Mr S Lamb v Wolseley UK Ltd (T/a Wolseley): 2300610/2020 and others
EMPLOYMENT TRIBUNALS
Case No 2300610/2020, 2302762/2020
Between
Mr S LambClaimantWolseley UK Ltd (T/a Wolseley)Respondent
Before
Employment Judge WebsterDate 12 December 2023
JUDGMENT
Pursuant to Rule 38(2) Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013/1237. The Judgment dated 11 August 2021 and sent to the parties on 13 August 2021, dismissing the whistleblowing detriment claim, is set aside.
REASONS
[1]An unless order was made by Employment Judge Webster dated 13 July 2021 which stated that unless by 27 July 2021 the Claimant provided answers to the following questions, the claims of whistleblowing detriment would stand as dismissed without further order: 1.1. What disclosures is the Claimant relying on as being qualified disclosures under s.43(2)(b)(F) ERA 1996? 1.2. When were these disclosures made? 1.3. To whom were the disclosures made? 1.4. What was the substance of the disclosures made? 1.5. Why was the disclosure in the public interest?[2]As the Claimant had not supplied the information by the date stipulated in the unless order, the whistleblowing detriment complaints were Case No: 2300610/2020 & 2302762/2020 dismissed in a Judgment dated 11 August 2021, and sent to the parties on 13 August 2021.[3]By a letter dated 18 August 2021 from solicitors for the Respondent, the Tribunal was informed that the Claimant had not brought a whistleblowing detriment claim, only a whistleblowing dismissal claim pursuant to s.103A ERA 1996. This error was not drawn to the Tribunal's attention when the unless order was sent out.[4]The Respondent invites the Tribunal to make a new order dismissing the s.103A ERA claim. Such request is refused as the unless order did not refer to a whistleblowing dismissal claim. Instead, I have decided to issue a new unless order, referring to the whistleblowing dismissal claim, and requiring the Claimant to provide the same information about the protected disclosures relied on. However, given that the Claimant has already had an opportunity to provide this information and has failed to do so, I am providing a short window within which the Claimant may send this information. ………………………………………………[1]This is the reserved judgment with reasons following the hearing on 27, 28, 29 November 2023 and the subsequent day in Chambers on 30 November 2023.[2]At a preliminary hearing before Employment Judge Sudra on 17 July 2023 and 18 July 2023, Employment Judge Sudra provided a Case Management Order with directions and an agreed List of Issues for the final hearing commencing on 27 November 2023 which is at page 326-329 of the bundle. This is referred to below. The agreed issues were discussed with the parties at the start of the hearing. Both parties confirmed that this List of Issues was accurate and that no amendments or additions were required. Mr Neckles accepted that the claimant’s witness statement deals with issues of not being successful in applying for alternative jobs at the respondent’s firm prior to his redundancy but confirmed that these were included only by way of background and did not form part of the claimant’s case. The Tribunal confirmed that the liability issues as set out in the List of Issues were the only issues that they would determine. The Tribunal would not determine paragraphs 3 and 7 relating to remedy.[3]A useful summary of the procedural position is set out in Employment Judge Sudra’s Case Management order dated 17 July 2023 as follows:- “The Claimant was employed by the Respondent, a UK-wide distributor of plumbing and heating products and a supplier of building materials, from September 1989 until his dismissal in March 2020. Early conciliation started on 18th January 2020 and ended on 2nd February 2020. The Claimant submitted three claim forms on: 13th February 2020 (2300610/2020); 2nd July 2020 (2302762/2020); and 8th February 2021 (2300572/2021). On 7th December 2021, the Tribunal ordered that the claims be heard together, and all three claims are hereafter referred to as, ‘the claim.’ The claim is about: Ordinary unfair dismissal; direct age discrimination; harassment related to age; and victimisation. The Respondent’s defence is that it did not unfairly dismiss the Claimant nor discriminate, harass or victimise the Claimant on grounds of age or at all. This matter had been listed for a full hearing from 17 to 25 July 2023. However, as the Claimant had failed to provide the Respondent with a List of Issues, as he had been ordered to, the first day of the Hearing was converted to a one-day case management hearing with the open Hearing beginning on day two. The first day was spent ascertaining why the parties were not ready to proceed with the Hearing, re-listing the final hearing, and finalising an agreed List of Issues. The Respondent stated that it wished to make strike-out and costs applications. As the first day of the Hearing had been converted to a private case management hearing and as the Claimant was a litigant-in-person, I decided that the Respondent’s applications will be held on the morning of the day two; this would also provide the Claimant with an opportunity to seek advice and prepare his response to the Respondent’s applications. On the morning of day two I heard the Respondent’s applications and the Claimant relied on a written response and made no oral submissions. The Respondent’s applications were not granted, and oral reasons were given at the Hearing. Case management orders were then made for the Final hearing listed for, 27 to 30 November 2023. “[4]The Tribunal note that the claimant no longer pursues a claim based on dismissal for asserting the Statutory rights under Section 86 and 94 Employment Rights Act 1996 or protected disclosure claims pursuant to section 47B and section 103A, 104 Employment Rights Act 1996.[5]Further at a preliminary hearing on 18 November 2022 Employment Judge Halliday ordered that:- “The claimant’s claims for whistleblowing detriment under section 47B Employment Rights Act 1996 and detriment in in relation to the right to be accompanied (section 12 Employment Relations Act 1999) as set out in case no: 2300572/2021 were issued outside the statutory time limit (including early conciliation extension) for such clams under section 48 Employment Rights Act 1996 and it was reasonably practicable for them to have been issued in time and they are therefore dismissed. The claimant’s claim for victimisation on grounds of age as set out in case no: 2300572/2021 was issued outside the time limit (including early conciliation extension) for such claims under section 123 of the Equality Act. The judgment of the Tribunal is that it is just and equitable to extend time in all the circumstances and the claimant’s claim for victimisation on grounds of age can therefore proceed.” This
HEARING
[6]The Tribunal were provided with the following: -(a) Mr Lamb’s witness statement (dated 25 September 2023)(b) Witness statements on behalf of the respondent from:- - Mr David Jones (Regional Operations Director at the respondent and who heard the appeal by the claimant against his dismissal by reason of redundancy and upheld his dismissal) dated and signed 23 November 2023 - Mr Graeme Fotheringham (National Director of Plumbing and Heating Contracts at the respondent) dated and signed 22 November 2023. Mr Fotheringham was the Regional Operations Director (South) in 2018/19 and oversaw the decision to move the claimant, from his Branch Manager role to a Category Sales Manager position in March 2019. - The respondent confirmed that Mr Shaun Kelly (former Regional Operations Manager at the respondent who investigated the claimant’s grievances) and Mr Holyoake (former General Manager of the respondents London city branch who conducted the redundancy process) are no longer employed by the respondent and no witness statements have been served from them. (b) An agreed evidence Bundle – indexed with 870 pages.(c) Respondent’s Chronology.(d) Respondent’s cast list.(e) Respondent suggested reading list named Key documents.(f) An additional Bundle of Documents (pages 833-870) which are letters sent to other employees at the respondent on 22-30 January 2020 advising them that their role was at risk of potential redundancy and the outcome of redundancy letters to 5 employees. Mr Neckles was advised that he could ask the claimant questions on these documents in examination in chief as they had been produced after his witness statement had been produced.[7]At the outset of the hearing the Tribunal discussed any adjustments that the parties needed for this hearing. Both parties confirmed that no adjustments were required. The Tribunal agreed to take regular comfort breaks but that either party could request an earlier break if this was required.[8]This claim was listed for a four-day in person final hearing to deal with liability and remedy. Based on the discussions with the parties of the time required to present their evidence and submissions, the Tribunal informed the parties that it was not possible to hear submissions on remedy within the time allotted to the Tribunal but would hear issues relating to Polkey and contributory fault, if relevant. It was also clear that the Tribunal did not have sufficient time to deliberate and to deliver a judgment. The Tribunal therefore informed the parties that they would reserve the decision.[9]Upon request of Mr Nicholls, the Tribunal checked the paper file and confirmed that the ET1 form (dated 13 February 2020 (2300610/2020) was sent to the respondent by the Tribunal on 18 February 2020 and the ET1 form (2302362/2020) dated 2 July 2020 was sent to the respondent by the Tribunal on 17 August 2020. These dates are relevant to the dates of the protective acts set out in the List of Issues at paragraph6.1.1 and6.1.2 and the List of Issues was amended by the Tribunal to include these dates.[10]At the outset on day 2, the Tribunal raised with the parties whether the List of Issues at paragraph 1.2 should include victimisation as Employment Judge Halliday set out in paragraph 3 of her Order dated 17 November 2023 (page 249) that:- “3.The claimant’s claim for victimisation on grounds of age as set out in case no: 2300572/2021 was issued outside the time limit (including early conciliation extension) for such claims under section 123 of the Equality Act. The judgment of the Tribunal is that it is just and equitable to extend time in all the circumstances and the claimant’s claim for victimisation on grounds of age can therefore proceed.”[11]Both parties accepted that Employment Judge Halliday’s order had allowed an extension of time for the ground of victimisation at 6.2.3 but not for the ground of victimisation at 6.2.1 of the List of Issues. Both parties could not agree whether Employment Judge Halliday had extended time for the ground of victimisation at 6.2.2. For the sake of completeness, the Tribunal will consider whether an extension should be granted for 6.2.2.[12]The Tribunal heard oral submissions from both Mr Neckles and Mr Nicholls. Mr Nicholls provided the Tribunal with final written submissions and Mr Neckles emailed the names of the case law on which he relies. The Tribunal are very grateful for the assistance we received. We shall not set out the entirety of the parties’ submissions but took them into account in reaching the decisions set out below. We have dealt with the parts of the submissions that seem to us to be the most important within our discussions and conclusions. Preliminary Applications (a) Audio recording of 9 July 2020[13]Following correspondence by the parties with the Tribunal on disclosure issues relating to covert audio recordings taken by the claimant during various meetings including the grievance meeting and redundancy appeal meetings and accordingly a strike out application made by the respondent, on 22 November 2023, Employment Judge Siddall ordered that:- “As the Claimant says that the audio recording in question is no longer available, the application to strike out the claim for non-compliance with an order is refused. The Tribunal at the full hearing will decide to what extent (if any) the transcript of the missing recording can be admitted as evidence. In the meantime, the witness statements of fact should not address the contents of the transcript. If the Claimant wishes to rely upon the transcript, he should provide a witness statement supported by a statement of truth from the person who made the recording, setting out the circumstances in which the recording was made and the full circumstances in which it has been lost. The witness must attend the hearing to answer questions. In the absence of such a statement the transcript will not be admitted.”[14]The parties had since provided the Tribunal with an agreed bundle including transcripts of covert recordings made by the claimant and witness statements from each party referred to some of these transcripts. The respondent made an application to admit into evidence an audio recording that was taken covertly by the claimant of the redundancy appeal hearing that took place on 9 July 2020. The transcript of the recording has been put in the agreed bundle at pages 575 – 582 but Mr Nicholls submitted that this transcript did not transcribe the entire audio recording and left off a section at the end where the claimant was talking to other people after the redundancy appeal hearing concluded. Mr Nicholls stated that this is relevant to the List of Issues as the claimant states in his witness statement that he is someone who has been greatly affected by the redundancy meeting, but this is not what is borne out on the audio hearing and further goes to the claimant’s credibility. Mr Nicholls referred the Tribunal to paragraphs 42 – 46 of the statement of Mr David Jones.[15]Mr Neckles stated that this audio recording was inadmissible evidence as it was a private conversation that the claimant had with other people and did not form part of the redundancy appeal meeting. Neither party directed the Tribunal to case law in support of their submissions. The Tribunal provided oral reasons for admitting the audio recording on 9 July 2020 into evidence as set out below. The Tribunal heard the audio recording of 9 July 2020 on the morning of day 2 and were sent an emailed copy of this also.[16]Rule 41 of the Tribunal’s rules of procedure enables the Tribunal to regulate its own procedure and conduct the hearing in a manner it considers fair having regard to the principles contained in the overriding objective. The overriding objective is to enable Tribunals to deal with cases ‘fairly and justly’. This includes, among other things, ensuring so far as practicable that the parties are on an equal footing, dealing with cases in ways that are proportionate to their complexity and importance, avoiding delay and saving expense.[17]Rule 41 also enables Employment Tribunals to admit evidence that would not be admissible before the ordinary courts. This allows the Tribunal to decide whether any particular item of evidence should be admitted and, if so, what degree of weight should be attached to it. The overarching factor that governs the admissibility of all types of evidence is relevance. For any evidence to be admissible it must be relevant to the issues that require adjudication by the Tribunal.[18]Admissible evidence in the Employment Tribunal can include covert audio recordings. However it will usually be necessary for a party seeking to introduce evidence of covert recordings to provide transcripts and a clear explanation of why the recording, or particular parts of it, is relevant Vaughan v London Borough of Lewisham and ors EAT 0534/12. In Vaughan the EAT upheld a decision not to admit recordings when these steps had not been taken and the following relevant analysis was provided: “Relevance is not a black-and-white concept:… It is necessary in the case of any piece of evidence to assess how relevant it is, and in what way, and also the extent to which the individual matters that may have been pleaded are themselves central to the allegations. This involves questions of degree and, to use the term with which we are all now familiar, proportionality. That being so, the Judge could get nowhere without sight of the transcripts of the recordings on which the Claimant sought to rely, so that an informed view could be taken whether it was indeed proportionate or, to put it another way, necessary in the interests of justice that the recordings be admitted in evidence.”[19]As to whether the end of the recording is relevant, the Tribunal find that it is relevant to the List of Issues and specifically to allegations relating to victimisation (para 6.2.3 of the List of Issues) which alleges that at the appeal hearing on 9 July 2020, Mr David Jones did not allow the claimant’s representative to speak as he wanted to. Mr Jones’ witness statement suggests that the claimant was being instructed on his responses and whispering can be heard through the recording.[20]Further the Tribunal have proactively considered how we could proceed in a way which was fair to both parties. The Tribunal have evidence from Mr Jones on what the audio tape shows and without hearing this we find that this may put the claimant at a disadvantage as his cross examination may be limited. We find that hearing the audio would be of little to no prejudice to the claimant as this was his covert recording and so he knows what the audio contains, and no prejudice was claimed by Mr Neckles should the audio tape be admitted into evidence. The Tribunal would allow Mr Neckles to put any questions on this issue to the claimant and in so doing this would not significantly lengthen the hearing. Further we consider that it is appropriate to hear the entire covert recording of 9 July 2020 so that everything that was said can be put in context by The Tribunal and it is not fair to allow the claimant to cherry pick what comes before the Tribunal. (b) LinkedIn advert in the claimant’s witness statement[21]The respondent also made an application for the claimant not to be able to rely on the reference made on page 10 of the claimant’s witness statement of the LinkedIn advert dated 2 October 2020. Mr Nicholls submitted that document was not a document in standard disclosure and the first that the respondent had notice of this was on Thursday 23 November 2023 when witness statements were exchanged. The Tribunal clarified with the claimant whether he no longer had a copy of the advert, which he believed was a screenshot, to disclose to the respondent and were informed that the original document was lost.[22]As set out above, the Tribunal have a wide discretion on the admissibility of evidence as set out in Rule 41. The Tribunal find that the LinkedIn advert is relevant to the List of Issues, namely the principal reason for the claimant’s dismissal (paragraph 2.1 of the List of Issues). The Tribunal decided to take a pragmatic approach and to allow the claimant to refer to the LinkedIn advert. The issue for the respondent is a discrete factual issue, namely whether they accept that the respondent placed an advert on LinkedIn in October 2020 as the claimant alleges.[23]To ensure that both parties are placed on an equal footing as a result of the Tribunal’s decision to allow the claimant to refer to the LinkedIn advert, the Tribunal confirmed that on this specific issue, the respondent could ask questions of their witnesses, submit a further short statement from another witness, or call an additional witness if required and in addition they could ask the claimant questions on the source of the document to which the claimant refers. The Tribunal would then then consider all the evidence and the circumstances of the how the document was produced and decide how much weight to place on this particular piece of evidence.[24]The parties were informed that when considering the preliminary issues above, the Tribunal have considered fairness, the relevant circumstances of the timing and manner of the disclosure, Rule 41, prejudice to both parties and the overriding objective. (c) Specific disclosure[25]The claimant made an application for specific disclosure of the redundancy criteria that the respondent used and applied to the claimant and others in his pool. After taking instructions, Mr Nicholls confirmed that the respondent has no further documents that they can disclose on this issue and have disclosed all the relevant documents that they have. The Tribunal found that the practical effect of ordering specific disclosure in these circumstances would take the case no further forward as no documents would be disclosed.[26]The Tribunal discussed with Mr Neckles that he should put his view of the lack of evidence on the pool and selection criteria used to determine whether the claimant should have been made redundant to the respondent’s witnesses. The Tribunal would consider all the evidence including the gaps in the evidence and could make the relevant inferences as a result. Relevant Law Unfair dismissal
Relevant Law
[27]Section 94 Employment Rights Act 1996 (ERA) confers on employees the right not to be unfairly dismissed. Enforcement of the right is by way of complaint to the Tribunal under section 111.[28]Section 98 ERA deals with the fairness of dismissals. There are two stages within section 98. First, it is for the employer to show the reason for the dismissal (that is what motivated the decision maker to take the decision), was for a potentially fair reason within section 98(2). Second, if the respondent shows that it had a potentially fair reason for the dismissal, the Tribunal must consider, without there being any burden of proof on either party, whether the respondent acted fairly or unfairly in dismissing for that reason.[29]In this case the respondent asserts that the potentially fair reason for dismissal was redundancy under section 98(2)(c). Redundancy is defined in S.139(1) ERA The statutory words are: ‘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 —(a) the fact that his employer has ceased or intends to cease — (i) to carry on the business for the purposes of which the employee was employed by him, or (ii) to carry on that business in the place where the employee was so employed, or(b) the fact that the requirements of that business — (i) for employees to carry out work of a particular kind, or (ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish.’[30]Where the employer has shown a reason for the dismissal and that it is for a potentially fair reason, section 98(4) ERA states that the determination of the question whether the dismissal was fair or unfair depends on whether, in all the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee and shall be determined in accordance with the equity and substantial merits of the case.[31]In determining whether the employer acted reasonably or unreasonably within section 98(4), the Tribunal must decide whether the employer acted within the band or range of reasonable responses open to an employer in the circumstances or whether that band falls short of encompassing termination of employment. The assessment should consider the fairness of all aspects of the case, including the investigation, the grounds for belief, the penalty imposed, and the procedure followed and not on whether the employee has suffered an injustice. If a dismissal falls outside that band, then it is unfair.[32]In determining the question of reasonableness, it is not for the Employment Tribunal to impose its standards and decide whether the employer should have behaved differently. Instead, it has to ask whether ‘the dismissal lay within the range of conduct which a reasonable employer could have adopted’. The band of reasonable responses test is also applicable to the procedural steps taken by the employer. (Iceland Frozen Foods Limited v Jones 1982 IRLR 439 EAT, Sainsbury’s Supermarkets Limited v Hitt 2003 IRLR 23, and London Ambulance Service NHS Trust v Small 2009 IRLR 563).[33]The Tribunal should consider the whole dismissal process, including any appeal stage, when determining fairness (Taylor v OCS Group Ltd [2006] ICR 1602).[34]Mr Nicholls referred the Tribunal to the basic position on fairness as summarised by Lord Bridge in Polkey v A E Dayton Services Ltd [1988] ICR 142 and a detailed passage in Williams and Ors v Compair Maxam Ltd 1982 ICR 156, EAT, where the EAT laid down guidelines that he described as standards of behavior which a reasonable employer might be expected to follow in making redundancy dismissals. In summary these are: - a) whether the selection criteria were objectively chosen and fairly applied b) whether employees were warned and consulted about the redundancy c) whether, if there was a union, the union’s view was sought, and d) whether any alternative work was available[35]Mr Nicholls referred the Tribunal to the fact that the extent to which these principles apply depends on the circumstances. An employer's failure to adopt any one or more of these practices will not necessarily lead to a finding of unfair dismissal. The principles should not be treated as if they were a statute or check list (Rolls-Royce Motors Ltd v Dewhurst [1985] ICR 869).[36]Mr Nicholls also made submissions on specific aspects of redundancy which we set out below.[37]The Tribunal is not permitted to examine the commercial merits of an employer’s decision that redundancies were required: James W Cook (Wivenhoe) Ltd v Tipper [1990] ICR 716.[38]The employer must consult and consider the employee’s views properly and genuinely (Rowell v Hubbard Group Services Ltd [1995] IRLR 195). An employee should have the opportunity to contest their selection, either themselves or through their trade union.[39]Fair consultation will usually require the employee to be given a fair and proper opportunity to understand the matters about which he/she is being consulted and to express his / her views on those subjects, with the employer thereafter considering those views properly and genuinely (R v British Coal Corporation ex p Price & Ors [1994] IRLR 72, applied in Pinewood Repro Ltd v Page [2011] ICR 508).[40]The Tribunal were referred to Glidewell LJ in the case of R v British Coal Corporation and Secretary of State for Trade and Industry, ex p Price [1994] IRLR 72, at [24] who emphasised that a fair consultation should include: consultation when the proposals are still at a formative stage; adequate information on which to respond; adequate time in which to respond; conscientious consideration by an authority of the response to consultation.[41]In general, if the employer sets up a system of selection which can reasonably be described as fair and applies it without any overt signs of conduct which mars its fairness, it will have satisfied the requirements of ERA 1996, s 98(4).[42]Determining the pool from which those employees to be made redundant are selected is principally a matter for the employer and it will be difficult for an employee to challenge it when the employer has genuinely applied his mind to the question (Taymech Limited v Ryan (UKEAT/663/94). The question for the Tribunal is whether the pool adopted by the employer was one which a reasonable employer could have adopted.[43]A pool of one is permissible: in Wrexham Golf Co Ltd v Ingham UKEAT/0190/12 the EAT reiterated that there will be cases, of which that was one, where it was reasonable for the employer to focus upon a single employee without developing or even considering the development of a pool.[44]A dismissal of an employee may be considered unfair if no consideration is given to finding him another job within that company, or if the company is a member of a group, within that group.[45]The Tribunal considered the cases and law referred to them by Ms Neckles, as follows: - Toal & Anor v GB Oils Ltd UKEAT/0569/12/LA Eaton Ltd v King & ors (No.2) [1998] IRLR 686 West Midlands Co-Operative Society Ltd v Tipton [1986] IRLR 112 W Devis & Sons Ltd v Atkins [1977] IRLR 314HL Reductions to any award for unfair dismissal[46]If a finding of unfair dismissal is made as a result of an unfair procedure, then the Tribunal should consider the likelihood that the employee would have been dismissed in any case had a fair procedure been followed. The compensation to be awarded should be reduced to reflect that likelihood (Polkey v AE Dayton Services Ltd [1987] UKHL 8). Contributory fault[47]Section 123(6) ERA states that: ‘Where the Tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.’ There is an equivalent provision for reduction of the basic award contained in section 122(2) ERA.[48]When considering whether or not to make a reduction for contributory conduct, it is helpful to keep in mind guidance from Nelson v BBC (No 2) [1980] ICR 110 which said:a. the relevant action must be culpable and blameworthy.b. it must have caused or contributed to the dismissal.c. it must be just and equitable to reduce the award by the proportion specified. Direct discrimination (Section 13 of the Equality Act 2010)[49]Section 13 of the Equality Act 2010 (EqA) provides: “(1) A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”. (2) If the protected characteristic is age, A does not discriminate against B if A can show A's treatment of B to be a proportionate means of achieving a legitimate aim.” The protected characteristic of ‘Age’ includes a group of persons defined by reference to age, whether by reference to a particular age or to a range of ages.[50]Section 13(2) is silent as to what may amount to a legitimate aim for the purpose of justifying unlawful age discrimination. The Supreme Court in Seldon v Clarkson Wright and Jakes (A Partnership) 2012 ICR 716, SC, held that direct discrimination can only be justified by reference to legitimate objectives of a public interest nature, rather than purely individual reasons particular to the employer’s situation, such as cost reduction or improving competitiveness and set out two broad categories. The respondent does not rely on section 13 (2) EqA.[51]The test posed by Section 13 above is an objective one: the fact that a claimant believes that he or she has been treated less favourably does not of itself establish that there has been less favourable treatment. On comparison between the claimant and the case of the appropriate comparator, real or hypothetical, there must be no material difference between the circumstances relating to each case (section 23(1) EqA).[52]The fact that a claimant has been treated less favourably than an actual or hypothetical comparator is not enough to establish discrimination, something more is required. As held by Mummery LJ in Madarassy v Nomura International plc [2007] ICR 867, different treatment and less favourable treatment are not synonymous: “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 unlawful act of discrimination” (at 878H).[53]It is not necessary for a claimant to have an actual comparator to succeed. The comparison can be with a hypothetical person of a different age. The real question is the “reason why” the decision maker acted as he or she did. Answering that question involves consideration of the mental processes (whether conscious or subconscious) of the alleged discriminator to identify whether the protected characteristics (in this case age) had any material influence. It may be possible for the Tribunal to make a finding as to the reason why a person acted as they did without the need to concern itself with constructing a hypothetical comparator (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] IRLR 285).[54]Decisions are frequently reached for more than one reason. Provided the protected characteristic had a significant influence on the outcome, discrimination is made out. (Nagarajan v London Regional Transport [1999] IRLR 572, HL).[55]The case law recognises that very little discrimination today is overt or even deliberate. Witnesses can even be unconsciously prejudiced. Burden of proof[56]The provisions relating to the burden of proof relevant to the discrimination, victimisation and harassment claims are to be found in Section 136 EqA which provides: - “(1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from 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”[57]The conventional approach involves a two stage approach by the Tribunal (see Igen Ltd and others v Wong and other cases [2005] ICR 931 and Hewage v Grampian Health Board [2012] ICR 1054).[58]The two-stage process is such that initially it is for the claimant to prove, on the balance of probabilities, primary facts from which we could conclude, in the absence of an adequate explanation from the respondent, that the respondent committed an act of unlawful discrimination. What constitutes such primary facts has been considered by the Court of Appeal in Madarassy. It stated: ‘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 unlawful act of discrimination.’[59]At the second stage, discrimination is presumed to have occurred, unless the respondent can show otherwise. The standard of proof is again, on the balance of probabilities. In order to discharge that burden of proof, the respondent must adduce cogent evidence that the treatment was in no sense whatsoever because of the claimant’s protected characteristic. The respondent does not have to show that its conduct was reasonable or sensible for this purpose, merely that its explanation for acting the way that it did was non-discriminatory. The term ‘no sense whatsoever’ is equated to ‘an influence that is more than trivial’ (see Nagarajan –v- London Regional Transport [1999] IRLR 573, HL; and Igen Ltd –v- Wong, as above).[60]This approach was approved by the Court of Appeal in Ayodele v Citylink and anor [2017] EWCA Civ 1913. The Supreme Court in Efobi v Royal Mail Group Limited 2021 ICR 1263 held that the enactment of section 136 EqA did not change the requirement on the claimant to prove, on the balance of probabilities, facts from which, in the absence of any other explanation, the Employment Tribunal could infer an unlawful act of discrimination.[61]A flexible approach to the burden of proof provisions may be appropriate on occasion, for the Tribunal to take into account the respondents’ explanation for the alleged discrimination in determining whether the claimant has established a prima facie case so as to shift the burden of proof. (Laing v Manchester City Council and others [2006] IRLR 748; Madarassy v Nomura International plc [2007] IRLR 246, CA.) It may also be appropriate for the Tribunal to go straight to the second stage, where for example the respondent assert that it has a non-discriminatory explanation for the alleged discrimination. A claimant is not prejudiced by such an approach since it effectively assumes in his favour that the burden at the first stage has been discharged (Efobi v Royal Mail Group Ltd [2019] ICR 750, para 13).[62]As noted in the cases of Hewage v GHB [2012] ICR 1054 and Martin v Devonshires Solicitors [2011] ICR 352, careful attention is required where there is room for doubt as to the facts necessary to establish discrimination as the Tribunal may be in a position to make positive findings on the evidence one way or the other. However, if this approach is adopted it is important that the Tribunal does not fall into the error of looking only for the principal reason for the treatment but properly analyses whether discrimination was to any extent an effective cause of the reason for the treatment. The approach set out in Hewage was endorsed and applied to the Equality Act 2010 burden of proof reversal provisions by the Court of Appeal in Ayodele –v- Citylink [2017] EWCA (Civ) 1913.[63]Inferences can only be drawn from established facts. They cannot be drawn speculatively or on the basis of a gut reaction or “mere intuitive hunch” (Chapman v Simon [1994] IRLR 124, per Balcombe LJ 33).[64]Discrimination cannot be inferred from unfair or unreasonable conduct alone (Glasgow City Council v Zafar [1998] ICR 120) and there must be something to suggest that the treatment was due to the claimant’s possessing a protected characteristic (B and C v A [2010] IRLR 400). It is not sufficient to shift the burden of proof that the conduct is simply unfair or unreasonable if it is unconnected to a protected characteristic (Comr. of Police of the Metropolis v Osinaike (2010) 907 IDS Brief 15). Victimisation (Section 27(1) of the Equality Act 2010)[65]Section 27(1) of the Equality Act 2010 defines victimisation as where: “a person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act”. Section 27(2) of the Equality Act 2010 states “ Each of the following is a protected act-- (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act;(c) doing any other thing for the purposes of or in connection with this Act;(d) making an allegation (whether or not express) that A or another person has contravened this Act.”[66]The claimant does not need to show a comparator, but he must prove that he did a protected act and that he was subjected to a detriment because he had done that protected act. As with direct discrimination, it is not necessary for the claimant to show conscious motivation, it is sufficient that the protected characteristic (Nagarajan v London Regional Transport [1999] IRLR 572).[67]The protected act must be a real reason (see Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065 per Lord Scott at 77). The protected act need not be the main or only reason for the treatment; victimisation will occur where it is one of the reasons (paragraph 9.10, EHRC Services Code).[68]Provided the protected act, had a significant influence on the outcome, discrimination is made out. (Nagarajan v London Regional Transport [1999] IRLR 572, HL). The Court of Appeal in Igen Ltd v Wong [2005] ICR 931, stated for an influence to be “significant” it must simply be: “an influence which is more than trivial. We find it hard to believe that the principle of equal treatment would be breached by the merely trivial” (per Peter Gibson LJ at 37).[69]Something amounts to a detriment if the treatment is of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment – see paragraphs 31-37 of the speech of Lord Hope in Shamoon v Chief Constable of the RUC [2013] ICR 337 (House of Lords).The EAT in the Chief Constable of Kent Constabulary -v- Bowler [2017] UKEAT/0214/16 gave guidance on detriments in victimisation claims: “Determining whether the treatment that B is subjected to amounts to a detriment involves an objective consideration of the complainant’s subjective perception that he or she is disadvantaged, so that if a reasonable complainant would or might take the view that the treatment was in all the circumstances to his or her disadvantage, detriment is established. In other words, an unjustified sense of grievance does not amount to a detriment; the grievance must be objectively reasonable as well as perceived as such by the complainant”. Harassment[70]Section 39 EqA prohibits an employer from discriminating against its employees by dismissing them or subjecting them to any other detriment. Section 40 prohibits an employer from harassing its employees. Section 26 EqA defines harassment as follows: (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.[71]Not every adverse comment or conduct may constitute a violation of a person’s dignity etc. The conduct mist be unwanted however Tribunals are warned not to encourage a culture of hypersensitivity by imposing liability on every unfortunate phrase (Richmond Pharmacology v Dhaliwal) or to cheapen the significance of the meaning of the words used in the statute (i.e. intimidating, hostile, degrading, humiliating and offensive) which are an important control to prevent trivial acts causing minor upset being caught in the concept of harassment. Being upset is far from attracting the epithets required to constitute harassment. It is not enough for an individual to feel uncomfortable to be said to have had their dignity violated or the necessary environment created. (Grant v Land Registry 2011 IRLR 748).[72]Although isolated acts may be regarded as harassment, they must reach a degree of seriousness before doing so. Context is all important. Proving and finding discrimination is always difficult because it involves making a finding about a person’s state of mind and why they have acted in a certain way towards another, in circumstances where that person may not even be conscious of the underlying reason and will in any event be determined to explain their motives or reasons for what they have done in a way which does not involve discrimination.[73]Even if there is conduct which is sufficient to attract the necessary epithets, the conduct must still be related to the protected characteristic. The need for a Tribunal to take a rigorous approach to the question of whether conduct related to a protected characteristic was emphasised in Tees, Esk and Wear Valleys NHS Foundation Trust v Aslam [2020] IRLR 495, EAT: ‘The broad nature of the 'related to' concept means that a finding about what is called the motivation of the individual concerned is not the necessary or only possible route to the conclusion that an individual's conduct was related to the characteristic in question. Nevertheless, there must be still, in any given case, be some feature or features of the factual matrix identified by the tribunal which properly leads it to the conclusion that the conduct in question is related to the particular characteristic in question, and in the manner alleged by the claim. In every case where it finds that this component of the definition is satisfied, the Tribunal therefore needs to articulate, distinctly and with sufficient clarity, what feature or features of the evidence or facts found, have led it to the conclusion that the conduct is related to the characteristic, as alleged. Section 26 does not bite on conduct which, though it may be unwanted and have the proscribed purpose or effect, is not properly found for some identifiable reason also to have been related to the characteristic relied upon, as alleged, no matter how offensive or otherwise inappropriate the tribunal may consider it to be.’[74]Mr Nicholls referred the Tribunal to the following submissions which we set out below.[75]The intention of the alleged harasser may be relevant in determining whether the conduct could reasonably be considered to violate a complainant's dignity (Richmond Pharmacology Ltd v Dhaliwal [2009] IRLR 336, EAT). It is not necessary that the alleged harasser should have known that his behaviour would be unwanted (Reed and Bull Information Systems Limited v Stedman [1999] IRLR 299, EAT)[76]Where the language of the alleged harasser is relied upon it will be important to assess the words used in the context in which their use occurred. The complainant's own behaviour and perspective will be part of the context in which the alleged 'harassment' will have to be seen.[77]The CA gave guidance on the determining whether the statutory test has been met in Reverend Canon Pemberton v Right Reverend Inwood, former acting Bishop of Southwell and Nottingham [2018] EWCA Civ 564: “In order to decide whether any conduct falling within sub-paragraph (1)(a) has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of sub-section (4)(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of sub-section (4)(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also, of course, take into account all the other circumstances – sub-section (4)(b). The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant's dignity or creating an adverse environment for him or her, then it should not be found to have done so.”[78]An action that is complained of must be either direct discrimination or harassment, but it cannot be both (Section 212 EqA).[79]The relevant time-limit is at section 123 Equality Act 2010. Which provides that subject to extensions to allow for early conciliation, complaints of discrimination/ victimisation may not be brought after the end of – “(a) the period of three months starting with the date of the act to which the complaint relates, or (b) such other period as the Tribunal thinks just and equitable.[80]Section 123(3) provides that, for the purposes of section 123, conduct extending over a period is to be treated as done at the end of the period. In Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96 the Court of Appeal made it clear that Tribunals should not take too literal an approach to this issue and where (as in that case) there are allegations of numerous discriminatory acts over a long period, the claimant may be able to establish that there was an ongoing situation or continuing state of affairs which constituted a continuing act. Ultimately, the Tribunal should look at the substance of the complaints in question and determine whether they can be said to be part of one continuing act by the employer (Lyfar v Brighton and Sussex University Hospitals Trust [2006] EWCA Civ 1548).[81]Alternatively, the Tribunal may still have jurisdiction if the claim was brought within such other period as the employment Tribunal thinks just and equitable as provided for in section 123(1)(b).[82]In considering whether or not to exercise its discretion to allow the claim to proceed out of time the Tribunal has to consider all the circumstances, the onus being on the Claimant to convince the Tribunal that it is just and equitable to extend the time (Robertson-vBexley Community Centre [2003] IRLR 434).[83]The Tribunal is required to consider the prejudice which each party would suffer as a result of granting or refusing an extension, and to have regard to all the other circumstances. In particular, although this list is not exhaustive, the Tribunal should take into account factors such as (British Coal Corporation v Keeble EAT/496/9):a. the length of and reasons for the delay.b. the extent to which the cogency of the evidence is likely to be affected by the delay.c. the extent to which the party sued had co-operated with any request for information.d. the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action; ande. the steps taken by the claimant to obtain appropriate professional advice once he or she knew of the possibility of taking action.[84]In Adeji v University Hospitals Birmingham NHS Foundation trust 2021 EWCA Civ 23 the Court of Appeal said that the best approach in considering the just and equitable extension was to “assess all the factors in the particular case which it considered relevant to whether it is just and equitable to extend time including in particular the length of, and the reasons for, the delay.” The important issue is the balance of prejudice and hardship, and the possibility of a fair trial. In this context the length of, and reasons for, the delay will always be relevant.[85]There is no general principle that it will be just and equitable to extend the time limit where the claimant was seeking redress through the employer’s grievance procedure before embarking on legal proceedings. A delay caused by a claimant awaiting completion of an internal procedure may justify extension of the time limit, but it is only one factor to be considered in any particular case. In Apelogun-Gabriels v London Borough of Lambeth [2001] EWCA Civ 1853, [2002] IRLR 116. Each case should be determined on its own facts, however, including considering the length of time the claimant waits to present a claim after receiving the grievance outcome.[86]Although the discretion is wide there is no presumption that it should be exercised so as to extend time. In Robertson v Bexley Community Centre [2003] EWCA Civ 576, Auld LJ emphasised : “It is also of importance to note that the time limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse. A tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule.”[87]In Ms U Edomobi v La Retraite RC Girls School: UKEAT/0180/16/DA per Laing J, “I find it difficult to see how a claimant can discharge the burden of showing that it is just and equitable to extend time if he or she simply does not explain the delay, nor do I understand the supposed distinction in principle between a case in which the claimant does not explain the delay and a case where he or she does so but is disbelieved. In neither case, in my judgment, is there material on which the tribunal can exercise its discretion to extend time. If there is no explanation for the delay, it is hard to see how the supposedly strong merits of a claim can rescue a claimant from the consequences of any delay. Rationale for primary findings[88]In arriving at our primary findings, we have had careful regard to all the evidence put before us. We have considered the coherence, consistency, and general plausibility of the witness evidence that we heard and have read. We have also attached particular importance to contemporaneous documents.[89]We find that both Mr Lamb gave inconsistent and contradictory answers on some issues but on a majority of issues his evidence was clear, and these are set out below. Mr Fotheringham and Mr Jones did their best to assist the Tribunal but on some issues could not do so due to the passage of time since the events that occurred.
Findings of fact
[90]The Tribunal refer to the relevant pages of the bundle in brackets below. The Tribunal have anonymised persons by using initials where their actual identity is not relevant to the claims before the Tribunal.[91]Set out below are the findings of fact found by the Tribunal, on the balance of probabilities, which the Tribunal considered relevant to the issues and necessary for the Tribunal to determine the issues in the List of Issues. We do not find it necessary, and neither would it be proportionate, to seek to set out each detail provided to the Tribunal, nor make findings on every matter in dispute between the parties. While the Tribunal has not referred to every document it has read and/or was taken to in the findings below, that does not mean it was not considered if it was referred to in the witness statements/evidence. Factual Background[92]The claimant started working at the respondent company, Wolseley UK Limited, a distributor of plumbing and heating products and a supplier of building materials in the UK, on or about 1 September 1989. He initially worked as a sales adviser.[93]A contract of employment (pages 331-335) signed on 1 August 1999 sets out the claimant’s terms and conditions at that time as an annual salary of £24,605 and a bonus scheme that was reviewed annually and ran from the beginning of the respondent company’s financial year of 1 August. He received additional benefits of a company car, mobile phone, and private health care insurance.[94]The claimant was promoted to Branch manager of the Strood branch in 1999. In 2019, the Pipe Centre branches were divided into small, local branches, which typically contained between 4 and 7 members of staff, and larger sites with significantly high turnover, physical square footage, and customer bases, which could have up to 30 employees working at them. The smaller sites were known as 'Local Branches', while the large operations were referred to as 'Contract Branches'. The Strood branch was considered a Local Branch and had 5-6 members of staff.[95]The claimant in his role as the Branch Manager at Strood, had to be multi skilled and work in all the different aspects of the branch including the office, the trade desk, and the warehouse as necessary. He was responsible for the day-to-day running of the branch (including supervising the team members, handling deliveries from external suppliers and manufacturers, overseeing customer service and any complaints, ensuring compliance with legal requirements such as health and safety) and he was responsible for increasing the level of sales, gross margin, and profitability of the Strood branch.[96]Due to the size and makeup of the Contract branches, the Tribunal accept Mr Fotheringham’s evidence that the role and accordingly the required skill set of a Branch Manager at a Local Branch differed to that of a Branch Manager at a Contract Branch.[97]The Tribunal was presented with documentation suggesting that between 2015 and 2017, the claimant earned £34,291 per annum together with an annual performance bonus which was paid twice a year. The claimant earned bonus payments as follows: 2015: £3,603, 2016: £16,667 and 2017: £19,893.65 (pages 827 -831).[98]The claimant is a member of the respondent’s historic defined benefit pension scheme, however, that scheme closed to future accruals on 31 December 2013. Since 1 January 2014, the claimant has been a member of the respondent's defined contribution scheme into which he and the respondent have made contributions.[99]The claimant’s date of birth is 13/07/1959 and he was aged 60 at the time of his dismissal in March 2020. His contractual retirement age is 66 and he was due to retire in 2025. During his 31 years at the respondent company, he did not receive any warnings or have any disciplinary proceedings brought against him. Floating Manager[100]In 2018/9, the claimant’s direct manager and area manager was Mr Barrie Craig. Mr Graeme Fotheringham was the Regional Operations director for the South and responsible for over 100 branches in the South including the Strood branch. Mr Fotheringham was based in Hove but travelled to London frequently.[101]The branch sales and trading profit history (page 810) for the Southeast for the respondent show that all the branch sales (13 branches) increased from the year ending August 2017 to August 2018 save for the Strood and Wimbledon branch. The Strood branch’s sales dropped from £4,254,735 to £3,209,245 (total decline of £1,045,490) and the Wimbledon branch sales dropped from £1,182,968 to £922,349 (total decline of £260,619).[102]The Tribunal find that these figures indicate a drop in sales in the Strood branch from 2017 - 2018. The claimant maintained that whilst sales had dropped, the respondent’s profits had increased, and this was reflected in his bonus payments which were based on profit. However the claimant did not receive a performance bonus in 2018.[103]In or around July 2018, during a business review meeting, Mr Fotheringham was told by Mr Craig that the claimant was struggling in carrying out his role as Branch Manager and that this was reflected in the decline in sales for the Strood branch (as set out above).[104]As a result, in or around September 2018, Mr Fotheringham and Mr Craig met with the claimant to discuss the possibility of him carrying out a new role as a “Floating Manager”. In this role, the claimant would provide support to the local branches within the London network in a Branch manager capacity. It was envisaged by Mr Fotheringham that the Floating manager would provide cover to the local branches when their designated Branch Manager was on holiday or absent for sickness reasons and this role would have been at the same level as the claimant’s current role such that there would have been no change to his terms and conditions of employment, save for his job title and location. The claimant agreed to move into this role, in principle.[105]In any event, the respondent Board considered a Floating manager role as an additional expense and the respondent did not want to spend any additional money. Mr Fotheringham told the claimant that this role was not available due to lack of funds. The Tribunal accept Mr Fotheringham’s evidence that this was the only reason the claimant was not given the role. The claimant therefore continued in his role as Branch manager at Strood. Restructure of Respondent[106]In late 2018/2019, the Pipe Centre and Plumbing & Heating sectors of the respondent business were remodelled to increase efficiency and improve customer relations so that low margin, high-volume business was moved from Local Branches into Contract Branches. The Tribunal accept that this occurred at all branches. This resulted in each branch being reviewed and led to a reduction in headcount at branches and staff being required to carry out additional duties and responsibility. This restructure was designed to improve overall revenue and gross profit across each branch.[107]This resulted in the Branch Manager position at the Contract Branches being renamed as General Manager, with a separate job description and person specification. The title and duties of a Branch manager at the Local branches stayed the same and therefore there was no change for the Strood branch.[108]A new role was created of “Category Sales manager” as the need was identified by the respondent to drive the sales performance in the London City branch. Category Sales Manager[109]The claimant met with Mr Craig and Mr Fotheringham at a local coffee shop in Strood on 22 January 2019. There is a dispute of fact as to what occurred at this meeting.[110]At this meeting, Mr Fotheringham updated the claimant about the poor financial performance of the Strood branch and the need for a Branch manager to improve the trajectory of the branch as there was a lot of pressure around the business to increase profit within the branches. He asked the claimant whether he felt able to fulfil this role in light of the challenges that both he and the Strood branch were facing and the difficulties that lay ahead if he chose to remain as Branch manager.[111]It is not in dispute that the Category Sales manager was discussed, and Mr Fotheringham and Mr Craig identified that this role would be suitable for the claimant due to his experience and product specialism. However the Tribunal do not find that the claimant was told that one option would be for him to take payment and leave the respondent company. The Tribunal find that the claimant was told that the decision was for him to make whether to remain as Branch Manager at the Strood branch and drive improvements or take the Category Sales manager at the City Branch which was less responsibility and would be less pressured than his existing Branch Manager role but attracted lower pay and a reduction in his benefits package.[112]Mr Fotheringham’s impression at the meeting was that the claimant was interested in the role. The claimant accepts he was interested in the Category Sales manager role as he wanted to keep his job and said he wanted to protect what he had. However the Tribunal find that the claimant felt under pressure to accept the Category Sales manager role as his line manager and Regional director explained to him how he had to significantly improve the performance of the Strood branch if he stayed in his Branch manager role.[113]Following the meeting on 22 January 2019 with the claimant, Mr Fotheringham sent the claimant an email on 22 January 2019 (page 388) stating, “I would like to confirm that the position of Category Sales Manager in London City branch would formally be offered to you if you decide to step down as Branch Manager at Strood.” Mr Fotheringham offered to discuss this role further with the claimant and copied in HR so that the claimant had a point of contact if he had any questions for them. Mr Fotheringham confirmed the salary of the Category Sales Manager role was £30,000 but was unsure if London weighting was available. He stated that he understood the claimant was meeting Mr Andy Field the following day and that the claimant would like a few days to make his decision.[114]The Tribunal have read the email of 22 January 2019 and do not find that reference in the email which stated, “Once you have decided please let Barrie Craig know so we can start the process” suggests anything other than it says, namely that if the claimant accepted the role, a formal process would be required with HR. The Tribunal find that this does not infer that a decision had already been made that the claimant must take the Category Sales Manager job and that he could no longer be the Branch manager at Strood.[115]Further the Tribunal find that the claimant was made aware of the remuneration that would be payable in respect of the Category Sales Manager role before he accepted the position and that he was given contact details of HR to discuss any questions with HR including about the benefits that he would be given with the role. The Tribunal find that this email also provides evidence that the claimant had advised Mr Fotheringham that he wanted to meet Mr Field and would like a few days to consider whether to take the new position. Accordingly the Tribunal do not find that the claimant was pressured by the respondent to accept the Category Sales Manager role on the same day of the meeting on 22 January 2020 and find that he was given a reasonable timescale to consider whether he wished to take the Category Sales Manager role.[116]The claimant emailed Mr Fotheringham and accepted the role on 24 January 2019 (page 386). He stated, “I would like to start as soon as possible” and in later emails on the same day stated, “I am looking forward to a new challenge” and “Very much looking forward to it.” Despite the claimant’s contradictory evidence, the Tribunal accept the claimant’s evidence that he responded in this manner as he wanted to remain employed by the respondent but that he felt at this time that he was being discriminated against due to his age.[117]The Tribunal find that at the time the claimant was offered the Category Sales manager on 22 January 2019, Mr Fotheringham and Mr Craig did not know that there would be a redundancy exercise in January 2020, some 12 months later, and that the claimant’s job as Category Sales manager at the London City Branch would be at risk of redundancy. The Tribunal find that the decision to make redundancies would have been made by the Board at a later time and no earlier than 2 months before the redundancy consultation took place In January 2020.[118]The claimant started the Category Sales manager role on 4 March 2019 . The respondent’s HR manager wrote to the claimant on 4 March 2019 (page 343-345) confirming the changes to his terms and conditions which included that his basic salary was £30,000 per annum and that he had no private health insurance, no company car or car allowance. In respect of the bonus this stated that this would be a discretionary Sales Management Bonus scheme.[119]The List of Issues at paragraphs 4 and 5 allege direct age discrimination and harassment related to age due to the claimant’s demotion from Branch manager to a lesser paid job of Category Sale manager in March 2019. The Tribunal have found at paragraphs 101/ 102 that the Strood branch had a significant decline in sales in 2017/2018 and that the respondent had to take measures to improve these. The Tribunal do not find that this inferred discriminatory conduct in doing so due to the claimant’s age. The claimant has provided no evidence to show that a younger person would not have been treated in the same way. The Tribunal find that there is no evidence to show or draw inferences that this is the case.[120]As Mr Craig and Mr Fotheringham were both responsible for the Strood branch it was reasonable for them to discuss the declining financial performance of the Strood branch and the possible steps that were required to improve this in light of the pressure by the Board to improve the respondent’s revenue at each branch.[121]The Tribunal find that there was no reason that the new Category Sales manager role should have been discussed with HR in attendance on 22 January 2019 as this was an initial discussion only to discuss the role and establish the claimant’s view on carrying out the role. The Tribunal find that once the claimant was formally offered the role which was carried out by email on 22 January 2019, HR was copied into the email and the claimant directed to HR if he had any questions.[122]Further the Tribunal find no reason that the discussion on 22 January 2019 should have taken place in the office rather than a coffee shop as this was an informal discussion. The Tribunal accept that Mr Fotheringham often met employees in local coffee shops to ensure privacy, an informal atmosphere and to prevent interruptions from the branch. Claimant’s witness statement[123]The claimant’s witness statement at paragraphs 17 -27 sets out that he was asked by Mr Maxwell to undertake the role of General Manger at the London City branch from 30 September 2019 to fill in for Mr Andy Field until a new manager was appointed and he did so until Christmas 2019. He later applied for this job and was unsuccessful (pages 406, 426/427). The claimant states that he also applied for the Branch Manager’s vacancy at the Orpington Branch and that he prepared a short 20-minute presentation for the interview (page 412) but that he was unsuccessful. He also registered an interest in the Operational Excellence, Implementation Manager role in November 2019.[124]At the outset of the hearing the Tribunal clarified with Mr Neckles how this evidence was relevant to the List of Issues and Mr Neckles confirmed that this information was included by way of background only. Mr Neckles did not make an application to amend the List of Issues to include allegations relating to these paragraphs. The Tribunal confirmed that therefore the List of Issues set out in Employment Judge Sudra’s Order were the only issues they would consider.[125]The respondent raised issues with the LinkedIn job advert dated 2 October 2020 for a Technical Sales adviser on page 10 of the claimant’s witness statement which is text in a box. It does not have the respondent’s logo on it. The original job advert has not been disclosed to the respondent and is not in the bundle.[126]The Tribunal find having heard the claimant’s responses under cross examination and making their own enquiries with the claimant that he could not inform the Tribunal of how he obtained this information from LinkedIn, when he did so or how this was eventually put in his witness statement. He could not explain where he had stored this advert since October 2020 when it is dated until he drafted his witness statement which he states was a few months before he signed it in September 2023. Due to the passage of time, of over three years and the late disclosure of this document to the respondent (on 23 November 2023, 4 days before the final hearing), despite enquiries the respondent could not locate this advert or confirm that it was genuine. The Tribunal find that such evidence must therefore be approached with caution.[127]The Tribunal accept Mr Jones’s evidence that if this advert was genuinely placed by the respondent in October 2020 that this was for a Technical Sales adviser role which was not the same role as the claimant was performing as a Category Sales manager in March 2020 prior to his redundancy dismissal. The Tribunal find that this was a more junior role to that of Category Sales Manager and did not involve customer contact or care and as a result attracted a lower salary band. The Tribunal do not find that the content or date of this advert (October 2020) provides evidence that the redundancy process that took place at the respondent company and announced to staff on 21 January 2020, some 9 months prior to the date of the advert was not a genuine redundancy or that there was not a real diminution of the claimant’s role as Category Sales manager at that time.[128]Further on page 5 of his witness statement at paragraph 14, the claimant has pasted a LinkedIn link to Mr Holyoake’s LinkedIn page which is not accessible when clicking on the link. He has also copied some text that allegedly was on Mr Holyoake’s LinkedIn page in April 2022. The original LinkedIn page has not been disclosed to the respondent and is not in the bundle. The text in the claimant’s witness statement states:- “Originally brought into a failing Branch (London City) to drive change and improvement in all areas. Immediately reviewed the Branch identifying key colleagues to drive the required changes. Completed a restructuring to adjust costs in line with revenue stream, including redundancies….”[129]The Tribunal find that the LinkedIn link is not valid and cannot be accessed. Further the text which the claimant quotes in his witness statement above does not refer to the respondent company and has no date stamp, so it is unclear what time period is being referred to. The Tribunal accept Mr Jones evidence that Mr Holyoake joined the respondent in November 2019 or thereabouts and that his role was to identify what measures needed to be taken to improve the efficiency of the business. The Tribunal finds that this evidence, in any event, it is not relevant to the issues.[130]Mr Neckles in his oral closing submissions set out that the claimant’s case on Unfair dismissal was that:- 1. The respondent did not adopt a reasonable selection decision in the approach of the selection pool. Mr Francis Parry, Category Sales Manager in cooling, should have been included in the pool with the claimant and that he should not have been excluded from the pool at the outset as set out in the letter to the claimant dated 22 January 2020. The claimant had experience in cooling also. Alternatively the sales team (3 other people) at London City Branch should have been included in the pool with the claimant. 2. The respondent did not adequately consult the claimant. The respondent has a minimum of 30 days for the consultation period in their policy and as the claimant was off work for work related stress for part of the consultation period, the respondent should have suspended the consultation process to enable the claimant to make his submissions before any decision was made. Once the respondent received the claimant’s GP fit note stating that he was signed off for stress, they should have referred him to occupational health which they did not do. 3. The claimant’s dismissal was not in the range of reasonable responses. Mr Jones failed to carry out an appropriate investigation for the redundancy appeal process. The process was arbitrary, and Mr Jones had pre-determined the outcome as he knew about the claimant’s grievance, and he failed to allow the claimant to make his submissions at the redundancy appeal hearing.[131]The Tribunal clarified with Mr Neckles where in the claimant’s witness statement set out that this was his evidence for the points raised 1 -3 above. Mr Neckles confirmed that this was not in the claimant’s witness evidence. The Tribunal informed Mr Neckles that as the claimant had adduced no evidence on the points raised above, Mr Nicholls had not cross examined the claimant on these points and consequently there was no evidence from the claimant before the Tribunal on these issues despite them being listed as relevant under 2.3 of the List of Issues. Mr Neckles accepted this point. Further the respondent witnesses had only answered limited questions on these issues. This is discussed further below. Grievance[132]Between 4 March 2019 and 26 November 2019, the claimant did not (formally or informally) make any complaint about the change in his role from Branch Manager at Strood to Category Sales Manager at London City Branch.[133]On 26 November 2019, after performing the role for over eight months, the claimant submitted 3 separate grievances. The grievance relevant to the issues before the Tribunal states that the claimant had been the target of age discrimination, and “this had manifested the systemic way opportunities had been promised to him and then denied”. He gave three examples, first the promise of a promotion in October 2018 to Floating manager that never happened, secondly that he was demoted from Branch manager to Category sales manager which he stated was on 11 January 2019 and thirdly he had been blocked from being promoted (pages 146-165, repeated at 418-437).[134]Within this document the claimant embedded emails and documents in support of his claims. The respondent raised issue with two of these documents/ emails as follows:- The document at page 420/ 421 (claimant’s document entitled purpose of role) was not seen by Mr Fotheringham The email on page 422 unlike the other emails in the grievance document did not have a header setting out the date and time it was sent and to whom. The respondent disputes receiving this. The claimant stated he never received a reply. The original email has not been disclosed to the respondent and is not in the bundle.[135]The claimant’s evidence was inconsistent about whether he had assistance from PTSC to prepare this document.[136]Mr Shaun Kelly (Regional Operations Manager) was appointed as the grievance officer. Mr Kelly no longer works at the respondent company and did not give witness evidence at the Tribunal.[137]By correspondence dated 11 December 2019 (page 455), a meeting was arranged to take place by an HR advisor of the respondent company with Mr Kelly on Wednesday 8 January 2020. This stated, “You have the right to appear alone or accompanied by either a fellow colleague or Trade Union Representative of your reasonable choice” but also incorrectly referred in this letter as an appeal hearing.[138]The claimant wrote to the HR advisor, on 19 and 20 December 2019 (page 456) stating that an appeal hearing was not appropriate as the outcome of his grievances had not been communicated to him and seeking, “to be represented by an external professional adviser in a legal or HR capacity” and making a further grievance about how his grievances had been managed (escalating this to the director of HR on 19 December 2019) and seeking to cancel the appeal hearing on 8 January 2020 whilst he received a response.[139]The HR director was away on annual leave until 30 December 2019 but acknowledged correspondence on her return confirming she had passed the matter to Mr Alan Docherty (Employment advice manager). He responded to the claimant on the same day, 30 December 2019 acknowledging administrative errors made by the HR department and for their failure to respond to the claimant’s questions relating to representation at the hearing. He stated, ”I would confirm that in line with the company’s grievance policy representation can only be sourced from either a trade union official of a company companion. Third party representation is not permitted. If you require assistance in sourcing a company companion, then please advise and we will seek to support if possible.”[140]On 6 January 2020, Mr Neckles of the PTSC union, wrote to Ms Docherty providing signed confirmation that the claimant wished to be accompanied and represented by him and seeking a postponement of the hearing on 8 January 2020 as he was not available for the hearing and provided alternative dates.[141]Mr Docherty wrote to Mr Neckles on 6 January 2020 (page 470) agreeing to rearrange the hearing date. He stated, “we have no issue in fully acknowledging his right to be accompanied as provided for within our grievance policy. In regard to Mr Lambs request regarding serving notice to appoint yourself as his agent….. The letter implies that Mr Lamb is a former employee. To my knowledge this is not the case and Mr Lamb continues to be a current employee of Wolseley’s UK. As a consequence I would assert the companies right to deal with Mr Lamb directly as provided for within our policy notwithstanding his right to seek counsel and accompaniment where relevant and appropriate.” Grievance meeting- 16 January 2020[142]A grievance meeting was rearranged to take place on 16 January 2020 at 10.30 am so that Mr Neckles could attend. A handwritten note of the meeting is at pages 473 -477 and a typed note starts at page 477-478.[143]The claimant took a covert recording of this meeting without the respondent’s knowledge. An agreed transcript of the claimant’s covert recording of the grievance hearing is at pages 812-818 and the covert recording of the private call between Mr Kelly and HR during an interval in the meeting is at pages 484-493.[144]The Tribunal read the transcript of the covert recording of the meeting on 16 January 2020 as a total breakdown of communication between Mr Kelly and Mr Neckles and no agreement as to the structure of how the consultation should be conducted.[145]The claimant’s evidence was that Mr Neckles was not allowed to speak as he wanted at the grievance meeting on 16 January 2020 because firstly he was a member of the PTSC union and secondly because he made a grievance on 26 November 2019 (listed above at paragraph 133,134).[146]The Tribunal do not find that the reason Mr Neckles was not allowed to speak as he wanted to at the meeting on 16 January 2020 was because the claimant had put in a grievance as this is not referred to in the letter from Mr Neckles to HR on 4 February 2020 (page 506) which states, “Is it obvious to us that your managers are following a course of action sanctioned by your HR department to speed up the departure of Mr Lamb from the company, because of his membership of the PTSC Union. My trade union officials will no longer be attending your premises to represent Mr Lamb at until we are In receipt of confirmation from the company trade union officials from my union will be allowed to ask questions on his Mr Lamb behalf.”[147]The Tribunal find that this the transcript of the covert recording made by the claimant of the private discussion between Mr Kelly and HR during the meeting on 16 January 2020 (pages 484-493) does not refer to the grievance complaint even though Mr Kelly did not know at the time that he was being recorded and instead shows Mr Kelly seeking advice from HR on the correct policy and procedure to follow at the meeting as he was finding the meeting with Mr Neckles difficult to manage.[148]On 18 January 2020, the claimant submitted a grievance complaint about Mr Kelly stating at the meeting on 16 January 2020 he denied Mr Neckles from addressing issues for the claimant alleging that this contravened section 10 (2B) Employment Relations Act 1999. The Tribunal find that the grievance made against Mr Kelly by the claimant on 18 January 2020 does not state that Mr Kelly was aware of the grievance made on 26 November 2019 and that this influenced his behaviour towards the claimant and Mr Neckles at the meeting and prevented Mr Neckles from speaking the way he wanted on 16 January 2020.[149]On 22 January 2020 (498), Mr Docherty wrote to Mr Neckles stating in respect of his role as companion that:- “Whilst we acknowledge Mr Lamb's decision to ask that you accompany and support him at his grievance meetings, we would like to take this opportunity to remind you of the parameters of your role as his companion. As Mr Lamb's companion, you may put and sum up his case, respond on his behalf to any views expressed at the meeting and confer with him during the meeting. Your role does not, however, extend to answering questions on Mr Lamb's behalf, addressing the meeting if Mr Lamb does not wish it or preventing Mr Lamb from explaining his case. We refer you to sub-sections (2B) and (2C) of the Employment Relations Act 1999 on this point. Save for Mr Lamb's right to be accompanied the grievance process is an internal process and, therefore, it will not be appropriate for us to correspond with you directly going forwards. We will therefore address the points raised in your letter of 18 January 2020 with Mr Lamb. He is then, of course, free to seek advice from you, subject to his duty of confidentiality to the Company.”[150]The Tribunal find that this letter is consistent with and sets out the advice Mr Kelly obtained from HR during the interval at the meeting on 16 January 2020 on how the meeting should be managed in line with the respondent’s policies and procedures and their understanding of the law.[151]An HR advisor wrote to the claimant on 31 January 2020 (page 514) offering a further grievance meeting on 12 or 18 February 2020 explaining that the “purpose of the grievance meeting is to discuss your grievance and give you an opportunity to provide full details and evidence to support the grievance, essentially the meeting is of an exploratory nature. As you are aware, you are entitled to be accompanied by a union representative to the meeting and our solicitors have written to you making the legal position clear in terms of their role in the meeting.”[152]As no response was received, a further letter was sent to the claimant from HR on 12 February 2020 stating that the respondent had given the claimant reasonable time to arrange a further grievance meeting and stating that they would consider the information that they had and provide the claimant with an outcome in writing. Mr Neckles wrote to HR on 13 February 2020 (page 513) stating that the claimant would attend a grievance meeting on 18 February 2020 and that the claimant did not consent to the grievance matter being dealt with in his absence.[153]On 17 February 2020, the claimant was signed off by his GP until 2 March 2020 as unfit due to stress at work (page 519). The claimant texted Mr Holyoake on 17 February 2020 stating he would not be in work due to work related stress and that he was going to see the doctor that day and that he would keep Mr Holyoake informed. The text message did not set out how long the claimant would be off work or that he was signed off work. Mr Holyoake acknowledged receipt of the text and gave the claimant the number of Lifeworks for support and advice. In this text message, the claimant did not refer to the grievance meeting booked on 18 February 2020 or seek for this to be rearranged. There is no correspondence in the bundle to show the claimant or Mr Neckles wrote to the respondent explaining they would not attend the grievance meeting on 18 February 2020 or seeking to re arrange this.[154]An email from the claimant to the respondent on 27 February 2020 (page 536) states that he sent the GP sick note signing him off work until 2 March 2020 to the wrong email address and the respondent did not receive this until this date. On 2 March 2020, the claimant sent a further GP sick note to the respondent signing him off work until 16 March 2020 for stress at work.[155]On 21 February 2020 (page 522), Mr Kelly wrote to the Claimant to confirm the outcome of his grievance stating after speaking to his managers referred to in your grievance, Graeme Fotheringham & Barrie Craig that he could not find any evidence to support the claimant’s claims that opportunities were denied to him because of his age and found that his grievance was unsubstantiated. The claimant was informed of his right to appeal. This letter also stated that, “it is our view that we have been more than reasonable in our attempts to meet with you to discuss and resolve the grievance. Therefore, in order to bring the matter to a close we will continue to deal with grievance in the absence of a meeting and provide you written confirmation of the findings….. During the next few months Strood branch sales figures declined and you met with Graeme & Barrie in January 2019. On the 23 January 2019, Graeme emailed you confirming there was a position of Category Sales Manager, should you decide to step down as branch manager. You duly accepted this new position, with a start date of 01 March 2019. During my investigation I can find no records of a complaint from you to other colleagues or HR regarding any of the above. The only complaint came in the form of a grievance letter dated 26 Nov 2019 to the HR Director, 8 months after you started the role.”[156]The Tribunal find that at the time Mr Kelly wrote to the claimant on 21 February 2020, the respondent had not received a sickness certificate from the claimant signing him off for stress at work. Grievance appeal[157]On 26 February 2020, Mr Neckles submitted a Notice of Appeal to the grievance appeal officer (page 529 / 530). The Tribunal have reviewed this document and accept the claimant’s evidence that he did not see this document before it was sent by Mr Neckles to the respondent. The Tribunal find that the claimant had not submitted any document / email to the respondent himself to appeal the outcome of the grievance and that the Notice of Appeal dated 26 February 2020 was sent without the claimant’s instructions.[158]Further the Tribunal accept the claimant’s evidence that the contents of the Notice of Appeal are not relevant to his grievance appeal as this refers to an appeal against a disciplinary decision for summary dismissal which had not taken place. Further the claimant did not understand the grounds of appeal and confirmed they did not apply to his grievance appeal as these stated that there was disputed evidence, award issued in breach of procedure and contract, award too high and unfair dismissal pursuant to section 86, 94 and 105 of the Employment Relations Act 1996. The claimant accepted that the respondent could not be expected to understand what points he was appealing on the grievance. The Tribunal agrees.[159]The respondent acknowledged receipt of the appeal on 2 March 2020 and wrote to the claimant on 11 March 2020 (page 551) offering a meeting for the grievance appeal on 2 April 2020.[160]On 27 March 2020, an HR advisor wrote asking the claimant to confirm by 1 April whether he wished to proceed with his grievance appeal and referred to previous correspondence where 2 April had been offered as a date for a grievance appeal hearing.[161]On 16 June 2020 (552), an HR advisor wrote to Mr Neckles, in response to his email of 14 June 2020 seeking an update of the position, confirming that despite attempts made to contact the claimant to progress his appeal in line with company policy, he did not respond to emails and as set out in their letter of 27 March 2020 the case would be closed if they did not hear from him by 1 April. This letter confirmed that the claimant was now out of time to proceed with an appeal, and this would not be progressed further. Further the letter stated that the letter dated 30 March 2020 from Mr Neckles had not been received. Redundancy[162]The Tribunal find that the London City branch had a significant decline in sales from the year ending 2019 to the year ending 2020 from £9,970,758 to £5,470,939 (decline of £4,499,819). In November 2019, the respondent aware of the declining performance of the London City branch identified that, a complete restructure of the branch was required to reduce the overall headcount and associated costs.[163]Mr Kevin Holyoake, General Manager of the London City Branch, reviewed the restructure of the branch and considered that the roles of 15 of the 26 employees employed at the branch would be impacted including the role of the claimant. At the London City Branch there were two Technical Sales Advisers and one Sales Adviser who were responsible for sales in addition to the claimant but there was not a sales team at the London City branch. Mr Holyoake provided a plan to Mr David Jones, Regional Operations Director, to reduce the number of drivers by one or two people and warehouse staff by two or three people, given the reduced demand in the Branch.[164]In addition, there were two Category Sales Managers in the Branch: the claimant and PF. The claimant was responsible for the “Pipe business” (all plumbing related supplies, including valves and drainage which were sold to local tradesmen and some larger contractors) and PF was responsible for the “Cooling and Climate business”, which covered all air conditioning products and required specialist knowledge of the business. The respondent decided that as the claimant’s role did not require specialist knowledge unlike PF’s role that his responsibilities could be absorbed by other members of the branch staff, but PF’s duties could not. Consequently, the respondent decided that PF’s role would be excluded from the restructure and eventual redundancy process.[165]An announcement was made to the London City branch workforce on 21 January 2020 of the possibility of redundancies because of declining performance of the branch and a proposed restructure of the branch.[166]The respondent wrote to the claimant on 22 January 2020 (page 496) informing him that his role was one of those roles at risk of redundancy and invited him to a consultation meeting on 24 January 2020 with a companion or a Trade Union Representative to discuss what was being proposed. An extract of this letter stated:- “As you are aware, the current trading conditions are difficult and in order to address this we have undertaken a review of the cost challenges we are facing as a business and the efficiencies which are required. Following a review of City branch we have concluded; a complete re-structure of the branch personnel is required. It is important we have the right roles in the right places in order to set the branch up for success. As your role does not cover a specialism your duties can be absorbed within the branch and therefore the proposal is to remove the Category Sales Manager – CBSC role. The Category Sales Manager (Cooling) will remain in place as there is still a critical requirement for this role. This unfortunately means that your role is now potentially at risk of redundancy.”[167]The claimant accepted that following receipt of the letter on 24 January 2020, he understood that PF, Category Sales Manager for Cooling and Climate business, was not in the pool for redundancy but that he was. The claimant’s evidence was that he had experience of the Cooling and Climate business but that the respondent did not know of this, and he never informed them of this. Consultation meeting – 24 January 2020[168]The claimant elected to be accompanied by his trade union representative, Mr John Neckles of the PTSC Union, at the consultation meeting. The claimant and Mr Neckles attended a consultation meeting on 24 January 2020, chaired by Mr Kevin Holyoake (General Manager of the London City Branch), at which the claimant was informed that it was proposed that his role along with several others at the branch would be made redundant. The claimant was informed that he would be able to apply for new roles being created at the branch including a territory sales role, and the Logistics and Warehouse Manager and that it was his responsibility to review the respondent’s website for new roles. A note of the meeting is at page 499 and was signed by Kevin Holyoake The claimant refused to sign this note following advice from Mr Neckles. The claimant took a covert recording of the consultation meeting without Mr Holyoake’s knowledge.[169]The Tribunal find, having read a note of the consultation meeting on 24 January 2020 taken by Mr Holyoake on pages 499–502 and the agreed transcript of the covert recording at pages 819-826, that the respondent was able to read out the proforma that had been pre prepared for the meeting detailing the information to be given to each employee. However at the point in the meeting when the claimant (page 502) could put forward his questions, the discussion with his representative, Mr Neckles, was shut down and the claimant decided not to continue with the meeting in Mr Neckles absence. This was a missed opportunity by both parties to open a dialogue of the proposed changes to the claimant’s workplace and potential impact on the claimant's role.[170]On 30 January 2020, Mr Kevin Holyoake wrote to the claimant repeating that the Category Sales Manager (Cooling) would remain in place as there was a critical requirement for this role but that the claimant’s role was at risk of being made redundant. This letter provided the claimant with a Frequently Asked Questions, employee guide (pages 336 – 342), a copy of his redundancy estimate, and invited him to a second consultation meeting on Monday 3 February 2020 at 4pm. Extracts of this letter stated the meeting, “will provide an opportunity for you to raise any alternatives to redundancy that you have identified and to discuss whether you will be interested in any of the other roles available in the Company.” Further this letter stated, “The meeting on 24 January 2020 took place to review the proposal and its effect on you. I informed you of a new vacancy which will be advertised in the branch shortly, job title to be confirmed. It would be a territory sales role looking to gain business from small and medium customers. I also informed you of a new role in the branch of logistic and Warehouse Manager. Both of which you can apply for if you wish.”[171]The Tribunal find that at the meeting on 24 January 2020 and subsequent letter dated 30 January 2020 that the respondent took reasonable steps to find the claimant suitable alternative employment including advising him of the responsibility to look at the respondent’s website himself and offered him support for any roles he wanted to apply for. The Tribunal find the claimant’s oral evidence and consistent with paragraph 28 of his witness statement, was that he did not intend to seek alternative employment with the respondent and did not look at the respondent’s website for alternative jobs as he felt this was fruitless since he would not be offered the role, and he did not want to be humiliated.[172]On 3 February 2020, Mr Neckles wrote to an HR advisor seeking clarification for what he believed to be the third meeting as follows:- “whether or not his trade union official on the day will be allowed to address and asked questions on our members behalf before we attend any other hearings. We seek said confirmation because if it is the company intentions to continue to treat his trade union official in that manner then, it makes no sense in us attending your premises to treated us that way. Finally for the record your company managers refusal to allow his trade union official to perform their duties, renders the previous two meeting in breach of the consultation process and voidable and amounts to harassment, bullying and victimisations on grounds of our members race and age. We make this protected act on our members behalf as his trade union official (agent in law with actual authority).”[173]The Tribunal find that this correspondence does not state that Mr Neckles was not able to speak the way he wanted due to the respondent’s receipt of the grievances dated 26 November 2019 and instead states that this was related to the claimant’s race and age.[174]On 3 February 2020, Mr Docherty wrote to the claimant, “in response to the points raised I would emphasise that you are not as stated attending a 3rd/ Final consultation -indeed your next meeting will be your second and in our view you are still in a consultation process for which no final outcome has yet been determined. In regard to your union representative’s comments regarding the business preventing your right to be accompanied this is strongly refuted and l have again quoted our position relating to representation below which is in line with our own legal advice and that of ACAS best practise.”[175]On 4 February 2020, Mr Neckles wrote to HR, “For clarity it is your managers that is economical with the truth with regard to what has taken place at the two previous meetings, when preventing us from asking questions on behalf of Mr Lamb. At our last meeting I had to remove myself from the meeting when your manager refused to allow me to address the meeting stating am only here as a witness. I never at any time attempted to answer questions on Mr Lamb behalf but merely seek to ascertain certain facts and documentation surrounding selecting him for redundancy, (as confirmed in the meetings) of which to date you have not supplied. On one hand you stated he has not been selected for redundancy and yet you managers is bombarding him with other job vacancies within your company he should apply for. It is obvious to us that your managers are following a course of action sanctioned by your HR department to speed up the departure of Mr Lamb from the company, because of his membership of the PTSC Union. My trade union officials will no longer be attending your premises to represent Mr Lamb at until we are In receipt of confirmation from the company trade union officials from my union will be allowed to ask questions on his Mr Lamb behalf.”[176]The Tribunal find that this correspondence does not state that the Mr Neckles was not able to speak the way he wanted due to the respondent’s receipt of grievance dated 26 November 2019 and instead states that this was because of his membership of the PTSC Union.[177]On 6 February, Mr Docherty wrote to the claimant (page 511) responding to the points raised in Mr Neckles letter dated 4 February 2020 which we do not set out here.[178]The Tribunal read the correspondence between Mr Neckles and Mr Docherty on 3, 4 and 6 February 2020 as a breakdown of communication between the respondent and the claimant’s representative, Mr Neckles, and no agreement could be reached as to the structure of how the next consultation would be conducted.[179]On 17 February 2020, an HR adviser, wrote to the claimant inviting him into a final consultation meeting on 24 February with Mr Holyoake at 3.00 pm. This letter stated, “Please note that an outcome of this meeting could result in your employment being terminated on the grounds of redundancy in the event that no other suitable alternative employment is available.”[180]As set out above at paragraphs 153/154 above, the claimant was signed off by his GP for stress at work. However the respondent was not aware of this until 27 February 2020 as the claimant sent his sickness certificate to the wrong email address.[181]On 27 February 2020 (page 532), an HR advisor wrote to the claimant advising him that a further meeting would be held on 2 March 2020 at 1 pm to discuss, “the effects of these proposals on you as an employee, any representations you wished to put forward and any alternative vacancies that exist within the company.” This letter acknowledged the claimant did not attend the final consultation meeting on 24 February 2020 and that the respondent was aware that the claimant had called in sick on 17 February 2020 but that the respondent was expecting the claimant to return back to work on 24 February 2020, but he had not done so or not updated them on the position or provided a further sick note. The claimant was also advised that should he fail to attend the third scheduled consultation meeting or make himself available on the telephone during the meeting that the respondent would proceed to decide the case in his absence and his employment could be terminated on the grounds of redundancy if no other suitable alternative employment is available.[182]The Tribunal have seen no correspondence to show that Nr Neckles or the claimant sought for the consultation meetings with Mr Holyoake on 24 February 2020 or 2 March 2020 to be adjourned or rescheduled before these took place.[183]The claimant provided HR and Mr Holyoake a sick note from his GP dated 2 March 2020 stating that he was unfit for work due to stress at work and would not return until 16 March 2020 (page 538). This email was sent on the morning of 2 March 2020 by the claimant but does not refer to the redundancy consultation meeting due to take place that afternoon and does not seek for this to be adjourned or rescheduled or state that he was not well enough to attend by telephone.[184]Mr Neckles wrote to the respondent on 2 March 2020 (page 539) after the redundancy consultation meeting had started stating that the claimant had been ill and was unable to communicate to the respondent that he was unable to attend the meetings on 24 February 2020 and 2 March 2020. Mr Neckles requested that the respondent’s final decision be stayed until the claimant had an opportunity to advance his submissions. Mr Neckles did not provide any written submissions for the respondent to consider or set out when a further meeting could be arranged.[185]The respondent held the third consultation meeting on 2 March 2020 and note of this is at page 542. This records that neither the claimant nor his representative attended the meetings offered on 3 February, 24 February or 2 March 2020.[186]Mr Holyoake wrote to the claimant on 3 March 2020 (page 545) advising him of the outcome of the final consultation meeting and confirming that his employment with the respondent company would terminate on 2 March 2020 by reason of redundancy. The claimant was advised of his ability to appeal against the decision to dismiss him. On 20 March 2020, the claimant was paid his accrued salary, accrued holiday pay, statutory redundancy pay, and pay in lieu of notice. Redundancy appeal[187]Mr Neckles sent a Notice of appeal to HR on 9 March 2020 which was stated to be “against the disciplinary decision of summary dismissal” and HR responded on 10 March 2020 stating that the appeal did not reflect that a redundancy process had taken place and advised that should the claimant wish to appeal against the decision to make him redundant that he had until 13 March 2020 to do so (page 549). A copy of the Notice of Appeal dated 9 March 2020 document is not in the bundle.[188]HR wrote to the claimant on 18 March 2020 (page 554) stating that as they had no response from the claimant that they assumed that he no longer wished to pursue his appeal against the redundancy and the matter was closed. The claimant wrote directly to HR on 27 March 2020 (page 555) and stated that he and his wife had both been ill and self-isolating and under a lot of stress as a result and that he believed that his redundancy was unfair and that he wished to appeal this. In response to this email, HR acknowledged the claimant’s appeal against redundancy and confirmed that, due to the strict guidelines imposed by the government around social distancing and essential travel as result of Covid 19, they would delay arranging a redundancy appeal meeting until the measures were relaxed and would write with arrangements in due course.[189]Mr Neckles prepared an Amended Notice of appeal document dated 30 March 2020 (page 558). There is no email correspondence in the bundle showing when this was sent to the respondent by Mr Neckles until 14 June 2020. HR set out in correspondence dated 16 June 2020 (page 552) that they had not received the Amended Notice of Appeal by post.[190]The Tribunal find that the Amended Notice of Appeal appears to refer to the appeal against the decision to make the claimant redundant. The Tribunal find that the Notice of Appeal had 2 grounds of appeal both relating to the decision to change the claimant’s role from Branch Manager to Category Sales Manager in March 2019. It was alleged that the change in role in March 2019 had been manufactured to manage the claimant out of the business and save the respondent costs by reducing his entitlement to pension upon retirement; and making it easier to select him for redundancy in March 2020. The Tribunal find that this appeal raises no issues about the adequacy of the respondent’s warning and consulting the claimant about the redundancy process, the reasonableness of the selection decision, the respondent’s approach to the selection pool, or that the respondent did not take reasonable steps to find the claimant suitable alternative employment.[191]The Notice of Appeal dated 30 March 2020 concluded, “ It is therefore my case that my selection for Redundancy, is or was unfair for the reasons which I have cited. This is because the ultimate aim was to manage me out of the business, and not to retain. I would therefore not have been selected or dismissed for redundancy. if a fair procedure had been adopted from the outset of demoting me from my substantive role / position of Branch Manager. to the new position of Category Sales Manager. which ultimately was selected for redundancy when the restructure was implemented.”[192]On 3 July 2020 the respondent confirmed that Mr David Jones, Regional Operations director, would hear the appeal. Redundancy appeal meeting – 9 July 2020[193]The claimant attended an appeal meeting on 9 July 2020 by telephone due to social distancing regulations in place with his companion, Mr Neckles. The claimant took a covert recoding of this meeting without Mr Jones’ knowledge. A typed note of the hearing taken by Mr Jones starts at page 567 and a transcription of a covert audio recording of the meeting taken by the claimant starts at page 575. The respondent accepted that the covert transcript of the meeting captured the main points of the appeal hearing but that the end of the meeting when Mr Jones left the meeting had not been transcribed.[194]The Tribunal listened to the audio recording of the end of the meeting on 9 July 2020 and find that the claimant was heard laughing and stating, “Oh lovely!” and stating twice “Didn’t he get the hump”. The Tribunal find that the claimant was referring to Mr Jones.[195]The Tribunal find at the meeting on 9 July 2020, that Mr Jones set out at the outset of the hearing his view of how the meeting would be conducted (page 577) and that Mr Neckles agreed to this approach and accepted that he was not at the meeting to answer questions on the claimant’s behalf. Mr Jones did not have a copy of the Amended Notice of Appeal document dated 30 March 2020 (page 558) at the meeting and Mr Neckles told Mr Jones the key points that were set out in the Amended Notice of Appeal (referred to in paragraph 190 above). Further Mr Neckles stated that the claimant was not redeployed or considered for a Branch manager role and his representative was not allowed to speak at the consultation meeting. Mr Neckles confirmed he would send the Amended Notice of Appeal to Mr Jones after the meeting.[196]Mr Jones proceeded to ask the claimant questions and the claimant answered these questions. However later in the meeting (page 581), issues arose as the claimant stated that he wanted Mr Neckles to continue the hearing and when asked by Mr Jones the claimant clarified that he wanted questions to be addressed to Mr Neckles.[197]Having listened to the audio recording of 9 July 2020 and read the notes and transcript of the meeting, the Tribunal find that Mr Neckles and Mr Jones agreed that Mr Neckles could not answer questions on the claimant’s behalf. Mr Neckles told the claimant that if he did not want to answer questions he could instruct Mr Neckles to make submissions on his behalf. The claimant confirmed that he wanted Mr Neckles to make submissions on his behalf and Mr Neckles agreed. The transcript of the meeting shows that the claimant understood that this would mean closure of his appeal by the respondent until further instructions were received from Mr Neckles. The claimant’s evidence was that he understood that the submissions on his behalf would be made in writing. The claimant accepted that these were never sent to the respondent and that that this was the fault of his representative and not the respondent.[198]The Tribunal have seen no correspondence from the claimant or Mr Neckles providing further written submissions to the respondent following the meeting on 9 July 2020 or at any time thereafter.[199]Having heard Mr Jones’s evidence, the Tribunal do not find that at the meeting on 9 July 2020, that Mr Jones knew the contents of the grievance of 26 November 2020 although he knew a grievance had been made but not the contents of the grievance. The Tribunal find that Mr Jones did not know that the claimant had served an ET1 dated 13 February 2020 and received by the respondent on 18 February 2020[200]Having heard claimant’s evidence, the Tribunal find that the claimant does not believe that Mr Neckles was prevented from speaking in the way he wanted because Mr Jones knew about the grievance or the first ET1 he submitted to the Tribunal on 13 February 2020 and received by the respondent on 18 February 2020.[201]Mr Jones concluded the appeal process and wrote to the claimant on 17 July 2020 (page 584). An extract of this letter stated, “During the hearing I asked you a number of questions regarding your redundancy consultation meetings however you then stated that you wanted Mr Neckles to answer all of my questions on your behalf. I explained that the role of a companion does not encompass or ‘permit’ this, however you confirmed that you wanted Mr Neckles to make instructions on your behalf. I explained that this would mean the closure of the meeting until further instruction was received and you confirmed you were aware of that. I therefore ended the meeting. Mr Neckles stated that he would send further submissions however it is now over a week later and we have not received any further communication from either Mr Neckles or yourself. I am therefore writing to advise that we believe you do not wish to continue with your appeal, and we have closed the case.”[202]The Tribunal have been provided letters from the respondent in the bundle from pages 833- 870 sent to 14 employees at the London City Branch between the dates of 22 January 2020 and 30 January 2020 confirming there was to be a redundancy consultation process and that their jobs were at risk. There are also letters to 5 employees at the London City branch informing them of the outcome of the redundancy consultation process between 11 February 2020 and 6 March 2020. These confirm that CF, JD, and MP requested to leave the business by means of voluntary redundancy and KG and SP were informed they were made redundant as no suitable alternative employment had been identified for them. The claimant accepted that in his view the age of the 5 other employees made redundant at the same time as he was, varied in age from being in their 40s, mid 40s, 50s , mid 50s and 60.[203]Mr Jones’ evidence was that he knew of at least 2 employees who remained at the London City Branch and were not dismissed, who were a similar age and length of service to the claimant, including EH (currently aged 63 and with 34 years' service) and ML (currently 62, with 37 years' service). This evidence was not challenged by the claimant. Conclusion and Findings[204]The following conclusions and analysis are based on the findings which have been reached above by the Tribunal and the applicable law. Those findings will not in every conclusion below be cross-referenced unless the Tribunal considered it necessary to do so for emphasis or otherwise. We set out our responses to the List of Issues as follows: List of issues 1. Time Limits1.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 19 October 2019, may not have been brought in time.1.2 Were the discrimination (paragraph 4 of the List of Issues) and victimisation complaints at grounds6.2.1 and6.2.2 of the List of Issues made within the time limit in section 123 of the Equality Act 2010?1.3 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?1.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:1.4.1 Why were the complaints not made to the Tribunal in time?1.4.2 In any event, is it just and equitable in all the circumstances to extend time?[205]The Tribunal discuss the time limits under the heading’s discrimination and victimisation (below) to which paragraph 1 above relates. 2. Unfair dismissal2.1 What was the reason or principal reason for dismissal? The respondent says the reason was redundancy or some other substantial reason.2.2 Was it a potentially fair reason?[206]Having regard to our findings of fact above (paragraphs 169- 170) and the contemporaneous documents (paragraph 202), the Tribunal is satisfied that this was a genuine restructure by the respondent of the London City branch in January 2020 due to the decline in sales at that branch with the aim to save money by reducing the overall staff headcount and associated costs.[207]In late 2019, Mr Holyoake and Mr Jones looked at all the roles at the London City Branch and identified what roles were required and what roles could be absorbed by other members of staff. The Tribunal find that they did not look at the individuals that were in post at that time to make that decision but that the restructure involved reviewing the roles of a majority of the staff, 15 of 26 employees, employed at the branch at that time.[208]The Tribunal concludes that whether or not it was appropriate for Mr Jones and Mr Holyoake to decide that the Climate and Cooling Category Sales Manager role remained essential to the business in 2020 is not within the remit of the Tribunal as this was a decision on the commercial merits of the respondent’s business at the time. There was a clear business rationale for the restructure even if the claimant does not agree with it.[209]It is not in dispute that the result of the restructure was a decrease in the number of employees at the London City Branch by 6 members of staff who were either made redundant or elected to be made redundant voluntarily and this is consistent with the objectives that the respondent set out to achieve. The restructure led to a deletion of the role of Category Sales Manager for the Pipe business and therefore there existed a redundancy situation and this was the sole reason for the subsequent dismissal of the claimant.[210]The Tribunal does not accept the claimant’s case that this was a sham designed to secure his dismissal and that this had been “contrived” since January 2019-March 2019 when he states he was “demoted” from Branch Manager at Strood to Category Sales manager at the London City Branch. The claimant states this on the basis that the respondent knew in January2019-March 2019 that the Category Sales Manager was a role that was to become obsolete whereas the Branch manager role he was previously carrying out was not at risk of redundancy and that he was moved to the London City Branch which was a failing branch.[211]The Tribunal accept that the effect upon the claimant of the change in his role in March 2019 was significant and understands why he would feel this after taking this role with the reduced associated salary and benefits only to subsequently be made redundant a year later.[212]Nevertheless, the Tribunal rejects as utterly implausible his case that the complete restructure of the London City Branch and associated redundancies was known by the respondent some 11 or 12 months before this took place and that Mr Fotheringham and / or other managers manoeuvred the claimant into the role of Category Sales Manager at the London City Branch with the sole purpose of securing his dismissal. The Tribunal have found that the decision to make redundancies was not made until November 2019 and at that the time the claimant was offered the Category Sales Manager this was not known to Mr Fotheringham or Mr Craig (paragraph 117).[213]The claimant also alleges that his “demotion” to Category Sales manager was so that the respondent could save money on making contributions to his pension. The Tribunal do not accept that the modest costs savings by the respondent as calculated and submitted by Mr Nicholls (and not challenged by Mr Neckles) of approximately £350 per annum for pension contributions was a reason or the principal reason for the respondent’s decision to make him redundant. To the extent that the claimant also alleges that his “demotion” to Category Sales manager also would save money for the respondent to pay his salary until retirement, the Tribunal accepts Mr Nicholl’s submissions that the figures “do not add up” because the claimant received a large redundancy payment from the respondent of £24,236.[214]The claimant has also not pointed to any difficulties or disagreements between himself and his managers in March 2019 or before that would prompt them to go to such lengths to secure his dismissal. In so far that the claimant alleges this because of or related to his age, the Tribunal discuss this under the heading discrimination below and do not find that the claimant has adduced any evidence to support that his change of role to Category Sales Manager in March 2019 was because of his age.[215]The Tribunal conclude that the principal reason for the claimant’s dismissal was redundancy and that this was a potentially fair reason. 2.3 If the reason was redundancy, did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant. The Tribunal will usually decide, in particular, whether: 2.3.1 The respondent adequately warned and consulted the claimant;[216]As for the consultation process adopted by the respondent, the Tribunal find (paragraph 166) that the claimant was warned by letter dated 22 January 2020 that his role was at risk of redundancy, he was told why this was the case, and invited to a first consultation on 24 January 2020. The Tribunal find (paragraph 169), when the claimant could put forward his questions / concerns about the respondent’s proposed restructure at the meeting on 24 January 2020, the discussion with his representative, Mr Neckles, was shut down and the claimant decided not to continue in Mr Neckles absence. In oral evidence, the claimant accepted that at this meeting he had no questions so even if the meeting had not been cut short as Mr Neckles and Mr Holyoake could not agree how the meeting should be conducted that he would not have stayed at the meeting.[217]The Tribunal find (paragraphs 168-186) that the claimant was provided with an FAQ document and invited to further consultations on 3 February 2020, 24 February 2020 and 2 March 2020. The reasons for the consultation were explained to the claimant by the respondent as an opportunity for him to raise any alternatives to redundancy and to discuss any of the other roles available at the respondent company that he was interested in. The Tibunal find that the consultations were designed by the respondent to properly consider the claimant’s views and to make best efforts to secure the claimant’s continued employment.[218]The claimant’s accepted that the respondent’s correspondence was clear that he was at risk of being made redundant, and the Tribunal note the words used by the respondent in correspondence (paragraph 179), “Please note that an outcome of this meeting could result in your employment being terminated on the grounds of redundancy in the event that no other suitable alternative employment is available.”[219]The claimant accepted that he had instructed an experienced representative during the redundancy consultation period, and he understood that the consultations were his last opportunity to make representations to the respondent to prevent his employment being terminated by way of redundancy.[220]The claimant’s evidence was that he did not attend the second and third consultations as he was signed off from work with stress, but he accepted that neither he nor his representative, Mr Neckles, asked for these consultations to be postponed before they took place or made any submissions / put questions in writing to the respondent before he was dismissed. He accepted it would have reasonable for him to do so and the Tribunal also find that it would have been reasonable for him to do so.[221]The Tribunal have found (paragraphs 154, 180) that the respondent did not know the claimant was signed off sick until 27 February 2020 and that upon receipt of this information offered the claimant a further final consultation on 2 March 2020 informing him that should he fail to attend the third attempted consultation meeting or make himself available on the telephone during the meeting that the respondent would proceed to decide the case in his absence and his employment could be terminated on the grounds of redundancy if no other suitable alternative employment was available. The Tribunal find that this was reasonable in all the circumstances and as the respondent heard nothing from the claimant or his representative before the final consultation took place despite giving a clear warning in correspondence of the possible outcome, it was reasonable to proceed to make a decision in the claimant’s absence.[222]Having heard the claimant’s evidence and reviewed the contemporaneous documents, the Tribunal find that the claimant was adequately warned and consulted about his potential redundancy and opportunities were given to him to make his representations but irrespective of his illness, he unreasonably did not take the opportunities to do so.[223]Further the Tribunal find that even when the claimant was given a further opportunity to make submissions / ask questions about the redundancy process, when he had an opportunity to do so at the redundancy appeal stage, he raised no issues about the adequacy of being warned or consulted in his appeal document dated 30 March 2020 or at the meeting on 9 July 2020 and when given an opportunity to make final written submissions after the meeting on 9 July 2020, he did not do so. Further the claimant’s witness statement for the purposes of this hearing was silent on these issues save for stating that the consultation took place whilst he was on sick leave which the Tribunal have considered above.[224]Having considered the evidence before us and in all the circumstances, the Tribunal find that the claimant was adequately warned and consulted by the respondent before the decision to make him redundant on 3 March 2020. 2.3.2 The respondent adopted a reasonable selection decision, including its approach to a selection pool;[225]The claimant accepted that following receipt of the letter on 24 January 2020, he understood that PF, Category Sales Manager for Cooling and Climate business, was not in the pool for redundancy but that he was. The claimant’s evidence was also very clear that the respondent did not know that he had experience in the Cooling and Climate business or that he often covered PF’s role. The nature and extent of the duties that he performed for PF was unclear to the Tribunal as the claimant provided no evidence of such in his witness statement. The claimant’s evidence was inconsistent as to whether he understood that he was in a pool by himself, at one point accepting that he was aware of that he was in a pool by himself but under re-examination stating that he believed he was in a pool with the rest of the Sales team.[226]The Tribunal find that the respondent made a commercial decision in identifying that the Climate and Cooling business and accordingly PF was to be excluded from the redundancy process due to his specialist knowledge. Based on the respondent’s knowledge at the time of the claimant’s experience, it was reasonable to not include the claimant in a pool with PF despite the fact that they had the same job title.[227]Having regard to our findings of fact above (paragraph 168-192) and the contemporaneous documents, the Tribunal is satisfied that there is no evidence that the claimant or his representatives ever raised any issues with the respondent about the selection pool identified by the respondent, the claimant’s view that PF was unreasonably removed from the redundancy process or that the claimant made any attempt to tell the respondent that he had Cooling and Climate experience and could cover such roles so that they could consider whether he should be placed in a pool with PF or seek alternative roles for him within the respondent company that required such experience. The Tribunal find that the claimant has provided no evidence on these issues as his witness statement is silent on these issues. The Tribunal were informed of these issues in the closing oral submissions by Mr Neckles.[228]As discussed in paragraphs 216-224 above, the Tribunal find that the claimant had multiple opportunities to inform the respondent of any concerns about the selection pool at the first consultation meeting on 16 January 2020, the further 3 consultation meetings offered by the respondent, in his redundancy appeal document dated 30 March 2020, at his appeal hearing on 9 July 2020 and in written submissions he agreed to provide thereafter but he failed to do so. The Tribunal find it was therefore reasonable for the respondent not to change the approach to the selection pool they had identified and do not find this aspect of the process procedurally unfair.[229]The Tribunal put some hypothetical questions to Mr Jones about the likely outcome on selection for redundancy if the claimant had advised the respondent that he had some experience in the Cooling and Climate business and therefore been placed in a pool with PF who had the same job title as he had. Mr Jones’ evidence which the Tribunal accept, was that the respondent would have looked at PF and the claimant’s involvement with the respondent’s Cooling and climate business customers, their knowledge and understanding of the technical legislation, their track record of providing cooling solutions for fitting out large contracts, quoting prices for products and managing/ bringing in new customers.[230]Based on Mr Jones knowledge of working with the London City Branch he would have given PF the role as he was already carrying out all aspects of the role, had been doing so for some time and had a proven track record. He would have had a working relationship with existing clients at the branch, he had technical knowledge and understanding of the relevant legislation and knowledge of the business in that area. The Tribunal therefore find that had the claimant advised of the respondent of his experience and been placed in a pool with PF he would still, on the balance of probabilities, been made dismissed by way of redundancy in any event.[231]The claimant also submitted that none of the people made redundant worked in the sales team as he did and told the Tribunal in oral evidence that VT, FP, and AM all worked in the sales team, were in their mid to late thirties, and their roles were not at risk of redundancy. Mr Jones’ evidence was that AM and VT were Technical sales advisers which was a different role to that of a Category Sales manager as this was a more junior role not involving client care and attracting a lower salary. The Tribunal accept Mr Jones’ evidence that there was no sales team at the London City Branch but there was a group of people with different roles and responsibilities that made sales for the branch. The Tribunal find that it was therefore reasonable for the claimant not to be placed in a selection pool with VT, FP, AM who all carried out different roles and responsibilities at the London City Branch and had different job titles to the claimant.[232]For the reasons as set out above, the Tribunal find that the pool adopted by the respondent, consisting solely of the claimant, is one which a reasonable employer could have adopted. 2.3.3 The respondent took reasonable steps to find the claimant suitable alternative employment;[233]For the reasons set out in paragraph 171 above, the Tribunal find that in all the circumstances the respondent took reasonable steps to find the claimant suitable alternative employment. This is further supported by Mr Neckles letter dated 4 February 2020 (set out at paragraph 175) where he stated, “you managers are bombarding him with other job vacancies within your company he should apply for.”[234]The Tribunal have carefully considered the claimant’s case (paragraph 34 of his witness statement) that he did not apply for any roles because he had no confidence he would be given a fair, equal, diversity compliant interview and he did not have the skills for the Warehouse Manager role. Whilst the Tribunal accept that the claimant may have genuinely and subjectively felt that he did not stand a chance in obtaining this job with the respondent, he had substantial and significant experience (31 years) with the respondent firm which would have given him a good chance for obtaining other potential roles but he chose not to even check the respondent’s website or discuss further options available with the respondent, which the Tribunal do not consider was objectively reasonable in all the circumstances. Further the Tribunal find that the respondent would have found it very difficult to get the claimant to engage in discussions with them about alternative roles if this was his attitude. 2.3.4 Dismissal was within the range of reasonable responses.[235]The Tribunal having considered the fairness of all aspects of the case including the redundancy appeal, for the reasons set out above, find that the claimant’s dismissal by reason of redundancy on 3 March 2020 lay within the range of conduct which a reasonable employer could have adopted. The claim of unfair dismissal fails and is dismissed. 4. Direct Age Discrimination (Equality Act 2010 section 13)4.1 The claimant’s age group is over 60 years old and he compares himself with people in the age group below the age of 60.4.2 Did the respondent do the following things: 4.2.1 Demote the claimant from a Branch manager to a job of Category sales[236]It is not in dispute that the claimant’s role changed from Branch manager at Strood to Category Sales manager at London City Branch and that he commenced this new role from 4 March 2019. The claimant states that this was a demotion as he received a reduced salary and associated benefits. The respondent submits that this was a change in role which included reduced responsibility, and this was reflected in the pay. 4.3 Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether s/he was treated worse than someone else would have been treated. The claimant has not named anyone in particular who he says was treated better than he was. 4.4 If so, was it because of age?[237]As set out in paragraphs 109-122 above, the Tribunal find that the claimant accepted the change of role to Category Sales manager role and do not find that he was told that he could not continue as Branch Manager at Strood if he so wished albeit Mr Fotheringham and Mr Craig set out the challenges and difficulties that both he and the Strood branch faced due to the declining financial performance if he chose to remain as Branch[238]The claimant’s witness statement states that he does not know of any other Branch Manager being removed from his role due to the decline in profit and that he believed at the time all the branch managers were younger than him. The Tribunal have found (paragraph 101) that at the time the offer of Category Sales Manager was made to the claimant all other branch’s sales had increased save for the Strood and Wimbledon branch. The Strood branch’s sales declined by £1,045,490 and the Wimbledon branch sales declined by £260,619. Mr Neckles did not ask Mr Fotheringham whether he decided to offer the claimant a change in his role because of his age or what, if any, roles were offered to the Wimbledon branch manager and what age the branch manager was.[239]Whilst the claimant may believe he was treated less favourably by being demoted to “Category Sales manager” due to his age, this does not of itself establish that there has been less favourable treatment. The claimant has provided no evidence other than his mere assertions that this is the case, and he has not shown that a real or hypothetical comparator of a younger age would not have been offered the Category Sales manager job if they were in the same circumstances as him.[240]Further in oral evidence, the claimant accepted that if his theory was discounted by the Tribunal that he was demoted to Category Sale Manager to save the respondent pension contributions and to eventually make him redundant then there is no evidence in the bundle to suggest this was because of his age. As set out above in the discussion on unfair dismissal, the Tribunal have not found that the claimant’s theory is plausible (see paragraphs 206-215).[241]Having heard Mr Fotheringham’s evidence, the Tribunal find that the reason the claimant was offered the Category Sales Manager role was because of the large decline in sales at the Strood branch and because Mr Craig and Mr Fotheringham identified that the claimant was multi skilled, experienced and had product specialism and they considered this would be a good fit for the relatively new role would of Category Sales Manager.[242]The Tribunal find that the claimant has failed to prove, on the balance of probabilities, primary facts from which we could conclude, in the absence of an adequate explanation from the respondent, that the respondent committed an act of unlawful discrimination. The claimant’s claim for direct age discrimination therefore fails.[243]As the claim fails the Tribunal do not need to find on the issue of whether this claim was brought in time. However for the sake of completeness, the Tribunal make the following findings. In relation to claims of discrimination, Mr Nicholls submits that the ET1 should have been submitted by 3 July 2019 rather than 13 February 2020, some 7 months later. Mr Neckles submitted that as the claimant had submitted a grievance citing age discrimination on 26 November 2019 there were continuing acts, and that time therefore did not start to run until then and the claim was bought within 3 months of the grievance.[244]The Tribunal find this analysis is flawed. The act on which age discrimination relates took place on 4 March 2019 and this is the only act which the Tribunal has to determine discrimination. Mr Neckles’ submissions was not that there were continuing acts of direct age discrimination until November 2019 but that making grievance itself was the continuing act. The Tribunal do not accept this submission is correct. Firstly, there is no general principle that it is be just and equitable to extend the time limit where the claimant is seeking redress through the employer’s grievance procedure before embarking on legal proceedings and secondly in any event there is a delay in the claimant making a grievance from 4 March 2019 to 26 November 2019.[245]Notwithstanding the claimant’s inconsistent evidence on when he believed he had been subjected to age discrimination the Tribunal find that he believed this to be the case by the time he accepted the change of role to Category Sales Manager in January 2019.[246]The Tribunal asked Mr Neckles why the claimant therefore delayed in making a grievance until 26 November 2019 and Mr Neckles could provide no explanation for this. Further Mr Neckles could provide no explanation why the claimant delayed submitting a claim from 26 November 2019 to 13 February 2020 when the claimant’s grievance clearly submitted that he believed he had been subjected to age discrimination, the claimant’s evidence was that he sought legal advice before making the grievance (paragraph 28) and he had instructed an experienced trade union representative, Mr Neckles, to assist him with his grievance.[247]In the absence of an adequate or any explanation from the claimant for this delay, and after assessing all the factors relevant to the issue, the Tribunal do not find that it is just and equitable to extend time for bringing claims for direct age discrimination and accept Mr Nicholl’s submissions that the respondent has been prejudiced because of this delay. 5. Harassment related to Age (Equality Act 2010 section 26) 5.1 Did the Respondent do the following things: 5.1.1 Demote the Claimant from a Branch manager to a job of Category sales[248]As set out above, the Tribunal find that the claimant’s role changed on 4 March 2019 from Branch Manager at Strood to Category Sales manager at the London City branch. 5.2 If so, was that unwanted conduct?[249]The Tribunal find that the claimant accepted the offer to take the Category Sales manager role after being given an opportunity to think about the role and discuss this with a colleague. The Tribunal accepts Mr Nicholl’s submissions that the correspondence sent from the claimant to the respondent on 24 January 2019 (paragraph 116) supports this and the fact the claimant did not make a grievance about his “demotion” until 7 months later. Whilst the Tribunal have found that the claimant may have felt pressure to accept this role in light of the other option of continuing to manage the Strood branch in a difficult economic climate with declining sales, the Tribunal do not find that this was unwanted conduct. 5.3 Did it relate to age?[250]For the reasons set out above at paragraphs 237-242, the Tribunal do not find that the change of role from Branch Manager at Strood to Category Sales Manager at London City Branch was because of the claimant’s age. 5.4 Did the conduct have the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant? 5.5 If not, did it have that effect? The Tribunal will take into account the Claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.[251]In light of the Tribunal’s conclusions above at 5.2 and 5.3, the Tribunal do not have to find further on these issues. The claimant’s claim for harassment related to age therefore fails. 6. Victimisation (Equality Act 2010 section 27) 6.1 Did the claimant do a protected act as follows:6.1.1 Submit a grievance to the respondent on, 26 November 2019; and6.1.2 Present ET1 case numbers 2300610/2020 on 13 February 2020 (sent to the respondent by the Tribunal on 18 February 2020) and 2302762/2020 on 2 July 2020 (sent to the respondent by the Tribunal on 17 August 2020) to the Employment Tribunal?[252]The claimant relies upon two protected acts listed at paragraph6.1.1 and6.1.2 above. We find that both of these matters are protected acts within section 27(2) EqA. We note that the respondent accepts that these acts amount to protected acts. The List of Issues have been amended to include the dates the ET1s were sent to the respondent by the Tribunal and Mr Neckles did not challenge that the respondent was aware of the ET1s before this date. The Tribunal find that the ET1 (2302762/2020) of 2 July 2020 (sent to the respondent by the Tribunal on 17 August 2020) is not relevant to any of the alleged acts set out in the List of Issues at 6.2.[253]It is unlawful to victimise a worker because he has done a “protected act”. In other words, a worker must not be punished because he has complained about discrimination in one or other of the ways identified under section 27 of the EqA. The claimant’s complaint of victimisation is set out at paragraphs 6.2 of the List of Issues set out below. 6.2 Did the Respondent do the following things:6.2.1 In or around January – March 2020, selecting the claimant for redundancy which led to his dismissal;6.2.2 At a grievance hearing on 16 January 2020, not allowing the claimant’s representative, (John or Francis Neckles) to speak as he wanted to; and6.2.3 At an appeal hearing on 9 July 2020, chaired by David Jones, not allowing the claimant’s representative, (John or Francis Neckles) to speak as he wanted to 6.3 Was it because the respondent believed the claimant had done, or might do, a protected act? 6.2.1 Select the claimant for dismissal.[254]The claimant was informed that his role was at risk of redundancy on 21 January 2020 and dismissed by way of redundancy on 3 March 2020. Between these dates the only protected acts that could be relevant to the respondent’s decision were the grievance on 26 November 2019 and the first ET1 (2300610/20200 received by the respondent on 18 February 2020.[255]Mr Holyoake led the redundancy process. There is no witness evidence from him as he has left the respondent’s employment. The claimant accepted that he never mentioned the grievance or ET1 to him but suspects he knew about this from other managers but has adduced no evidence to support this.[256]The claimant also told the Tribunal that it would not have been the grievance that led to his selection and dismissal as he believes that the decision to “get rid of him” and make him redundant was made in January 2019 by Mr Fotheringham and Mr Craig when he was offered the Category Sale Manager role. The Tribunal find based on this, the claimant would accept that this would also apply to the first ET1 dated 13 February 2020 also and so accept that this was not the reason for his selection for redundancy and subsequent dismissal.[257]The Tribunal find on the claimant’s evidence that the respondent’s selection of the claimant for redundancy and his ultimate dismissal cannot have therefore been because of the protected acts (grievance and first ET1) as these occurred after January/ February 2019.[258]Further the Tribunal have found (and discussed under the unfair dismissal section above) that in January 2020 there was a genuine restructure by the respondent due to the decline in sales and the claimant’s role was made redundant. In so doing, the Tribunal have found the respondent adopted a reasonable selection decision including the approach to the selection pool, the dismissal was procedurally fair and concluded that the claimant’s dismissal by reason of redundancy on 3 March 2020 lay within the range of conduct which a reasonable employer could have adopted.[259]Accordingly, the Tribunal do not find that the respondent’s selection or eventual decision to dismiss the claimant by redundancy was because of or was significantly influenced by the grievance dated 26 November 2019 or first ET1 dated 13 February 2020. 6.2.2 Grievance hearing on 16 January 2020[260]At the time of the grievance hearing on 16 January 2020, the only protected act that could be relevant to the respondent’s decision-making process was the grievance on 26 November 2020, the first ET1 having been received by the respondent after the grievance hearing on 16 January 2020.[261]The Tribunal find that the claimant does not believe that the grievance was the reason that Mr Kelly did not allow Mr Neckles to speak as he wanted at the meeting on 16 January 2020. His oral evidence was inconsistent on this issue. He stated in his evidence that he believed the reason was because he was a member of the PTSC union and when prompted also due to the grievance. The Tribunal find that the claimant’s more strongly held belief was that this was due to him being a member of the PTSC union. This is consistent with the grievance he made against Mr Kelly on 18 January 2020 and correspondence from Mr Neckles to HR on 3 and 4 February 2020 (page 506) in which there was no mention of the claimant’s grievance being a factor in how Mr Kelly managed the grievance meeting.[262]As set out in paragraph 168-186 above, the Tribunal find that the reason Mr Kelly did not allow Mr Neckles to speak the way he wanted was as set out in Mr Docherty’s letter dated 22 January 2020, namely because Mr Neckles was not behaving as the claimant’s companion in line with the respondent’s policies and procedures and their understanding of the law. Whilst there was no witness evidence from Mr Kelly as he has left the respondent’s employment, having reviewed the covert transcripts of the meeting including the transcript of the private telephone call between Mr Kelly and HR and the contemporaneous documentation, the Tribunal do not find that the grievance of 26 November 2019 was one of the reasons for Mr Kelly’s behaviour at the meeting on 16 January 2020 or that the grievance had a significant influence on him such to not allow the claimant’s representative to speak as he wanted to. 6.2.3 Redundancy appeal hearing on 9 July 2020[263]As set out in the findings of fact at paragraphs 193-203, the Tribunal do not find that the Mr Jones prevented Mr Neckles from speaking the way he wanted to at the meeting. Mr Jones set out at the outset of the hearing his view of how the meeting would be conducted and Mr Neckles agreed to this approach. Later in the meeting the issue arose as the claimant stated that he wanted Mr Neckles to continue the hearing and when asked by Mr Jones the claimant clarified that he wanted questions to be addressed to Mr Neckles. The Tribunal have found that Mr Neckles and Mr Jones agreed that Mr Neckles could not answer questions on the claimant’s behalf and the claimant then stated he wanted Mr Neckles to make submissions on his behalf and the claimant’s evidence as that these would be made in writing.[264]As set out in paragraph 199-200 above, the Tribunal do not find that Mr Jones was aware of the first ET1 and therefore this was not the reason he did not allow Mr Neckles to speak the way he wanted was. The Tribunal find that Mr Jones was aware that a grievance had been received but not of the contents of the grievance or that this referred to age discrimination and we therefore do not find that this was a reason or influenced the way he managed the hearing on 9 July 2020 or how far Mr Neckles could speak during the meeting.[265]The claimant has not proved primary facts from which we could find, or infer, that the detriments relied upon above were in any sense whatsoever by reason of his protected acts. The claim of victimisation fails and is dismissed.[266]For the sake of completeness the Tribunal set out their findings on whether time should be extended for the claimant to bring claims of victimisation for grounds 6.2.1 and 6.2.2, time for ground 6.2.3 having been extended by Employment Judge Halliday.[267]The Tribunal accept Mr Nicholl’s submissions in relation to ground6.2.1 that the claimant was placed at the risk of redundancy on 22 January 2020 and the claim form (2302762/2020) was not submitted until 2 July 2020. The claimant should have been submitted by 21 April 2020 and is out of time. Further the Tribunal accept Mr Nicholl’s submissions in relation to ground6.2.2 that the grievance hearing took place on 16 January 2020 and the claim form (2302762/2020) was not submitted until 2 July 2020. The claim should have been submitted by 15 April 2020 and is out of time.[268]Mr Neckles did not address the Tribunal of why the claimant delayed in bringing these claims by 3 months.[269]After assessing all the factors relevant to the issue including the absence of an explanation from the claimant,, the Tribunal do not find that it is just and equitable to extend time for bringing claims for victimisation under grounds6.2.1 and6.2.2 and accept Mr Nicholl’s submissions that the respondent has been prejudiced because of this delay as the claimant’s manager, Mr Kelly, and Mr Hollyoake, who conducted the redundancy process, no longer works for the respondent and were not able to give evidence to the Tribunal as a result.