Mr N Ray v Honeywell Control Systems Ltd: 3310244/2023
EMPLOYMENT TRIBUNALS
Case No 3310244/2023
Between
Mr N RayClaimantHoneywell Control Systems LtdRespondent
Before
Employment Judge Isabel ManleyMr R Ross (instructed by counsel) for claimantMs N Gyane (instructed by counsel) for respondentDate 19 August 2025
JUDGMENT
[1]The reason for the claimant’s dismissal was that he was redundant. That dismissal was not unfair.[2]There was no less favourable treatment because of race and the claim for direct race discrimination fails.[3]The claimant has not shown that he was entitled to payment of a bonus for the Globalworth deal, either by way of unlawful deduction of wages or breach of contract.[4]All the claimant’s claims therefore fail and are dismissed.
REASONS
The Issues
[1]The claims were brought by way of a claim form presented on 15 August 2023. At a preliminary hearing on 27 June 2024 the claims were agreed to be four matters:1.1 Unfair dismissal1.2 Direct race discrimination for three matters. The claimant’s comparators were said to be a Mr McCann and Mr Rubick.1.3 Holiday pay.1.4 Unlawful deduction of wages with respect to bonus payments.[2]At the commencement of this hearing, Mr Ross, for the claimant, said that the claimant was not pursuing the holiday pay claim or any other bonus apart that for the Globalworth contract.[3]For reasons we did not quite understand, no list of issues has been drawn up and I raised that with the representatives at the beginning as I felt it would be useful for us. I drafted the list of issues and the representatives agreed that those were the issues that we should concentrate on. They were agreed to be as follows: The Complaints 1. The claimant is making the following complaints: 1) Unfair dismissal; 2) Direct race discrimination; 3) Unlawful deduction of wages/breach of contract with respect to a bonus The Issues 2. The issues the Tribunal will decide are set out below.[1]Time limits1.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 3 May 2023 may not have been brought in time.1.2 Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?1.2.2 If not, was there conduct extending over a period?1.2.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?1.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:1.2.4.1 Why were the complaints not made to the Tribunal in time?1.2.4.2 In any event, is it just and equitable in all the circum- stances to extend time?[2]Unfair dismissal2.1 What was the reason for dismissal? Can the respondent show that the reason was redundancy under the definition in s139 Employment Rights Act 1996?2.2 If the reason was redundancy, did the respondent act reasonably or unreasonably in all the circumstances, including the respondent’s size and administrative resources, in treating that as a sufficient reason to dismiss the claimant? The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case. It will usually decide, in particular, whether:2.2.1 The respondent adequately warned and consulted the claimant;2.2.2 The respondent adopted a reasonable selection decision, including its approach to a selection pool;2.2.3 The respondent took reasonable steps to find the claimant suitable alternative employment;2.2.4 Dismissal was within the range of reasonable responses.[3]Remedy for unfair dismissal3.1 Does the claimant wish to be reinstated to their previous employ- ment?3.2 Does the claimant wish to be re-engaged to comparable employment or other suitable employment?3.3 Should the Tribunal order reinstatement? The Tribunal will consider in particular whether reinstatement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just.3.4 Should the Tribunal order re-engagement? The Tribunal will consider in particular whether re-engagement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just.3.5 What should the terms of the re-engagement order be?3.6 If there is a compensatory award, how much should it be? The Tribunal will decide:3.6.1 What financial losses has the dismissal caused the claimant?3.6.2 Has the respondent proven that the claimant failed to take reasonable steps to replace their lost earnings, such as by failing to take reasonable steps to find another job?3.6.3 For what period of loss should the claimant be compensated?3.6.4 Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?3.6.5 If so, should the claimant’s compensation be reduced? By how much?3.6.6 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?3.6.7 Did the respondent or the claimant unreasonably fail to comply with it by [specify alleged breach]?3.6.8 If so is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?3.6.9 If the claimant was unfairly dismissed, did they cause or con- tribute to dismissal by blameworthy conduct?3.6.10 If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion?3.6.11 Does the statutory cap of fifty-two weeks’ pay or [£105,707] apply?3.7 What basic award is payable to the claimant, if any?3.8 Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what ex- tent?[4]Direct race discrimination (Equality Act 2010 section 13)4.1 Did the respondent do the following things:4.1.1 Select the claimant for redundancy whilst retaining a white/English employee (paragraph 21 grounds of complaint);4.1.2 Fail to provide a Quota Acknowledgment Form (paragraph 22 grounds of complaint);4.1.3 Actions of Jordan King (paragraph 23 grounds of complaint)4.2 Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated. The claimant says they were treated worse than Mr McCann and Mr Rubick.4.3 If so, was it because of race?4.4 Did the respondent’s treatment amount to a detriment?[5]Remedy for discrimination5.1 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?5.2 What financial losses has the discrimination caused the claimant?5.3 Has the respondent proven that the claimant failed to take reasonable steps to replace any lost earnings, such as by failing to take reasona- ble steps to find another job?5.4 For what period of loss should the claimant be compensated?5.5 What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?5.6 Has the discrimination caused the claimant personal injury and how much compensation should be awarded for that?5.7 Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result?5.8 Did the ACAS Code of Practice on Disciplinary and Grievance Proce- dures apply?5.9 Did the respondent or the claimant unreasonably fail to comply with it?5.10 If so is it just and equitable to increase or decrease any award paya- ble to the claimant?5.11 By what proportion, up to 25%?5.12 Should interest be awarded? How much?[6]Unauthorised deductions/breach of contract6.1 Did the respondent make unauthorised deductions from the claimant’s wages or breach the claimant’s contract by failing to pay a bo- nus in relation to the Globalworth contract?6.2 If so, how much should the claimant be awarded? 4 In essence, the claimant is claiming that the redundancy process was defective not least because of the way he was selected. He also complains about various aspects of how the redundancy was carried out. 5 As far as the race discrimination claim is concerned, he has three matters which he says amount to less favourable treatment on the grounds of his race, which he describes as Asian.5.1 the dismissal;5.2 the failure to provide a Quota Acknowledgement Form (“QAF”); and5.3 the actions of Mr King, one of the managers, with respect to the claimant’s removal from an internal document known as Salesforce. The hearing 6 The hearing was by CVP. Documents had been sent in and we all had them electronically.
