Ms SJ Williams v Lyons Holiday Park Ltd: 1601431/2020

EMPLOYMENT TRIBUNALS

Case No 1601431/2020

Between

Ms SJ WilliamsClaimant

Lyons Holiday Park LtdRespondent

Before

Employment Judge T. Vincent Ryan

Ms K. Sheridan (instructed by Counsel) for claimant

Mr. R. Moffatt (instructed by Counsel) for respondent

Date 25 November 2021

JUDGMENT

The unanimous judgment and declaration of the Tribunal is:

[1]The claimant was unfairly dismissed by the respondent on 24th March 2020; her Unfair Dismissal claim is well-founded and succeeds.

[2]By the respondent’s concession, the claimant’s claim that the respondent made unauthorised deductions from her wages, alternatively that it failed to pay to her holiday pay due on termination of employment, is well-founded and succeeds. The respondent shall pay to the claimant £69.23 in respect of this judgment by consent;

[3]The claimant’s claim that the respondent discriminated against her in relation to the protected characteristic of age fails and is dismissed.

[4]In the light of the liability judgment in respect of the claims of Unfair Dismissal and unlawful age discrimination the parties reached terms of financial settlement recorded by them in an exchange of email correspondence to which the Tribunal was not a party and which remain confidential; the Tribunal did not make any judgment on remedy nor make an award, and therefore the Recoupment provisions do not apply. Unless either party applies to the Tribunal in writing by no later than 4pm on 24th December 2021 for the remedy hearing to be restored the claimant’s application for an Award shall be deemed withdrawn and shall be dismissed. The parties shall note that the Case Number: 1601431/2020 Tribunal does not have jurisdiction to enforce a settlement agreement, and the remedy hearing would not be restored to the list if the issue is breach of the terms of the settlement; restoration will be a matter of judicial discretion exercised in the interests of justice.

REASONS

Oral reasons having been given to the parties and subsequent to settlement of the claimant’s application for an Award, the claimant requested written Reasons; they will be provided. JUDGMENT having been sent to the parties on 30th November 2021 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: REASONS

[1]Introduction: The claimant (C) claims that her dismissal, ostensibly by reason of redundancy, was unfair and that she was subjected to direct age discrimination both leading up to her dismissal and at that stage. The parties have provided us with an agreed List of Issues (Appendix 1 to this judgment), a Cast List (Appendix

[2]and a comprehensive agreed chronology (Appendix 3), all of which are incorporated in this judgment. 2. The Issues: The tribunal addressed the identified issues in Appendix 1 and resolved them.

