Employment Judge KhalilIn person for claimantMr McDevitt (instructed by Counsel) for respondentDate 20 May 2020
JUDGMENT
The Unanimous decision of the Tribunal is that the claims for Direct Age Discrimination and Harassment (Age) are not well founded and are dismissed.
REASONS
[1]By a claim form presented on 6 September 2018, the claimant brought claims of unfair dismissal and age discrimination.[2]The claimant appeared in person, the respondent was represented by Mr McDevitt, Counsel.[3]The Tribunal heard evidence form the claimant and for the respondent, Miss Stow (Staff Induction Manager), Miss Linstead, (Head of Business Development and Marketing), Mrs Fayyaz (Team leader), Ms Moon (Payroll Operations Manager) and Mr Baldwin (Chief Operating Officer). There was an agreed bundle of documents running to 243 pages. Supplementary documents were admitted by the Tribunal, including a document requested by the Tribunal on day 1 of the hearing. 1 of 18[4]There was an agreed list of issues contained in the case management Order dated 1 May 2019 at paragraphs 4.1 to 4.7. At this hearing the claimant’s unfair dismissal claim was dismissed upon the claim being withdrawn due to insufficient qualifying service. The claimant pursued her claim for direct age discrimination and harassment (age).[5]At the beginning of the hearing, the claimant clarified she described her age group as over 50.[6]Further, in relation to 4.3.1, 4.3.2 and 4.3.6 the claimant said her comparator was Viorica Talpa (age 36). In relation to 4.3.5 her comparator was Drew Westwood (age 29). In relation to 4.3.6, Rose Bautista (age 30-32). It appeared to the Tribunal that in relation to 4.3.6, the comparators were actually the alleged perpetrators.[7]The Tribunal allowed the allegations to proceed on this basis as the Tribunal did not consider the allegations to be a material difference to the advancement of the claimant’s claim or the respondent’s defence of it. However, given the timing, the Tribunal would afford latitude to the respondent’s defence and rebuttal of those assertions, even in the absence of relevant documentation or late production of documentation. The Overriding objective meant it was proportionate to proceed and avoid any further delay. Relevant Findings of fact[8]The following findings of fact were reached by the Tribunal, on a balance of probabilities, having considered all of the evidence given by witnesses during the hearing, including the documents referred to by them, and taking into account the Tribunal’s assessment of the witness evidence.[9]Only relevant findings of fact relevant to the issues, and those necessary for the Tribunal to determine, have been referred to in this judgment. It has not been necessary, and neither would it be proportionate, to determine each and every fact in dispute. The Tribunal has not referred to every document it read and/or was taken too in the findings below but that does not mean it was not considered if it was referenced to in the witness statements/evidence.[10]The claimant was employed by the respondent as a payroll assistant from 30 May to 8 June 2018 when she was dismissed.[11]The claimant had had a 10-year career break to raise her family before commencing her role with the respondent. Her job with the respondent was her first job in the UK. Her last job was for CEC Savings Bank in Romania where she had worked for 10 years[12]The claimant was 52 when she worked for the respondent. This was not declared to the respondent, neither was this known by the respondent when the claimant was offered her role on 16 May 2018 following her interview on that day. Her offer of employment was subject to references. 2 of 18[13]The Tribunal finds there was a discussion during the claimant’s interview about her family in particular her son. The Tribunal further finds that Ms Stow did ask about the age of the claimant’s son. The Tribunal finds that it is was more likely than not that such a discussion would have occurred early on in the interview process, thus with Ms Stow, not when Ms Linstead was asked to join the interview later. The claimant’s recollection was clearer and more certain than Ms Stow’s who could not recall if the age of the claimant’s son was volunteered by the claimant or if she (Ms Stow) asked her (paragraph 5 of Ms Stow’s witness statement). 4.1 Oral reference requested after passport sent[14]The Tribunal finds that it was the respondent’s standard practice to request an oral reference. This was clear from the respondent’s recruitment and selection process on page 83. There is express mention of verbal referencing.[15]The Tribunal finds that the claimant was not told that a verbal reference would not be required at her interview. The Tribunal finds that it would be more likely that the respondent would stick to its process and require an oral reference given the claimant’s absence from the workplace for 10 years and the role being her first job in the UK. This was not a case where alternative references were needing to be sourced because of the passage of time; it was just about the means of how the reference being obtained was to be communicated.[16]The Tribunal is reinforced in reaching its finding by the email the claimant sent on 21 May 2018 at page 146 wherein the claimant had stated: “I have let them know you will contact them for a verbal reference”[17]The claimant sent in her driving licence and passport on 23 May 2018 (page 150). That was after the claimant was aware a verbal reference would be sourced. Thus, the Tribunal finds this was the date on which the respondent’s HR Officer (Suzanne Cox) had knowledge of the claimant’s official age from these documents.[18]The Tribunal also notes that a verbal reference was obtained for Adele Parker referred to in paragraph 22 of Miss Linstead’s witness statement who applied for a payroll administrator role around the same time as the claimant. A verbal reference was also taken up for Mr Lekram Mahadea (page 214) on 29 June 2017. These employees are also cited by the respondent as being in the over 50 category in their defence of this claim; the Tribunal finds that the verbal referencing procedure was, consistently, applied to them too. In so finding, the Tribunal does not find there was any policy about sourcing verbal references for this age group only, neither was that asserted by the claimant, neither does the Tribunal find in any event that the sourcing of a verbal reference was a detriment. The Tribunal also finds that the respondent was acting more favourably by providing the claimant’s referee with a list of written questions following problems with telephony and ultimately sourcing a verbal reference from another referee volunteered by the claimant. The claimant herself appreciated the respondent’s ‘hard work’ (page 161) in taking a reference. 3 of 18[19]The Tribunal also accepts the evidence of Miss Linstead that she did not depart from the requirement to seek a verbal reference. 4.2 Inadequate Training[20]The Tribunal was taken to the induction checklist on page 172. There was no evidence that item 1 had taken place. In relation to point 7 (security awareness training, GDPR course and AML Policy), the claimant said in response to questions from the Tribunal that this had happened over 2 days not on the first day. Further that item 10 (to go through week 1 induction) was not done. The claimant confirmed all other items on the checklist were done. The claimant’s evidence is accepted in this regard.[21]The claimant’s personal checklist was at page 72. Against entries for 31 May, 1 June and 4 June, remarks were recorded about the claimant’s ‘no change’ payroll progress. The Tribunal finds that it was implicit within such remarks that the claimant was being given training. There were further remarks to support this view such as “needed extra explaining” and “needed showing again”. The document was contemporaneous.[22]The evidence of Ms Moon, paragraph 11 of her witness statement, was that the claimant’s telephone training did not commence until her second week i.e. 4 June onwards. That would be the fourth not the second working day referred to in her evidence. As noted above, the claimant had confirmed she had received the telephone and taking messages guide referred to on her induction checklist (page 181).[23]Ms Moon repeated the training as Ms Saira Fayyaz had not completed this. Her evidence as to how she did this was set out in paragraph 12 of her witness statement. She repeated the guidance in the telephone training guide. She did telephone drills, pretending to be a client, The Tribunal accepts her evidence about the manner of training, that this was consistent with the training she had provided to others and that there were concerns with the claimant’s grasp. The Tribunal found Ms Moon to be professional without any other underlying motive.[24]The Tribunal noted the claimant had agreed in her evidence (paragraph 23) that she was given training on how to print a payslip and send it to the client. The claimant cited assistance from ‘Rose’ and also direct training from Ms Moon on how to use payroll software using a client with no changes.[25]In paragraph 24 of her witness statement, the claimant agreed that ‘Paulina’ (Polina Lazarova) did provide her with some training on getting to know the system. Her complaint was not that she did not receive the training but that she was inexperienced. The Tribunal accepts the evidence of Ms Moon in paragraph 29 of her witness statement that Ms Lazarova had been employed by the respondent for 2 years and thus was well placed to provide support on the respondent’s “Team Spirit” payroll system. Her relative inexperience as a payroll assistant was not relevant. Further, the respondent made available Inga Lacrami-Oara a senior payroll administrator. The Tribunal finds that these individuals were deployed to assist the claimant on a needs basis; if the 4 of 18 claimant did not avail herself of the assistance of Ms Lacrami-Oara that was not because of anything the respondent did. It was for the claimant to ask as would be commonplace with informal training when Ms Moon herself was unavailable to provide.[26]The claimant also confirmed that on 5 June, she was provided with (brief) training on how to answer calls by Ms Saira Fayyaz (paragraph 26 of her witness statement). The claimant also confirmed that Polina Lazarova provided training on how to use the Company scanner and that she was able to complete 15 payslips manually. The claimant did not have a password at this time. The claimant was however able to carry out her work/training by asking Ms Moon to enter her passcode so the claimant could access the payroll system. The claimant also accepts that answers were given to her by Ms Moon and further that: “…as I started to know the payroll programme, it was easy for me to sort them out”. The Tribunal finds that this would suggest that the claimant was being provided with adequate training, alternatively that further training was not required.[27]The Tribunal does not find that Ms Moon (as the claimant’s Manager) was hostile towards the claimant. This was unsupported by any evidence. The Tribunal had regard to Ms Moon’s oral testimony too and found her to be professional and supportive of the claimant. There was no contemporaneous allegation of such a kind raised with HR or otherwise. The claimant’s reference to raising a complaint with Mr Baldwin was not about alleged hostility; on the claimant’s evidence it was about a specific incident regarding training the claimant was receiving from Ms Moon about a client drill. The Tribunal has already found this to be a training measure. 4.3 Events on 6 June 2018[28]The Tribunal finds that the claimant was not given work (client files) assigned in ordinary alphabetical order. This was accepted by the respondent. Ms Fayyaz’s evidence was the files were all in alphabetical order by reference to the client short code (paragraph 7). Ms Moon also confirmed this to be the case and added that was how the respondent’s system printed out client lists. The Tribunal accepts the evidence of the respondent. There was no evidence before the Tribunal about the alleged arrangement for Viorica Talpa, either her testimony or any documentation or email for example.[29]The Tribunal finds that the claimant was given twelve pay roll changes to do, two of which were with ‘no changes’ over a period of 5 days. The Tribunal was referred to document 199 (i) which showed the work allocated to the claimant relating to payroll changes between 4 June 2018 and 8 June 2018. In the column ‘date received’ there were two entries which the Tribunal finds relates to 5 of 18 payroll ‘with changes’. This was confirmed by Ms Linstead in supplementary questions. Her evidence was accepted. The data was not challenged by the claimant.[30]In relation to the claimant’s comparator, Ms Valpa, the Tribunal was taken to document 248, which the Tribunal allowed the respondent to adduce in evidence on day 2 of the hearing as it provided rebuttal evidence of the claimant’s named comparator from day 1 of the hearing. This showed that for 13 April to 19 April (5 working days) Ms Talpa had 27 pay roll changes, 10 with changes. The claimant had said she had been taken on 1 or 2 months before. In supplementary evidence, Ms Linstead said the data relating to Ms Talpa was for her first week of doing payrolls and that she would have started 2 or 3 days before. On page 249, her start date is stated to be 9 April 2018 which is consistent with Ms Linstead’s evidence. The evidence of the respondent was accepted by the Tribunal.[31]The Tribunal finds that the claimant answered calls which were not from real clients. The respondent accepts this happened. The respondent says this was part of her training. Ms Moon’s evidence about this was in paragraph 12 of her witness statement. Ms Moon also explained in cross examination that the claimant was aware of this training. The Tribunal finds that the claimant did not take calls from clients which were not genuine outside of this arrangement. Put differently, the Tribunal finds there were no client calls which were being put through to the claimant which were knowingly fake and not part of this training.[32]The Tribunal also accepts Ms Moon’s evidence, that when the particular incident happened which led to the claimant going to the toilet and getting upset, Ms Moon was not aware that the claimant had not received sufficient telephone training, though she was aware that Ms Saira Fayyaz had provided some training. As a result, she asked Ms Ferroza Fayyaz to provide additional training from 6 June onwards (paragraph 24 of her witness statement). This evidence was consistent with Ms Fayyaz’s evidence at paragraph 6 of her witness statement and the Tribunal accepts this evidence.[33]The Tribunal also finds Ms Moon’s recollection of this incident both in her evidence in chief and under cross examination to be of greater detail than the claimant’s. The evidence of Ms Moon in paragraph 16 was not specifically challenged by the claimant, including the claimant’s attitude to receiving telephone training. There was also acceptance by the claimant that Ms Moon did follow the claimant into the toilet and that they appeared to remain on “good terms”. The arrangement had involved Ms Moon calling the claimant from another desk pretending to be a client.[34]The Tribunal finds that the claimant was encouraged to take her lunch break by Ms Moon. Ms Moon referred to a specific occasion in her evidence when she encouraged the clamant to utilise her lunch break, she explained that she particularly had in mind that in the afternoon the clamant would be busy training 6 of 18 on the respondent’s system. She recollected it was a warm day, hence many staff had chosen to eat their lunch outside (paragraph 31 of her witness statement). The claimant referred to this incident in her evidence at paragraph 33 of her witness statement.[35]By commenting to the claimant in this way, the Tribunal finds Ms Moon to have been acting professionally and finds that the taking of a lunch break would be commonplace for employees below management or leader level. Ms Moon’s evidence was supported by Ms Stow when she said about new starters taking lunch breaks: “Encourage them (new starters) to do, plus I can have a break”[36]The Tribunal also finds this was an encouragement or suggestion not an instruction. There was no evidence before the Tribunal that the claimant requested to remain at her desk and was not permitted to do so.[37]The Tribunal finds that the claimant was instructed not to print hard copies of a client payroll with changes. The claimant’s evidence was that she was told not to do so by Ms Moon because the office was paperless. The claimant relied on her comparator, Drew Westwood being able to print hard copies. She stated that Drew Westwood had also been employed in Spring 2018.[38]The Tribunal noted that Drew Westwood had started on 12 March 2018 (page 249). The GDPR became law on 25 May 2018.[39]Under cross examination, Ms Moon stated that the practice/training on payroll changes was not ‘dummy’ data. It was data from a real company, but it was not live data. Thus, she explained, because of GDPR and confidentiality it was no longer data which could be printed, reinforcing her evidence in chief (paragraphs 28 & 31 (iv)). Ms Moon accepted that previously it would have been possible to do so. The evidence of Ms Moon, who was a team leader at the time, was accepted by the Tribunal.[40]The Tribunal finds that there was no hostility towards the claimant or any deliberate avoidance at lunch on this day or on the two days of employment thereafter. The Tribunal finds this assertion could only relate to 7 and 8 June based on the evidence in paragraphs 33 to 36 of the claimant’s witness statement. Her evidence referred to events after her lunch break on 6 June.[41]The claimant’s assertions were specifically against Ms Lacramioara and Ms Talpa but there was no other evidence before the Tribunal regarding why their behaviour would change, or why as a result of the claimant’s age, the incident with the telephone training would be causative of age related behavioural change. The claimant’s allegation in fact went further as she alleged all the younger employees changed. In the Tribunal’s view, this was a far-fetched and highly improbable scenario and one which was not plausible. Nothing was 7 of 18 raised or said at the time. The claimant had stated under cross examination, when being asked about ‘Rose’ (Bautista), who the claimant said had been impressed about the claimant’s age, that she (Rose) would not want to be friendly with someone who the company did not agree with and that she did not know if this was linked to age. The claimant also stated that she was not alleging any difference in treatment against Ms Stow following the alleged revelation of the claimant’s age via ID documentation or otherwise.[42]The claimant did not allege that Ms Linstead had treated her differently after 6 June. She did not question Ms Moon about this either. However, when questioned about the passcode availability, Ms Moon, said she ‘categorically denied’ any age related less favourable treatment and that she would “never judge anyone by age”. The alleged change in behaviour was not put to Ms Fayyaz or Mr Baldwin.[43]The Tribunal finds there to be a lack of corroboration and a lack of certainty regarding this allegation and it was not until day one of the hearing that her allegation against Rose Bautista was made. 4.4[44]The Tribunal has already found that the list of payroll changes on page 199 (i) reflects the claimant’s payroll changes for 4 to 8 June 2018. That period includes 7 June 2018. The first payroll ‘with changes’ was on 7 June 2018.[45]The Tribunal finds that this would be expected of the claimant as part of her job, including at the training stage. Ms Moon said under cross examination that payroll changes ranged from 1 to 6 with 6 being most difficult. She stated that a ’1’ change could include some manual changes e.g. a bonus which she considered would be appropriate for the claimant to enter. This evidence was accepted. The Tribunal has already noted and found that the claimant’s comparator, Ms Valpa, had 10 payrolls with changes (paragraph 27 above). 4.5[46]The Tribunal finds that the claimant was not given a working passcode between 30 May and 7 June 2018. This was not disputed by the respondent. The respondent’s position was this was an IT error/glitch. Ms Moon’s evidence was that she emailed IT to fix this. In fact, the passcode issue was not resolved until Friday 8 June. The Tribunal was referred to pages 192 of the bundle which set out Ms Moon’s emails of 1 June and 8 June 2018.[47]Ms Moon explained that in the absence of a working passcode to access the ‘Team Spirit’ system, she would key in her passcode for the claimant, or when she wasn’t around, the claimant could ask another person sitting in her vicinity. Ms Moon further explained that Ms Fayyaz was there from 6 June, there were 4 other banks of desks with staff running payrolls, In total there about 40 members of staff and even if about 10% were on holiday, there were 36 still there to assist the claimant. Further, the input of a passcode would take no more than 6-10 seconds. This evidence was accepted. 8 of 18[48]The claimant agreed in evidence that she did ask Ms Moon for her passcode and also Ms Fayyaz and Polina Lazarova. Her assertion was that this would take time and was frustrating. The Tribunal does find that this caused some delay for the claimant and would have been frustrating and inconvenient. Ms Moon accepted this under cross examination too. The Tribunal accepts however that the actual inputting time for a colleague’s passcode would have been 6-10 seconds as described by Ms Moon. There was no allegation or evidence before the Tribunal that passcode entry was refused by any employee. Even allowing for the time involved in asking other payroll staff to utilise their passcode, the Tribunal was satisfied that for the most part it would not constitute a significant delay. 4.6 Events on 8 June 2018 4.6.1[49]The Tribunal finds that Ms Moon and Ms Fayyaz did not leave the office and abandon the claimant. The Tribunal finds that they were both present in the office intermittently available to assist the claimant. The Tribunal accepts the evidence in paragraph 38 of Ms Moon’s witness statement and paragraph 18 of Ms Fayyaz’s witness statement that they were both available to the claimant but still had their own payrolls to process or work to undertake. In addition, the Tribunal noted that Ms Fayyaz was specifically asked to sit next to the claimant to support her (paragraph 3 of her witness statement), which evidence was not disputed. In addition, Ms Moon also stated that Ms Lacramioara and Ms Lazarova sat alongside the claimant. This evidence was not disputed too.[50]The claimant did not assert that she could not ask another employee to assist in their absence or that she did and was refused help. The Tribunal finds in the unlikely event both Ms Moon and Ms Fayyaz were away from their desks concurrently, the claimant could have approached another employee for assistance – Ms Lacramioara or Ms Lazarova. There was no evidence that she did ask these employees and was denied assistance.[51]Under cross examination, Ms Moon also robustly denied that she ever deliberately left her desk to make the claimant’s work more difficult. She said it was simply untrue. She also stated the work being PC related, the approach is always to spend time in front of the PC. Ms Moon added that she would never do anything to make the claimant’s work harder, everyone worked as a team and needed to respond to clients. By the manner and extent of her evidence, the Tribunal was left with a clear impression that there was no deliberate evasive behaviour as alleged. 4.6.2[52]The Tribunal did not accept the claimant’s version of events. The evidence of Ms Moon was that she had in fact asked the administration team to stop answering the calls so efficiently so that the claimant would receive more calls to answer (paragraph 39 of her witness statement). Ms Moon was consistent under cross examination and reaffirmed that she “reminded them not to answer”. Her evidence was also considered to be candid by the Tribunal as she 9 of 18 confirmed that there were not a lot of calls on this day and that the claimant was trying to handle them which the Tribunal found was not indicative of or consistent with a deliberate effort for calls to be intercepted.[53]Ms Fayyaz’s evidence also corroborated the evidence of Ms Moon. She was robust in evidence in chief that the suggestion that the respondent would deliberately sabotage the claimant’s efforts was “ridiculous and untrue”. 4.6.3[54]The Tribunal has regard to its findings in paragraphs 37-39 above. 4.6.4[55]The Tribunal has regard to its findings in paragraphs 34 - 36 above. This incident however refers to a separate occasion on 8 June. The Tribunal was provided with 1 example/recollection by Ms Moon without a date recollection which could relate to 6 June 2018. The Tribunal considered it more likely than not that Ms Moon was referring to 6 June as it was in relation to training on the new system and the claimant’s struggles with that which was taking place on 6 June 2018.[56]The Tribunal finds in the absence of any further specific evidence from the respondent, the claimant was encouraged to take her lunch break on 8 June too. There was no direct denial of that assertion on 8 June 2018. The Tribunal further finds that there was no evidence that the claimant requested to remain at her desk or that such a request was refused on this occasion. Dismissal[57]The claimant was dismissed on Friday 8 June 2018. The decision maker was Mr Baldwin.[58]On 6 June, Mr Baldwin had been informed by Ms Moon that the claimant was struggling with the role. This was following an informal discussion between the claimant and Mr Baldwin when she had informed him that she had some concerns about the workload and the pace, especially having not worked in payroll for a long time.[59]Mr Baldwin spoke to Suzanne Cox in HR and was informed to let the claimant know of the concerns and set her some objectives for the rest of the week.[60]Mr Baldwin met with the claimant with Ms Moon on the next day (7 June 2018) to explain concerns around her progress and that the workload would increase as the month progressed as notifications would be received to changes to payroll and timescales/deadlines would become more pressing.[61]The claimant was set objectives to practise phone calls, processing 4 no change payrolls, completing a May payroll in the test system and keeping on top of emails. This was covered in Mr Baldwin’s email of 8 June referring to objectives she had been set for the previous day (page 194). 10 of 18[62]Later that day, Mr Baldwin stated he was informed by Ms Fayyaz that the claimant was still uncomfortable in dealing with client calls, had not been on top of her emails, had completed some but not all of the no payroll changes and had run out of time to complete the May payroll in the test system. The document at 199 (i) indicated that 3 payroll changes were completed, although one of these was with changes. Ms Fayyaz’s evidence was not however consistent with Mr Baldwin’s evidence on whether the claimant had kept on top of emails as Ms Fayyaz stated that she did not recall any issues with managing the few emails received (paragraph 15 of her witness statement). The Tribunal finds there were some issues with the claimant’s performance and noncompletion of all her objectives, but not all four. The Tribunal also finds that the concerns of Ms Moon and Ms Fayyaz were discussed with Mr Baldwin later that day who directed that the claimant’s progress to be reviewed on the following day Friday 8 June before any decision was made about her continuing employment.[63]On Friday 8 June, the claimant was set further objectives. Those were to complete 6 no change payrolls, to do 4 client telephone calls, RTI training, keeping on top of emails, May payroll. These were set out in Ms Moon’s email at page 196. It was confirmed in Mr Baldwin’s evidence in chief (paragraph 11) and the Tribunal finds that these objectives followed a meeting between Ms Moon & Mr Baldwin. The claimant agreed that she was set these objectives, except she stated that she was asked to take 6 client calls. The Tribunal finds that she was mistaken in this regard and accepts the respondent’s corroborated evidence including Ms Moon’s contemporaneous email.[64]The Tribunal finds there was no defined increase in the telephone call numbers as no figure had been set for the day before. In relation to payroll changes, the Tribunal finds that there was a 50% increase in the target (4 to 6) not 67% which the claimant accepted under cross examination was a mistake.[65]The claimant’s performance was assessed by Mr Baldwin after receipt of Ms Moon’s email at 15.34pm. 5 of the 6 payrolls had been done. The telephone calls had not been done, however Ms Moon accepted, transparently, that the claimant had tried and there had not been many calls. The RTI training had not been done. The email objective had been achieved and the May payroll form the previous day was in the process of being completed. The Tribunal finds that this was in fact done as confirmed by Mr Baldwin (paragraph 110 of his witness statement).[66]Mr Baldwin met with the claimant thereafter and dismissed the claimant based on her performance as assessed by the objectives set for 7 and 8 June and based on his conversations with Ms Moon and Ms Fayyaz on those days, who had been monitoring the claimant’s performance. Mr Baldwin’s email at 4.06pm on this day at page 251 which began “Am about to let her go now” confirms that the dismissal did not take place any sooner.[67]The Tribunal accepts the claimant mentioned that she felt her dismissal was because of her age at this point. Mr Baldwin agreed she said that. The Tribunal accepts that Mr Baldwin was astounded by the allegation. 11 of 18
Applicable law
[68]The claimant’s claims are for direct age discrimination and harassment (age).[69]Age is a protected characteristic under the Equality Act 2010 (‘EqA’) and by S. 13 direct discrimination is unlawful and by S. 26 Harassment is unlawful.[70]The burden of proof is set out in S.136 EqA. Thus provides: “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.[71]S 136 (3) provides that S. 136 (2) does not apply if A shows that A did not contravene the provision.[72]The guidance in Igen Ltd v Wong 2005 ICR 931 and Barton v Investec Henderson Crosthwaite Securities Ltd 2003 ICR 1205 EAT provides guidance on a 2-stage approach for the Tribunal to adopt. The Tribunal does not consider it necessary to set out the full guidance. However, in summary, at stage one the claimant is required to prove facts from which the Tribunal could conclude, in the absence of an adequate explanation, (now any other explanation) that the respondent has committed an act of discrimination. The focus at stage one is on the facts, the employer’s explanation is a matter for stage two which explanation must be in no sense whatsoever on the protected ground and the evidence for which is required to be cogent.[73]The Tribunal notes the guidance is no more than that and not a substitute for the Statutory language in S.136.[74]In Laing v Manchester City Council 2006 ICR 1519 EAT, the EAT stated that its interpretation of Igen was that a Tribunal can at stage one have regard to facts adduced by the employer.[75]In Madarassy v Nomura International PLC 2007 ICR 867 CA, the Court of Appeal 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 a balance of probabilities, the respondent had committed an unlawful act of discrimination” Conclusions and analysis[76]The following conclusions and analysis are based on the findings which have been reached above by the Tribunal. Those findings will not in every conclusion below be cross-referenced unless the Tribunal considered it necessary to do so for emphasis or otherwise. 12 of 18[77]Having regard to the issues agreed and clarified in the case management order dated 1 May 2019, as amended on day 1 of the hearing and specific findings reached above the Tribunal concludes as follows.[78]In relation to issues4.1 (oral reference),4.2 (inadequate training),4.3.1 (alphabetical list),4.3.2 (more difficult cases),4.3.3 (call that was not genuine),4.3.4 (and 4.6.4) (practice during lunch break), 4.3.6 (change in colleagues’ attitude), 4.4 (assigned cases with payroll changes)4.6.1 (Ms Moon and Ms Fayyaz leaving the office) and4.6.2 (instruction to claimant’s colleagues to answer calls), the Tribunal concludes that the claimant has not established facts from which the Tribunal could conclude less favourable treatment or unfavourable treatment because of the claimant’s age: Laing applied. In respect of each of these assertions, the Tribunal concludes that the alleged treatment did not take place, or the facts were insufficient to enable the burden of proof to shift.[79]In relation to the oral reference, the Tribunal has found that it was not a requirement that was waived by the respondent. Alternatively, the allegation of less favourable treatment (requirement for an oral reference) following the provision of ID documentation bearing the claimant’s age does not ‘work’ chronologically. The request for an oral reference which was known to the claimant on 21 May 2018 predates the provision of the ID documentation (23 May 2018).[80]In relation to training, the Tribunal concludes that rather than being provided with inadequate training, the respondent provided the claimant with more training than it would normally provide. Ms Fayyaz was specifically moved in to Ms Moon’s team and positioned next to the claimant from 6 June onwards. Other employees were also asked to assist the claimant which the claimant agreed. The Tribunal was left with a strong impression that the respondent was endeavouring to support the claimant. It had after all invested in her recruitment and appointment at which point the two hirers at least would have had a good estimate of her age and would have been aware of the age composition of the respondent’s workforce. If the respondent wished to discriminate against the claimant because of her age directly and/or because it felt she would not fit, it would not have hired her. The respondent, however, did hire the claimant. The Tribunal concludes that this being her first job in the UK and having had a lengthy gap of 10 years since her last job, were factors more likely contributing to her training needs. This may have explained the claimant’s experience with the respondent rather than the alleged treatment towards her because of her age.[81]In relation to the files not being arranged in an alphabetical way by company name, but instead by the short code, the Tribunal concludes that there were insufficient facts for the burden to shift. There was no evidence that other employees had files arranged in a different way. The Tribunal concludes this may have been a wish/desire on the claimant’s part; that however is a different matter altogether and not something requiring the respondent to explain. The Tribunal also noted and drew on the claimant’s suggestion that clients should do their own payroll changes (paragraph 48 of her witness statement). That view, the Tribunal concludes, provided a particularly insightful view of the 13 of 18 claimant’s perception as her evidence notwithstanding the explanation given to her was that “I wasn’t given the changes just to be time consuming and not to be able to meet the target”. The Tribunal concludes that it was never part of the claimant’s case that she was deliberately given payrolls with changes (to action) and others were provided with the changes already actioned.[82]In relation to more difficult cases (on 6 and 7 June 2018), by reliance on the findings relating to the claimant’s chosen comparator, Ms Valpa, the Tribunal concludes that the claimant was not given more difficult cases. The opposite was in fact true. The Tribunal concludes that the reference to more difficult cases was to doing payrolls with changes. Ms Valpa had 10 compared with the claimant’s 2. The comparison figures were for a similar range (5 days) and also corresponded with almost identical period from the start date (5 days and 4 days respectively).[83]In relation to the client call training, the Tribunal concludes there was nothing irregular or contrived in the respondent’s training whereby it purported to hold mock client calls with the claimant. Such training, the Tribunal concludes, would be commonplace in formal or informal training of this kind. The Tribunal concludes that it would have required premeditation for the respondent to do something disingenuous like this including a false provision of reassurance when the claimant became upset. Ms Moon tackled the incident head on both in her witness statement and under cross examination and rather than being evasive and was fulsome in her recollection and explanation. The Tribunal further concludes that claimant did not have the right attitude to receive the training considering the it (answering the phone calls) to be beneath her.[84]In relation to practice during the lunch break, there was no instruction given to the claimant not to do so. The Tribunal concludes it amounted to no more than an encouragement. There was no request from the claimant to remain at her desk or that such a request was denied. The facts were wholly insufficient for the burden to shift. The claimant did not cite the names of the other employees in paragraph 33 or paragraph 49 of her witness statement.[85]In relation to alleged hostility/change in the attitude at lunch breaks, the Tribunal has found that this did not take place. The evidence for this did not extend beyond the claimant’s assertion. The Tribunal also concludes that the alleged triggering event – the telephone training incident - was not directly or indirectly age related. On the claimant’s own case, she alleged that Rose Baustista’s attitude changed towards her because she may not have wished to be friendly with someone the Company did not agree with. That is not age related less favourable or unfavourable treatment. In addition, there was no evidence before the Tribunal that Rose Bautista knew of any alleged hostility towards the claimant by reason of her age. The claimant also did not know if this was connected to age. The Tribunal concludes there were no facts from which the Tribunal could conclude any discriminatory treatment.[86]In relation to Ms Moon and Ms Fayyaz leaving the office, the Tribunal has found that this did not happen. The Tribunal notes that this allegation was specifically about both of the aforementioned leaving the office. Had the Tribunal been considering whether the individuals were away from their desks 14 of 18 for periods of time, it would have concluded that this was more likely than not. Both Ms Moon and Ms Fayyaz accepted this to be the case. However, even if that caused the burden of proof to shift to the respondent to explain such periods of non-availability, the Tribunal would have concluded, with some ease, that the reason for that was exclusively operational. Any other motive would have meant both Ms Moon and Ms Fayyaz had decided or conspired to be away from their desks to avoid being available to support the claimant whilst concurrently not being able to get on with their own work and would make the decision to move Ms Fayyaz by the claimant’s desk to assist her even more puzzling. The Tribunal considers that this would be a fanciful conclusion.[87]In relation to the allegation regarding others being instructed to answer calls before the claimant could, the Tribunal has found the opposite happened. Ms Moon and Ms Fayyaz’s rejection was emphatic. Such an allegation would require the administration team to be part of the web of conspiracy or, alternatively, for them to be given an unrealistic target of answering on the first ring. The Tribunal concludes neither to be the case. The Tribunal has already noted that Ms Moon was forthcoming about her view that call levels on this day were low and the claimant was trying and there was no criticism of her in this regard.[88]In relation to the issues 4.3.5 (and 4.6.3) (hard copies) and 4.5 (passcode), The Tribunal concludes that there are facts from which the Tribunal could conclude, in the absence of an explanation, that the respondent has committed an act of discrimination. Accordingly, the Tribunal required to be satisfied, having regard to the findings reached above, that any explanation offered by the respondent was in no sense whatsoever connected to age and the evidence for which for cogent.[89]In relation to printing hard copies which the claimant was told not to do, the Tribunal readily concludes that the reason why the claimant was told not to do so was related to data protection and the advent of GDPR. That was a complete answer to why the claimant’s comparator, Drew Westwood, was able to do so given his employment started before GDPR was in force. The Tribunal was also satisfied that during her training, the claimant was working on real company data, albeit it was not live (real time) data. The claimant did not give evidence to dispute this. There was thus no connection at all with age in relation to the claimant’s treatment.[90]In relation to non-receipt of a passcode until 8 June, the Tribunal did conclude that it would have been inconvenient and frustrating for the claimant. Ms Moon conceded that too under cross examination. The Tribunal concludes that this was not deliberate, but an IT glitch. It would be remarkable, if having spent time and money investing in a new recruit, the respondent would set the claimant up to fail by not providing/delaying receipt of a working passcode. The Tribunal concludes that the respondent did not do so deliberately by reason of the claimant’s age or deliberately for any other reason. It was unfortunate, but Ms Moon did raise the issue with IT on 1 June and 8 June 2018. The Tribunal concludes based on its finding above that this was only a minor obstacle to the claimant’s work given that she was able (and did) to access the systems through other employees inputting their passcode which took between 6 and 10 15 of 18 seconds. This was in no sense whatsoever because of age and the Tribunal was satisfied with the cogency of the respondent’s evidence.[91]In relation to the claimant’s dismissal, the Tribunal concludes that there were insufficient facts from which it could conclude that discrimination occurred. In particular, the claimant’s age (protected characteristic) and the claimant’s dismissal indicate merely the possibility of discrimination. (Madarassy) Alternatively, the Tribunal is satisfied of the non-discriminatory explanations of the respondent analysed below and the cogency of that evidence.[92]The claimant’s dismissal took place during the claimant’s probationary period. A formal procedure (disciplinary or dismissal) was not followed. The Tribunal concludes however that as the claimant was in her probationary period and at quite an early period into it, it would not be unusual for an employer to proceed in a more informal way and with more haste. The Tribunal had regard to reference within the handbook to the first six months being a probationary period and to the right to terminate within that period, it would appear, without regard to formal process (page 105). The evidence of Mr Baldwin was accepted in this regard, he also sought advice from HR.[93]The Tribunal concludes that the claimant was making some progress. Indeed, the last 3 entries on page 199 (i) were payroll changes completed within 0 to 15 minutes. However the Tribunal concludes that the claimant was struggling, she did not meet all of her specific targets set for Thursday 7 and Friday 8 June, she had been provided with additional/bespoke training, tasks or explanations were being required to be explained to her several times, sometimes four or five times (paragraph 31 of Ms Moon’s witness statement and paragraph 9 of Ms Fayyaz’s witness statement). Ms Moon also added, under cross examination, that the claimant could take 4 attempts to attach documents. Her telephone style was still in training and in real client calls, she was not professional enough. Ms Fayyaz also commented on her grammar and abruptness of emails. (The Tribunal also drew on its own experience of the claimant in evidence and concluded that she appeared abrupt on occasions). The respondent’s witnesses were not challenged in this regard either. The Tribunal concludes that this may have its roots in the claimant’s long absence from the workplace and/or her absence of any UK workplace experience.[94]The Tribunal also concludes that the claimant was working during a quiet period of the month and thus as the workload of the respondent would increase, so would the claimant’s and there would be less availability to assist the claimant. The Tribunal had regard to Ms Fayyaz’s evidence in chief and Ms Moon’s evidence under cross examination in supporting its conclusion in this regard. Put differently, if the claimant was struggling now with a lighter load it would be worse in the weeks ahead even allowing for some improvement with time. Her performance comparison with Ms Valpa was notably inferior especially with regard to volume.[95]On her final day of employment (8 June), the claimant had not processed 6 no payroll changes. The Tribunal concludes that the claimant had done 5, but was asked to complete another task because she had not completed 6 by that time or because asking her to complete one more would have delayed her other 16 of 18 tasks. The claimant was also still doing a task from the previous day and it was also a day which was very light on the telephone calls meaning she would have had more time.[96]The Tribunal observed that the claimant could have been given more time to improve. Whether that would have been more reasonable is not a question the Tribunal is being asked to determine. Neither is unreasonableness (though that is not a conclusion the Tribunal is making) to be equated with discriminatory treatment.[97]The Tribunal had regard to the age composition of the workforce. The respondent was asked to produce a summary of age and dates of appointments of the staff. This was presented on day two of the hearing. It showed on a raw basis 7 employees over the age of 52 who had been recruited by the respondent. In particular, as at the date of the claimant’s appointment, two were payroll assistants who had been recruited aged 52 or over (Susan Barry and Linda Rossi) and one recruited just after also aged 52 or over (Adele Parker). There was a more recent recruit (Linda Lashbrook) too though her appointment was in 2019. The respondent’s age diversity was not on trial; the Tribunal concluded that the respondent’s workforce 50 and over was 16% based on the information on page 67, alternatively just under as the respondent was unable to furnish further evidence regarding Ms Lindsell. This was not considered to be statistically significant, especially having regard to all the circumstances.[98]The Tribunal noted the evidence of Ms Linstead in particular regarding Susan Barry who had been recruited as a payroll administrator aged 50, was 52 at the time of the claimant’s employment and had been promoted into a Senior position too. The Tribunal concludes that there no reason why the claimant’s path could not have mirrored this, subject to performance. This example, the Tribunal concluded, was strong evidence that age was not a factor. The Tribunal also repeats its conclusions in paragraph 80 above. The Tribunal also concludes that whilst the job advertisement did advertise for a recent graduate, no age-related language was used. The Tribunal also had regard to Ms Linstead’s evidence that she graduated at 33.[99]The Tribunal has found that the respondent asked about the age of the claimant’s son during the interview. The Tribunal concludes that this was not asked because of any discriminatory motive or reason. It was not a fact from which the Tribunal concludes, in this case, it could draw an adverse inference. Alternatively, the Tribunal concludes that it was part of the background personal discussion which took place between Ms Stow and the claimant. Crucially, as already noted above, the claimant was hired by the respondent following the interview. The claimant’s age would have been capable of being estimated by her visual appearance and her CV at pages 88 & 89. Ms Stow & Ms Linstead’s evidence in chief was accepted in this regard. Such an assertion would normally be levelled against a respondent who had not hired a candidate.[100]In pursuance of the foregoing findings and conclusions the claim for Direct Age discrimination and Harassment (Age) fails. 17 of 18