P Connell v Aspirations Financial Advice Ltd: 1400974/2021
EMPLOYMENT TRIBUNALS
Case No 1400974/2021
Between
Mr T. Tyndall, SolicitorClaimantMiss S. Clarke, CounselRespondent
Before
Employment Judge SmailMr T. Tyndall (instructed by Solicitor) for claimantMiss S. Clarke (instructed by Counsel) for respondentDate 22 September 2022
REASONS
[1]By a claim form presented on 26 February 2021, the claimant claims unfair dismissal, age discrimination, redundancy pay, and holiday pay. In his claim the claimant contends continuity of service between 5 February 2010 and 1 December 2020.[2]The claimant was employed by the respondent as a Financial Advisor. Fundamentally, the respondent asserts continuity from 1 June 2019 only. The effect of this, if correct, is that the claimant could not claim unfair dismissal or a statutory redundancy payment.[3]This hearing was due to be a four day in person hearing in Bristol. By reason of the Queen’s funeral, a day was lost, and the hearing was converted to three days by video. It was agreed, after discussion, that the question of length of service would be determined as a preliminary issue.[4]The claimant alleges he was employed as a Financial Advisor by a Company solely owned by him called “Moneythatworks Ltd” from 15 February 2010. That was how he traded. He alleges he introduced his clients to the respondent, and that much is common ground. At first, he did so pursuant to an ‘appointed representative’ agreement dated on or around 13 August 2018. He brought his clients to the respondent, who administered the policies sold to his clients in return for a 40% commission, the claimant retaining 60% of fees and/or commissions from the proceeds of business written with those clients.[5]Thereafter, on 1 June 2019, he became a direct employee of the respondent and on 13 August 2019, he sold his shares in Moneythatworks Ltd together with the proprietary interest in his clients to the respondent for a consideration minimally of £200,000 and maximally of £240,000. The claimant submits that by one or a series of transactions there was a transfer of an undertaking of his business to the respondent meaning his length of service with Moneythatworks Ltd is to be added to the terms of his contract of employment with the respondent, such that he does have sufficient length of service to claim unfair dismissal and a statutory redundancy payment.[6]That is the preliminary issue we have decided to take first: whether there was a transfer of an undertaking with that effect.
THE FACTS
[7]When operating Moneythatworks Ltd, the claimant tells us he paid himself salary just below the national insurance threshold and drew dividends from the company as a shareholder which he tells us were taxed at 20%. He has no payslips from this time and he has no written contract of employment between himself and Moneythatworks Ltd. He tells us that his remuneration towards the end of his time from Moneythatworks, taken in that way, approximated £73,000 on a PAYE equivalent. That was the basis for his salary negotiations with the respondent. He tells us that the financial arrangement he made from Moneythatworks Ltd was lawful. It seems that the respondent accepts that the claimant was employed by Moneythatworks Ltd throughout this period notwithstanding the absence of a written contract and payslips. The Appointed Representative Agreement[8]The Claimant operated in this way until on or around 13 August 2018 when he entered the ‘appointed representative’s’ agreement with the respondent. His dealings with the respondent throughout were in contemplation of his eventual retirement. Under the appointed representative agreement, he transferred the ‘agency’ in respect of his clients to the respondent. What this means is that the respondent oversaw the FCA compliance aspects of dealing with the provision of the service to the clients.[9]At Schedule 4 to the appointed representative agreement the claimant was to be paid by the respondent sixty percent on all business written including new and re-occurring income yearly. The respondent therefore took a commission of forty percent. The relationship between the respondent and the claimant was expressly stated not to be of employer and employee at clause 1.9 but instead was described as principal and appointed representative.[10]At clause 4.5 it was provided that the appointed representative shall be a selfemployed person or a limited company employee with the responsibility for the payment of his own income tax, national insurance contributions and all expenses incurred in the running of the appointed representatives’ business. It seems to be understood by the parties that the claimant retained proprietary interest over his clients he introduced under this agreement. We see express provisions that the ‘client bank’ as it is described was sellable by him in the case of ill health or by his personal representatives in the case of death. This arrangement operated for approximately ten months. During the course of this period, it is accepted by the respondent that he remained employed by Moneythatworks Ltd. The Contract of Employment[11]In the Spring of 2019, the claimant had discussions with Andy Harris, Commercial Director and Adam Palmer, Managing Director of the respondent, in which it was proposed that he take on some of Mr Palmer’s clients in addition to his own. It was stated by the respondent, and agreed by the claimant, that for this to work - that is to say for the company to protect its proprietary interest in its clients - the claimant would have to become an employee.[12]The way Mr Palmer describes the overall proposal in his witness statement rings true in a colloquial sense to us. He says that they suggested they ‘would buy his clients and he would work for us’. In addition to him becoming employed to look after those of the respondent’s clients they wanted him to look after, the respondent would buy his clients and he would come to work for the respondent as an employee. As we have already observed, all of this was in preparation for the claimant’s retirement. He hoped to work for something like three years for the respondent before retiring. In the event he became furloughed during covid and in the further event he was made redundant. That selection for redundancy is challenged by way of the desired unfair dismissal claim but also by an age discrimination claim which does not require the continuity of service.
