mr Keenan sent the Board members the relevant papers for the Board meeting at 2.30 pm on 21 February. At 9.40 am on 21 February he sent two additional papers, one of which was a request to commence disciplinary action against the Claimant. He set out in the paper the reasons for commencing disciplinary action against the Claimant and made it clear that what was envisaged was that the investigation and disciplinary hearing would be conducted by him (supported by an independent third party) and that the appeal would be heard by Mr Bjorgas. 63 At the Board meeting on 21 February, after discussion of the usual agenda items, the Board considered the request to commence disciplinary action against the Claimant. Mr Keenan highlighted the reasons why he felt that an investigation was required. After a discussion it was resolved to approve the instigation of disciplinary action. The key elements of it were that Mr Keenan would investigate the matter and conduct the disciplinary hearing and that Mr Bjorgas would hear any appeal. The Board then discussed the Claimant’s vote of no confidence in the CEO, Mr Keenan. The Claimant set out his reasons for seeking a vote of no confidence. They were change of business model (selling Dimebox and not Apexx and planning to spend £180,000 on Dimebox the following year), not spending sufficient funds on development of IT which put at risk the Respondent’s SEIS status and the fact that Innovate grant had not yet been finalised. The Board noted his comments but rejected the motion at that stage on the basis that the disciplinary actions and conclusions would be addressed first. Minutes of Board meeting confirmed by all attendees.

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64 Following the Board meeting Mr Keenan arranged for an HR Consultant, Amanda Randall, to assist with the investigation. Between 26 and 28 February Ms Randall interviewed Mr Keenan, Rodney Bain, Tara Farrer and Torenson Llloyd. 65 On 2 March 2018 Mr Keenan invited the Claimant to a disciplinary hearing on 8 March. He informed him that at the hearing disciplinary action would be considered against him in respect of the following matters – conflict of interest/breach of fiduciary duties, misuse of Company funds, inaccurate completion and misrepresentation of PCI SAQD, unexplained budget gaps in resourcing of tech teams in India and issues relating to bullying and inappropriate behavior at work. He gave particulars in respect of each of the matters. He warned the Claimant that a possible outcome if the Claimant failed to prove adequate explanation for the above issues would be that his employment might be terminated with immediate effect. He enclosed documents on which the Respondent intended to rely. The Claimant was advised of his right to be accompanied. 66 In the early hours of 8 March the Claimant sent Mr Keenan an email. He said that the minutes of the Board meeting were not accurate. The Board had only authorised an investigation into the accusations manufactured by Mr Keenan, after which the Board was to decide whether there were grounds for disciplinary action to be initiated. He said that Mr Keenan had made the allegations, investigated them and was now to conduct the disciplinary hearing. That made him the “judge, jury and executioner.” He also said that the Board had authorised an investigation into his call for a vote of no confidence in Mr Keenan. He said that he had effectively blown the whistle by informing the Board that Mr Keenan had changed the business model without Board approval, had authorised the sales team to sell Dimebox and not to sell their own software, misled shareholders and the Board by saying that they were spending loads on developing their own technology, failed to honour their SEIS commitments and lost funding from the Innovate grant by dishonouring the agreement with Xcordis. 67 On 9 March Mr Keenan sent the Claimant the outcome of the disciplinary hearing held on 8 March. He said that the minutes of the Board meeting on 21 Febraury were accurate. As there was no good reason for the Claimant not attending the hearing, it had taken place in his absence. He set out his conclusions in his letter which, briefly, were as follows. Xcordis (owned by the Claimant) was actively marketing FinTechLink, which was in direct competition with the Respondent. Furthermore, as FinTechLink was the same as Core, there was reason to believe that Xcordis was continuing to exploit the intellectual property rights in the underlying product that Xcordis had sold to the Respondent. That fact combined with the Claimant’s decision to deny the Respondent access to the source code of Core in November 2017, failure to return the £10,000 paid to Xcordis for HPP, and his refusal to share the login details of the domains/URLs for Dimebox amounted to a deliberate failure by him to act in the best interests of the Respondent. By acting the way that he did, he placed his own interests above those of the Respondent and, as such, his actions were incompatible with his duties as a director and senior employee of the Respondent. Those actions constituted a clear and deliberate breach of his implied duty of fidelity as an employee and his fiduciary duties as a director of the Respondent and his obligations under Article 21.4 of the Articles of Association. His actions placed him in breach of clauses 3.1, 3.4. 5.1.4 and 5.1.5 of his service

