Mr I Cerkov and Ms M Dzetaveckaite v Hunt's Food Group Ltd: 1401335/2024 and 1401337/2024
EMPLOYMENT TRIBUNALS
Case No 1401335/2024, 1401337/2024
Between
Mr I Cerkov and Ms M DzetaveckaiteClaimantHunt's Food Group LtdRespondent
Before
Employment Judge Mr P CadneyIn person for claimant- MS R BASTIN (instructed by SOLICITOR) for respondentDate 22 August 2025
JUDGMENT
The judgment of the tribunal is that:- i) The first claimant’s claims for direct age and/or race discrimination contrary to s13 Equality Act 2010 are not well founded and are dismissed. ii) The second claimant’s claims for direct age and/or race and/or marital status discrimination contrary to s13 Equality Act 2010 are not well founded and are dismissed. ---1---
REASONS
[1]The claimants both originally brought claims in separate but identical forms, of age discrimination and “other payments”. The claims for other payments have not been pursued. The claimants are a married couple and of Lithuanian origin and nationality.[2]A TCMPH was held on 13th February 2025 by EJ Livesey. He recorded that in the agenda both claimants asserted claims of unfair dismissal, but that because neither had the required two years’ service these claims could not be pursued. He also recorded that in the agenda C2 asserted that she was dismissed because of her marital status. C1 had been the victim of age discrimination, and she had been dismissed because she was married to him. Although no claim for marital status discrimination was made in the ET1, EJ Livesey concluded that this was in fact consistent with the claim as set out in Box 8.2. As a result no permission to amend was required, and he permitted C2 to recast her claim as marital status discrimination. Neither in the agenda nor in the hearing had either claimant applied to add any claim for race discrimination.[3]As a consequence the issues to be determined at this hearing were identified as: Direct age and/or marital status discrimination (Equality Act 2010 section 13)1.1 Did the Respondent do the following things:1.1.1 Dismissed the First Claimant because of his age;1.1.2 Dismissed the Second Claimant because she is the First Claimant’s wife.1.2 Was that less favourable treatment? The Tribunal will have to decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and those of the Claimant. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated. The Claimants say they were treated worse than a younger employee (the First Claimant) and someone not married to the First Claimant (Second Claimant).1.3 If so, was it because of age and/or marital status?1.4 Is the Respondent able to prove a reason for the treatment occurred for a non-discriminatory reason not connected to age and/or marital status?1.5 Justification. The Respondent asserts that the dismissal of the First Claimant was justified for the reasons set out in paragraph 20 of the response. ---2---[4]Amendment / Identification of the Issues – However during the course of the hearing the position has become more complex than that set out above. In both claimants’ ET1s they have asserted in identical terms a claim for “age discrimination against EU citizens” (both claim forms); and in his witness statement C1 states “I believe that my dismissal was connected to my age (having just reached pension age) and my EU citizenship” (C1); and C2 states “I believe my dismissal was influenced by my age and EU citizenship”. This at least suggests claims for both age and/or race discrimination, although the race discrimination box was not ticked in either of the ET1s. Additionally in neither of ET1s, nor in their witness statements have the claimants given any further detail of the basis for the assertion that their dismissals were connected to or influenced by their EU citizenship.[5]First Claimant - In the course of his evidence C1 accepted that the EJ had correctly identified his claim as age discrimination; and he maintained that he was dismissed because he had reached state pension age. He did not place any reliance on EU citizenship, or advance the factual claim subsequently advanced by his wife; specifically he did not assert any case that the policy of dismissing employees on reaching state pension age only applied to EU or non-British citizens. That issue only arose during the second claimant’s evidence.[6]Second Claimant - However during C2’s evidence she asserted that the EJ Livesey had misunderstood or misrepresented her claims. She was not simply asserting that she was dismissed because she was married to C1, but also because of own her age, sixty three at the point of dismissal, and her EU citizenship. She accepted that the respondent employed people older than her and her husband, which is one of the planks of the respondent’s defence to the age discrimination claim, but contended that those people were native British and that there were no EU citizens, (she specifically mentioned Lithuanians, Poles and Romanians) who were employed beyond pension age. In effect she appeared to be asserting that whilst the respondent had no normal retirement age for native British employees, it did have a de facto retirement age of the state pension age for EU citizens it employed, which it had applied to her husband. There is an obvious difficulty for her in advancing this as a freestanding claim in respect to her, in that she had not reached state pension age when she was dismissed; and there is no obvious reason why the respondent should have employed her at sixty two and then dismissed her at sixty three when nothing appeared to have happened relating to her age or EU citizenship, and she was still approximately three years from the state retirement age. However difficulties in advancing the claim is not necessarily a basis for not permitting an amendment if one is required.[7]She stated that she did not understand that there was any difference between the claim she was advancing, and the claim as set out by EJ Livesey in the CMO; and that her claim had never altered. ---3---[8]The respondent accepted that it had the evidence to meet the claim of age discrimination, if the second claimant was seeking to resurrect her claim of age discrimination; but not any claim of race discrimination because none had been made in the ET1/claim forms or identified in the CMO; and in particular the specific allegation of it having and applying a specific retirement age for EU citizen employees which it did not apply to native British workers, was an allegation made for the first time in the hearing which was not set out in the ET1 or the claimant’s witness statement. It had never understood that that was a case it had to meet.[9]First Claimant The evidence of, and the claim of the first claimant, is set out in more detail below is that he was dismissed because of his age, and specifically because in February 2024 he turned sixty seven and reached state pension age. He has not indicated that he is seeking to amend bring any claim for race discrimination; and it is not actually necessary for him to do so. If he was dismissed because he had turned sixty seven he will succeed in his claim for age discrimination, as the respondent is not seeking to justify any discrimination. If he was not then he would not succeed in a race discrimination claim based on that same factual assertion.[10]Second claimant- As set out above, however, the second claimant is seeking to advance three separate claims; age, and/or race, and/or marital status discrimination. It was agreed that I would consider whether there was any need to amend, and if so whether any amendment would be granted whilst considering my final conclusions.[11]Law - The relevant legal principles to be applied are summarised below: Employment tribunals have a broad discretion to allow amendments at any stage of the proceedings, either on the tribunal’s own initiative or on application by a party. Such a discretion must be exercised in accordance with the overriding objective of dealing with cases fairly and justly. On the basis of Chaudhry v Cerberus Security and Monitoring Services Ltd [2022] EAT 172, a two-step approach should be adopted. First, the amendment or amendments sought should be identified, ideally in writing. Secondly, it is necessary to balance the injustice and/or hardship of allowing or refusing the amendment or amendments, taking account of all the relevant factors, including, to the extent appropriate, those referred to in Selkent. The balancing of the injustice and/or hardship of allowing or refusing the amendment is paramount (as stressed for example in Vaughan v Modality Partnership [2021] ICR 535 (EAT). Vaughan was dealt with in the EAT by the same Judge who later dealt with Chaudhry (see below). The paradigm analysis was set out by the EAT in Selkent Bus Company Ltd-v-Moore [1996] ICR 836 EAT,( which was endorsed by the Court of Appeal in Ali-v-Office of National Statistics [2005] IRLR 201 CA). ---4--- The relevant factors were set out by Mummery J, and include: 1. The nature of the proposed amendment; 2 The applicability of time limits; if a new claim or cause of action is proposed to be added by way of amendment, whether or not it arises out of the same facts as the original claim, it is “essential” (per Mummery J in Selkent) for the Tribunal to consider whether that claim or cause of action is out of time and, if so, whether the time limit should be extended. Where the amendment is simply changing the basis of, or “re-labelling”, the existing claim, it raises no question of time limitation (see, for example, Foxtons Ltd-vRuwiel UKEAT/0056/08 per Elias P at para 13). 3 The timing and manner of the application; an application should not be refused solely because there has been a delay in making it. The later the application is made, the greater the risk of the balance of hardship being in favour of rejecting the amendment (Martin-vMicrogen Wealth Management Systems Ltd EAT 0505/06). However, an application to amend should not be refused solely because there has been a delay in making it, as amendments may properly be made at any stage of the proceedings.. These factors are not exhaustive and there may be additional factors to consider. In Vaughan v Modality Partnership 2021 ICR 535, EAT, the EAT gave detailed guidance on the correct procedure to adopt when considering applications to amend tribunal pleadings. “A practical approach should underlie the fundamental exercise of balancing the hardship and injustice of allowing as against refusing the amendment. Representatives would be well advised to start by considering, possibly putting the Selkent factors to one side for a moment, what will be the real practical consequences of allowing or refusing the amendment. If the application to amend is refused how severe will the consequences be, in terms of the prospects of success of the claim or defence; if permitted what will be the practical problems in responding. This requires a focus on reality rather than assumptions. It requires representatives to take instructions, where possible, about matters such as whether witnesses remember the events and/or have records relevant to the matters raised in the proposed amendment. Representatives have a duty to advance arguments about prejudice on the basis of instructions rather than supposition. They should not allege prejudice that does not really exist. It will often be appropriate to consent to an amendment that causes no real prejudice. This will save time and money and allow the parties and tribunal to get on with the job of determining the claim. ---5--- Following Vaughn, tribunals should consider what evidence there is of the real, practical consequences of allowing or refusing the amendment will be. If the application to amend is refused, how severe will the consequences be, in terms of the prospects of success of the claim or defence? If permitted, what will be the practical problems in responding? No one factor is likely to be decisive. The balance of justice is always key. A balancing exercise always requires express consideration of the interests of both parties, both quantitively and qualitatively. It is not merely a question of the number of factors, but of their relative and cumulative significance in the overall balance of justice.[12]Conclusions – I accept that both claimants first language is not English; and that whilst C2’s English appears to be better than C1’s, both claimants clearly needed the assistance of the interpreter during this hearing. There was no interpreter at the TCMPH, and in my view it must follow that the possibility that the EJ and the claimants did not fully understand one another is a real one. In the circumstances it does appear to me that there is an argument that an amendment application is not required, given that the allegation that the claimants were dismissed in part because of their nationality and/or the fact that they are EU citizens is apparent on the face of the claims forms and has not been picked up or addressed by the tribunal.[13]Equally if an amendment application is required, that is a powerful reason to permit any amendment application. Whilst I accept that there is significant evidential prejudice to the respondent in permitting the claimants to pursue a claim which had not previously been identified, in that they clearly have not been able to bring all of the evidence they would have ideally wished to answer this claim; it does appear to me that the balance of prejudice favours the claimants, and if and to the extent that permission to amend is required I will grant it. In the circumstances I will consider claims of race discrimination in respect of both claimants.[14]It follows that the claims I shall consider are claims of direct age and race discrimination for C1; and direct age and race and marital status discrimination for C2.[15]Law :- In respect of whichever protected characteristic they are advanced, all claims are claims for direct discrimination. Direct Discrimination[16]Section 13 (1) Equality Act 2010 provides – A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[17]This requires the tribunal to identify three elements of: ---6--- i) Less favourable treatment; which is ii) “Because of” a protected characteristic; iii) In comparison with a an actual or hypothetical comparator.[18]Less favourable treatment – The test for whether treatment is “less favourable” is objective, although the tribunal can take into account the claimant’s perception that it was less favourable in determining whether objectively it was.[19]“Because of” – The nature of the requirement for a finding that any less favourable treatment was “because of” the protected characteristic was summarised by Linden J in Gould v St John’s Downshire Hill 2021 ICR 1 EAT: “The question whether an alleged discriminator acted “because of” a protected characteristic is a question as to their reasons for acting as they did. It has therefore been coined the “reason why” question and the test is subjective… For the tort of direct discrimination to have been committed, it is sufficient that the protected characteristic had a “significant influence” on the decision to act in the manner complained of. It need not be the sole ground for the decision… [and] the influence of the protected characteristic may be conscious or subconscious.”[20]Burden of Proof – S136(2) Equality Act 2010 provides: ‘If there are facts from which the court [or tribunal] 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.’ This is the requirement for the claimant to establish a ‘prima facie case’ of discrimination, ‘stage one’ of the test. If the burden does shift s136 (3) provides that s136(2) does not apply if ‘A shows that A did not contravene the provision’, “stage two’.[21]Evidentially the process required of the tribunal was summarised by Lord Nicholls in Nagarajan v London Regional Transport 1999 ICR 877, HL: ‘Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator. Treatment, favourable or unfavourable, is a consequence which follows from a decision. Direct evidence of a decision to discriminate on [protected] grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances.[22]Marital Status Discrimination – The issue of whether the question of marital status discrimination should be construed narrowly ( i.e. that the claimant has been subjected to discrimination because s/he has a specific marriage/civil partnership status irrespective of the identity of his/her spouse/partner); or more broadly to include marriage to a specific individual has been the subject of a number of appellate authorities. Given my factual findings it is not necessary to set them out in any detail; but had the second claimant’s claim been well founded factually (i.e. that she had been dismissed not because of concerns about her own performance but because she was in a relationship with her husband) I would have had to have considered whether her marital status, and not simply the fact that she was in a ---7--- relationship wither husband had played a material part of the decision to dismiss. As I have not made any such finding it is not necessary to address this issue. Evidence[23]The tribunal has heard evidence from both claimants, and from Mr Connor Marshman (Supervisor); Ms Karina Quayle (Head of Human Resources); Mr Neil Dowden (Site Manager Pylle). In addition there is a bundle of documents of 198 pages to which I have been taken and considered. Facts[24]The respondent is a supplier of “food, catering and retail solutions” based in the South of the UK. Both claimants were employed as Manufacturing Operatives from 20th March 2023 until 29th March 2024 at its premises at Pylle Lane, Shepton Mallet, having previously been engaged by them there as agency workers. Ms Quayle’s evidence, which the claimants did not dispute, was that the business was previously known as John Thorner’s Farm. The claimants had briefly been engaged as agency staff in 2020. The business was acquired by Hunts Food Group in 2021, and the claimants had been re-engaged as agency staff in 2022 before being employed permanently in 2023. Respondent’s evidence[25]The premises are a factory and the claimants’ duties included packing meat and meat products. There are specific timings for collections, and orders must be ready for collection on time, and strict hygiene regulations which must be observed. Mr Marshman’s evidence is that essentially the work is time critical. At any given time there are about 6-8 packers working, and thus if the claimants worked together they constituted a quarter to a third of those workers.[26]Mr Marshman’s evidence is that the claimants worked more slowly than others and that on approximately two occasions per week that caused them to risk missing a delivery; and that on occasion other people had to be taken off other work to assist. He regularly spoke to them about this, but they were insistent that they were working as fast as they could; and there was no improvement in the pace of the work. In November /December 2023 their work was timed by Josh Bayton and he found that they worked some 30-40% slower than the others.[27]His evidence is that a couple of times per week they would clock in at 8.00 am but spend up to 10 minutes in the changing room before starting work. He had spoken to them but they would not make up the time. They would also take longer than the 30 minutes permitted break during shifts. In addition there was one day on which they requested leave which was not granted but on which they did not attend for work. ---8---[28]There were regular hygiene concerns in that the claimants did not wash their hands regularly enough; and one specific hygiene incident in which C2 was seen to take a dirty towel from a bin to wipe down tables in the Production Unit, on which raw meat was placed. This was a clear hygiene risk and in breach of the hygiene training that both claimants had received, and it was potentially very damaging for the respondents business if it failed to meet the necessary hygiene standards. This occurred in February 2024. Mr Marshman reported it and it was one of, if not the last straw.[29]Mr Marshman was not challenged in detail about his evidence, but it was put to him in general terms that it was all untrue; and that as an employee of the respondent he had been coerced into giving untrue evidence on the respondent’s behalf.[30]The decision to dismiss was taken by Mr Dowden, the Site Manager. All of the issues set out above had been drawn to his attention and he decided that both claimants were under-performing. His evidence is that C2’s performance was worse than C1, but that they were both significantly underperforming. As a result the decision was taken to dismiss both claimants with immediate effect. The dismissals were communicated orally at a meeting on 1st March 2024. Letters of the same date were sent to both claimants. Both are identical and include the following explanation for the dismissals: “You have been spoken to by Josh and Connor about your productivity and sadly we have not seen the desired improvements.”[31]Similarly Mr Dowden was not cross examined in detail, but it was also put to him in general terms that his evidence was untrue; and specifically that he had not taken the decision to dismiss. .[32]Ms Quayle’s evidence is that she was aware prior to the claimant’s dismissal of concerns as to their productivity, but was not involved in, or aware in advance of the decision to dismiss the claimants. She had received the claimants email of 2nd March 2024. The claimants attended Head Office on 5th March when she was at the Bridgewater site. She spoke to them on the phone and agreed to provide them with answers to the questions in the letter; and she contacted the Pylle site for further information. Mr Dowden responded at 14.09 with the information (see below), which she passed to his line manager Ms Coates, who replied the same evening (see below). She understood that all the questions raised by the claimant’s had been answered.[33]It was put to Ms Quayle that her evidence was also untrue. She had given the instruction to Mr Dowden to dismiss them, the decision having either been taken by her, or by someone higher up who had instructed her to do so. She denied this and maintained that she had not known the decision in advance, or been involved in it. Claimant’s Evidence ---9---[34]The claimant’s evidence is that the reason now relied on for their dismissals is not the reason given at the time by Mr Dowden. They allege that he told them in the meeting on March 1st that there were no complaints about their work performance and that the decision to terminate their contracts had been made by Head Office.[35]As set out above, it is Mr Dowden’s evidence that this not true, and that at the meeting he informed them that their performance was not acceptable; that other people were doing the same job at a much faster rate, and that this was causing resentment; and they did not provide any reason for their being slower. This was the primary reason for their dismissals, together with the hygiene issues, as was reflected in the dismissal letters themselves. It was a decision taken by him and not Head Office, and he did not state that it had been taken by them.[36]They contend that Ms Quayle’s failure or refusal to meet them fact to face is not explicable by a belief that the information they sought had been provided to them; but is only consistent with her not doing so because she had actually taken or at least communicated the decision to dismiss to Mr Dowden.[37]Overall their evidence is that the reasons for their dismissal were a subsequent invention of Mr Dowden; and he evidence given by all three of the respondent’s witnesses is untrue. Post Employment Events[38]On 2nd March 2024 the first claimant wrote to the respondent at stating: Today March 1st at the end of the working day I received a certificate of my dismissal…. I didn't know anything about being fired until that moment. In this regard I have the following questions: The document says: “as discussed at our meeting..” First of all I don't understand what kind of meeting is written here? If there was a meeting then for some reason I was not invited to this meeting. It goes on to say:” you have been spoken with by Josh and Connor about your productivity and sadly we have not seen the desired improvements.” Secondly on the basis of which regulatory document was it established that” … we did not see the desired improvements? I was not provided with such an official document on the time for the execution of each task. Who did the expertise on my performance, on which operation and when? Just yesterday Josh publicly praised me at the workplace for my good work. Based on the above I have to contact the legal department of Hunt's main office with a request to explain to me the legality of the dismissal of an employee of your company at the age of 67 who had no violations of labour duties and no disciplinary ---10--- penalties during the entire period. Do the circumstances of my dismissal comply with the law Your Rights at Work UK? Because the reason for my dismissal about your productivity is the usual age discrimination. . . "[39]On 5th of March 2024 Ms Quayle asked Mr Dowden for his comments, and Mr Dowden replied at 14.09. Ms Quayle sent this to Ms Coates, Mr Doden’s line manager who responded to the claimants using the information provided by Mr Dowden later the same day: 1. Firstly it was remiss of us not to include the mechanisms of appeal in your final letter apologies from the Human Resources Department who are copied into this email. 2. In my capacity as Production Director for Hunt's Food Group I've considered your queries and respond as follows:a. “As discussed at our meeting”, is referring to the conversation you had with Neil on Friday during which he verbally informed you your contract was being ended. Present during this conversation were Neil Igor and Marina.b. “You have been spoken to with by Josh and Connor about your productivity and sadly we have not seen the desired improvements”: i) Connor has had to speak to you both of you about time keeping twice this year. You were spoken to about clocking in on time, spending too much time in the changing rooms and not heading downstairs to work. ii) Connor had to have words with yourself Marina for taking a blue towel out of the bin to wipe a table down. This is a serious breach of hygiene operations. Actions such as this could close down our business. iii) Josh has timed your work and compared it to other staff. You were behind what was expected for that job and slower than your colleagues, You were asked to up your pace in line with colleagues. This was November / December. iv) You requested a day of annual leave which was not approved owing to the number of colleagues already on holiday. You never came in that day for work.".c. Connor and Josh spoke with you about your productivity. There is no official document. You were spoken with as per the above examples noted in “b”.d. Please refer to the Notice Period Section of your contract of employment….e. The company has endeavoured to be reasonable and provide one month's notice as confirmed in your final letter….f. I am comfortable the management team have endeavoured to manage productivity concerns with you directly. Regrettably we have not seen the required improvements to productivity. The team have continued to have to address short fallings with you both. I understand you attended head office to speak with someone about your contract ending. Whilst I understand your actions it is disappointing that you never spoke with the on site management team… and in fact advised the team you wouldn't be attending work as your car was being serviced…..[40]The claimants replied on 9th March 2024 and some of the responses are set out below: ---11--- “Connor has had to speak to both of you about time keeping twice this year. You were spoken with about clocking in on time, spending too much time in the changing rooms and not heading downstairs to work.” Yes. Indeed, one day due to road repairs when we entered our work area washed out work shoes put on gloves and it was 09/05 on the clock at that moment. Connor made a remark to us because of 5 minutes. But why didn't Connor inform us that we returned from the break 5 minutes earlier that day to compensate for these minutes? …… In addition we immediately grew drew conclusions for ourselves and in order to avoid a repeat of such a case we adjusted the time of departure from home. Why didn't Connor tell that it didn't happen again why didn't Mrs Coates ask Connor this question? “Connor had to have words with yourself Marina for taking a blue towel out of the bin to wipe a table down this is a serious breach of hygiene operations. Actions such as this could close down our business” There was such a case with a wipe and a bin. But the circumstances were different,. Marina after working with minced meat washed the scales with a white soaked in disinfectant and through this wipe into the bin. Bin was empty. Then she decided to wipe her gloves off the leftover mincemeat before washing the gloves in the wash basin. She decided to do this in order not to clog the wash basin with mincemeat and we would constantly told the factory has huge plastic waste. Therefore she decided that it would be right not to take in you wipe but to take her wipe from the bin and wipe her gloves before washing them in the wash basin. When she took the white from the bin Connor saw it. He explained that you should never take anything from the bin. There was no could close down our business in this situation. There was another witness to this event Debbie. “Josh has timed your work and compared it to other staff. You were behind what was expected for that job and slower than your colleagues, you were asked to up your pace in line with colleagues. This was November / December”. This is not true. As we can see Mrs Coates cannot provide any official numerical data so that an assessment of employee productivity can be made. For an objective assessment we suggest you send your representative to see how we work. Due to the fact that this is the main accusation we decided to contact legal advice with the question of if the employer wants to make the employer's poor performance the reason for the dismissal then how should he argue this. And we received an answer from the lawyer- the reason for dismissal is that insufficient pace is infringement of rights. ---12--- “You requested a day of annual leave which was not approved owing to the number of colleagues already on holiday. You never came in that day for work”. On February 23rd at 9:00 AM we had an appointment at the GP after we got over COVID-19. Earlier the system showed that we had one more day of holiday left we wanted to use this day for this visit to the doctor. But when we turned to the system to use this day it turned out that our day was no longer in the system. We asked Mrs Coates to help us find this day. Mrs Coates replied that she could not help. We then we asked Mrs Coates for permission to take a day off. She refused. Therefore we arrived at work immediately after the appointment at 10:17. And we worked all day. Mrs Coates accused us of being absent from work without even checking in the system that we were working that day. Other Evidence[41]Statistical Evidence – The respondent points to a table showing that it has 38 employees aged 61-65; 9 employees aged 66 – 70; and 6 aged 70 plus. It follows automatically that it does not have a policy of dismissing employees when they reach state pension age. As set out above, the claimants do not dispute this, but at least the second claimant now contends that these employees, or at least those that are above state pension age are native British workers, and that non British EU citizens are not permitted to work beyond state pension age. State Pension Age[42]A central plank of the first claimant’s claim is that the inference should be drawn that his dismissal was based on his age because in February 2024 he turned 67; which was the state pension age. The respondent points out that this is factually incorrect. The claimant was born in February 1957, and had he been eligible for the state pension, he would have become eligible on 5th February 2023, on his 66th birthday. In his case there is no significance in his having turned sixty-seven; and C2 had not yet reached state pension age in any event. Whilst the claimant’s evidence is that he was not in fact eligible for the state pension as he had not worked in the UK for long enough, as a matter of fact the event from which the claimant invites the tribunal to draw the inference that his dismissal was related to his age, specifically in his achieving state pension age is simply factually incorrect.[43]In respect of the second claimant’s assertion that there was a de facto retirement age for EU nationals which was not applied to British workers the respondents evidence is that this is simply untrue; and no such policy exists. ---13--- Resolution of Factual Disputes[44]The respondent submits that, despite the general assertions put to Mr Marshman and Mr Dowden that their evidence was untrue, the contemporaneous evidence demonstrates that it was not.[45]The claimants responded to Ms Coates e-mail on 9th March 2024 , as set out above. The respondent submits that, with the exception of the productivity timing, whilst the claimants provide explanations for their actions, there is no dispute that the underlying allegations are true and have not been invented by the respondent.[46]The one area of dispute concerned the timing of their work. Both claimants in evidence insisted that the process was unfair. Firstly neither in their contracts, nor any other policy document was there any specific requirement to work at a specific pace or achieve specific performance targets. Secondly if their work was to be assessed, there would need to be specific written methods of assessment, and a record of the assessment itself. Thirdly they could not just be assessed on one day, but would have to be assessed on a number of occasions to obtain a fair overview of their output. However neither denied factually that the timings had taken place. C2 gave the most detailed account stating that a complaint had been made about the slowness of their work by Damien. In consequence Josh Baynton had timed their work on one day; and had concluded that they were working significantly more slowly than others. However this conclusion was wrong because, as C2 asserted, Josh did not know that an hour consisted of 60 minutes, but was working on the basis that an hour consisted of 100 minutes, and was therefore assuming that they could achieve higher packing rates than could actually be achieved. The respondent submits that whilst this explanation is more than faintly absurd, that more pertinently and in any event the critical point is that both claimants accept that Jonh Baynton did time their work and did conclude that they were working too slowly. This allegation is also, therefore necessarily true and not made up by the respondent.[47]It follows that to the extent that the claimants allege, and put to Mr Marshman and Mr Dowden that the underlying factual allegations are untrue; this is demonstrably not the case. All of the underlying factual disputes must be resolved in the respondent’s favour, as there can in fact be no dispute that any of the events took place.[48]In my judgement this must be correct; and both for this reason and having heard the evidence of both witnesses, which I accept; I accept the respondents evidence as to the background and underlying events.[49]Dismissal – It does not automatically follow, however, that I should necessarily accept their evidence as to the reasons for dismissal. ---14---[50]There are a number of points from which the claimants invite the tribunal to draw the conclusions that true reasons for their dismissals were not those given by the respondent.:- i) Before being taken on as permanent employees in March 2023 both worked as agency staff, and were then recruited as permanent staff. It must follow that their work, standards, attitudes and productivity must have been at an acceptable level or they would not have been kept on as agency staff and/or recruited as members of the permanent workforce; ii) The suggestion must therefore be that their standards/productivity must simultaneously and coincidentally have dropped at exactly the same time in or about November 2023, which stretches credulity in and of itself; iii) If their standards had dropped (which they dispute) why was there no performance/capability process started and/or written warnings given identifying specifically what needed improvement; iv) Similarly why is there no documentary evidence in support of the allegation that their productivity had been timed; and against what standard was it being judged. No documentary evidence has ever been produced in support of this allegation. v) Whilst there have been discussions about productivity, they were never formally told that they were underperforming against other employees; and were never placed on any formal or informal disciplinary process in respect of the allegations of time keeping and taking excessively long breaks. vi) They invite the tribunal to conclude from, in particular the absence of any documentary evidence in support of the allegations, that either they are not genuine, or very least were not regarded as serious matters and are not the genuine reason for dismissal..[51]The respondent invites the tribunal to draw the opposite inferences for the following reasons:- i) They took on both claimants firstly as agency staff, and then as permanent members of staff in March 2023 when they knew their ages, their nationalities and EU citizenship, and that they were married; ii) It lacks any logic or rational basis to suppose that a year later they would dismiss the claimants because of age/ EU citizenship / marital status when nothing had changed; iii) They employed and continue to employ people older than C1 and C2 so the contention that the dismissal of either was related to age is untenable; iv) In any event the fundamental basis for the assertion of age discrimination that either or both of the claimants had reached state pension age shortly before either was dismissed is factually incorrect, and demonstrable untrue. v) Whilst it accepts there is no contemporaneous documentation supporting the allegations, which they also accept is an error, the fact remains that in the letters of 1st March the fundamental reasons for dismissal were set out; within a few days of the dismissal when the information was sought from Mr Dowden the explanation as to their dismissal was given at which has never altered; ---15--- vi) In the claimants response to the e-mail from Ms Coates, the only allegation that is factually disputed is that relating to productivity, and the dispute there relates to the lack of supporting documentary evidence, not the underlying issue (as set out above). In respect of all the other allegations it is accepted that they are factually true although explanations are given for all of them. This is not a case therefore, where in broad terms the underlying reasons for the dismissal have been invented or exaggerated. vii) There is no evidence that this decision was taken at Head Office and no reason for Mr Dowden to say that it was has been advanced; viii) The dismissal letters sent on the same day reflect the reasons for the dismissal as advanced by at Mr Dowden; ix) Mr Dowden communicated those reasons to Head Office, which were reflected back in the e-mail from Ms Coates;
Conclusions
[52]As set out above the claimant’s claims, however put, are solely discrimination claims. Neither of them has two years’ service and as a result there are no claims for unfair dismissal. It follows that I am not legally concerned with whether the dismissals were fair or unfair; or whether if there had there been claims for unfair dismissal such claims would have been likely to have succeeded or failed. The only issue before me in each case is why the claimant was dismissed; and whether the reason in whole or part was discriminatory, in that the protected characteristic was a ”significant” (which in the context of the Equality Act means more than minor or trivial) influence on the decision.[53]The claimant’s claims rest on a number of propositions: i) In the meeting on the 1st March 2024 Mr Dowden informed the claimants that the decision to dismiss had been taken in Head Office and that there were no concerns about their performance; if this is correct it follows that there must be some other reason for their dismissal than that now relied on by the respondent. ii) Even if the performance concerns were genuine they were very minor, and/or in some cases relatively old and could not in and of themselves justify dismissal; if this is correct again there must be some other reason to explain the decision to dismiss; iii) The first claimant contends that that other reason that was his age of 67; that it is not a coincidence that he was dismissed within one month of reaching the state pension age of 67 iv) The second claimant contends that the reason was either her own age and/or EU citizenship and/or that she was married to the first claimant.[54]The respondent contends that the evidence is plain that the reasons given for the dismissal of each claimant was the genuine reason; and that there is no evidence at all supporting any other explanation whether that be age, race or marital status. ---16---[55]The first question for me is whether there is evidence from which I could infer in the absence of an explanation from the respondent that the reason for the dismissals were age, race, or marital status.[56]Age – The evidence that the claimants point to as the basis for allowing an inference to be drawn, is firstly that C1 was dismissed within one month of reaching state pension age. The difficulty for him is that this is factually incorrect. He had actually reached state pension age before he was employed. It follows that in my judgement that I could not draw any inference that he was dismissed by reason of age simply because had recently reached sixty seven.[57]In respect of the second claimant there does not appear to be anything from which the inference could be drawn. She was sixty two years of age and had not reached state pension age or anything close to it.[58]It follows that in my judgement neither of these claims satisfies stage 1 of the Igen v Wong test.[59]Race discrimination – As set out above the claimants now seek to rely on allegations in the alternative that they were dismissed by reason of race. The first difficulty is that neither contends that they were dismissed solely because of race, but because of a combination of age and nationality in that the respondent applied a policy of enforcing retirement for EU citizens when they reached state pension age, which it did not apply to native born British workers. The difficulty is that this comes up against the same problem referred to above. As neither claimant had reached state retirement age at around the time of their dismissals (the first claimant was already beyond it, and the second claimant had not yet reached it) even on their own evidence the event that would give rise to the discrimination had either occurred before he was employed (C1), or had not yet occurred (C2). Secondly there is no evidence that, or from which I could infer in the absence of an explanation, that any such policy existed. Neither claimant refers to it at all in their claim forms or witness statements, and it is in reality simply an assertion made by C2 for which there is no evidence.[60]It follows that in my judgement neither of these claims satisfies stage 1 of the Igen v Wong test.[61]Marital Status – The second claimant invites me to infer that because the claimants were married, and that a decision was taken to dismiss her husband, and that as she was dismissed at the same time, that her own dismissal was on the basis of marital status. In my judgement this is arguably sufficient to satisfy stage 1 of the Igen v Wong test.[62]Given my conclusions in respect of marital status; and in the event that I am wrong in my assessment of whether in relation to any of the other claims the threshold was crossed and the burden of proof was reversed, I have gone on to consider the respondent’s evidence. ---17---[63]I accept the respondent’s evidence as to why both claimants were dismissed; and I accept the evidence that they had no differential retirement policy of the type alleged by the claimants. It follows that if in respect of any of the claims the burden of proof had reversed, that I accept the respondent’s evidence as to, and the reasons for the dismissals; and that the burden of proof was satisfied.[64]It follows that the claimants’ claims must be dismissed