Factual Background
[13]In keeping then with the intentions, on 1 June 2019, a contract of employment was entered by the claimant with the respondent. The commencement date is expressly stated to be 1 June 2019 and at clause 2.2 it expressly provides “no employment with a previous employer counts towards the employee’s period of continuous employment with the company.”[14]It is clear that the claimant at this point did not consider that his continuity stretched back to 2010. Otherwise it would have been in the contract. His duties became to devote his whole time to the business of the respondent as a financial advisor. He was to be paid a salary of £73,000 per annum. He got 24 days holiday plus bank holidays, all paid, and he got the statutory minimum employer’s pension contributions.[15]At appendix 1 to the contract there was a series of post termination restrictions intending to protect the business of the company after the termination of employment.[16]It was envisaged that the claimant would continue to work as an employee for the period prior to retirement. The sale of his clients would be brought forward so that the sale of his clients did not happen at the same time as his retirement. The Share Sale and Purchase Agreement[17]On 13 August 2019, the parties entered into the share sale and purchase agreement. The respondent would buy the shares in Moneythatworks Ltd in return for a consideration of between £200,000 and £240,000 depending on the recurring gross income paid in respect of the acquired clients business. The minimum was expressly stated to be £200,000. £3,000 a month was due to be paid over 36 months with a minimum payment of £92,000, maximum £132,000, to be paid upon the expiry of the three years. We understand it is not relevant for present purposes that that sum is yet to be paid. Schedule 5 to the agreement sets out the terms as to consideration for the purchase of the shares and the acquired clients.[18]Mr Tyndall has submitted that this schedule is important in the context of whether any economic entity retained its identity following any transfer of an undertaking. We set out with some care, then, the terms of Schedule 5 entitled ‘Consideration’. The purchase price payable by the buyer to the seller for the shares shall be and shall not exceed the sum of £240,000 which shall be paid in instalments without set off withholding or deduction for any reason save as set out below, at the rate of £3,000 per month for 36 months starting with the completion date and then every month thereafter on the same day of the month for a further 35 months, with an additional maximum final balance of £132,000 payable on the expiry of 36 months from the completion date, provided the recurring gross income paid in respect of the acquired clients is not less than £80,000 in the previous twelve monthly period excluding any increases as a result of new business and the amount of any increases in the percentage fee charged. If the recurring gross income in the previous twelve month period is less than this figure of £80,000, the final balance will be paid but reduced by £3 per £1 of shortfall provided such reduction shall not exceed the sum of £40,000. This means for example that if the recurring gross income in the previous twelve month period is £70,000, then the final balance shall be reduced by £30,000 to £102,000. If the recurring gross income in the previous twelve month period is £55,000, then the final balance would not be reduced by £75,000 but would be capped at a reduction of £40,000 leaving a balance of £92,000. This means that in any event the final balance shall be no less than £92,000 and thus the total purchase price is no less than £200,000. Recurring gross income means the periodic income paid by a product provider or buyer client or any other source to the financial advisor that arises from the provision of financial advice or other financial services provided. Acquired clients means the clients which the seller on behalf of the company advised prior to the sale of the company to the buyer and which are to be taken over by the buyer following the purchase of the company and which the buyer or company intends to service (that regardless of which individual employee or representative of the buyer services of the clients). For the avoidance of doubt the consideration is payable by the buyer irrespective of whether the seller continues to work for the buyer in any capacity. If the seller ceases to work for the buyer the seller shall have a right to review and inspect the way in which the calculation of the maximum final balance is made including granting a right of inspection of the relevant figures, data processors and paperwork.[19]Under this clause the seller is the claimant, the buyer is the respondent. The point we observe is that the consideration for the sale of the shares and the acquisition of the acquired clients does not depend on the claimant remaining in employment with the respondent.[20]By Schedule 4 to the August 2019 agreement, the seller’s obligations on completion were set out. On completion the seller shall: Deliver to the buyer letters of resignation in the agreed terms executed by the person resigning as director of the company pursuant to para 1.3.3 of Schedule 4. Procure upon such appointment that resignation of the seller as Director of the company both from its respected office and as employee.[21]The claimant has signed a director’s resignation and that has been recorded at companies House. He did not sign a letter of resignation as an employee but told us he assumed that by signing the 2019 share sale and purchase agreement, that amounted to the same thing, and that he had resigned his employment with Moneythatworks Ltd.[22]There was a disclosure statement with this agreement. In clause 15 it is stated by the claimant that the company Moneythatworks does not have and never has had any employees save that the seller is an employee. The seller has been paid a salary and NICs as appropriate have been paid. There is no formal contract of employment and no other formalities have been observed in respect of such employment.[23]At 12.3 the disclosure statement states that all recent income has been paid by the respondent as the current sponsoring IFA company to the company Moneythatworks Ltd in respect of the agreed share of income arising from the IFAs services provided by the seller. All client relationships are conducted through the sponsoring IFA company. That was under the August 2018 appointed representative agreement.[24]We note that the claimant in his witness statement has purported to deal with the position upon being employed by the respondent in June 2019 and prior to the completion of the sale in August 2019. He tells us in that period ‘I was an employee of both MTW and Aspirations. I work concurrently on not only the urgent need in respect of Mr Palmer’s clients but also on the [my] clients to facilitate their incorporation in the respondent’s business’.[25]The idea of a dual employment is not how Mr Tyndall has submitted the case to be, attempting to make it work under TUPE. He has submitted that there was a transfer of an undertaking either under the August 2018 or the June 2019 contract of employment when the respondent assumed the control of the clients of the company. He has suggested that that concept of control of the clients is consistent with the analysis of a series of transactions that took place in North Wales Training and Enterprise Council Ltd trading as Celtec v Astley and Others 2006 UKHL 29 House of Lords.
THE LAW
[26]We now turn to the law. The claimant contends that there has been a transfer of an undertaking under Regulation 3(1)(a) of the Transfer of Undertakings Protection of Employment Regulations 2006. By Regulation 3(1)(a) the Regulations apply to a transfer of an undertaking or business or part of an undertaking or business situated immediately before the transfer in the UK to another person where there is a transfer of an economic entity which retains its identity.[27]It is common ground that there is no question that we are dealing with a service provision change. It has to be a transfer of an undertaking under Regulation 3(1)(a).[28]By Regulation 3(2), in this Regulation economic entity means an organised grouping of resources which has the objective of pursuing an economic activity whether or not that activity is central or ancillary.[29]By Regulation 3(6) a relevant transfer(a) maybe affected by series of two or more transactions and(b) may take place whether or not any property is transferred to the transferee by the transferor.[30]Regulation 4 deals with the effect of a relevant transfer on contracts of employment. Regulation 4(1) provides that except where objection is made under paragraph (7), a relevant transfer shall not operate so as to terminate the contract of employment of any person employed by the transferor and assigned to the organised grouping of resources or employees that is subject to the relevant transfer, which would otherwise be terminated by the transfer, but any such contract shall have effect after the transfer as if originally made between the person so employed and the transferee.[31]By Regulation 4(2) without prejudice to paragraph (1) but subject to paragraph (6) (criminal liabilities) and Regulation 8 (Insolvency) and Regulation 15(9) (failure to inform and consult), on the completion of a relevant transfer - (a) all the transferors’ rights, powers, duties and liabilities under or in connection with any such contract shall be transferred by virtue of this Regulation to the transferee.[32]By Regulation 4(7), paragraphs (1) and (2) shall not operate to transfer the contract of employment and the rights, powers, duties and liabilities under or in connection with it of an employee who informs the transferor or the transferee that he objects to becoming employed by the transferee.