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agreement and they justified the immediate termination of his employment pursuant to clauses 15.1.1. 15.1.2 and 15.1.7 of his service of agreement. 68 In addition he concluded that the Claimant had in respect of his trip to London from 16 to 23 January 2018 used company funds to pay for activities that were not related to the business of the Respondent, he had completed the PCI SAQD in a way that he must have known was incorrect which had undermined the Respondent’s reputation, he had knowingly allowed Xcordis to overcharge the Respondent by claiming that ten individuals were assigned to the Respondent when that had not been the case and that he had conducted himself in his dealings with employees and fellow directors in a way that was unprofessional, unpleasant and completely unacceptable. For all those reasons, he had decided that it was appropriate to terminate the Claimant’s employment with immediate effect. He was advised of his right of appeal. 69 The Claimant appealed against the decision to dismiss him on 15 March. Mr Bjorgas heard the appeal on 29 March 2018. He dismissed it on 5 April 2019. In his outcome letter he dealt with all the grounds on which the Claimant had appealed and gave his reasons for rejecting the appeal. 70 Between 1 November 2016 and 28 February 2018 the Respondent paid TPC £282,400 for monthly IT services which were provided by Techforce and £120,000 for transfer of the Core IP and the BOSON licence (two payments of £50,000 plus VAT). That comes to a total of £402,400. According to the invoices disclosed by the Claimant after the start of the hearing, during the same period Techforce invoiced TPC £130,883 for the services that it provided. There are three months for which there appear to be no invoices. Assuming that there were invoices for those months and they were of approximately the same value as the invoices that preceded and followed them, that would add approximately £25,000 to the total. It is clear from those figures that the Claimant and his companies charged the Respondent considerably in excess of what it paid Techforce for the services that were provided to the Respondent. The Claimant never made the Respondent aware of that fact. The invoices showed that Techforce normally charged for ten or more individuals working on Xcordis application, but with the exception of one individual the charge for each employee was considerably less that £1,500. 71 The Respondent disclosed to the Tribunal the minutes of meetings in which the Claimant said that the Board had sanctioned or permitted the recording of Board meetings by those attending them. There was nothing recorded in the meetings to indicate that the Board had ever sanctioned or permitted such activity. Conclusions Whistleblowing detriments and dismissal 72 The Claimant’s case is that he was subjected to one detriment (Mr Keenan conducting the disciplinary hearing) and dismissed because he made protected disclosures at the Board meeting on 21 February 2018 and in his email of 8 March 2018. The Claimant has a major difficulty in establishing that claim because of the undisputed chronology of events.

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73 In the paper he circulated to the Board on the morning of 21 February Mr Keenan made a request to commence disciplinary action against the Claimant and set out the process that would be followed, namely that he would investigate the matter and conduct the disciplinary hearing and Mr Bjorgas would conduct the appeal. At the meeting the Board discussed that paper and approved the instigation of disciplinary action and agreed that Mr Keenan would investigate the matter and conduct the disciplinary hearing and that Mr Bjorgas would conduct the appeal. Both those actions occurred before the Claimant set out his reasons for seeking a vote of no confidence in Mr Keenan (which are the matters alleged to be his protected disclosures). It follows from that that they also occurred before his email of 8 March 2018. It is, therefore, clear that any decision that Mr Keenan would conduct the disciplinary hearing was not made, and could not have been made, because of the Claimant’s alleged protected disclosures because the decision preceded those disclosures. 74 Similarly the process of instigating disciplinary action which, on the facts of this case, was very likely to lead to dismissal was commenced long before the Claimant made the alleged protected disclosures. Mr Keenan first sought legal advice on 1 February. That was followed up by further discussions with the solicitors on 6 February. On the same day he expressed the view to Mr Bain that the Claimant was becoming intolerable. By the morning of 21 February he had prepared and circulated a detailed paper explaining why it was necessary to instigate disciplinary action against the Claimant. The decision to instigate disciplinary action was taken before the Claimant made the alleged protected disclosures. 75 In order for the Claimant’s claim to succeed he would have to establish that although the instigation of the disciplinary action had nothing to do with his alleged protected disclosures, the decision to dismiss him was made because of the protected disclosures. In other words, if he had not made the alleged protected disclosures, the outcome would have been different. There was no evidence before us to indicate that. On the contrary, all the evidence pointed the other way. It is clear to us that Mr Keenan’s view at that stage was that the Claimant’s actions justified the termination of his employment. He had not taken the steps which he took before that meeting because he had some minor concerns about the Claimant’s conduct. In the absence of the Claimant putting forward some credible defence to the allegations, the most likely outcome was that he was going to be dismissed. The Claimant did not put forward any defence and it is, therefore, unsurprising that he was dismissed. We were satisfied that the Claimant was dismissed because of the concerns that Mr Keenan had about his conduct, which he believed amounted to gross misconduct, and had nothing to do with the matters he raised at the Board meeting on 21 February or in the email of 8 March. 76. Having reached that conclusion it is not necessary for us to decide whether the matters that the Claimant raised amounted to “qualifying disclosures” within section 43B(1) ERA 1996. Had we had to do so, we would have concluded that they were not qualifying disclosures. The Claimant raised those matters to support his vote of no confidence in Mr Keenan because he objected to Mr Keenan having given him a particular instruction on 8 February 2018. They were raised in the context of a personal dispute between him and Mr Keenan. The Claimant complained in essence of two things – the use of Dimebox (which he claimed amounted to a change of business model and had led to the Respondent not spending enough on its technology and had thereby put its SEIS status at risk) and that Mr Keenan had put

