Mr E Ali v Johnson Controls: 3305685/2024
JUDGMENT
The claimant’s claim of unfair dismissal is dismissed.REASONS
[1]These written reasons were requested by the claimant at the conclusion of the hearing, after oral reasons had been given.[2]The claimant was employed as a sales coordinator. He has brought his claim against “Johnson Controls” but Johnson Controls says that he was employed by ADT Fire and Security plc.[3]His employment started on 27 June 2011 and ended by reason of his dismissal on 12 April 2024. He says that his dismissal was unfair, and a claim of unfair dismissal is the only claim he has made to the tribunal. The respondent says that he was dismissed by reason of redundancy. Redundancy is a potentially fair reason for dismissal. The claimant has never suggested that the reason for his dismissal was anything other than redundancy, and the evidence points overwhelmingly to this being the reason for his dismissal. I find that the respondent has established that this was the reason for his dismissal.[4]According to s98(4) of the Employment Rights Act 1996, once the respondent has established a potentially fair reason for dismissal, such as redundancy: Case No.: 3305685/2024 2 “the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer):(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and(b) shall be determined in accordance with equity and the substantial merits of the case.”[5]While the burden of proof on such a point is neutral, in circumstances where the respondent appears to have conducted an orthodox redundancy selection process it is likely that the identification by the claimant of any points of unfairness will be particularly influential in my decision.[6]At least the claimant’s starting position for this is set out in his witness statement. His concerns in that witness statement primarily arise in the period of a year or more running up to his dismissal rather than relating to the process or scoring adopted during the redundancy process. His point is that (unfair) events prior to the redundancy process meant that he scored badly and was dismissed, and that he was not at any point prior to his redundancy aware that the respondent regarded his performance as below others in his team.[7]It was not suggested in the claimant’s witness statement either that the scoring criteria used were unfair or that he had been inaccurately scored against that criteria.[8]A number of other matters were raised by the claimant during the hearing, some for the first time. I was keen to ensure that I did not miss any way in which the claimant said that his dismissal was unfair, and invited him in his closing submissions to set out by way of bullet points or general headings the full scope of his allegations of unfairness. He did this in an email, which I cite in full below. The page references are to pages of the tribunal bundle: “✓ Improvement however that can be interspersed in so my way as it doesn't explain what the improvement is required. ✓ I have challenged my scoring and numbers not being accurate including advising having more holiday than everyone else in the team over the course of the year in my email to Paige which confirm I only work a 5 day week one month of the 12 months of Johnson Controls financial year which was used for the scoring & number, I challenged it in my consultation meeting with Nick however it was quickly shut down and appeal meeting with Stephen (Page 138) ✓ Other reason why my contribution number is low split accounts meaning the account manager i support I don't get all their work Case No.: 3305685/2024 3 (Page 128, 129, 130 131) and some account manager raising who enquiries (Page 136, 137) colleagues start work early, whilst I'm on break, Paige revising (Page 134, 135) my Customer Ordered work to get the number. I do believe James Curtis was deliberately remove from the account and replace with Chris who don't bring in numbers on the Asda, James Curtis (Page 132) is back on the Asda however this was after the Johnson controls financial year ending and all numbers that will be required for redundancy has already been accounted for. (Page 123 , 124, 128 173, 174, 175, 176, 177, 178, 189 196, 202, 203) ✓ From cross examination I believe Nick advised he don't see the numbers however Paige email confirms as a minimum it is send across every quarter. ✓ If my suspicion is correct that it is Julia that was made redundant out of the team it would go to show that this was a deliberate attempt to exits us from the business because aside of myself the other person that wasn't equally getting relocation of work distributed was Julia. We will be looking at a case of discrimination & we need to being back the settlement agreements element back on the table, probably is the reason the business are reluctant to reveal this information I respectfully request that the tribunal grant us the right to have this information. ✓ During my appeal Stephen had Bluetooth headphones on which I believe was private communication link with others privately invited to the meeting. (Page 125,126 127) ✓ Delinking of account was used to further justify redundancy however it has now been confirmed this didn't happen and maybe the forecast / reduction of possible workload wasn't bad as predicted. ✓ The business confirmed / adviced no alternative / suitable vacancy was available.”[9]The respondent has explained, and it does not seem to be challenged by the claimant, that there was a projection of a 7% decrease in workload for the team of which the claimant was a part. In consequence of that, on 12 March 2024 the respondent announced in a presentation to the relevant team that they were planning to reduce the number of sales coordinators from 7 to 5. I was told, and accept, that this took account of staff absences for maternity leave and sick leave. The claimant was present at the meeting at which the presentation was delivered. It was said that “all employees at risk will be measured against a set selection matrix and the results of this will be discussed during consultation”. Case No.: 3305685/2024 4[10]The claimant’s first individual consultation meeting took place on 14 March 2024 with Paige Nicholls (his manager) and Nick Tarbuck (his manager’s manager). The claimant is noted as having requested a copy of the presentation previously used and as making a point about a colleague who was on maternity leave. His second consultation meeting took place on 18 March 2024, at which he was provided with the selection criteria and his score. He was told that he had been selected for redundancy and he was subsequently issued with notice of dismissal. I was told that he had scored lowest of those scored.[11]The claimant appealed against his dismissal, and undertook a lengthy appeal meeting on 5 April 2024 with Stephen Waldron, a manager from another part of the business. The notes of the meetings prior to his dismissal suggest that the claimant had at that time taken a largely passive role in the redundancy consultation process, but the same could not be said of his appeal, at which he made a number of points that he has subsequently repeated in these proceedings. His appeal was unsuccessful.