DISCUSSION
[33]The claimant’s position in this case is that the only contractual term which transferred across was as to continuity of service; in effect the start date of the unwritten contract of employment between himself and Moneythatworks Ltd. No other terms under that contract are said to be transferred; certainly not as to remuneration - salary as such was about 7 x the salary at Moneythatworks Ltd, ignoring share dividends as shareholder. It is said there was essentially a renegotiation of all those other terms in the June 2019 contract. The claimant’s position is that notwithstanding the June 2019 contract purported not to include any previous employment, and notwithstanding the August 2019 contract required him to resign his employment with Moneythatworks Ltd, the contract between him and Moneythatworks Ltd did transfer in respect of continuity.[34]On any view this position was not envisaged by the parties to 2018 and 2019 contracts including the claimant. Mr Tyndall in effect submits that whatever was envisaged, continuity transfers by operation of law applying the facts to the law.[35]There has to be then for the claimant to potentially succeed a transfer of an economic entity which retains its identity post transfer. It is common ground that before any transfer the claimant advising his clients on financial matters constituted an economic entity. The proposed transaction we find was best described by Mr Palmer in his witness statement where he says we would buy his clients and he would work for us. That did include two contracts, the June 2019 contract of employment and the August 2019 share sale and purchase agreement. That the claimant was to work with the respondent’s existing clients was an important reason for that contract of employment, in truth the predominant reason why a contract of employment was entered into.[36]Under the 2018 agreement the claimant retained the proprietary interest in his clients, and we reject the suggestion that that contract represented an arguable transfer of an economic entity. The claimant kept his clients and there was express provision to the effect that there was no employment between the claimant and the respondent. The claimant remained under that agreement as the employee of Moneythatworks Ltd.[37]We are concerned with the position established by the 2019 contracts, the June and the August 2019 contracts. Under the share sale and purchase agreement the claimant was expressly selling his client bank to the respondent and the consideration for that expressly did not require him to continue to work for the respondent. In terms of whether there was a transfer of an economic entity retaining its identity, we are reminded by the authority of Cheeseman and Others v R Brewer Contracts Ltd [2001] IRLR 144 (EAT) that we are to look at all factors and circumstances to come to a multi-factorial view.[38]In favour of there being a transfer of an economic entity retaining its identity is the feature that before and after the 2019 contracts the claimant was advising clients introduced by him. However, against the notion of an economic identity retaining its identity are the following features.[39]First, the claimant was expressly expected to advise clients of the respondent that he had not introduced the respondent’s clients generally and those of Mr Palmer whose clients were the respondent’s clients.[40]Secondly, the share sale and purchase agreement envisaged under the terms of its consideration that employees other than the claimant could advise the clients that he had introduced.[41]Thirdly, the whole point of the share sale and purchase agreement was that the claimant was selling his client bank to the respondent for a consideration of between £200,000 and £240,000 irrespective of the claimant working there.[42]The fact that there was a change in the claimant’s working practices even when he was working there is set out by him in his witness statement. At paragraph 9 he states: “When I became the employee of the respondent my salary was fixed at £73,000 to ensure my take home income was no less than it would have been in my employment and ownership of Moneythatworks. In addition, we agreed a performance related bonus structure which incorporated credits for mentoring one of the respondent’s trainee advisors Steve Totton and also for looking after the clients of Mr Palmer as described above. “The contract of employment recording the basic arrangement is dated 1 June 2019 and was signed before completion of the sale of Moneythatworks on 13 August 2019. From the commencement of my employment and up to the onset of the pandemic and being placed on furlough I continued to look after my own clients and Mr Palmer’s clients. I also started to mentor Steve Totton who, as part of the process of the integration of Moneythatwork’s business with that of the respondent, had subject to my supervision, started to service some of my lower net value clients to provide him with experience and the opportunity to develop those clients (para 10). “I had agreed with Mr Harris to gradually transition some of my less profitable clients over to Steve Totton to facilitate me concentrating my client facing activities on my more profitable clients, together with those clients of Mr Palmer who had been allocated. The financial consideration for this arrangement was recorded in an email from Mr Harris on 10 June 2020 in which he confirmed that I would receive a percentage of any income generated by Mr Totton on my clients towards my bonus target threshold. We also verbally agreed that I would receive a credit towards my annual target of £10,000 for my mentoring work with Mr Totton and a further credit of £50,000 towards my bonus target for the work I was doing for Mr Palmer’s clients. It is of note that there was a significant level of trust on my part at this stage that I accepted the proposals of Mr Harris without seeking written contract. (para 11).”[43]The parties’ intentions in the two contracts 2019 contract were clear. The claimant would sell his client bank to the respondent. It was expressly required of him to resign his contract of employment with Moneythatworks, and the claimant understands he did that upon signing the share sale and purchase agreement. He would be employed on a new contract with wider obligations to clients that he had not introduced. The remuneration terms, indeed all terms, were very different from those contained in the unwritten contract he had with Moneythatworks. Having sold his clients, it was not technically right for him to call them his clients, although of course he still had introduced them.
CONCLUSIONS
[44]It seems to us, doing the best we can, that one economic entity was sold by the claimant and bought by the respondent and absorbed into the respondent’s business, without retaining its identity as a going concern. The claimant was given a new contract of employment, not one that transferred. The economic entity that existed prior to sale, ceased upon sale and was absorbed into the respondent’s economic entity, which provided a new contract of employment for the claimant. He was required to resign his old contract of employment.[45]These questions are not easy. Mr Tyndall’s submissions are clever. We cannot help thinking that the submissions are artificial as against what the parties clearly intended in the agreements made in June and August 2019.[46]We bear in mind that the claimant is not someone who was disadvantaged in terms of equality of bargaining power; there was no inequality of bargaining power from his position. With his business experience as a financial advisor, he can be taken to have intended what he entered into, and to have known what he was doing. There is no question of there being any sham here.[47]We regard what the parties plainly intended as being effective to bring about the sale of one economic entity, its absorption into the respondent such that it did not retain its identity post sale as a going concern.[48]If we are wrong about that, then we are attracted by Miss Clarke’s submissions about, in effect, tracking the contract. The contract of employment that would have been transferred upon completion of the transfer - and completion of the transfer involves completion of both agreements on our analysis - would have been the unwritten contract of employment with Moneythatworks Limited. That was resigned by the claimant following the transfer. There was a separate contract of employment that had been entered into on 1 June 2019. We accept the submission that this was a separate contract and not the one contract of employment that might have transferred by operation of law under the TUPE rules; that contract the claimant had resigned.[49]Miss Clarke invites us to add to that analysis that in effect the claimant is to be taken as objecting to that particular contract of employment transferring by having entered into the earlier contract of employment on 1 June 2019, which has terms and conditions which are far more beneficial to the claimant in terms of remuneration, not just the salary but paid holiday and pension.[50]Given the artificiality of what we are invited to find by Mr Tyndall, it is no more artificial to find that in effect the claimant objected to his transfer of his old Moneythatworks contract, instead preferring the new contract of June 2019.[51]Our primary conclusion, however, is there was not a transfer of an economic entity which retained its identity post transfer for the reasons we have given.[52]If we are wrong about that, then secondly, the claimant resigned any contract that might have transferred - the Moneythatworks contract - and replaced it with the prior and more favourable contract of employment dated 1 June 2019.[53]He is to be taken thereby, insofar as is necessary, thirdly, as objecting to the transfer of that Moneythatworks contract of employment.[54]For all those reasons, we find that the claimant did not have continuity of service stretching back to 2010. Accordingly, his claims for unfair dismissal and for a statutory redundancy payment are dismissed. JUDGMENT having been handed down to the parties on 20 January 2023 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:[1]By a claim form presented on 26 February 2021, the claimant brought claims of unfair dismissal, non-payment of redundancy payment, non-payment of annual leave, and age discrimination.[2]Following a preliminary hearing before Regional Employment Judge Pirani on 20 October 2021, the case was listed for a final hearing on 19 – 22 September 2022.[3]The final hearing was listed before Employment Judge Smail sitting with members Miss G Mayo and Ms C Monaghan on 19 September 2022. The Tribunal elected to determine the preliminary of whether the claimant was an employee of his company, Moneythatworks Ltd, and whether his employment transfer to the respondent as a consequence of a sake purchase agreement.[4]By a judgment dated 11 October 2022, the Tribunal found that the claimant was not an employee of Moneythatworks Ltd, that there was no transfer for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations 2003 from that company to the respondent by reason of the share purchase agreement. In consequence the claimant lacked the necessary continuity of employment prescribed in section 108 Employment Rights Act 1996 to pursue claims of unfair dismissal, redundancy and redundancy pay. Those claims were therefore dismissed. It listed the case for this hearing to resolve the age discrimination and annual leave claims.[5]The only claim that remained in issue at the time of the final hearing was the claimant’s complaint of age discrimination in respect of his dismissal on the grounds of redundancy which took effect from 3 December 2020. Procedure, Hearing and Evidence[6]The hearing was conducted by video with the parties’ consent.[7]In preparation for the hearing, the parties had agreed a bundle of 229 pages, and had prepared witness statements as follows: for the claimant, the claimant alone; for the respondent, the following witnesses: 7.1. Adam Palmer, the respondent’s Managing Director; 7.2. Mr Andy Harris, the respondent’s Commercial Director.[8]Miss Clark had prepared a skeleton argument for the respondent.[9]The parties had initially objected to the Tribunal in the form constituted for this hearing having conduct of the final hearing, on the grounds that the claims had been reserved to the panel chaired by EJ Smail. The claimant’s position was that the knowledge of the claim that had been derived from the preliminary hearing was essential to his case at the final hearing.[10]Neither Employment Judge Smail nor Ms Mayo were available for this hearing, but EJ Smail confirmed that the claim had not been reserved to the Tribunal he chaired, and in those circumstances the respondent withdrew its objection to our hearing the case. Having made enquiries with the listing team, we disclosed to the parties that we would be unable to list the case before June 2023 if it were not heard before us. In those circumstances the claimant withdrew his objection to this Tribunal hearing his claims.[11]We took time to read the statements, and the documents referred to within them, and the skeleton argument. In addition, we invited the parties to identify the key documents in the bundle upon which they relied, and to prepare a reading list of those documents. We were greatly assisted the reading list that the parties were able to agree. We took the time to read the documents they had identified.[12]Evidence began at 2pm, when the claimant began his evidence. Factual Background[13]We make the following findings on the balance of probabilities. The background to the claimant’s employment by the respondent[14]The claimant was employed from June 2019 in the circumstances described in the written reasons of the Employment Tribunal, (Employment Judge Smail, Mrs C Monaghan and Miss G Mayo) dated 11 October 2022. It is unnecessary for the present purposes to rehearse that background detail, the Tribunal already having made the necessary findings of fact. We adopted for the purpose of these reasons. The introduction of Intelligent Office software[15]In the spring of 2019, the respondent installed a new software product to manage its processes, including the recording of client care letters, client consultations, and instructions. The system allowed for each of those interactions to be entered directly onto the computer system.[16]The respondent scheduled a training session with the software providers on the use of that system. Regrettably, the claimant was absent when the training was undertaken. Consequently, the claimant (and other members of staff who had missed the training) were offered training from the respondent’s support team.[17]The claimant’s habit previously had been to make handwritten notes of meetings, and subsequently to type them after the meeting in question. He initially found the transition to the new system difficult with the consequence that in January 2020 he agreed with Mr Harris that he would share with the respondent the cost of additional training for himself on the system. It was agreed that the claimant’s salary would be reduced by £8000 a year to that end. At that time the claimant had informed the respondent that it took him approximately 4 ½ hours to write up a client consultation on the new system, and that he was seeing approximately 4-5 clients a week. Fees[18]On 30 January 2019 Mr Harris, the Commercial Director, conducted a 1:1 with the claimant. He raised his concerns that the income from the claimant’s client portfolio was not as high as it might be; he asked the claimant to achieve an increase in his fees initially to £80k and thereafter to 100k. The two men discussed the claimant’s experience of minimising the impact of inheritance tax (“IHT”) through the placement of investments to maximise Business Property Relief (“BPR”), and the use of Enterprise Investment Schemes (“EIS”) and Venture Capital Trusts (“VCT”). The claimant’s experience was limited; he agreed to refer cases which gave rise to those issues to Mr Harris.[19]Mr Harris explained that the respondent wished to charge its clients a standard fee of 1% of a fund’s value for its services. This was higher than the industry average, and considerably higher than the fees charged by the claimant to those in his client bank, which varied between 0.5% and 0.75%. Mr Harris encouraged the claimant to increase the fees, but the claimant was adamant that doing so would be difficult to justify to his clients and would likely lead to their loss. However, he agreed to apply a charge of 1% for any new clients. Mr Harris regarded the claimant’s conduct as constituting poor performance, but he did not inform the claimant of that fact. The respondent’s financial position in quarter one 2020.[20]In early 2020 two self-employed Financial Planners, Mrs Blake and Mrs Day, left the respondent to conduct business on their own account. Each of them undertook work for the respondent and each of whom had their own client bank which provided the respondent with a share of the reccurring client fees. The consequent impact on the respondent’s financial position was significant; the removal of Mrs Blake and Mrs days client bank led to a reduction in the respondent’s turnover of approximately £400,000.[21]At or about the same time, the impact of the Covid-19 pandemic was beginning to be felt in the financial markets. The FTSE dropped from £7286 to a low of £5671.96 in March 2020. Given that approximately 75% of the respondent’s income was derived from fees assessed against the value of its clients share portfolios, the consequent drop in value led to a further significant drop in the respondent’s turnover. By way of a single example, the Tatton Core Balanced fund (a fund that a number of the respondent’s clients held funds in) had dropped approximately 17% in that period. The recruitment of Isabel Palmer.[22]As part of the respondent’s business plan for expansion, prior to the downturn in the financial markets, it had entered into an agreement to employ another Financial Planner, Miss Isabel Palmer, and to purchase her client bank (with whom she had been dealing for approximately seven years) through a share purchase agreement. Miss Palmer was experienced in IHT, BPR, EIS and VCTs; in some part that was due to the complicated nature of the client fund accounts within her client bank. Her client bank consistent of approximately 300 households. She was to begin employment with the respondent in June 2020.[23]At the time of the impact of Covid-19 pandemic upon the financial markets, the respondent therefore employed the following financial planners, Mr Chris Iles (approximately 29), Mr Stuart Smart (in his 40s), Miss Izzy Palmer (in her 40s), the claimant, Mr Steve Gilpin, and a trainee financial adviser and para planner, Sam Lane. In addition, it engaged a further financial planner, Mr Roger Milburn, as a self-employed contractor. Mr Gilpin was 59 and was planning to retire at the end of 2020; the respondent had not yet finalised an agreement in order to take over Mr Gilpin’s clients. Furlough of employees[24]The directors of the respondent, Mr Andy Harris and Mr Adam Palmer, the Managing Director, were deeply alarmed by the potential impact of the loss of Mrs Blake and Mrs Day and the depressed financial markets upon the respondent’s financial position. They elected to take a series of cost saving measures to preserve the financial sustainability of the respondent.[25]In consequence, in approximately March 2020 three members of staff were placed on furlough; Mr Lane, one member of the support team, and the claimant. The decision to select the claimant for furlough was one that was taken as a direct consequence of the comparatively high salary which he benefited from in comparison with other financial planners. That salary was a consequence of the claimant’s successful negotiations that led to the Share Purchase Agreement by which the respondent had bought the claimant’s company, ‘Moneythatworks Ltd’, and was intended to preserve his income levels in circumstances where he surrendered his right to recurring fees from his client portfolios.[26]The respondent has suggested within these proceedings that the claimant volunteered for furlough. We reject that argument; we preferred the claimant’s account that Mr Harris informed him that he was to be placed on furlough because his salary represented the greatest saving to the business. The claimant did not volunteer: the furlough schemes cap on wages of £2500 a month was less than half of the claimant’s gross monthly salary. The claimant was informed of the decision on 31 March 2020 and offered to do anything that he could to help the business through the period that it would avoid furlough.[27]The decision was confirmed in a letter of the same date from the respondent to the claimant.[28]At the time the claimant was furloughed he was on target to meet his bonus target at the end of March 2020.[29]On 5 June 2020, Mr Palmer telephoned the claimant and advised him that his period of furlough was to be extended. Again, that decision was confirmed in a letter of the same date. Mr Palmer told the claimant that he should not worry, that he would definitely be returning to the business and in the interim he should simply enjoy playing golf.[30]The consequence of the claimant’s furlough was that those financial planners who had not been furloughed became responsible for the day-to-day management of the clients that formed the claimant’s former client bank. At that stage, the claimant was responsible for managing the clients who had formerly formed his client bank, amounting to approximately 80 households, and an additional dozen of Mr Palmer’s high net worth clients. The claimant was also mentoring Mr Tutton, to whom approximately a dozen of the claimant’s lower net worth clients had been passed, although the claimant still retained overall responsibility for the management of their funds. The redundancy process[31]In approximately July 2020 Mr Harris and Mr Palmer reviewed the respondent’s financial position. At that stage, whilst the markets had largely recovered (or at the very least stabilised), the respondent had a significant shortfall in its turnover. The respondent’s accounts for the period January to July 2020 identify a reduction of approximately £233,000 in its turnover, with a consequent reduction in gross profits of approximately £80,000, notwithstanding a reduction of approximately £60,000 (equating to approximately 30%) in its costs.[32]There is some argument between the parties in these proceedings as to whether or not there was a genuine redundancy situation and, if not, whether any inference should be drawn in support of the claimant’s claims of discrimination. We address that argument in our discussions and conclusions below.[33]In or about August 2020, the respondent instructed an external HR consultant to assist with the redundancy process. She provided a redundancy policy, a planner identifying the dates for consultation meetings and decisions, a template letters for the respondent to use, and a draft redundancy scoring matrix. In relation to the latter document, she advised the respondent that it should adjust the criteria to reflect the nature of the business undertaken and the desired skill sets that it wished to retain.[34]On 14 August 2020, the respondent identified that the appropriate pool would be financial planners, and sent the claimant and four other individuals letters advising them that they were at risk of redundancy and that a consultation process would be undertaken over a four-week period.[35]Those who were placed at risk of redundancy and their ages at the time were the following, the claimant (60), Miss Palmer (40), Mr Iles (29) and Mr Smart (40). None of them were provided with a copy of the scoring matrix or advised of the criteria that would be used to score them for the purposes of the redundancy exercise.[36]On 17 August 2020 the respondent wrote to the claimant inviting him to attend a first consultation meeting. He was advised that four posts were affected and that the purpose of the consultation was to explore alternatives to redundancy. The first consultation meeting[37]The first consultation meeting took place on 20 August 2020. It was conducted by Mr Palmer. Amongst the matters discussed was whether the claimant would be willing to take voluntary redundancy, he indicated that he would need to see the redundancy package but would prefer to remain employed, not least because he would have lost the value of his client bank. He indicated a willingness to reduce his hours and to forego his bonus, which would be approximately £15-£20,000. There was no discussion of the scoring criteria that would be used for the purposes of the redundancy exercise, notwithstanding that the respondent had it in its possession. The scoring process[38]Mr Palmer and Mr Harris conducted the scoring process for each of the individuals who were at risk of redundancy. They scored each individual together, rather than providing a score individually and moderating it to produce a single score.[39]The criteria used were as follows: skills, relevant qualifications, job performance, experience, versatility, timekeeping, and disciplinary record. Each criteria offered a maximum score of four points and a minimum score of one.[40]At the time of the exercise, for the preceding year the claimant’s recurring fees were £80k, Miss Palmers £200,000 and that of Mr Smart and Mr Iles approximately £50k. The claimant had created approximately £17-20K of new business, and Miss Palmer, Mr Iles and Mr Stuart in the region of £150,000 - £200,000. The respondent took that information into account when scoring the performance criteria. The claimant’s matrix[41]The claimant was given the following scores: 41.1. Skills – 2 “has some technical and practical skills required for the role, but not all.” 41.2. Qualification – 4 has the appropriate qualifications for the role; in the comment section it was noted that the claimant “was not studying towards Chartered, which although not a requirement is a preference.” 41.3. Job performance – 2 “Meets some performance targets. Completes work but frequently misses deadlines. Work often contains errors. Requires guidance beyond what would normally be expected for their level.” In the comment section it was noted “Pete needs a lot of support/training and tends to forget what he’s been shown.” 41.4. Experience – 2 “has some experience with role, but consistently seeks guidance from colleagues.” It was noted “this was a surprise given how long Pete has been advising.” 41.5. Versatility – 3 “willing to perform different functions/duties.” It was noted “has offered to train new advisers that given the above, not appropriate.” 41.6. Timekeeping – 4 Never late 41.7. Disciplinary record – 4 no disciplinary record 41.8. Absence – 4[42]The claimant’s total score was therefore 25 out of a maximum of 32 points. By way of general comment, Mr Harris wrote: “Pete is very slow when picking new things up, this tends to take up a lot of the support team’s time. He is also very reluctant to do things the ‘Aspirations way’, particularly when it comes to client fees.” The matrices of the others in the pool[43]The other employees at risk received scores of 27, 28 and 28. The individual scores each received in respect of the criteria do not need to be rehearsed here. What the claimant relies upon is the comments that were made in their scoring matrices, which he argues are indicative of a stereotypical view of the effect of age upon skills and performance, and we therefore set out below: 43.1. “being relatively new to advising (just under three years), still has plenty to learn but does pick things up quickly and is very keen to learn.” 43.2. “Is eager to learn and therefore does seek guidance were necessary, but not very often” 43.3. “is a keen and valued member of the FP team.”[44]No evidence was identified on the matrix of Miss Palmer, this was because she had only been employed for a matter of weeks before the redundancy process began. However, the respondent made enquiries with her former employer which it used to score her matrix and commented at the end of her form that she was “an essential member of the team as she services many of the clients of a newly acquired business and most of the remaining clients also know her.” The second consultation meeting[45]On 27 August 2020, the claimant attended a second consultation meeting which was conducted by Mr Palmer and Mr Harris jointly. At the meeting Mr Palmer informed the claimant that the decision had been made to make one financial planner redundant, and that the claimant had been selected for redundancy. The claimant was shellshocked. He asked why he had been selected and not Mr Gilpin or Mr Tutton. He did not know at that stage that neither had been included in the pool for redundancy.[46]Mr Palmer very briefly identified, as examples of the factors that had been considered in reaching the decision, that there had been an assessment of ability, performance, attendance, knowledge, and experience. However, the claimant was not provided with his scoring matrix, nor was he advised of the full criteria that had been used. He therefore had no opportunity to make representations in respect of the criteria or his scores.[47]Mr Palmer explained the redundancy package that would be offered to the claimant, and the parties’ discussions rapidly turned to the financial consequence of the claimant, and the future management of his client bank. The meeting was a very short one indeed.[48]On 28 August 2020, Mr Palmer emailed the respondent’s staff, notifying them that the claimant had been made redundant. Notice of dismissal[49]On the 2 September 2020, the claimant was sent a letter providing him with formal notice of redundancy, by which his employment was to terminate on 27 November 2020. That date was an error, given the claimant was entitled to 3 months’ notice in accordance with his contract of employment, a fact which the respondent conceded within these proceedings. The letter informed the claimant that he had five days to appeal the decision.[50]On 3 September 2020, without prior consultation with the claimant, the respondent, acting through Mr Harris, sent a standard form email to all of the claimant’s clients advising them that the claimant had been made redundant, that he had been on furlough since April, that that position would continue until October, whereupon he would commence gardening leave. The letter was therefore sent within the five-day period in which the claimant was permitted to appeal.[51]The claimant subsequently received a number of calls from his clients expressing their discontent with the decision, their concern for the claimant, and reporting that some of them had been advised that the claimant had “retired.” Disclosure[52]From 20 September 2020, the claimant and his legal representatives requested disclosure of the redundancy criteria, and the scoring matrices of the claimant and the others in the pool. The claimant was not provided until 21 July 2022 and that of the other pool members’ until 8 September 2022.[53]We address the reasons for that omission in the discussion and conclusions section below as it is a matter from which the claimant invites us to draw an inference of discrimination.[54]The claimant’s employment terminated on the 1 December 2020. The claimant began early conciliation on 5 February 2021 certificate was issued on the same day. The claimant presented his claim on 26 February 2021.
The Issues
[55]The issues were set out in the case management order of Regional Employment Judge Pirani on 20 October 2021. As a consequence of the determination of EJ Smail, the sole issue for the tribunal was as follows: 55.1. The respondent accepted that the claimant was treated less favourably than others within the pool for redundancy because the claimant was selected for dismissal on the grounds of redundancy. 55.2. Were the others within the pool appropriate comparators the purposes of section 23 EQA 2010 on the grounds that their circumstances were not materially different to the claimant’s? 55.3. Was the claimant’s age more than a trivial influence on the respondent’s decision to select him for redundancy and to dismiss him?
The Relevant Law
[56]The claimant brings a claim under the Equality Act 2010 for direct discrimination (s.13 Equality Act 2010 (“EQA”).[57]The relevant law is contained in sections 39, 13, 23 EQA 2010 which provide respectively (in so far as is relevant) as follows: 39 – Employees and applicants (2) An employer(a) (A) must not discriminate against an employee of A’s (B)— (a) as to B’s terms of employment; (d) by subjecting B to any other detriment. 13. Direct discrimination (1) A person (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. 23. Comparison by reference to circumstances (1) On a comparison of cases for the purposes of section 13, 14, or 19 there must be no material difference between the circumstances relating to each case. Section 13[58]The basic question in every direct discrimination case is why the complainant was subjected to less favourable treatment (Amnesty International v Ahmed [2009] IRLR 884, per Underhill P, para. 32).[59]Once it is established that the treatment is because of a protected characteristic, unlawful discrimination is established, and the respondent’s motive or intention is irrelevant (Nagarajan v London Regional Transport [1999] IRLR 572 HL).[60]The protected characteristic does not need to be the only reason for the less favourable treatment, or even the main reason, so long as it was an ‘effective cause’ of the treatment: O’Neill v Governors of St Thomas More Roman Catholic Voluntarily Aided Upper School and anor [1996] IRLR 372, EAT. The reverse burden of proof[61]The statutory tests are subject to the reverse burden of proof in section 136 EQA 2010 which provides: (2) If there are facts on which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.[62]The correct approach to the reverse burden of proof provisions in discrimination claims has been the subject of extensive judicial consideration. In every case the Tribunal has to determine the “reason why” the claimant was treated as he was (per Lord Nicholls in Nagarajan v London Regional Transport [1999] IRLR 572 HL). This is “the crucial question.”[63]It is for the claimant to prove the facts from which the Tribunal could conclude that there has been an unlawful act of discrimination (Igen Ltd and Ors v Wong [2005] IRLR 258 CA), i.e., that the alleged discriminator has treated the claimant less favourably or unfavourably and that the reason why it did so was on the grounds of (or related to if the claim is under s.26) the protected characteristic. That requires the Tribunal to consider the mental processes of the alleged discriminator (Advance Security UK Ltd v Musa [2008] UKEAT/0611/07).[64]In Igen the court proposed a two-stage approach to the burden of proof provisions. The first stage requires the claimant to prove primary facts from which a Tribunal properly directing itself could reasonably conclude that the reason for the treatment complained of was the protected characteristic. The claimant may do so both by their own evidence and by reliance on the evidence of the respondent.[65]If the claimant does so, the second stage requires the respondent to demonstrate that the protected characteristic was in no sense whatsoever connected to the treatment in question. That requires the Tribunal to assess not merely whether the respondent has proven an explanation, but that it is adequate to discharge the burden of proof on the balance of probabilities that the protected characteristic was not a ground for the treatment in question. If it cannot do so, then the claim succeeds. However, if the respondent shows that the unfavourable or less favourable treatment did not occur or that the reason for the treatment was not the protected characteristic the claim will fail.[66]The explanation for the less favourable treatment advanced by the respondent does not have to be a ‘reasonable’ one; it may be that the employer has treated the claimant unreasonably. The mere fact that the claimant is treated unreasonably does not suffice to justify an inference of unlawful discrimination to satisfy stage one (London Borough of Islington v Ladele [2009] IRLR 154).[67]Furthermore, it is not sufficient for the claimant simply to prove that there was a difference in status i.e. that the comparator did not share the protected characteristic relied upon by the claimant) and a difference in treatment. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an act of discrimination (see Madarassy v Nomura International Plc [2007] ICR 867 CA; Hewage v Grampian Health Board [2012] IRLR 870 SC and Royal Mail Group Ltd v Efobi [2019] EWCA Civ 18.)[68]The Tribunal does not have slavishly to follow the two-stage process in every case - in Laing v Manchester City Council and anor [2006] ICR 1519, EAT, Mr Justice Elias identified that ‘it might be sensible for a tribunal to go straight to the second stage… where the employee is seeking to compare his treatment with a hypothetical employee. In such cases the question whether there is such a comparator — whether there is a prima facie case — is in practice often inextricably linked to the issue of what is the explanation for the treatment.” That approach was endorsed by the Court of Appeal in Stockton on Tees Borough Council v Aylott [2010] ICR 1278.[69]It is for the claimant to show that the hypothetical comparator in the same situation as the claimant would have been treated more favourably. It is still a matter for the claimant to ensure that the Tribunal is given the primary evidence from which the necessary inferences may be drawn (Balamoody v UK Central Council for Nursing Midwifery and Health Visiting [2002] IRLR 288). Discussion and
CONCLUSIONS
[70]The issue in this case is a simple and straightforward one: was the claimant’s age in more than a trivial influence upon the decision to select him for redundancy?[71]The claimant was 60 at the time of the decision and relies upon those individuals who were not selected for redundancy as comparators, given that their relative ages were 27 and 40 respectively. The claimant is therefore able to show less favourable treatment and a difference in status. However, as has been made clear in any number of Court of Appeal authorities, such as Madarassy, a difference in status and a difference in treatment is not sufficient to establish discrimination, it only hints at the possibility of discrimination; something more is required, some evidence from which the Tribunal might infer that the conduct was influenced by the claimant’s age. The claimant’s arguments[72]In this case the claimant argues that we should draw an inference of discrimination from the following matters: 72.1. First, the comments that are indicative of stereotypical views of age which were made to the claimant when he was placed on furlough, in particular that he was told that he should “and enjoy his golf.” 72.2. Secondly, that the comments recorded on the claimant’s scoring matrix and that of others in the pool are indicative of stereotypical views of age: namely that older employees are slower to learn, are reluctant to and struggle to pick up new skills and can be forgetful and require support. That mindset, Mr Tindall argues is writ large across the comments made by Mr Harris which were endorsed by Mr Palmer that: “Pete needs a lot of support/training and tend to forget what he’s been shown.” “Pete is very slow when picking new things up, this tends to take up a lot of the support team’s time. He is also very reluctant to do things the ‘Aspirations way’, particularly when it comes to client fees.” 72.3. Beyond that, Mr Tindall encourages us to compare that the comments made about claimant with the comments made in respect of the youngest individual in the pool, which were again indicative of such an ageist mindset and reflective of lazy discrimination, namely, “being relatively new to advising (just under three years), still has plenty to learn but does pick things up quickly and is very keen to learn.” “It is eager to learn and therefore does seek guidance were necessary, but not very often” “is a keen and valued member of the FP team.” 72.4. Thirdly, that the claimant’s scoring matrix did not refer to the empirical evidence to support the criticisms which it contained. That failure to provide an objective reference was one, Mr Tindall sought to argue, that was also reflected in the matrix of Miss Palmer, which contained no reference points but scored her considerably higher. 72.5. Fourthly, that the explanation for the claimant’s scores was given for the first time in the witnesses’ answers to cross examination, and was not even contained in their witness statements, despite the witnesses knowing of the nature of the allegations that they faced. 72.6. Lastly, the respondent had failed to disclose the matrix for the claimant and for his comparators, despite their clear relevance, until very late stage in the proceedings and there was no reasonable explanation for that failure. The respondent’s arguments.[73]Ms Clark argues that the claimant failed to establish even a prima facie case of discrimination, with the result that the burden of proof does not transfer to the respondent. In particular she argues that the claimant was unwilling to articulate the essential nature of his claim when pressed, specifically he was unwilling to say that Mr Harris had deliberately and knowingly made decisions which were adverse to those in the age category of 60 or above, but could only insist that his age had been the deciding factor in his selection.[74]Secondly, Ms Clark argues that the claimant’s argument that Mr Harris had such a discriminatory mindset is inherently implausible, given that Mr Harris is himself 60 and that his unchallenged evidence was that there was real value to be gained in the financial planning and services sector from the experience derived from such an age. Furthermore, she pointed to the fact that Mr Gilpin was 60 but was not selected for redundancy.
Conclusions
[75]Looking at matters in the round, we are persuaded that the claimant has identified facts from which we could, properly directing ourselves, draw an inference that the claimant’s age was an influence upon the decision to select him for redundancy. That is because the comments in the matrix are indicative of stereotypical views of age and are made in circumstances where the empirical evidence to support them is not identified in the form. When that omission is coupled with the failure to explain the scores in the statements of the witnesses, and the very late explanations given only in cross examination, it is reasonable for a Tribunal to consider that it could draw an inference of discrimination.[76]But that is not all, the respondent wholly failed to disclose the relevant documents in any timely manner at all; the claimant’s notes and matrix was sent for the first time on 17 July 2022 and the comparator’s matrices and notes on 8 September 2022 (days before the claim was originally listed for a final hearing). That failure extends not just to the matrix, the criteria at the school sheets, but also to the consultation letters, and the financial information that the respondent relied upon to establish that there was a genuine redundancy situation. The explanation provided for that failure of timely disclosure was that the respondent’s witnesses believed that the matrices and the letters to those in the pool were confidential. Given that they had the benefit of legal advice, and that any reasonable legal advice would necessarily have indicated that they were both relevant to the issues and not protected by litigation or legal advice privilege but were contemporaneous internal documents, and therefore disclosable, there is no good explanation for that failure.[77]The burden therefore transfers to the respondent to demonstrate that its decision to select the claimant for redundancy was in no way influenced by the fact of his age.[78]In that context, the respondent relies upon the following matters to establish a non-discriminatory reason for the claimant selection for redundancy: 78.1. First, the claimant was the lowest performing of the four planners in the pool. The others had higher new business figures and higher recurring fees. 78.2. Secondly, Miss Palmer was able to offer experience and expertise in specialist areas IHT, BPR, EIS and VCTs; that experience would be valuable to the respondent working with a reduced number of staff 78.3. Thirdly, the claimant did require more support with the use of IO and was in consequence slower and less productive than others. 78.4. Lastly, he was resistant to increase fees and when the respondent was squeeze for every penny, that was a concern.[79]We found the respondent’s witnesses to be genuine and credible. Although the accounts they gave in relation to the comparator financial planners’ new business figures, fee generation, and knowledge of IHT were given for the first time in detail in their answers to cross-examination, that was partly explained by the word count limit on the statements when viewed in the context of the broad scope of the issues that the statements had to address. Nevertheless, the respondent had the benefit of professional representation and the failure to apply for an extension of the word limits to address this evidence as concerning. That was a shortcoming on the part of the respondent’s legal representatives, and we determined that it was not a basis on which to reject evidence which we found to be credible, and which was not the subject of significant challenge by Mr Tyndall.[80]In consequence, we accepted that the scores on the matrices, and particularly the claimant’s, were genuine and represented the respondent’s assessment of the claimant’s skills and aptitudes. There was a factual basis which justified the lower scores which reflected the non-discriminatory factors relied upon by the respondent. Looking at each in turn: 80.1. The claimant was not in a position to mount any challenge of significance to the figures that Mr Adams and Mr Harris provided for the comparators’ fees and business generation. They would not have been matters within his knowledge in any event; 80.2. The claimant accepted that Miss Palmer may have had the expertise alleged but sought to argue that he had experience of those tax avoidance devices and/or could have gained built up his expertise within a short period. That does not however dislodge the fact that question of expertise was a genuine factor in the scores he received and is a nondiscriminatory one. 80.3. The claimant accepted that initially he required more support with the Intelligent Office software, but argued that he had taken reasonable steps to obtain it and was successfully using it at the time of the redundancies. However, he was unable to challenge the respondent’s evidence that others who missed the initial training by the software developer were able to pick it up more quickly and did not require the same degree of support from the respondent’s inhouse IT support team. 80.4. Finally, the claimant accepted that he was reluctant to increase the annual fee basis for his clients. However, no matter how well founded his objections were, the fact remained that as a consequence of the share purchase agreement he had passed the authority to determine how that client bank was to be billed to the respondent. He could share his views as to the wisdom of the proposed course, but, ultimately, he was an employee, albeit a senior one, and therefore obligated to follow reasonable managerial instructions from his employer. The claimant’s resistance to the proposal had nothing whatsoever to do with his age; marking him down because of it was similarly untainted by age discrimination.[81]In conclusion, the respondent has persuaded us on the balance of probabilities that its reasons for scoring the claimant were not tainted by age discrimination but were genuine reasons relating to the potential financial contributions to the respondent’s business of each of those in the pool for redundancy.[82]We are satisfied that the respondent has established a non-discriminatory reason for claimant’s selection and dismissal for redundancy. Therefore, the claim is not well founded and is dismissed.