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the Innovate grant at risk or lost it because of not honouring its agreement with Xcordia. He claimed that Mr Keenan had done the above without the approval of the Board and/or had misled the Board. 77 Those assertions were not correct and the Claimant must have known that. There were discussions about the use of Dimebox between the Claimant, Mr Keenan and Mr Bain in October 2017. Mr Bain had explained in October 2017 why he thought that the Respondent was SEIS compliant. The Claimant had not challenged or disputed that. By 22 November 2017 the Board had approved the proposal to use Dimebox. The Claimant had agreed on 20 December 2017 that the relationship between Xcordis and the Respondent would cease from 1 March 2018 and that he would support the new entity chosen to replace Xcordis in the Innovate UK grant award. 78 In those circumstances, the Claimant could not have reasonably believed that the information that he was giving tended to show that Mr Keenan had been in breach of any legal obligations or committed a criminal offence or that he was making those disclosures in the public interest. Wrongful Dismissal 79 We concluded that the following acts cumulatively (and some of them individually) amounted to a breach of clauses 5.1.1-5.1.5 and 7 of the Claimant’s service agreement, of his fiduciary duty as a director and senior employee of the company of and of the implied term of trust and confidence and that as a result the Respondent was entitled to terminate his employment summarily:

(a) Retaining a copy of the source code of the Core platform in breach of the agreement of 20 December 2017. That is an extremely serious breach and on its own amounts to a repudiatory breach. It meant that in essence the Respondent did not have full ownership of the very thing it had purchased from the Claimant and his company for £100,000. The Claimant’s explanation for not deleting it was that it had been a condition of the agreement that he would not delete it until it had been stored in escrow. That explanation is not borne out by the evidence. It had been envisaged before the December agreement that an escrow would be set up but that was superseded by the agreement signed by the parties on 20 December 2017. The Claimant’s obligations to destroy all copies of the source code under that agreement were unqualified and unequivocal. There is no reference in that agreement to the code being stored in escrow and there are no contemporaneous emails recording or referring to any such agreement. It is a clear example of the Claimant putting his and his company’s interests before those of the Respondent.

(b) Misleading and/or failing to disclose to the Respondent the profit made by

the Claimant and/or his companies in his/their arrangements with the Respondent. The Claimant was a director of both companies to the transaction and, in those circumstances, he was obliged to make a full and frank disclosure to the Respondent of the extent and precise nature of the interest. That included the amount of profit that his company was making from the transaction. It is not enough for the Claimant to say that the Respondent knew that he had an interest in TPC and that clearly it was making a profit. It is not in dispute from the documentary evidence that the

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Claimant’s companies made a considerable profit out of the transaction with the Respondent. It is also not in dispute that the Respondent had concerns about the sums that they were paying for the services that Techforce was providing them. When they raised those concerns the Claimant sought to justify the costs by providing an explanation for them, failed to provide the invoices from Techforce and led the Respondent to believe that the profit margin was nil or very slight. Hence, not only did the Claimant not provide full disclosure, but he attempted to mislead the Respondent as to the true position. That matter on its own amounts to a repudiatory breach of the Claimant’s service agreement, his fiduciary duty and the implied term of trust and confidence.

(c) Giving incorrect information on the PCI DSS self-assessment questionnaire that the Claimant completed in May 2017 and asserting at the end of the form that on the basis of the information contained therein the Respondent had demonstrated full compliance with PCI DSS.

(d) Repeatedly ignoring the Respondent’s expenses policy and, in particular,

making a claim of £2,051.03 for a one-week trip to the UK when the Claimant only attended the office once for the last 10 minutes of a meeting. There was a dispute between the parties whether it was in the Respondent’s interests for the Claimant to attend an event that he attended that week. If the Claimant felt that it was, he should have raised the matter in advance with his fellow-directors.

(e) Clandestinely recording Board meetings and retaining those recordings. (f) The Claimant’s conduct in November 2017 of claiming (wrongly) that the

Respondent was in repudiatory breach of the agreement of 17 November 2017, deleting the source code from the Apexx repository and instructing Techforce not to take any instruction from the Respondent or enter into any conversations with it.

80 For all those reasons the Respondent was entitled to terminate the Claimant’s contract summarily and, therefore, his claim for wrongful dismissal fails.

_____________________________________

Employment Judge Grewal ______________________________________ Date 20 May 2019 JUDGMENT & REASONS SENT TO THE PARTIES ON 21 May 2019 ........................................................................................ FOR THE TRIBUNAL OFFICE