L Norton v SS&C Financial Services International Ltd: 6003974/2024
EMPLOYMENT TRIBUNALS
Case No 6003974/2024
Between
Leigh NortonClaimantSS&C Financial Services International LimitedRespondent
Before
Employment Judge S PoveyIn person for claimantMs Amesu (instructed by Counsel) for respondentDate 20 February 2025
REASONS
[1]The Claimant was employed by the Respondent as a Lead Application Packaging Specialist. His employment commenced on 1 July 2017 until his resignation, effective from 28 April 2024. By a claim presented to the Employment Tribunal (‘the Tribunal’) on 16 June 2024, the Claimant made complaints of constructive unfair dismissal and unpaid notice pay (wrongful dismissal). The claim was resisted in full by the Respondent.[2]The final hearing was conducted by video over three days at the Tribunal’s London East Hearing Centre.[3]During the hearing, I heard evidence from the Claimant and Mark Longhurst, a former colleague who had worked with for the Respondent until April 2020. For the Respondent, I heard evidence from the following employees: 3.1. Jon Whyman (Director of Citrix); 3.2. Sarah Rowe (Lead Employment Relations Partner); 3.3. Navdeep Dosanjh (Application Support Manager); 3.4. Eric Siemiatkaska (Director of Citrix Automation); 3.5. Ish Chattha (Citrix Engineering Manager).[4]The Claimant had also provided a witness statement from Elliot Bishop and an email from Simon Brown, in support of his case. However, neither attended the final hearing and as such their evidence was not tested. Similarly, the Respondent provided a witness statement for Syed Farid but he too did not attend the final hearing and his evidence was similarly not tested. I have afforded appropriate weight to their evidence, in light of the fact that it has not been attested nor capable of being challenged. That impacts the amount of weight that can be attached to it.[5]In contrast, the Respondent provided a witness statement for Shannon Forrest (Senior Systems Engineer), the contents of which were not challenged by the Claimant. As such, I treated his evidence as agreed and it was not necessary for him to attend the final hearing.[6]Each witness I heard from confirmed and adopted their respective statements.[7]I was provided with two paginated and indexed bundles of documents, from the Claimant (‘CB’) and the Respondent (‘RB’). I also received oral and written submissions from Ms Amesu for the Respondent and written submissions from the Claimant. I have taken the relevant evidence and the submissions into account in reaching my decisions.[8]The Claimant is a litigant in person. I took time to explain the process and procedures to him, checked his understanding, encouraged him to ask questions and gave him guidance throughout. I was satisfied that the Claimant was able to fully engage in the process and present his claim to the best of his abilities. Indeed, I was impressed by the Claimant’s clarity and focus, and the adept and professional manner in which he questioned the Respondent’s witnesses.[9]I was grateful to the Claimant, to Ms Amesu and to the Respondent’s solicitors for the assistance they provided and the work they undoubtedly undertook both before and during the hearing. I was also grateful to all witnesses including the Claimant who attended and answered the questions asked of them to the best of their recollections.[10]At outset of hearing, I confirmed with the parties that the issues for me to determine were as follows: 10.1. Was the Claimant’s resignation a dismissal, which required determination of the following: 10.1.1. Was the Respondent’s reorganisation of its business a fundamental breach of the Claimant’s contract of employment? 10.1.2. Did the Claimant resign in response to that breach? 10.1.3. Prior to resigning, did the Claimant affirm or waive that breach? 10.2. Was the Claimant entitled to payment in lieu of notice?[11]As alluded to, the complaints related to a reorganisation exercise begun by the Respondent in April 2024 which the Claimant alleged fundamentally breached his contract of employment, whether expressly or of the term of mutual trust and confidence implied into his (and every) contract of employment. Specifically, and as set out in his witness statement, the Claimant relied upon the following alleged breaches (at RB/452): 11.1. The removal of his role, responsibilities and authority in accordance with both the job description in his contract of employment and the work he undertook in practice during the course of his employment 11.2. Demoting him and undermining his Senior Manager status within the organisation[12]As a result, the Claimant said that he was entitled to treat his employment contract as repudiated, that is, at an end, which he did so by tendering his resignation on 28 April 2024.[13]If the Claimant was correct, then his resignation was, in law, a dismissal and an unfair one at that. It would also follow that, by resigning with immediate effect, the Claimant had unlawfully foregone his notice period and was entitled to be compensated for that (the wrongful dismissal complaint).[14]In contrast, the Respondent maintained that the reorganisation did not breach the Claimant’s contract of employment, whether fundamentally or at all, whether of an express or implied term. If the Respondent was correct, there was no dismissal, there could be no complaint of unfair dismissal and the Claimant was not entitled to any notice from the Respondent or payment in lieu (as the Respondent had not terminated the Claimant’s employment).[15]I found that all witnesses I heard from tried to assist the Tribunal to the best of their abilities. However, there were a number of factual disputes between the Claimant and the Respondent’s witnesses which I had to resolve. That is one of my role and I did so based upon the evidence provided. The applicable law Constructive unfair dismissal