[3]Facts: 3.1. The chronology at Appendix 2 is endorsed by the Tribunal, which finds as a fact that the “Events” listed occurred, and occurred on the “Dates” given. 3.2. The respondent (R): 3.2.1. R is a family run business but a large employer with an in-house professional HR department and an established relationship with external legal advisors with whom they liaise regularly. It is a holiday company that has grown from being a caravan park to a multi-site venture offering a range of holiday products and venues from what was described as “bucket and spade” beach holidays to secluded woodland retreats, including hotel accommodation (and we understood, or misunderstood, that one such venue is in the EU, maybe Spain). 3.2.2. R operated with several different departments including Food & Beverage, Sales, and Marketing (the latter being where C was employed). Each Department had a Head who reported to the Directors. Although its recruitment was seasonal, at its height in the period in question R would have employed in the region of 4,000 people across all sites. 3.2.3. R had grown considerably in the period leading to the events in question and so too had its business plan and expectations, in particular in that the Directors wanted to enhance and extend its marketing to fully exploit opportunities offered by digital marketing and social media; R realised that it had fallen behind its competitors in such activities, including in the number of “likes” and “shares” of its postings. 3.2.4. R’s Marketing Department, in the period leading up to C’s dismissal, was inefficient, as conceded by her. Mr Ben Williams was Head of Marketing until September/October 2019 when he moved to Food & Beverages before ultimately resigning. He enjoyed a good working and personal relationship with C, of whom he was supportive. Mr Williams was succeeded by Mr Neil Davies; he did not enjoy a good working or personal relationship with C, and he was unsupportive; he, the Head of Sales Ms M. Kelly, and the Directors, saw C as part of the inefficiency problem in the department. Mr Davies re-allocated some tasks from C and although we did not hear evidence from him, we accept R’s witness evidence to the effect that the re-allocation was intended to improve the performance of the Marketing Department, and to enhance the use of social media by the recruitment of Lucy Raven as an Assistant. 3.2.5. We did not hear evidence from Ms Kelly either, but we find from all we have heard that she too took against C, perceiving her as part of the inefficiency problem in the Marketing Department. We also find from all we have heard that Ms Kelly was very influential in the running of the business, that she drove change and effectively shook up the operation following her recruitment. R decided that the Marketing Department needed change and to be shaken up. In particular R considered that the use of marketing tours and marketing through charity events was no longer effective, that use of digital marketing and social media was substandard; R was frustrated that so much of the output was untargeted as to specific clients, sites, and demographic groups (which were many and varied taking account the range of holiday options R recently offered). The established practice had evolved of posting, on a limited number of platforms such as Facebook, a picture with a notice that was attributed to all sites indiscriminately. R did not discern any attempt at customer data analysis using digital and social media data; there was none, or at least none resulting in a change from dated and established practices over many years without due cognisance of the expansion of digital and social media marketing in the holiday and other such trades. R wanted to move to greater data analysis and targeted marketing. 3.3. The claimant (C): 3.3.1. C was employed as Marketing & Customer Service Assistant (and to perform any such other role as R may require) from 27th June 2011 until her dismissal on 24th March 2020; she was then aged 60 years. 3.3.2. C performed her duties to the satisfaction of Mr Williams when he was her manager. She undertook responsibility for marketing tours where a promotional van or caravan would visit various of R’s sites, and she dealt with R’s charitable events; prior to the appointment of Lucy Raven as an Assistant on 11th December 2017 she was also primarily responsible for social media output; she then trained Ms Raven and while these duties were re-allocated to Ms Raven C remained ultimately responsible for social media marketing and for Ms Raven (Ms Raven resigning on 16th January 2020). C’s job description is at page 62 of the hearing bundle (to which all page references refer unless otherwise stated). The Tribunal finds that C performed her duties in accordance with that description and Mr Williams’ direction while he was her manager. There are no records of formal appraisal. C had, as at the date of her dismissal, a clean disciplinary record and we know of no issues regarding her attendance at work or punctuality. 3.3.3. R’s senior management including, we find, Ms Kelly, felt from observations that C was working within her comfort zone and was part of the problem of inefficiency in her department. The Directors were uncertain as to what exactly she did to occupy herself all day at work. The Department was seen not to be functioning as it ought to for the furtherance of the business and C was, in part, blamed. The Department was not doing what R wanted. R’s senior managers were critical of C’s capability and performance. 3.3.4. When the Marketing Manager’s role was vacated by Mr Williams and was advertised C applied. She was unsuccessful. Mr Davies was appointed. He shared the critical and dismissive view of C held by his senior management colleagues. Mr Davies re-allocated some duties to Ms Raven from C, and we find from all we have heard (albeit not from Mr Davies) that this is what senior management wanted with a view to improving the output and efficiency of the department. There was a poor working relationship between C and Mr Davies which led to a poor working atmosphere in the Department, leading senior management to believe that C was resentful of Mr Davies and his appointment in preference to her. That strained relationship was not conducive to improvements within the Department and R’s senior managers (the Directors, Ms Kelly and Mr Davies at least) held C responsible for that atmosphere and its continuing deleterious effect on the working of the Department. 