Why the ‘fired techie who asked to WFH to sort his gardeners’-case is about so much more

As far as employment tribunal cases go, it looks like a headline writer’s dream.

The case of Wicken v Akita Systems Ltd: introduction

It features an IT director whose “improvement plan” states he would “purchase new clothes” to “work on his image.” It also includes the director mentioning that he couldn’t attend the office on a particular day because he had to be at home to “sort out his gardeners.”

Third, it includes the IT director asking to move a sensitive face-to-face mediation meeting with his boss to a Microsoft Teams call, only for the director to be disciplined, and then unceremoniously dismissed.

Don’t let the truth get in the way of a good LinkedIn post

Although a little misleading, this third characterisation of the case, Wicken v Akita Systems Limited, was the assertion of a LinkedIn post, ‘Firm loses tribunal against tech employee it disciplined for WFH.’

But having read the 20-page judgment, I’m not sure I see the case this way, or in the other colourful ways that it has been characterised -- as enjoyable as they are, writes Roger Sinclair, legal consultant at Egos.

Wicken (Claimant) v Akita Systems Ltd (Respondent): overview

The IT director -- Ben Wicken -- who had been working for Akita Systems Limited since 2014 -- had invested a 12% stake in the company, which had four other directors, including its founder, Christopher Boudet. 

Tensions between Wicken and (his boss) Boudet increased in 2022.

Internal mediation was attempted as a possible means to resolve these tensions. And it was one of the mediation meetings that had got in the way of the claimant’s need to supervise gardening work being carried out at his home.

The improvement plan maketh the man…

Shortly afterwards, it seems Wicken drafted an “improvement plan” for a Maria Cruse, the facilitator of the Wicken-Boudet meetings.

But Cruse, in effect, told Wicken that his improvement plan (the plan containing the new sartorial standards like “purchase new clothes” and ‘not to wear my jacket at all times’) wasn’t good enough, and spoke with the directors. 

‘Lost trust and confidence’

Shortly afterwards, Cruse spoke again to Wicken and told him that the directors had “lost trust and confidence”, and “there’s four of them and they’re all unanimous in their decision”.

The facilitator also told the claimant that he should go to a meeting the following day and hear what the directors had to say.

After that meeting, Wicken submitted a grievance, while reserving his right to, in effect, regard himself as constructively dismissed. In response to this, it seems Boudet appointed a long-standing friend of his to deal with the grievance investigation.

‘No experience conducting any workplace investigations for the Respondent’

This was even though Boudet accepted in evidence that his friend of 32 years, and the appointee, David Charity, “had no experience conducting any workplace investigations for the Respondent” (i.e. the company).

The claimant – whose health was suffering by this point – objected to Charity’s appointment.

But his objection was rejected. Then, the grievance was closed (against Wicken’s wishes) and a disciplinary investigation opened. 

Grievance closed, investigation opened

The closure of the grievance, and the opening of the disciplinary investigation, came while Wicken was off sick.

The claimant subsequently resigned, claiming that he had been constructively dismissed.

In Wicken v Akita Systems Ltd, what did the employment tribunal find?

The tribunal found that the facilitator had not passed the improvement plan to the directors.

And it found that the statement communicated by Cruse that the directors had ‘lost trust and confidence in you, you can’t change that decision, can you?’ was a fundamental breach of contract on the part of the company, subsequently compounded by the closure of Wicken’s grievance while he was still off sick. 

The tribunal further found that the claimant had been justified in regarding himself as dismissed, and that the manner of the dismissal was unfair.

‘Polkey deduction’

At a subsequent hearing, Wicken was awarded ‘just’ £30,692, after taking into account:

(a) a 50% ‘Polkey’ deduction (i.e. because the tribunal found that, if the company had conducted matters properly, he would probably have been dismissed anyway) and;

(b) a 15% increase (because Akita Systems Ltd had failed to comply with the ACAS disciplinary code.

Wicken admitted he was wrong to shift the ‘1:1’ to a Teams

The claimant in the case, Wicken, admitted that it was a mistake not to attend the meeting referred to at the start of this article in person (and to suggest a Teams instead of the “1:1”).

But employment judge Lise Burge ruled that, in context, Wicken’s actions did not constitute “culpable or blameworthy conduct;” did not contribute towards his dismissal, and so did not reduce the award on that account.

Wicken v Akita Systems: takeaways for the tech sector

Now, it might (or might not) be the case that the reason why the claimant found himself ousted from his employment had something to do with the meeting that he had requested be held by Teams, and not in person (due to those pre-arranged gardeners). And/or it could have to do with other potential reasons referred to in the course of the proceedings.

It is those possibilities that probably explain the 50% ‘Polkey’ deduction  (i.e. the tribunal assessing at 50% the likelihood that he would have been dismissed anyway, had Akita Systems dealt with matters properly).

And lastly, the last straw…

But, for those who embark on (or find themselves embroiled in) legal proceedings, it is the end result that matters. 

The fact is -- as employment judge Burge concluded -- the company did not deal with matters properly. Therefore, Wicken’s win seems to be a direct consequence of two things -- Akita’s fundamental breach of contract in relation to the statement about the other directors’ loss of trust/confidence, and the closure of the claimant’s grievance while he was still off sick - which, for Wicken in his words, was the “last straw.”