The hearing
[7]There was an agreed bundle of documents of 464 pages. Reference was made to a couple of other documents during the course of the hearing, but I did not need to have sight of those.[8]There were five witness statements for the following people - the claimant; Mr King, who was a Sales Director with the respondent; Ms Mitchell, who is the Regional HR Partner; Mr Rogers, who is the Managing Director in a different part of the business and who conducted the claimant’s appeal against dismissal, and Mr Dahms, who is a Sales Director.[9]Two witnesses were giving evidence from abroad that having been agreed through the proper process. Mr King gave evidence from Australia and Mr Dahms from the United States. I am grateful to them as the times at which they gave their evidence was quite outside the normal working day, so I thank them for their input, as I do all witnesses who attended.[10]We completed the evidence on the third day with submissions in the afternoon and I was in a position to give oral judgment on the fourth day.
The facts
[11]For the most part, the relevant facts are not really in dispute in this case. Where there are disputes on whether and when something occurred, if relevant to the issues, I have made a determination on that particular fact.[12]The claimant started work for the respondent on 7 December 2020 as a Senior Business Development Manager. I understand that title to be a generic job title and there are a number of other descriptions of his post. Amongst others, he was referred to as an “Enterprise Account Executive.” In essence, he was a salesman and there were a number of different titles which appear to attach to sales people at different levels.[13]The respondent is part of a large company structure. This particular part, the company for whom the claimant worked, is, Honeywell Control Systems Limited. As I understand it, at least part of the business that the claimant was concerned with was in relation to software solutions which were related to access to buildings. The claimant was placed within what was known as Honeywell Connected Enterprise and from some of the documents I have seen it appears to be a substantial organisation. The respondent company, on one of the documents prepared for the redundancy process, suggested employees of around 3,400. Honeywell have a large presence and multiple contracts with substantial customers both nationally and internationally.[14]The claimant’s first post was in a part of the business known as “Forge” and in November 2021, a redundancy process was started in that part of the business. The claimant says that all seven direct sellers were placed at risk of redundancy, but I have not got very clear evidence on that because when I looked through the notes when I was drafting this judgment, there is reference to four direct sellers and possibly two being retained. In any event, it matters not greatly because the claimant was put at risk of redundancy. A similar but slightly different process to the one we will come to was followed in 2021 save for a relatively important difference which is the claimant was moved without interview to the “Sine” part of the business, primarily as a direct seller.[15]The claimant did have some clients with whom he had been working in the Forge business and it was agreed he could continue to work with them when he transferred to Sine. Some of these might well have amounted to channel business clients.[16]The claimant raises some other differences between the 2021 process and that, which we come to in 2023, about getting the notes of meetings and so on, but they are relatively minor differences.[17]It is worth saying here that I have heard quite a lot of evidence over the last few days about whether the claimant was involved in direct selling or what he called “hybrid selling” which included the channel business side.[18]Direct selling, as I understand it, means that the sales person, in this case, the claimant, would deal directly with the external company in trying to get business for the Sine product. Channel business is defined as referring to and working with other parts of the respondent’s business, including Forge, where the claimant had previously worked, and they would be involved in the negotiations and possibly the deals.[19]The respondent’s case is that the claimant was a direct seller. The claimant’s case is that he, and other people in his team, who are Mr Singh and Mr Rubick, were what he called “hybrid sellers.” Mr Singh and Mr Rubick had different job titles but appeared to be working in a similar way to the claimant. I find that the claimant was primarily a direct seller for the respondent but that he did carry out some work in the channel side of the business. There is considerable evidence of this from the claimant for the work that he did with a company called Globalworth in 2022 but, primarily, the post that he was expected to carry out was that of direct selling.[20]Mr McCann joined the Sine part of the business in February 2022, and it is not disputed that he was exclusively to deal with channel business. His job title was Principal Channel Sales Representative, and the claimant is not disputing that was his post.[21]The respondent has a sales incentive plan known as “SIP” which, on the face of it at least, over the period in question, was reviewed annually. A broad outline of SIP is set out in the terms and conditions which were sent to the claimant to the claimant at the commencement of his employment. This appears at page 48 of the bundle. This is headed – “Bonus and inventive schemes”, and it reads: “In accordance with the applicable Company policies, you are entitled to participate in an approved Honeywell Sales Incentive Plan. Your on plan incentive target will be 67% of your annual basic salary. Please note your incentive percentage can vary according to your personal and business performance. Your first year payment will be pro-rated based on your period of eligibility. The targets are reviewed periodically. Full details of the scheme including financial targets and personable objectives will be provided to you by your manager when you join the company. The company reserves the right to change or discontinue the incentive scheme at any time.”[22]As understand it, in 2022, the SIP included credit for deals on both channel and direct sales.