3.3.5. Ms Raven became increasingly responsible for social media marketing from June 2018 and retained that role until her resignation in 2020. During this period and by way of explanation Mr Davies said to C words to the effect that it was good to give “youngsters” a chance at work. That said R believed that Ms Raven too could be criticised for her under-utilisation of digital platforms and social media marketing generally, and specifically her failure to conduct meaningful data analysis. She was offered a training opportunity in December 2019, an opportunity to attend a course (we believe was in London but certainly away from home), but Ms Raven declined it. C was not offered that opportunity. The Tribunal finds that the offer to Ms Raven was made because she was by then doing the bulk of the little social media work and she needed to improve upon it and her performance in that area. It was also known to R that C could not commit to attending residential courses and the like for personal reasons, although we also find that it is unlikely R gave much serious consideration to offering the opportunity to C; there is no direct evidence that it did and in context we find that C was no longer part of R’s long-term plans based on its perception and understanding of her capability and performance to date and especially the state of relations between her and senior managers; we find from the available evidence that the poor relationships went beyond professional and that there was an element of personal ill-feeling and lack of mutual respect based on performance or perceptions of performance, and C’s feelings about the way that she was being managed after Mr Williams’ move from her line management. 3.3.6. We find as a fact that paragraph 41 of C’s statement is true; she was effectively side-lined 3.4. Restructuring: 3.4.1. Against the above background R decided to restructure marketing. They sought to recruit a Digital Marketing Manager (a role for which C did not apply) and then also a Social Media Marketing Assistant following Ms Raven’s resignation, both with a view to effecting R’s required changes in methods as indicated above. 3.4.2. Ms M. Wilson applied unsuccessfully for the Digital job, but R retained her details and subsequently invited her to apply for the Social Media role. 3.4.3. R delegated responsibility for the re-structure and the resultant anticipated redundancy exercise, at least ostensibly, to Mr Craig Moss. It was planned by R that one person would be dismissed by reason of redundancy. The initial pool for redundancy selection comprised Mr Davies, Ms Raven and C. R directed that Mr Davies be excluded from consideration. Ms Raven resigned. R instructed that Mr Moss continue with the exercise notwithstanding that the Department had been reduced by one person due to Ms Raven’s departure. 3.4.4. Simultaneously R interviewed Ms Wilson for the Social Media role; at the time Ms Wilson was in her early/mid 20s. She had an introductory and a more detailed capability interview. C applied for the role and was given the second interview only on the basis that an introduction was not required. There were 100 applicants for the role; 16 of the applicants were graduates with relevant degrees. 3.4.5. C was notified about the risk of redundancy and was spoken to about it. She met with Mr Moss. R instructed Mr Moss that C would not be successful with her application for the Social Media role. He held a meeting with C when he knew this, but he did not tell her; he carried on with the appearance of consultation and consideration of alternatives to redundancy. 3.4.6. As R had decided on dismissing one person from the Department, that the pool for selection comprised only C, that she was not to be appointed to the newly advertised Social Media role, she was “selected” by Mr Moss. We find that in the circumstances Mr Moss was led to that inevitable conclusion and he had no real choice. Senior management had decided to be rid of C for all the reasons stated above concerning inter-personal relations, actual performance within the Department and perceptions of capability based on those factors. C was bound to fail in any attempt to avoid dismissal; there was nothing she could do to save her employment with R. 3.4.7. R did not apply objective selection criteria or even draw any up. R did not seek alternative employment for C or consider any alternatives to dismissal, to be termed redundancy. R created the appearance that C was pitched head-to-head in a competitive interview process with Ms Wilson. R had in fact singled out C for dismissal and had sought Ms Wilson’s application for the Social Media role. It was the directors of R that instructed Mr Moss that C would be unsuccessful in her application. 3.4.8. Ms Wilson impressed Mr Moss in interview. In his words she “blew [him] away”. She demonstrated that she could provide the efficient garnering and analysis of data, and targeted social media marketing that R required. We accept Mr Moss’ evidence, notwithstanding the directive he received from R’s directors, that C did not impress him to the same extent as Ms Wilson; had there been an open and fair consideration of both candidates then he would have appointed Ms Wilson on merit over C. 3.5. Dismissal: C was notified that she was being dismissed by reason of redundancy. C wanted to challenge all that had happened to her since Mr Davies’ appointment as her manager up to and including her dismissal. R did not inform C of any right to appeal that decision. C wrote to R asking for a copy of the grievance procedure. R said to C that as she was no longer an employee, she could not avail of the grievance procedure. It did not offer her, as an alternative, the opportunity to appeal against her dismissal.