The applicable law
[16]An employee is dismissed where he “terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct” (per section 95(1)(c) of the Employment Rights Act 1996).[17]The phrase "constructive dismissal" is not referred to in the Employment Rights Act 1996, but is "a colloquial label for a repudiatory breach of contract by the employer which is accepted by the employee, bringing the contract to an end" (per Elsevier Ltd v Munro [2014] EWHC 2648 (QB)).[18]The fact that the Claimant disagreed with some or all of what the Respondent did or did not do is not enough to establish a breach of contract, still less a fundamental breach. What is required is evidence that the Respondent has committed a repudiatory breach of contract, classically described by Lord Denning MR in Western Excavating (ECC) Ltd v Sharp 1978 ICR 221, CA, as follows: If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed.[19]Implied into every employment contract is the term of mutual trust and confidence between employer and employee. Due to the nature of the trust and confidence term, every breach of it goes to the root of the contract and is therefore repudiatory (per Morrow v Safeway Stores [2002] IRLR 9).[20]Whether or not the Respondent acted in a manner that fundamentally breached the Claimant’s contract of employment (such that he was entitled to resign and claim to have been dismissed) is to be judged objectively, having regard to the evidence. The fact that the Claimant believes his contract was breached does not mean that it was, no matter how strongly that view is held. Similarly, the fact that the Respondent did not intend to breach the contract of employment is irrelevant.[21]The Claimant must resign because of the breach and must not delay too long, as he will be deemed to have affirmed or waived the breach (that is, signalled his acceptance in law that the contract is continuing) and lose the right to claim constructive dismissal. Breach of contract/wrongful dismissal[22]Employment tribunals in England and Wales were given power to deal with breach of contract claims by the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 (“the 1994 Order”).[23]The jurisdiction under the 1994 Order only applies to breaches of contract outstanding on the termination of employment, so current employees cannot claim and the Tribunal cannot deal with breaches occurring after termination.[24]Section 86 of the Employment Rights Act 1996 affords minimum rights of notice to employees where their employer terminates their contract of employment. The length of any such notice is determined by the employee’s period of continuous employment with their employer. Any failure by the employer to give correct notice constitutes a breach of the employee’s contract of employment (known as wrongful dismissal), save where either the employee waives his rights to, or accepts payments in lieu of, notice.[25]Section 86(6) of the Employment Rights Act 1996 states as follows: This section does not affect any right of either party to a contract of employment to treat the contract as terminable without notice by reason of the conduct of the other party. Findings of fact The Claimant’s role
Findings of fact
[26]The Respondent specialises in information technology service activities and data processing, hosting and related activities (per Paragraph 3 of its Grounds of Resistance, at RB/33). The Respondent utilised a cloud-based IT platform called Citrix. The Claimant was employed as Lead Application Packaging Specialist, delivering applications to Citrix desktops (for use by those of the Respondent’s employees who used Citrix).[27]An aspect of the Claimant’s case was premised upon his assertion that he was a senior manager and that his role as such was undermined and demoted by the Respondent. The Respondent denied that the Claimant was ever employed as or considered to be a senior manager.[28]The Claimant’s employment began on 1 July 2017. His statement of terms and conditions of employment (which the Claimant accepted by signing on 31 May 2017) included the following relevant terms (at RB/38): 2. Job title, Grade and Duties You are employed as a Lead Application Packaging Specialist. This is a Grade F role within the Company’s internal structure. You shall, if reasonably required to do so by the Company, perform duties for and on behalf of any associated company, perform other jobs at similar levels within the Company or any associated company or transfer to other subsidiary or associated companies. … 12. Notice of Termination At the end of a successful probationary period the period of notice will be three months on either side. On resigning, notice must always be given in writing to your department head. …[29]Later in 2017, the Respondent changed its job grading system, wherein posts were classified by one of three tracks – Leadership, Professional and Support. The Claimant’s post was recategorized under this system as grade P3 – Senior Specialist (the P designating the Professional Track). He was not placed in the Leadership Track (whose sub-heading was managers of people per the Career Framework at RB/163) nor was he placed in the Support Track. However, it was not materially in issue that aspects of the Claimant’s role included management and support services. He headed up the Applications Packaging Team and some of their work included providing support to customers. Indeed, the competencies for P3 included the following (at RB/165):• Leads projects with moderate scope, risks, and resource requirements• Acts as a resource for colleagues with less experience[30]Whatever the Claimant’s complaints might be now about the changes to the grading system and job titles undertaken in 2017, he continued to work for the Respondent, raised no formal grievance or complaint and continued to undertake his duties as per his contract of employment. To that end, the Claimant must be taken in law to have affirmed what were in reality variations to his contract of employment (albeit variations of a limited nature, since there was no change to the Claimant’s salary or role following the overhaul of the grading system).[31]In particular, there was insufficient evidence that the Claimant was considered by the Respondent at this time to be a Senior Manager (which, under the 2017 regrading exercise was one of the proposed titles for Grade F managerial staff, per RB/169). Rather, there was clear evidence from the regrading structure and the subsequent correspondence that the Claimant, as a Grade F Lead Specialist became a P3 Senior Specialist (per RB/170, and also the Respondent’s organismal table at [RB/231 and the Claimant’s employee profile at RB/232 – 233).[32]Indeed, the Claimant’s job profile summary until his employment ended was as follows (at RB/233): Performs installation, configuration, administration, technical support, trouble shooting assistance, and tuning of software application products. Develops and tests new hardware and software and determines their feasibility within the company Has working knowledge of the hardware platform, operating system, network, database system and programming principles Career level professional leading small, moderately complex projects or working on complex tasks that require a high degree of Judgement, resourcefulness, and self initiative. Demonstrates specialized expertise to evaluate wide-ranging and complex issues and develop creative solutions Recommends new procedures Minimally requires a Master's degree and 1 years of related experience, bachelor's degree and 3 years of related experience, or high school degree and 5 years of related experience.[33]This was relevant because the Claimant maintained that he had senior manager status, which was taken away from him by the wider restructuring which began in April 2024. Save for one reference to the Claimant as a senior manager by Mr Longhurst in June 2017, which was before his employment began and related to a request for a car parking permit (at CB/2), there was no other documentary evidence where the Respondent referred to the Claimant as a senior manager.[34]The only other evidence highlighted by the Claimant was where he identified himself in his 2018 appraisal under the section titled “Act with clear sense of ownership” (at CB/21): As owner of one of the EUC core services I take responsibility for standards, processes and training.[35]In the alternative, the Claimant said that the work he undertook in his role was akin to that of a senior manager, notwithstanding his job title, his job profile summary and his grading (as P, for Professional, rather than L, for leadership). However, there was again a lack of evidence to support that contention or belief.[36]Mr Longhurst’s evidence was that in recruiting the Claimant (at RB/482): I outlined additional responsibilities such as leading a diverse team of packagers, mentoring and training junior members, and presenting strategy at a senior level. … Observing [the Claimant’s] development, he achieved the SLII S4 Leadership style, effectively delegating tasks while maintaining integrity, empathy, and a supportive team structure.[37]There was also reference by Mr Longhurst to the Claimant being involved in recruiting to the Applications Packaging Team.[38]There was an obvious limitation to Mr Longhurst’s evidence. He left the Respondent’s employment in April 2020 and had no first-hand knowledge of the Claimant’s role or working practices nor of the Respondent’s structure or proposals beyond that date.[39]In his oral evidence, the Claimant accepted that his role was more professional orientated but claimed that it encompassed leadership aspects. In his witness statement, the Claimant maintained that he was a senior manager, although he also accepted that he did not challenge his job title, his job profile summary or the organisational structure that he was aware of prior to April 2024.[40]In all aspects, the job title, job profile summary and organisational structures recorded the Claimant’s role as technical specialist, not senior manager. Mr Longhurst was, in effect, expressing his opinion on the Claimant’s managerial and leadership abilities. That opinion was based upon his experiences of working with the Claimant between July 2017 and April 2020. It was also an opinion, not a statement of the Claimant’s position within the Respondent or his role or his terms and conditions. It was properly read as an assessment of the Claimant’s skills as a leader, developed over the period he was being managed by Mr Longhurst.[41]That, with respect, was materially different to a suggestion that the Claimant was employed in a senior managerial capacity or that his employment contract had been varied by reason of custom and practice to entail senior management responsibilities. It was also, with no criticism intended, the opinion of a line manager at a distance of four years and with no experience of working with the Claimant or for the Respondent since April 2020.[42]In conclusion, whatever the Claimant may have believed his role was within the Respondent, it was not one of senior manager. He was undoubtedly a technical expert, who had some leadership elements to his role, as would be expected of a technical expert working with less experienced and less qualified colleagues and as would be expected of a technical expert responsible for delivering discrete projects. The April 2024 restructure[43]At the relevant time, the head of the Respondent’s Citrix department (and the Claimant’s line manager) was Mr Whyman. As he explained in his evidence, the Citrix department had two distinct teams. One team dealt with the infrastructure of Citrix (within which the Claimant led the Applications Packaging Team). The other team provided support to the Respondent’s employees who used Citrix.[44]The Respondent is a global business, with employees and clients worldwide. Broadly speaking, it’s functions, organisation and management were split between the UK, the US and Asia Pacific. There were corresponding regional Citrix support teams.[45]The Respondent decided to restructure the Citrix team, to “create a global IT support model in the Citrix team. The structure of the team needed to be changed to ensure [the Respondent] had a system to control the global support requests as they came in”” (per Paragraph 7 of Mr Whyman’s witness statement, at RB/490). In his oral evidence, Mr Whyman explained that the aim was to get a common set of processes and standards across all regions in respect of the support teams. In addition, he explained that at the same time as the announcement of the restructuring, the UK region was undergoing a complex technical migration which had generated a large increase in the support work being undertaken by the Citrix team.[46]The first stage of that restructure was announced by Mr Whyman to the Citrix team in a meeting on 2 April 2024 (at RB/44 – 46)[47]The Claimant did not attend the meeting on 2 April 2024, as he was on leave. However, he had been given some indication of the restructure by Mr Whyman in advance, per his witness statement at Paragraph 15 (at RB/457): Early in 2024, Jon Whyman said that he wanted to organise the team into three regions (US, UK and Asia Pacific), in order to provide 24x7 cover for the service. He canvassed the global team for volunteers to become local managers. I did not put myself forward for this as I was only interested in managing the application delivery element of the service.[48]The role referred to by the Claimant (known as support lead or support manager) was explained in more detail by Mr Whyman in his witness statement (Paragraph 8, at RB/491): The role is a coordinator role, the support lead would manage the ticket queue and ensure tickets were being resolved. I offered the role to everyone in my team and asked if anyone was interested in taking on this role. [The Claimant] was included within these conversations and had the chance to take on this role. However despite offering the role to everyone in my team, no one was interested, including [the Claimant], so I reached out to [Mr Dosanjh] who was being brought into the Citrix team from one of the Respondent’s business units, FMG. [Mr Dosanjh] was selected because he was willing to do the job and was organised…[49]Mr Whyman also explained the rationale for the support lead/manager role within the proposed first stage of the restructure (Paragraph 7 of his witness statement, at RB/490): The intention was to have a support manager and three support leads in each region that could allocate the support requests as they came in. My focus was to organise the structure of the support function of the team first as it was the bigger section of my team and the more important section of my team. Support section of the team was bigger and more important because we had to ensure that there was a support model in place to ensure that any issues that the employees of the company were having with Citrix desktops or the applications provided in those desktops were being resolved efficiently and quickly. I was then going to address the structure of the smaller engineering and packaging sections of the team. I was not worrying about the wider structure of the team at that point.[50]Mr Whyman explained how the restructure impacted upon the Claimant’s role (Paragraph 10 of his witness statement, at RB/491-492): We were only sorting out the structure of the support function within my team at this point and ensuring that there was an adequate structure in place for support requests to be escalated and managed. At no point was it ever discussed or even considered that [the Claimant’s] job and pay was to change. [The Claimant’s] job and pay was to remain the same and he would be dealing with the same issues in the support team he had always handled and would still be responsible for the UK application packaging team[51]The Claimant subsequently viewed a recording of the meeting of 2 April 2024 upon his return from leave (on or around 12 April 2024). In his written evidence, the Claimant noted the following from the recording of the meeting of 2 April 2024 (Paragraph 18 of his witness statement, at RB/457): During this meeting, the roles of technical leads and managers of various levels in the new structure were described. Neither my name nor the application packaging function were mentioned.[52]The Claimant was concerned by the organisational structure which had been shared in the meeting of 2 April 2024 (RB/234), which he summarised as follows (Paragraph 18 of his witness statement, at RB/457): I appeared in the organisation chart three to four levels below Jon Whyman with Eric Siemiatkaska, Ish Chattha and Navdeep Dosanjh inserted between Jon and myself. Previously I had been one level below Jon. I believed Eric to be of a similar level of seniority to myself. Ish and Navdeep were both junior to me. I perceived this to be a serious demotion and deeply undermining. The Application Packaging function was no longer shown as a separate service on the organisation chart, which it had always been since my employment commenced. These things made me feel that the importance and impact of my role and the importance of the application packaging service in the delivery of the overall Citrix solution was neither understood nor appreciated. As the senior manager with operational responsibility for the Application Packaging service, I found this deeply concerning. I did not know which aspects, if any, of my role would be retained.[53]The Claimant and Mr Whyman had a number of informal meetings in the following days. In addition, and in his role as Application Support Manager, Mr Dosanjh began assigning support tickets to the Claimant. The Claimant also attended meetings with US team members on 25 and 26 April 2024.[54]It was clear from the evidence that support tickets were not only being assigned to the Claimant. There was a concerted effort to clear the backlog of support tickets which had built up. As explained by both Mr Chattha and Mr Dosanjh, support tickets were being assigned across the organisation, as clearing the backlog was a priority at this time. The Claimant was assigned support tickets as part of this process (since an element of his role involved support). Both Mr Chattha and Mr Dosanjh confirmed that there was no compulsion on the Claimant to undertake or resolve the support tickets. Rather, the organisation needed help in clearing the backlog and was seeking assistance from all members of the team.[55]Indeed, their recollections were that, despite assigning support tickets to the Claimant, he was unable to assist as he was too busy with his other work. Mr Dosanjh recalled the Claimant informing that he “did not have the bandwidth to take care of” the assigned tickets. Mr Chattha recalled being informed by Mr Dosanjh that the Claimant was not attending team meetings about the support tickets. Mr Chattha was also clear that at no time was the Claimant asked to drop his current work and focus on support tickets. Rather, he was being asked, like others, to lend a hand in clearing the backlog.[56]As part of the planning process, Mr Whyman had suggested to Mr Siemiatkaska that the Claimant was “in charge of application and packaging in the UK” and “a good resource for us to leverage so we could create a unified global team” (per Paragraph 6 of Mr Siemiatkaska’s witness statement, at RB/501).[57]As such, the Claimant was invited to attend meetings with Mr Siemiatkaska, Mr Farid and Mr Forrest on 25 and 26 April 2024. According to Mr Forrest (whose evidence was not challenged), “[W]e were in the process of bringing [the Claimant] into the discussions of where we wanted to lead our overall global packaging process and design for the global citrix team” (per Paragraph 5 of Mr Shannon’s witness statement, at RB/505). That was consistent with Mr Siemiatkaska’s evidence of the purpose of the meetings which began in April 2024 (Paragraph 7 of his statement, at RB/501): The purpose of the calls was to discuss the…packaging process and discuss how we were going to make this work globally within the company, we very much still in the beginning phases of the project.[58]Mr Siemiatkaska’s evidence was that the meetings were constructive and positive, so much so that after one of the calls (Paragraph 10 of his statement, at RB/502): …I had asked [the Claimant] to stay on and asked him if he could run the project as he had a lot of experience with packaging, and I valued his input and ideas on the project. He was definitely going to have decision-making and responsibilities under the new restructure within his packaging role and that was made clear to him. [The Claimant] said that he understood what we were doing and did not raise any concerns, he was happy and positive with the direction the project was taking.[59]That recollection was shared by Mr Forrest (paragraphs 10 & 11 of his witness statement, at RB/506):10. I wanted [the Claimant] to lead most of the initial efforts, as he had led our previous packaging team and we were hoping to leverage him for a similar role and leading the development of the new technology stacks that we were going to use across the global team. This is the reason we brought him in and started getting his feedback he was definitely going to have decision-making role in the project.11. As far as I could tell from the call, [the Claimant] seemed optimistic. We were going back and forth on ideas, and he seemed excited. He seemed very interested in where we were going, and he was providing feedback.[60]That impression was in contrast to the Claimant’s evidence that following the meeting on 25 April 2024, “I felt that my concerns were not being taken seriously and I was not getting the answers I needed so I began to investigate my options and decided that I could be being constructively dismissed… I decided to articulate my concerns formally and gauge the response before deciding what to do next” (Paragraph 25 of his witness statement, at RB/460).[61]On 26 April 2024, the Claimant asked for a meeting with Mr Whyman. The Claimant explained that he was not happy with the restructure as he felt his role and his responsibilities were being taken from him and he was being demoted. Mr Whyman’s evidence was that (Paragraph 13 of his statement, at RB/492 – RB/493): I outlined to him on the call that his job was not going to change, the new organisation chart only covered the support function of my team and hence why application packaging was not explicitly outlined on the chart, and that application packaging was also not on the chart because I wanted to work with [the Claimant] to work out how the application packaging team were going to slot into the global structure. During the conversation I made him aware that I wanted him to begin working with other members of the team and for him to start shaping how the application packaging section of the team would work from a technical/practical perspective, and within a global structure.[62]After the meeting, the Claimant sent an email to Mr Whyman, titled “Dismissed against my will”, wherein he set out his concerns regarding the restructuring, concluding as follows (at RB/48): For the following reasons, I feel that I am being constructively dismissed:• My primary role and responsibilities are being taken away from me• I have been demoted 2 levels in the new organisational structure without notice or just cause• I feel undermined and this is affecting my mental health I am unable to accept these changes and unless my concerns can be addressed to my satisfaction within one week, I will consider myself to have been constructively dismissed and have no option but to cease working for SS&C with immediate effect and seek legal redress.[63]The Claimant included two alternative organisational structures, which he said would acceptable (RB/49 – RB/50).[64]Later the same day, the Claimant met again with Mr Siemiatkaska, Mr Forrest and Mr Farid. By his own account, following this second meeting, the Claimant “felt enthusiastic about developing the strategic solution, including learning some new technologies…I called Jon Whyman and explained to him that there was some positive news” (per Paragraph 28 of the Claimant’s statement, at RB/462).[65]The positive mood was short lived. After reflecting on matters, the Claimant concluded that “the issues of demotion and loss of authority over the service remained. The job I had been doing no longer existed and since Jon Whyman was unwilling to reconsider my position within the team structure, no acceptable alternative was going to be available to me” (Paragraph 29 of his statement, at RB/462). On Sunday, 28 April 2024, the Claimant emailed Mr Whyman at 06:52 and tendered his resignation with immediate effect (RB/54). In summary, his stated reasons were: 65.1. Mr Whyman’s failure to accommodate the Claimant’s own proposed organisational structures meant that he had been demoted two levels within the restructured organisation 65.2. The Claimant would not be leading or have ownership of the application delivery function or decisions pertaining to it, in circumstances where “autonomy over the application delivery function is the essence of my employment at [the Respondent]” 65.3. The Claimant was unable to accept what he termed “unwelcome changes”.[66]Later on 28 April 2024, the Claimant sent a message to the UK Citrix team, which included the following (RB/52): I'm sorry to say that I find it impossible to accept the recent organisational changes. I feel that my role has been made redundant and my responsibility taken away. I have therefore left the company with immediate effect.[67]On 29 April 2024, Mr Whyman messaged the Claimant, expressing his confusion at the decision to resign given the “positive note” of the previous Friday (RB/61). The Claimant replied that he felt like “ a square peg trying to fit into a round hole” and that “[N]o packaging function in the structure lead by myself is the red line”.[68]There then followed the following exchange (RB/62): Mr Whyman: I’d like to talk this through if you are ok with that? I value you and don’t want to lose you from the team. I did not see this being an ill fit, but a level of detail that we needed to get to. The Claimant: Hi Jon. My headspace is now this is a done deal and in the past. Let me have a think about what an acceptable way forward if any would look like before we talk. Mr Whyman: Ok. I’ll leave it with you.[69]On 30 April 2024, the Claimant sent an email to Mr Whyman, titled “Proposed role for Leigh Norton: head of Citrix Application Delivery” (RB/67 – RB/68). Mr Whyman responded by proposing that they meet to run through the proposal. On 1 May 2024, the Claimant sent a message to Mr Whyman, asking him to confirm whether he was proceeding with the Claimant’s proposal, failing which he needed “to instruct HR to proceed with the termination of [sic] it’s not happening” (RB/63).[70]Mr Whyman again reiterated the need to talk through the proposal and it was agreed that he and the Claimant would meet on 3 May 2024 (RB/63). That meeting was also attended by Ms Rowe.[71]A transcript of the meeting of 3 May 2024 was in evidence (RB/88 – RB/100). I did not understand the parties to disagree as to the accuracy of the transcript. The meeting lasted about 30 minutes.[72]From reading the transcript, it was clear that Mr Whyman was unable to accept the Claimant’s own proposals there and then. In my judgment, that was hardly surprising. The Claimant was proposing detailed and significant changes to aspects of the Respondent’s packaging operations. However, Mr Whyman asked the Claimant to take a lead in driving the process of defining the work of the restructured teams and continue the work he had begun with Mr Siemiatkaska (which was the beginning of the restricting process for the applications function, as part of the global restructuring of the Respondent). My Whyman sought to reassure the Claimant again that he was not being demoted and explained that the Respondent was faced with trying to get the regional teams (including packaging) to work at a global level (and work with the other regions). There was no proposal to change what was termed by Mr Whyman the Claimant’s “tacit approval to define what you want from a technical point of view.” On a number of occasions, he asked the Claimant to remain with the Respondent and help it with the forthcoming changes and restructuring.[73]For his part, the Claimant reiterated his belief that he had been demoted and that he was losing his autonomous role over the packaging team.[74]At the conclusion of the meeting, the Claimant confirmed that he wished to proceed with his resignation, which took effect on 28 April 2024. Following the meeting, the Respondent sent an email to the Claimant confirming his resignation and detailing various issues regarding pay, holiday, stock and company property (RB/103 – RB/104).[75]On the same day (3 May 2024), the Claimant started ACAS Early Conciliation. That concluded on 7 May 2024 and the Claimant presented his claim to the Tribunal on 16 June 2024. Analysis & conclusions[76]I reminded myself of alleged breaches of his employment contract advanced by the Claimant (per his witness statement at RB/452):• The removal of my role, responsibilities and authority in accordance with both the job description in my contract of employment and the work I undertook in practice during the course of my employment• Demoting me and undermining my Senior Manager status within the organisation[77]Having regard to my findings of fact, I had to determine whether the alleged acts happened and, if they did, whether individually or cumulatively they breached any express or implied the implied term (including the implied term of mutual trust and confidence). I then considered whether the alleged breaches constituted a fundamental breach of the Claimant’s contract of employment.[78]For the reasons set out above, the Claimant was not a senior manager. He was a technical expert, who had some attendant management and leadership functions.[79]Notwithstanding that, the Claimant’s case was that the restructure announced on 2 April 2024 included changes to his role which, individually or cumulatively, constituted fundamental breaches of his employment contract, entitling him to resign with effect from 28 April 2024 and claim that he had been constructively dismissed.[80]At the heart of this case was the nature and scope of the restructure. Mr Whyman’s evidence in this regard was clear, consistent and highly relevant – the restructure announced on 2 April 2024 was limited to the support function within the Citrix team. The applications packaging function (which was led in the UK by the Claimant) was not part of the first stage of the restructure but would be addressed in due course.[81]The fact that the restructure was limited to the Citrix support function was reflected and supported by the following: 81.1. Mr Dosanjh’s evidence that in his role as Application Support Manager “I manage the ticket queue and ensure tickets are being a resolved in the UK support zone. I came into the role when the team needed help during the restructure of the global support team and as the workload increased” (Paragraph 4 of his witness statement, at RB/512); 81.2. Mr Chattha’s evidence that “[D]uring the global support restructuring discussions we didn’t begin to discuss the structure of the application packaging team, nor did we begin to discuss [the Claimant] heading up this area. I would have accommodated this had it been expressed” Paragraph 8 of his witness statement, at RB/515); 81.3. Mr Siemiatkaska’s evidence that the meetings he had with the Claimant (and others) on 25 and 26 April 2024 were “to discuss the…packaging process and discuss how we were going to make this work globally within the company, we very much still in the beginning phases of the project” (Paragraph 7 of his witness statement, at RB/501); 81.4. The presentation Mr Whyman gave on 2 April 2024, wherein he stated as follows (at RB/45): …And so we have a) clear visibility on performance across all the areas we support and b) making sure we’ve got a good process and that we're giving a good client experience to, to our customers across the entire business. 81.5. The meeting between the Claimant and My Whyman on 3 May 2024, which included the following from Mr Whyman (at RB/93): …it's a simplified structure because the first thing I need to address is how we support…the end user base. Right. And that's why we have these regional leads…to manage and look at the support function and the quality service we give…what I need to do is keep that…that's the focus. That's the initial priority. That's the initial issue that this team is facing for all the reasons I've described…I have to address that, which is why you've seen what you've seen. The next stage, and this is why I was sending Syed [Farid] to talk to you and this is why I wanted to go down and start doing more of the documentation and knowledge share…of the Packaging piece in the middle of our team…the next stage was to define that and make sure we could actually expand that out in a way that was going to work for the whole team technically process wise and for you. … Let's get this defined, let’s lay out this issue. Let's actually look at how the business is evolving and see how this tech overlaps with other teams. And let's get something written down and defined that will actually work for everyone.[82]In my judgment, the scope of the restructure announced on 2 April 2024 was limited to the Citrix support function. That had some limited impact on the Claimant’s role and his team (since there was a support element to that role). However, the Claimant was mistaken in concluding that the restructure, at that time, extended to the packaging and applications functions.[83]It was also clear that, in time, a similar restructuring would take place regarding applications and packaging. That was clear from the meetings the Claimant had on 25 and 26 April 2024 with Mr Siemiatkaska, Mr Forrest and Mr Farid. The Respondent was keen for the Claimant to play a lead role in that process, when it arose. But that process had yet to begin.[84]The fundamental misunderstanding led the Claimant to believe that he had been demoted and was being managed by Mr Dosanjh. The Claimant had not been demoted nor was he being line managed by Mr Dosanjh. The organisational chart shared by Mr Whyman at the meeting on 2 April 2024 related solely to the restructured support functions. It had no wider application. That conclusion was further supported by the following: 84.1. The Claimant’s job title and pay grade did not change as a result of the restructure. 84.2. The post which Mr Dosanjh took up had been open to others, including the Claimant. 84.3. Mr Dosanjh was responsible for allocating outstanding support tickets to staff of all levels across the organisation, with the clear purpose of clearing the support backlog in the UK region, as part of the global restructure of the support function. 84.4. There was no compulsion on the Claimant to engage with, undertake or complete any of the support tickets assigned to him. Indeed, there was evidence of him refusing to do so due to his existing workload. There was no suggestion that the Claimant was acting inappropriately or in breach of a reasonable managerial direction in so doing.[85]The Claimant also believed that his autonomy over the applications and packaging team in the UK was being removed from him. It was not. There was no evidence that the Claimant’s day-to-day role in leading the UK applications and packaging team was changing as a result of the structure announced on 2 April 2024. Whilst there would need to be a process that combined the regional applications and packaging functions going forward, that was not being proposed on 2 April 2024. Instead, and in anticipation of that likely process, the Claimant was identified by the Respondent as a key contributor to developing and implementing that process, as and when it arose. That is why he was invited to the meetings of 25 and 26 April 2024 and why, in Mr Siemiatkaska’s evidence, he was specifically approached to lead the process of making packaging work globally.[86]The organisational chart shared by Mr Whyman on 2 April 2024 was limited to changes within the support function. The first objective, which was considered key to the proposed reform of the support function, was to clear the backlog of support tickets in the UK. That explained both Mr Dhosanj’s role and the structure of that chart. The Claimant was mistaken in concluding that it represented anything wider than that. Importantly, the organisational chart, and the restructure which it spoke to, had nothing to do with the applications and packaging functions.[87]The Claimant was asked to undertake some additional support tasks during this time, as a result of the 2 April 2024 restructure. However, he was not alone in that, with the Respondent seeking assistance across the organisation in helping to clear the backlog of support tickets. There was also no requirement or compulsion on the Claimant. He was not mandated or ordered to resolve the support tickets assigned to him.[88]To the extent that these requests constituted a change to his role, they were temporary, they were cross-organisational and, in my judgment, fell squarely within the discretion afforded to the Respondent by the terms of its employment contract with the Claimant. At its highest, he was being “reasonably required” by the Respondent to “perform other jobs at similar levels.” In reality, there was no requirement. The Claimant’s assistance in helping clear the backlog was sought and, for reasons of what he termed “bandwidth” he declined those requests, without any adverse consequence.[89]The evidence showed that the Claimant was, for good reason, highly regarded by the Respondent, both in the UK and the US. Efforts were made on more than one occasion to reassure him, to allay his concerns and provide explanations for what was being proposed. It was of obvious disappointment to the Respondent that those efforts ultimately proved fruitless. That was all the more so given the intention to involve the Claimant in driving the future restructure of the applications and packaging functions.[90]In conclusion, what the Claimant characterized as demotion, removal of responsibilities and loss of autonomy, were misunderstandings of what was actually being proposed by the Respondent. The 2 April 2024 restructure did not involve any breaches of the Claimant’s contract of employment, whether of express or implied terms, whether individually or cumulatively. Conclusion: unfair dismissal[91]For the reasons set out above, the Respondent did not breach the Claimant’s contract of employment, individually or cumulatively, whether fundamentally or at all. There was no breach of the implied term of mutual trust and confidence and no breaches of any other term of the Claimant’s employment contract.[92]It followed that the Claimant was not permitted to treat his employment contract as repudiated and his resignation on 28 April 2024 was not, in law a dismissal. It was a resignation.[93]As the Claimant was not dismissed, his complaint of unfair dismissal cannot succeed and is dismissed. Affirmation and/or waiver[94]As I have found that there were no breaches of contract, fundamental or otherwise, whether the Claimant affirmed and/or waived any breach falls away. Similarly it is immaterial to consider whether the Claimant resigned in response to any fundamental breaches of contract, as there were none (fundamental or otherwise). Conclusion: wrongful dismissal[95]As there were no breaches of the Claimant’s employment contract, still less fundamental breaches, the Claimant’s resignation was not, at law, a dismissal and, as explained, his complaint of constructive unfair dismissal is not made out and is dismissed.[96]It follows that, as that Claimant was not dismissed (constructively or otherwise), he had no contractual or statutory right to notice and his wrongful dismissal complaint for unpaid notice pay is also dismissed. Approved by: