In person For the v Respondent — 2024

The claimant worked for the respondent from 10 October 2011 until his dismissal on 7 July 2023, most recently as Manager, Cloud Information Security, Cloud Operations. The tribunal found that from 2016 he had largely worked from home, that the respondent introduced the NICE-FLEX hybrid policy in 2021–2022, and that in early 2023 Joe Larkin reviewed Cloud Operations and decided to create a US-based Director of Cloud Information Security role with broader, more senior and more customer-facing responsibilities.

The tribunal accepted that there was a redundancy situation within section 139(1)(b)(ii) Employment Rights Act 1996 because the proposed Director role was not the same as the claimant's London manager role and the requirements for the technical work done in London were expected to cease or diminish. However, it found that the claimant was not dismissed wholly or mainly because of that redundancy situation. Instead, the dismissal was driven by the respondent's perception that he might leave the business after his '50% quitting' comment and by concerns about his interpersonal and customer-facing style, including references to the 3 April 2023 chicken email and other communications.

The tribunal also treated Joe Larkin's 6 April 2023 email stating 'We're going to replace Alen' as referring to the claimant himself rather than only to the role. It considered the redundancy process to have been affected by the fact that Erich Diener had effectively been recruited before consultation finished, that the claimant was not given the job description or encouraged to apply for the Director role, and that consideration of alternatives was limited. The tribunal therefore held that the dismissal was unfair, but it did not make a final remedy award at this stage because a remedy hearing was to be listed separately. It also found that there should be no reduction for contributory conduct.

On Polkey, the tribunal concluded that the claimant would have been dismissed in any event nine months after 7 July 2023, taking account of the likely enforcement of the hybrid working policy, the concerns about interpersonal issues, and the possibility that he might have left employment voluntarily.