[4]Law: 4.1. Redundancy dismissal 4.1.1. Section 94 Employment Rights Act 1996 (ERA) establishes that an employee has the right not to be unfairly dismissed by his employer and s 98 deals with fairness. By virtue of s 98 (2) (c) redundancy is a potentially fair reason for dismissal and s 98 (4) requires that an employer relying upon a potentially fair reason acts reasonably in treating that reason as sufficient for dismissal, determined in accordance with equity and the substantial merits of the case. 4.1.2. s.139 ERA defines redundancy: “1) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to…….(b) the fact that the requirements of that business-……(i) for employees to carry out work of a particular kind,... have ceased or diminished or are expected to cease or diminish.” 4.1.3. Safeways Stores plc v Burrell

[1997] ICR 523

and Murray v Foyle Meats Ltd

[1999] ICR 827

show that there are three tests to be considered when deciding whether redundancy was the reason for dismissal under section 98(2) of the Act. The first is to ask whether the employee has been dismissed. The second is to ask whether the requirements of the business for employees to carry out work of a particular kind have diminished. The third is to ask whether the dismissal is attributable, wholly or mainly, to that state of affairs. 4.1.4. The EAT in Williams and ors v Compare Maxam

1982 ICR 156

,EAT laid down guidelines that a reasonable employer is expected to follow and against which fairness or unfairness is judged and these guidelines have been honed and refined over the years since 1982. These basic matters must always be considered in redundancy cases and the tribunal must ask whether the respondent’s actions and decision fell within the range of conduct which a reasonable employer could have adopted. The suggested factors are: 4.1.4.1. Whether employees were warned in good time; 4.1.4.2. Whether employees were consulted about redundancy, and to be meaningful any such consultation ought to take place before any final decision on redundancy is taken; 4.1.4.3. Whether any recognised trades union’s view was sought; 4.1.4.4. Whether any selection criteria were objectively chosen and fairly applied; 4.1.4.5. Whether alternatives to redundancy were reasonably considered; 4.1.4.6. Whether reasonable consideration was given to the availability of alternative work. 4.2. Age Discrimination: 4.2.1. Burden of Proof: 4.2.1.1. The burden of proof provisions of the Equality Act 2010 are set out in s.136. If there are facts from which the Tribunal could decide, in the absence of any other explanation, that A contravened the provision concerned, the tribunal must hold that the contravention occurred, save where A shows that A did not contravene the provision. This is referred to as a two-stage test, facts being established at the first stage showing a potential for discrimination and then at the second stage a respondent(a) (A) showing, proving facts, to establish an innocent explanation for acts, omissions or words (or otherwise, such as where A establishes in fact that the alleged acts etc did not occur) and therefore that there was no contravention as alleged. 4.2.1.2. At the so-called first stage the tribunal must find sufficient facts, which may be proved by either the claimant or the respondent, to pass any burden of showing there was no contravention of the provision to A, although any mere explanation from the respondent (A) is to be ignored at that first stage. One would expect the claimant to advance evidence to prove facts beyond merely making assertions of discrimination. 4.2.1.3. In discrimination cases there is often the obvious difficulty of positively proving that discrimination took place from available oral and documentary evidence. A tribunal may, but is not obliged to, draw adverse inferences from established facts, and by that route find that there was contravention of a relevant provision. In this judgment if adverse inferences have been drawn from established facts this will be made clear; if it is not clear that adverse inferences have been drawn then, on consideration and for good reason, it was not deemed necessary to draw any. 4.2.2. Direct Age Discrimination s.13 Equality Act 2010: A person (A) discriminates against another person

(b) (B) if because of a protected characteristic (such as age), A treats B less favourably than A treats or would treat others. Where the protected characteristic is age A may defend a claim by showing justification, namely that it can show the treatment was a proportionate means of achieving a legitimate aim. The key word in the statutory definition is “because” and the deciding factor is causation. Was the reason for any less favourable treatment age? Malice and malevolence (or motivation otherwise save where relying on the said justification) are not relevant; a person might discriminate unlawfully based on subconscious bias as well as consciously due to bias.

[5]Application of law to facts: 5.1. R conceded C’s holiday pay claim hence that judgment. 5.2. The parties provided a comprehensive hearing bundle, by which we mean that we accept it included the relevant documents. This leads us to conclude that C was not formally appraised during her employment, R did not devise selection criteria for the “redundancy” exercise, and R made no real effort to seek alternatives to redundancy or alternative employment. 5.3. We heard evidence from C and her supportive witness Mr Williams, as well as Mr Moss and Mr G. Lyons Mound (a Director of R) for R. It was common ground between all witnesses that at the material time the Marketing Department was inefficient and that there was personal ill-feeling at least between C and Mr Davies (and vice versa), her line manager towards the end of her employment. We found Mr Williams credible and plausible in his description of the role of Ms Kelly and that she had taken against C as had senior management, other than him, and that this related to her work within the department. 5.4. We did not find Mr Mound Lyons to be a very reliable witness in general as he seemed at various stages to be less than fully engaged in day-to-day activities in the workplace, or for that matter giving his evidence on occasions. That said he was plausible and credible when he gave evidence about his reservations over the claimant’s work-performance and the need for change in the methods and standards in the Marketing Department; he also dismissed any suggestion that age was a factor, and that evidence was given with credible and plausible emphasis. We are satisfied that from his own, slightly detached, perspective and reliant on feedback from Ms Kelly and Mr Davies, together with apparent weaknesses in R’s marketing, he had an agenda related to capability/performance rather than age; R did not have an “age-ist” agenda.. 5.5. In saying that we note the submissions for C about subconscious bias and perceptions that younger people are more “switched on” to, and able in terms of exploiting, social media than people of C’s age group. We find however that if C was seen to be performing efficiently in her department and was making full, or even better, use of social media and exploiting its potential then she may not have been dismissed. We find that R was concerned with capability and performance and not the age profile of its employees. It wanted an efficient department collecting, collating, analysing and exploiting data about customers. C had not shown an aptitude for this, albeit R did not specifically train her. C was principally engaged in other activities which for the most part R felt were not worth pursuing. We are not critical of C for this. She was doing what had been required historically of her and working in areas that she saw as opportunities. Unfortunately, that did not impress R or persuade its managers that she would deliver what was required, as she had not. 5.6. Ms Kelly and Mr Davies may have been useful witnesses and R has taken something of a risk not calling them. It is open to us to draw inferences. We have found facts drawing inferences as above but do not feel we need go further. We do not infer that age was a factor let alone the cause of R’s conduct towards C up to and including dismissal; there are enough reasons innocent of age discrimination for us to conclude that the reason for the treatment involved was capability/performance and personal work-based ill-will. Regardless of C’s age at the time R did not see her as an efficient, high performing marketer capable of delivering what it wanted, based on the departments performance over several years. That was the cause of the ill-well on R’s part. That was why it sought to dismiss her and engineered a so-called redundancy situation. 5.7. We have considered bias, both conscious and sub- or un-conscious. We considered whether to draw further adverse inferences. We are satisfied with the basis of our decision-making based on the available documentary and oral evidence having carefully considered submissions from both parties. 5.8. The work “of a particular kind” in issue here was marketing with emphasis on social media. The respondent had done it for years. C was employed as an Assistant in that field, so too Ms Raven. R wanted to enhance it. With Ms Raven’s resignation and C’s dismissal it recruited Ms Wilson to fill the role. There was no diminution in need for people to perform that work. There remained a need for someone, or more than one, to do more of it and better than had been the case. There was a reduction in the need for people to do promotional tour marketing and charity-related marketing but in terms of headcount R needed a person, lost Ms Raven, dismissed C and had to recruit. There was no redundancy situation as pleaded by R. 5.9. R’s management decided that C did not fit its bill based on performance and relationships. It engineered her dismissal. That means that notification of redundancy, consultation and consideration of alternatives were all defective. Notification and consultation were not meaningful. There was no real effort to find an alternative to dismissal. There was nothing C could have done to save her employment. Therefore, even if we are wrong about the existence of a redundancy situation the dismissal was still unfair. It was a foregone conclusion based on factors not canvassed with C. She was not given the opportunity to properly contest her selection for dismissal as she was being misled, nor to appeal. She was refused the opportunity to grieve about the process and her treatment, tantamount to an appeal. All of this is unfair. 5.10. It follows that the reason for C’s dismissal was not her age and was not related either to her age or the age of Ms Wilson; the earlier treatment was not related to C’s age or that of Ms Raven. There is no harassment claim. The treatment of which C complains was not “because” of the protected characteristic of age: 5.10.1. Tasks were removed from C because she was seen as being part of the inefficiency problem in the department; Ms Raven was seen as potentially better able to perform to the required standard given C’s history and including personal ill-will. Mr Davies had said he was giving the youth a chance, and so he was, but he did not treat C less favourably because of her age (see also 5.10.2 below). 5.10.2. Ms Raven was given the training opportunity because she was then doing most of the social media work albeit still not to the required standard. She needed the training. C was not seen as a long-term prospect in the re-vamped department given the department’s past performance and the ill-will abounding. 5.10.3. Ms Wilson was offered the Marketing and Social Media Assistant role in preference to C, not because she is younger but because for all the reasons stated R wanted to be rid of C and because, even had there been a fair contest, Ms Wilson came across at interview as not only the better candidate for the job but, in her own right, a good candidate. 5.10.4. C’s dismissal was for all the above reasons relating to performance and capability and relationships; it was not because of age.