[23]Also, during 2022, the claimant’s performance and development summary which had been completed by his line manager, Mr Anderson, and seen by him, indicates a below standard performance by the claimant. One extract of it reads, “For the year closed 14 deals for a total of $30k as an enterprise seller this is unacceptable”. The claimant responded to this review providing explanations for the performance as did his colleague, Mr Singh, expanding what they believed were the many factors causing this poor sales position. They suggested a rethink on the strategy needed. That appears at page 60.[24]The respondent provided sales people with a document entitled “Quota Acknowledgement Form” which we referred to as “QAF” during this hearing, for the year. This sets out the objectives and targets for the various sales people and, indeed, I saw one for the claimant in the bundle for 2022. This is connected to the Sales Incentive Plan.[25]Mr Dahms’ evidence was that those who might be entitled to a SIP bonus for any deal would need to be agreed before the deals were concluded to avoid difficulties and disputes later. There could sometimes be more than one salesperson involved in negotiating a deal, especially with the more complicated deals as we will see with Globalworth. There is no doubt that the claimant did some work on the proposed deal with Globalworth which I find was being led by Xavier Bignon who was based in Forge. He also helped, to a very limited extent, in early 2023. The claimant did assist Xavier Bignon in 2022 particularly with Globalworth Romania and a document was sent with a quote to the lead person of Globalworth Romania towards the end of the year of 2022, for the sum of €450,000. Unfortunately, a deal could not be completed within the year (page 94), with the lead person in Romania saying around the end of December that more needed to be done. As I understand it though, other negotiations continued with Globalworth over different aspects of what later became a much larger contract.[26]Going into 2023, the respondent’s Leadership Team had decided to embark on a redundancy programme, primarily because they had decided to close the direct selling part of the Sine part of the business. The claimant was spoken to either on 19 or 20 January 2023 where he was warned about this. He was sent an atrisk letter and the other two people in his department, Mr Singh and Mr Rubick, were also warned that this might become a redundancy situation.[27]There were then a series of consultation meetings. They began on 23 January. Short notes were taken of those meetings. They were not provided to the claimant at the time, but he did get them later.[28]The claimant was, at that first meeting on 23 January, shown a PowerPoint presentation. That starts at page 206 of the bundle. It might be worth reading some of the extracts from it. We have agreed that on some occasions some of the language used is not particularly easy for those of us not involved in selling software to understand. At page 209, it is headed “Business Situation”. At the first bullet point it says: “Current challenges business is facing.• Challenging market conditions including high labor costs and slower customer spending.• Reinvest in the business and create more efficiencies.• Sales model between HCE and our SBG partners has been duplicative and insufficient.• Continuing to adjust product development spend to reduce in areas where profits are not achieving expected results and reinvest in other areas with potential.” There is then a reference to what is working across the business.[29]On the next page a section under “PROPOSED CHANGES”, is full of acronyms and initialisms so is a little difficult for those of us without detailed knowledge of the work of the respondent. In any event, it says the following: “• Restructuring the HCE CBLD Cyber and HCI Sales Organisations to improve Honeywell Sales Team enablement and effectiveness.• Enabling HCE sellers to right size Channel sales. Enterprise outcome based solutions and NPI’s.• Segment sales strategy introduction that leverages the full portfolio (HBT, HBSH, CIC, LBD and Cyber) by working collaboratively across SBGs.”[30]There is then a heading “What does this mean,” and it says:• “Your role is at risk of redundancy.• We will now enter a 30-day consultation”[31]The three people said to be affected were the three sales people at Bracknell in the UK. I completely agree with Mr Ross that that is not the most user-friendly way of describing the difficulties that the respondent say this part of the business was in, but I do believe that the claimant did understand what was being said as this was his day-to-day work. Whilst that jargon is problematic for me and others separate from the business to understand, I think it is clear from that that the claimant understood that there was to be concentration on channel business and that the three people identified were those not thought to be involved primarily, in that element of the business.[32]In any event, there was a discussion on 23 January and we looked at those notes. My understanding is he raises no serious difficulties about the accuracy of those notes.[33]One of the things that was discussed was what the claimant was thinking about alternative employment. So, the note on page 105 records that the claimant “presented their career map looking for mix of sales and strategy”. It then goes on to indicate that he had found potential roles in the UK and the US, and that Ms Mitchell would link in with TA, (which I understand to be Talent Acquisition) on these. It is recorded that Mr King said there was a focus on North America and that that would be TBC (to be confirmed). It says that the claimant said he would like to remain in Sine and that he was also open to other roles abroad. There was really nowhere that I can see in these notes that the claimant disputed the essence of the redundancy decision, which is the decision to close the Sine direct selling part of the business.[34]In any event, there was a further consultation meeting on 1 February 2023 with Mr King. Again, Ms Mitchell said she had spoken to TA. Then there were further consultation meetings on 9 and 22 February. Mr King was at that point the claimant’s line manager’s line manager, that is Mr Anderson’s line manager.[35]The claimant believes that there was a discussion about the Globalworth deal in these meetings. That is certainly not recorded although there is some discussion about whether the claimant would get any SIP to which he was entitled and that was confirmed.[36]What had happened earlier in 2023 is that a new SIP had been produced. That is at page 243. That stated that payments would only be made, as far as the claimant’s post was concerned, for what was said to be “direct sales and account expansion only.”[37]During this period, this is early 2023, the Globalworth deal was progressing and by the end of March 2023 a deal had been reached which I understand was in the region of £1.6 million, or possibly more. It included, as I understand it, the element that the claimant had been involved in in 2022 with the Romanian part of Globalworth, but clearly was a much larger deal. This was a deal which was carried out through Forge and was therefore a channel deal.[38]The claimant argues that he would be entitled to a SIP payment because it qualified as account expansion because he believed that he had been successful in negotiating the Romanian part of the deal. I find that this is not within the definition of an account expansion. There was no concluded deal in 2022 and, in any event, the opportunity was really through Mr Bignon who was in Forge and, by then, the SIP plan had changed in 2023 as far as the claimant was concerned.[39]The claimant was sent confirmation of his redundancy on 5 May, and he was told at that point that it would be terminated on 12 May. There had also been an earlier letter in March which had confirmed his redundancy. The end date was later extended to 19 May.[40]Before the end of his employment the claimant applied for another sales post entitled “Enterprise Sales Leader”. The description of this job starts to appear at page 213 of the bundle. I have to say I have some difficulty reading this to understand exactly what the job involved but I have no doubt that the claimant did understand it.[41]Mr King encouraged the claimant with respect to this post and said he would speak to colleagues about considering him for open positions (page 144). The post was within Forge.[42]Mr Dahms was the person leading on this recruitment. He spoke to the claimant about the role in April 2023 and was aware that the claimant was facing redundancy. In Mr Dahms’ words, the post was a similar post to the one the claimant had been carrying out in Sine, but he said it was a higher value role.[43]The claimant was to be interviewed for this role and, for that purpose, he provided a case study which I have seen in the bundle. In summary, Mr Dahms was unimpressed by the claimant’s performance at interview and the contents of the case study which was on PowerPoint. Mr Dahms’ evidence was that he felt he had to interrupt the claimant as he was presenting the case study because it contained historic references to selling software and to companies with whom the respondent was no longer doing business. Mr Dahms suggested to the claimant that he should speak to Mr Bignon, and somebody called Mr Finlay, about this post and arranged for a panel interview even though he was unsure about the suitability of the claimant for the post. In his view, the claimant did not understand the current direction of the business. Mr Dahms’ evidence, which I accept, was that after the claimant attended the panel interview, they were also of that view.[44]There was then a 30-minute phone call between Mr Dahms and the claimant. The claimant’s evidence is that at the commencement of that call he was offered the role. Mr Dahms’ evidence was that he did not offer him the role. When the claimant gave evidence about this he was unable to remember the words that were used but said he definitely was offered the role and that when they went on to discuss other matters of selling and, in particular, the claimant’s ability to close deals. This part, about the claimant’s ability to close deals, appears on a part of the transcript from that discussion. I should say that this transcript was one prepared by the claimant from a covert recording that he made. He said that had trouble with his phone, so he was only able to show this part. So, there is no other evidence that Mr Dahms offered the claimant the role. Indeed, he said that if he had offered the role he would have had to have authority for it and he would have added the details about the salary and the date of commencement and so on.[45]I find that Mr Dahms did not offer the claimant the role during the course of that telephone call. It would be inconsistent with the evidence he gave which I accept about not being impressed with the claimant during the course of the interview. The claimant’s evidence was also vague with respect to the words used.[46]The claimant found out that in fact he had not been offered that post only a couple of days later, but remains of the view that he had been offered it and that it had been withdrawn.[47]That meant that the claimant did not have a post to go to and he put in an appeal against the redundancy which started the appeal process. The appeal is at page 164 which begins with some history and then more details. He states why he thinks the process was unfair including that targets were set so that he and his colleagues were bound to fail. He asks questions about why not all of the four people in the team, including Mr McCann, were put at risk of redundancy, and pointed out that he had not been interviewed when he moved from Forge to Sine in 2021 in a similar redundancy process.[48]There are further details of the claimant’s concerns about matters and communications sent to the Executive Team which appears at 192 of the bundle, but it repeats many of these things. Of course, one of the other things which was concerning the claimant and took up some of the time in his communications was whether he was going to receive a bonus through the SIP process for the 2023 Globalworth deal.[49]In any event, Mr Rogers was appointed to hear the appeal. The notes of the HR person appear at page 201 of the bundle. The appeal hearing with the claimant, Mr Rogers and HR was on 16 June 2023. A number of matters were raised there. They included why the claimant was interviewed for an alternative post in 2023 as compared to 2021. Again, why not all four people put at risk and his concerns about not being given a bonus for the Globalworth deal. He pointed out that he had worked on it with Mr Bignon. He also raised an issue about being removed from Salesforce which I will come to.[50]When he was asked about when the Globalworth deal was signed/closed, the claimant replied, “Was created last year signed in March of 2023.” He also said that Mr King had said he would be paid, implying for that deal.[51]At the end of the appeal hearing, Mr Rogers spoke to Mr King and to a Mr Jackson, who I understand was a senior manager who had responsibility, or at least knowledge of, the SIP processes. Notes of those discussions appear in the bundle at 234 and 235. Mr Rogers spoke to other people and there are no notes of those. In summary, as I understand it, Mr Jackson said that anyone who expected to be eligible for SIP credit had to be signed to it, (page 235). I take it that means before the deal is closed.[52]Mr Rogers sent an outcome appeal letter on 10 August 2023. He understood the appeal grounds to be as below. These are similar but not exactly the same matters as the ones with which we are concerned at this hearing. At page 238 he summarised them as follows: “1. You feel that “the redundancy was put in place because the business didn’t want to pay out on (your) SIP plan”. 2. You wished to challenge the amount of SIP paid out to you specifically that you have not received all that you believe you were entitled to. 3. You believe that you should have been automatically offered the role of Sales Leader-Smart Building within Nathan Dahms’ Team as a suitable alternative to redundancy. You believe that failure to do so by the business has rendered your termination by way of redundancy as an unfair dismissal.”[53]Mr Rogers then set out what he had considered by way of documentation and the various people that he spoke to and then gave some conclusions.[54]As far as the question about what Mr Rogers was considering with respect to redundancy, he finds as follows. This is at the bottom of page 239: “To conclude I can find no evidence to support your allegation the decision to make your role redundant was “because of the business didn’t want to pay out on your SIP plan.” The business rationale was presented to you on 19/01/23 and when you were asked if you had any specific questions regarding the proposal of the redundancy you did not ask us any further questions nor challenge the rationale that had originally been shared to you.”[55]As far as the question of the SIP payment was concerned, and this is towards the top of page 241, Mr Rogers says this: “In conclusion I feel Honeywell has been generous is proving a SIP payment for Globalworth even though it did not qualify in the 2023 plan. The opportunity was closed at the end of March in 2023 as part of a wider Honeywell opportunity. I understand the value of the payment was made to represent the Romanian portion of the deal which was closed at the time. This relates to an offer which had been made which the claimant did not accept.[56]Mr Rogers findings was that: “The opportunity was led by the Forge Team and thus would not meet the 2023 SIP plan criteria. I see no evidence of you being unfairly treated. But I do note that the response time to you in confirming the calculation rationale was too long.”[57]Finally, with respect to the question of the alternative role, this is at the top of page 242, Mr Rogers concludes: “I find the process of application and interview was fair given the circumstances of your performance and individual development areas, and that your final rejection was based on your failure to present and/or demonstrate sufficient business development skills during the interview process. I do not uphold your claim that by failing to give you the role automatically and as a suitable alternative to redundancy that your termination has resulted in an unfair dismissal, as I find the actions by the business to have been proportionate and reasonable given the business critical role within the Sales Team and the need for any successful individual to not require additional coaching/development of BD skills.”[58]Of course, as I have indicated, my considerations are different, partly because the case is put on a slightly different basis, but some of the things which Mr Rogers looked at are relevant to my determinations, not least because the claimant is, of course, entitled to an appeal process when he is facing dismissal or has been dismissed.[59]The claimant compares what happened to him to Mr Rubick. Mr Rubick is, as I understand it, white, whereas the other member of the team, Mr Singh, and the claimant are described as Asian. All three were put at risk. Mr Rubick applied for a role called “Inside Sales”. The claimant did not apply for that role. The claimant’s evidence was that he was unaware of the role, but I find that he had access to the vacancies and there was no suggestion that this did not appear in any vacancies list. The notes of the consultation meeting suggest the claimant had, himself, looked at the vacancies although there is no direct mention of this particular role. As I understand it, it is a more junior role in any event. But what we do not know is whether the claimant decided not to apply for it or whether it was overlooked by him. In any event, Mr Rubick was not made redundant because he was successful in securing that role.[60]One of the other matters that the claimant has raised was the question of the QAF. Mr McCann’s QAF, which is in the bundle, was received by him it seems on 16 March 2023. The claimant complains, and complained at the time, that he did not have his form. The evidence is that none of the three people who were at risk of redundancy got such a form because the respondent had decided to cease direct sales in Sine. I find that that is an accurate reflection of the reason for the claimant not receiving a QAF. It has no connection to his race.[61]As far as the Sales Force question is concerned, as I understand it, this is an entry on the respondent’s computer system on page 248 of the bundle and it occurred between January to March 2023. There is no doubt that the opportunity owner for Gloabalworth is Mr Bignon as we have previously said, but Mr King acknowledges that he asked for his name to be changed to Mr McCann and it was then changed to Mr Bignon. The claimant was named as part of the “Opportunity Team”. There is no evidence that the claimant’s name was removed and I cannot find that the information contained in that document amounted to a detriment, nor was it because of his race.[62]The only other thing to mention, although I am not sure that it falls squarely within our list of issues, but I mention it for completeness because the claimant mentioned it, is that after his employment ceased there was some concern about whether he would receive his notice pay. Ms Mitchell mistakenly told him that he would not if he did not sign a settlement agreement. That was incorrect, and he did later receive that payment. The law and submissions[63]The representatives agree what the legal tests are for these claims. I summarise them now.[64]The unfair dismissal claim is governed by the Employment Rights Act 1996 (ERA). The definition of redundancy appears in section 139, the relevant part of which reads: “(1) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to-(a) –(b) The fact that the requirements of that business- (i) For employees to carry out work of a particular kind, or (ii) – have ceased or diminished or are expected to cease or diminish”[65]It is for the respondent to prove the reason for dismissal and that it is a potentially fair one. Redundancy is a potentially fair reason for dismissal. If the respondent does prove the reasons, I must apply section 98(4) ERA which reads: “….where the employer has fulfilled the requirements of subsection (1), 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”.[66]In redundancy dismissals, there are common considerations such as whether there was sufficient warning of potential redundancy; whether there was sufficient consultation and consideration of suitable alternative employment.[67]The race discrimination claim is governed by the Equality Act 2010 (EQA). This is direct discrimination claim under Section 13 EQA which reads: “(1)A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”.[68]Section 136 EQA provides that the primary burden is on the claimant to show facts from which I could conclude that discrimination had occurred because of race.[69]Section 23 EQA states there must be no material difference between the circumstances of the comparators. This applies where we have named comparators as we do in this matter.[70]Section 123 EQA provides for a three month time limit (plus any early conciliation extension) from the date of the act complained of. The tribunal must consider whether there is conduct extending over a period to bring the claim in time and, if not, whether it is just and equitable to extend time.[71]In essence, for all claims the tribunal must make findings of fact and then apply the correct tests. For the direct discrimination complaints, namely less favourable treatment contrary to section 13 EQA, I am mindful that it is unusual for there to be clear, overt evidence of direct discrimination and that it should consider matters in accordance with section 136 EQA. I accept the guidance of the Court of Appeal in Igen V Wong [2005] IRLR 258 which confirms that given by the EAT in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332, concerning when and how the burden of proof may shift to the respondent, as modified and clarified in other recent cases.[72]The test is: am I satisfied, on the balance of probabilities that this respondent treated this claimant less favourably than they treated or would have treated a white employee (or an employee from some other racial group). In this case the claimant has named actual comparators so I need to consider whether their circumstances are materially different.[73]I am also remined of the decision of Madarassy v Nomura International plc [2007] IRLR 246 that unfair treatment and a difference in race does not, on its own, necessarily show discriminatory treatment. If I am satisfied that the primary facts prove a difference in race and less favourable treatment, I proceed to the second stage. If the answer here is that I could so conclude, the burden shifts to the employer. I look to the employer for a credible, non-discriminatory explanation or reason for such less favourable treatment as has been proved. In the absence of such an explanation, proved to the tribunal’s satisfaction on the balance of probabilities, I will conclude that the less favourable treatment occurred on the grounds of the claimant’s race.[74]The claim for a SIP payment claim arises under section 13 ERA which prohibits unlawful deduction of wages. It may also arise as a breach of contract claim. This means I must consider whether the claimant is entitled under the contract to a payment he has not received. His claim relates to a bonus for the Globalworth deal.[75]I summarise below the submissions from the parties. There is little dispute between the representatives as to the tests to be applied. Both representatives remined me of the guidance in Williams v Compair Maxam Ltd [1982] IRLR 83 for the fairness or otherwise of redundancy dismissals. These are for there t be adequate warning, meaningful consultation, objective selection criteria, consideration of alternatives to redundancy and alternative employment.[76]I was also referred to Capita Hartshead Ltd v Byard [2012] IRLR 185 and mr Ross, for the claimant, provided with me a useful extract from that with respect to the pool for selection. Part of my responsibilities today are to consider the employer’s reasoning for who should be in a pool for redundancy and consider whether consultation is adequate.[77]Mr Ross submits that the claimant has established a legal entitlement to his claim for unlawful deduction of wages. He submits that I should find for the claimant. He submits that the respondent has failed to show a genuine redundancy situation, in particular, in view of the difficulty of understanding what was contained within the PowerPoint presentation. He also submits that the claimant was unfairly selected for redundancy and the claimant’s case was that he was not only in direct sales but carried out a large element of channel work and that there had been favouritism shown towards Mr McCann. Mr Ross submitted that there was a lack of meaningful consultation, there was no discussion of a less junior role and there was attention paid to performance issues which should not impact on a redundancy situation.[78]Finally, Mr Ross said in respect to unfair dismissal that the respondent had failed to consider alternatives properly; that an offered job had then been withdrawn and that the respondent should have considered moving the claimant to that job as they had done in 2021, as between Forge and Sine, and then in this case it would have been back between Sine and Forge.[79]As for the race discrimination claim, Mr Ross submitted that the dismissal of the claimant was because of his race; that the people who lost their jobs were Asian whereas the white person, in Mr Rubick, was retained as, of course, was Mr McCann. As far as the QAF form is concerned, Mr Ross suggested that it was detrimental treatment with racial undertones and the removal of the claimant from the Sales Force information was because Mr McCann is white whereas the claimant is Asian. Mr Ross suggested that the claimant had shown prima facie evidence of less favourable treatment.[80]As far as the unlawful deduction of wages claim is concerned, Mr Ross said that the claimant had been sufficiently involved in Globalworth both in 2022 and early 2023 to mean that he was entitled under the contract. He pointed out that Mr Bignon did not give evidence with respect to who was the opportunity leader and that the claimant is entitled to payment.[81]As far as the respondent is concerned, Ms Gyane agreed that the legal tests are not really in dispute. She did suggest that I should consider credibility when looking at the evidence and she submitted that the claimant’s evidence lacked credibility whereas the respondent’s witnesses did not. She submitted that the Equality Act claims, particularly those in relation to QAF and Sales Force, were out of time, they were not part of a continuing act, nor would it be just and equitable to extend time as there was no evidence of justice and equity in this case.[82]As far as the unfair dismissal claim was concerned, Ms Gyane submitted also that I should consider usefully Capita case and Williams v Compair Maxam as Mr Ross had. She submitted that the selection pool was reasonable because the claimant was a direct seller as were Mr Singh and Mr Rubick, whereas Mr McCann was the Channel Sales Representative. She submitted there was adequate warning and consultation and there was no unfairness in the search for alternative employment and the claimant has simply been unsuccessful in his interview for the post within the Forge team.[83]As far as the process is concerned, she says that the claimant’s concerns should not be accepted. He had the notes of the meetings when asked for them and there was no reason to follow the same process as there was in 2021.[84]She also points out under the Equality Act that the claimant’s comparators, under section 23, need to have no material difference and reminded me of the two stage test for finding of direct discrimination included in the case of Igen v Wong.[85]In conclusion, Ms Gyane said the claimant was made redundant because he was involved in direct sales in Sine and that was to cease and did, in fact, cease. All three people were put at risk of redundancy. There was no connection to race when Mr Rubick was successful in getting a role of Inside sales which the claimant did not apply for. That the comparators were not suitable comparators under the Equality Act. She believes that the claims in relation to the QAF and Sales Force as out of time and, in any event, are misconceived.
Conclusions
[86]I provide my conclusions by reference to the list of issues which we had agreed, save that I leave the time point until we get to the Equality Act claims. Issue 2.1[87]This is the question of what was the reason for dismissal. I am satisfied that the reason for the claimant’s dismissal was redundancy within the section 139 ERA definition and that has been made out by the respondent. I am satisfied the decision was made to cease direct selling in Sine and there is nothing to suggest to me that that was not an unreasonable decision given what appears to be the lack of sales in that particular area. There was a requirement for fewer people carrying out the role the claimant held. Indeed, there was a requirement for no one to carry out those direct sales. Although, as I have pointed out, we have not always been assisted by the language used by the respondent, there is no doubt in my mind that it was clear to the claimant what was happening. He knew and understood that that was the position.[88]For completeness, I should say that the decision to enter into a redundancy process had nothing to do with Globalworth, nor with the claimant’s SIP, not least because that deal was not completed when this redundancy process started. In any event, two other people were being put at risk of redundancy and it seems to make no sense that the respondent would undertake this process to avoid a SIP payment. The respondent has shown that the reason for the claimant’s dismissal was redundancy. Issue 2.2[89]I now move to consider fairness or otherwise. As indicated, there is a neutral burden here, so I just have to look at all the evidence that has been put in front of me. I remind myself, as the representatives have reminded me, that I should consider those general matters of warnings, consultation and alternative employment. But I note here also especially the concerns of the claimant, his wish for me to consider the different process used in 2021, and the question of the people who were selected for redundancy. From time to time, we have used the phrase “selection pool” but I am not quite sure that is correct because it was not that anybody was chosen from that pool but everybody in that pool were to be selected. Nobody was being chosen to remain from those three and all three people were placed at risk of redundancy. Mr McCann was not included as he was a channel salesperson which was, at that point, retained.[90]I am satisfied that the respondent was making a commercial decision to stop direct selling in Sine. The reasons given, and the explanation provided to the claimant were understood by him and related, in part, to the team’s poor performance although they were not necessarily at fault with respect to that aspect. That is a matter for the respondent to resolve and the decision the respondent took, which is not for me to judge as unreasonable, was that it would stop direct selling in Sine. It was not unreasonable to select all three people even if they did have some channel involvement, rather than including Mr McCann.[91]The respondent did not need to repeat the 2021 exercise. I can see how that might have led to some concerns on the claimant’s part, but my role is to see whether, overall, the process used was a fair or an unfair one, and comparing it with 2021, does not necessarily assist. I accept that what was done was reasonable in the circumstances of this case. The claimant was aware of the reasons for the redundancy; he was well aware of vacancies and there is evidence that he discussed some of the vacancies with Mr King and Ms Mitchell at consultation and that they both assisted him in relation to jobs that he had decided to apply for.[92]There are no real significant issues about the notes of the consultation not being sent to the claimant immediately after the meetings. Obviously that might be better practice, but I do not think it caused any significant detriment to him and, in any event, he does not really suggest there is anything that he complains about contained within those meetings save one matter which I will come to. I accept that they are brief notes, and it might be that fuller notes might have helped for the employee to understand and recall what has been said. But, as I have indicated, there is nothing of much significance that arises from the notes being supplied late. There were notes and there were meetings and the claimant, apart from one aspect, does not say anything different was said.[93]The one part where he does raise issues is that he seems to believe that there was some discussion about Globalworth and his SIP, a payment with respect to that. I accept that Mr King indicated that the claimant would be paid for any SIP he was entitled to up to the date of his termination, I do not accept that that included a reference directly to Globalworth. Clearly, the claimant is entitled to whatever sums he is entitled to under the arrangement which was in place at the time of his employment and at the end of it.[94]In all the circumstances, this was not an unfair process. As I have indicated, it is not necessarily perfect but I have to take a view over the overall process. I consider the process up to the end of his employment and including the appeal process, which is a fairly thorough process, meant the claimant was aware at all times of what was occurring, had an opportunity to comment, and was supported in his search for work within the business. It is not therefore an unfair dismissal. Issue 1.1[95]I turn to the a time limit point here which is only relevant for the direct discrimination claim. The problem is that the second and third allegations appear to be out of time particularly if they are taken alone. As I understand it, the time for delivery of the QAF would be sometime between January and March and the alteration to the Sales Force document is also between January to March. This would make them out of time in relation to the direct discrimination claim.[96]I have considered this and, on balance, I accept that they amount to conduct extending over a period. I note the claimant’s continuing concerns about payment under the SIP for the Globalworth contract, and how often he had raised that. So, it seems to me that it is either conduct extending over a period or, if I am wrong about that, I would consider it is just and equitable to extend time to allow me to consider those matters given that is so closely connected. Issue 4.1[97]So, I turn therefore to consider the questions under 4.1 which is whether the respondent had done the following things, and I do not think there is any dispute about that. There is no dispute the claimant was dismissed. There is no dispute that he did not get a QAF and Mr King accepts that he did give some instructions to change the Sales Force information (although I note the claimant was not “removed”).[98]I therefore consider whether the claimant has shown that these facts could show discrimination. That is, whether any or all of these matters amount to less favourable treatment. As I have indicated, he considers Mr Rubick and Mr McCann to be his comparators. I have to consider whether they are in similar material circumstances.[99]I look first at the dismissal. The claimant’s case is that Mr Rubick was retained. Of course that is correct. But Mr Rubick was also at risk and he applied for a job which he was successful in securing. That is the reason why he was not made redundant. I cannot find that that has any connection to race. If the claimant had applied for that job, there might be a different answer. But, at the moment, I cannot see that the claimant can show that it has any connection to his race. He has not shifted the burden of proof to the respondent but, even if he had, I would accept their explanation that Mr Rubick not being made redundant was without discrimination. He also complains that Mr McCann was retained and that is correct. I have found that is because he was the channel sales representative and had no connection to his or the claimant’s race.[100]As for the allegation about not receiving the QAF. As I understand it, the claimant must here compare himself to Mr McCann because the evidence is that Mr Rubick did not get a QAF either. Mr McCann is in materially different circumstances. He was the channel sales person and that part of the business was ongoing at that point. I understand it stopped at some point later, but, at that point, it was ongoing, and that is why Mr Mc Cann received his QAF. That is nothing to do with race. The claimant has not shifted the burden of proof to the respondent. Even if he had, I would be satisfied by the respondent’s explanation. In any event, as I have indicated, the claimant is in some difficulty here because Mr Singh and Mr Rubick did not get the QAF and that would further indicate that it had nothing to do with race.[101]Finally, the direct discrimination with respect to Sales Force question. As the facts show this again was nothing to do with the claimant’s race. The claimant was no longer involved at the same level with Globalworth when he was at risk of redundancy. I am not sure the basis upon which the claimant feels this is to his detriment in any event. He was never the Opportunity Leader; Mr Bignon was. The movement was between Mr King, Mr McCann and Mr Bignon. So, I am not entirely sure that I understand why he says that is a detriment. He was not removed but there as part of the Opportunity Team. In any event, I can find no evidence whatsoever that it is anything to do with the claimant’s race.[102]In summary, for the direct race discrimination, the claimant cannot show a prima facie case for any of the matters he raises and, even if he could, the respondent has shown non-discriminatory reasons for any difference in treatment. That means his race discrimination claim must fail. Issue 6.1[103]Finally, I address the question of whether he is entitled to anything for unlawful deduction of wages or breach of contract. This is issue 6.1.[104]I am afraid the claimant cannot show, the burden of proof resting on him, that he is entitled to any further payment under the SIP. He particularly asks for this in relation to the Globalworth contract. The deal was not closed at the end of 2022 and he can only show very limited involvement in 2023. Secondly, he was not the Opportunity Leader; it was a Forge deal with which he assisted the lead, Mr Bignon. Thirdly, the respondent is entitled to change the SIP and it did so at the beginning of 2023. That only allowed for SIP for direct sales or account extension. This was not a direct sale nor an account extension. Although the claimant rather belatedly tried to argue that it was an account extension, I accept that that is not what the respondent meant by that phrase, and I do not accept that he was entitled to anything under the 2023 SIP arrangements.[105]There is no need for me to answer any of the other question because they deal with remedy. But, in essence, the claimant cannot show that he is entitled to anything under his contract which is what he must show for a claim like this for a further SIP payment so that claim must also fail.[106]The claimant’s claims fail and are hereby dismissed. Approved by: