KB-2025-001160 - [2025] EWHC 2369 (KB)

Mr Oudkerk’s argument was essentially that BISL is claiming damages and/or equitable compensation on a basis which is inconsistent with its affirmation of the Contract by its letters of 11 and 12 March 2024. In these letters and the subsequent correspondence, BISL took the position that Mr Wheeler’s employment continued until 7 June 2024 and that he remained bound by his then current and his post termination obligations. On 18 April 2024, BISL had reiterated its position that he remained bound by his post termination restrictions on the implied basis that they would operate from the end of his employment on 7 June. Having maintained that Mr Wheeler’s employment continued until 7 June, and taken the benefit of the garden leave period and the fact that the post termination restrictions applied from that date, BISL could not subsequently claim damages on an inconsistent basis, namely that if Mr Wheeler had complied with his obligations to inform BISL of the team move his employment would have been terminated before 22 February 2024 when the first instalment of the bonuses was paid to him and the EMEA GPF employees.

As far as the knowledge of BISL when it affirmed the Contract is concerned, Mr Oudkerk argued that BISL must have been aware of what it believed Mr Wheeler had done. By the time BISL sent Mr Wheeler the letter of 18 April 2024, LLC had, a month earlier, launched proceedings in North Carolina based on allegations which included very similar allegations to those which are made against Mr Wheeler in the English proceedings.

Mr Oudkerk also complained that it was unfair and impermissible for BISL to gain longer protection from the garden leave period and post termination restrictions, by affirming the Contract, than it would have if it had terminated prior to 22 February 2024.