[12]Thus we appear to have a fairly orthodox redundancy selection exercise and procedure. It is somewhat surprising to see that the claimant was dismissed so shortly after being presented with the scoring criteria and his scores, but it has not been part of his claim that that made his dismissal unfair.[13]I will now work through the factors that the claimant relies upon as making his dismissal unfair.[14]The first point made by the claimant is “Improvement however that can be interspersed in so my way as it doesn't explain what the improvement is required.” I think his point here is that it is unfair to dismiss him for having the lowest level of performance when he had not previously been told that his performance was the lowest of the team and had not been given any ideas on how to improve.[15]The first problem with this is that there is no principle in redundancy dismissals that an individual should be given a warning that they must improve prior to any scoring. It will not be unusual for an individual to be taken by surprise by their relatively low score. What matters is, as Miss Smith puts it, that the respondent has properly applied its mind to the scoring. The second problem is that the claimant’s annual reviews, which Miss Smith went through with him in crossexamination, do suggest that the claimant’s performance was not as good as he saw it to be and offer suggestions for improvement. Notably in his most recent performance review a few months prior to the redundancy he had been told that he was 8th out of 8 in the department (although it seems still performing satisfactorily).[16]The claimant then speaks of challenging his scoring in particular on the basis that he had had more holiday than others, due to carrying over holiday from the Covid pandemic. To some extent on this point the claimant relies on an email he had sent to his manager which was disclosed only on the morning of final submissions. Miss Smith says this should not be admitted in evidence, and I Case No.: 3305685/2024 5 agree. It should have been disclosed earlier and to disclose it and attempt to rely on it only at the time of closing submissions prevents the respondent from properly addressing it in their evidence.[17]The claimant’s point here is that he raised this in one of his initial consultation meetings, but he does not say anything about raising anything to do with holiday in his witness statement. In his submissions he says this is mentioned at p138 (within the appeal notes) but I see no mention of it there. I do not accept that the claimant challenged his scoring and numbers.[18]The claimant’s next point involves a range of complicated reasons why the assessment or scoring undertaken by the respondent may not have captured the full extent of his work. Few specifics of this were given by the claimant in his evidence and it has been not entirely clear what he means by this. It ranges from concepts of him not working exclusively for particular account managers, through to one of his account managers being removed from the Asda account, and others taking work from private emails rather than the communal inbox. But for the claimant (at least in his oral submissions) it goes further than that. This is not simply an accident but a deliberate attempt by Nick Tarbuck to undermine his work and limit his ability to work over a period of two years with a view to eventually dismissing him as redundant. There has been a flavour of that to some of the things the claimant has said before, but he only really put it that way and identified Mr Tarbuck as being responsible for it in his oral closing submissions. None of this was ever put to Mr Tarbuck during his evidence, and as I indicated to the claimant I viewed that as being a substantial problem rather than simply a matter of form. It is not just a formal matter of putting his case, and I do not see how I can properly make the finding that the claimant wants – that Mr Tarbuck through various means limited the claimant’s work so as to be able to dismiss him as redundant – without Mr Tarbuck being given the opportunity to respond to this. In those circumstances I do not think it is a matter I can properly consider. I am also bound to say that I saw no evidence of this happening beyond the claimant’s assertion in his oral closing submissions.[19]The claimant says “From cross examination I believe Nick advised he don't see the numbers however Paige email confirms as a minimum it is send across every quarter.” I believe this is about the question of whether the scores used were the result of a bespoke analysis of the data for the purposes of redundancy scoring (as the respondent says) or whether the figures were previously available (which the claimant seems to say in this submission). I do not accept that the figures used for the scoring were previously available, although perhaps there were some similar figures used for internal analysis, but either way I do not see that it affects the fairness of the claimant’s dismissal.[20]The next point relates to whether it was “Julia” who was dismissed alongside the claimant. I do not know whether it was Julia who was dismissed. The first time this name has come up was in the claimant’s closing submissions. The claimant’s position seems to be that if it was Julia there were some other arguments he may want to make, but it seems to me that it is too late at this Case No.: 3305685/2024 6 stage to speculate who the other person was or cite unknown arguments that may arise from that.[21]Then we have a point, arising for the first time in the claimant’s crossexamination, that Mr Waldron’s appeal was unfair as he had a Bluetooth headset used as a “private communication link with others”. As with the point in relation to Mr Tarbuck, if this was an important part of the claimant’s case I would have expected it at least to be in his witness statement and put by him to Mr Waldron, but he did not do so. He refers to the appeal notes, where Mr Waldron talks of “feedback in the background” on his earpiece, which someone else identifies as possibly being “a window or something”. I do not see how that identifies the private communication link the claimant relies on.[22]I think the claimant’s next point is that the expected 7% reduction in work did not transpire, but that is not to say that it was not expected, and a business must plan based on what is expected, not what actually ends up happening (by which time it would be too late to plan).[23]Finally the claimant says no suitable alternative vacancy was available. I see that the respondent referred the claimant to their lists of vacancies, but if no vacancy was then available I do not see how that make the claimant’s dismissal unfair. The respondent may be obliged to offer such suitable available vacancy as there is, but if there is none there is no obligation to offer it.[24]The claimant’s dismissal was not unfair. Approved by Employment Judge Anstis 24 June 2025 Judgment sent to the parties on: 29 July 2025 For the Tribunal: …………………………………… Notes All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimants and respondents. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found at www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice-directions/ Case Number: 3305685/2024 EMPLOYMENT TRIBUNALS Claimant: Mr E Ali Respondent: Johnson Controls