Mr A Leibrick v Blue Square Marketing Ltd: 2304529/2023
EMPLOYMENT TRIBUNALS
Case No 2304529/2023
Between
Mr A LeibrickClaimantBlue Square Marketing LtdRespondent
Before
Employment Judge HeathIn person for claimantMr Hallstrom (instructed by Counsel) for respondentDate 5 November 2025
JUDGMENT
The claimant’s claims of unfair dismissal and direct age discrimination are not well- founded and are dismissed. Approved by: JUDGMENT having been sent to the parties on 21 November 2025 and written reasons having been requested in accordance with Rule 60 of the Employment Tribunals Rules of Procedure, the following reasons are provided:
REASONS
[1]The claimant claims unfair dismissal and age discrimination following his dismissal. The respondent asserts that it dismissed the claimant fairly by reason of redundancy or in the alternative SOSR (business reorganisation) and denies discriminating against him.
Issues
[2]The List of Issues was agreed at a Preliminary Hearing for Case Management before EJ Robinson on 5 June 2024 and incorporated in the Record of that hearing. It appeared in the bundle [47-49]. In discussions at the outset of the hearing the parties confirmed that the List of Issues was correct, save that that the claimant confirmed that he was only pursuing his complaint at 7c) (his dismissal) as an act of direct discrimination. He was, however, relying on the factual matters raised in 7a) and 7b) (essentially age-related comments by colleagues) as background which he says assists the tribunal in inferring discrimination in relation to the dismissal. We annexe the List of Issues at the end of these Reasons.
Procedure
[3]We were provided with a 480 page agreed bundle. The respondent provided an opening Note and a Chronology. We heard from the following witnesses: For the respondenta. Mr Darshan Gandhi, Head of Product Training Development.b. Mr Matthew Pierce, Senior Client Service Director.c. Ms Natasha Rose, People Director. For the claimantd. The claimant.[4]We took 1.5 hours at the outset to read into the case before hearing evidence. The parties provided both written and oral closing submissions. We deliberated and provided an oral decision on the third day. The claimant requested written reasons by email of 21 November 2025.
Facts
[5]The respondent is a brand engagement agency which offers marketing and advertising services to various clients. One such client relevant to these proceedings is the mobile phone and technology company Samsung.[6]The claimant was employed by the respondent as a Sales Support Executive on 2 September 2012. In 2015 he was promoted to a Galaxy Master Trainer. On 2017 he was promoted to the role of IM Trainer. In March 2019 he was promoted to the role of Specialist Project Trainer. The latter two roles were very much involved in providing sales and product training within mobile phone stores and electrical retailers to support the launch and sales of Samsung mobile phones and equipment.[7]MX is an abbreviation Mobile Experience. The claimant worked within the MX Training Team. His role involved creating a range of training content in various media formats including video, animation, PowerPoint and other media.[8]In around late 2022 early 2023 the MX Training Team was led by Mr Gandhi, Head of Product Training Development. Beneath him was a Training Content manager, and beneath that role were six Specialist Project Trainers, including the claimant.[9]On 11 October 2021 Mr Gandhi, Head of Product Training Development, was involved in a WhatsApp exchange with a colleague who worked outside of the MX Training Team. He sent a screenshot of the top of this person’s head, this person was bald, with the comment “Half a boiled egg”. We do not find that this exchange sheds any light or assists us in determining any of the issues relating to age discrimination in the claim before us.[10]On an unknown date in 2019 the claimant attended a restaurant following a working day with two colleagues. During the course of the evening these two colleagues called him “dad” which the claimant took as an attempt to embarrass him regarding his age. He made no complaint at the time.[11]On 7 December 2022 there was a work social event in Birmingham. After the event several members of the respondent’s staff, including the claimant and Mr Ganhi, socialised late into the night, consuming a fair amount of alcohol. There was a fair amount of joviality during the course of the evening, some of which involved the claimant during humorous impressions of a colleague. At around 2:30 AM the claimant and others went back to their hotel. The claimant was sitting down in the lobby and Mr Gandhi asked him if he was sitting down because he was old and his back hurt. Mr Gandhi acknowledged that this comment was not appropriate. However, no complaint was made at the time.[12]Mr Gandhi had worked for the respondent since 2013, but was made Head of Product Training Development in early 2023. In this role he was accountable for the leadership and management of the team for Samsung. This involved providing strategic direction and expertise on behalf of Samsung for the training on Samsung products and services.[13]We accept Mr Gandhi’s evidence that, since he had been involved with this team in 2015 it had functioned in a broadly similar way. However, the world had changed a lot since 2015, not least in the way that consumers used mobile technology. Mr Gandhi was involved in conversations with senior management and Samsung about how training on Samsung products might evolve. He had no concerns about the performance of his team and its individual members, including the claimant, in performing their current roles. However, he was concerned that the team was creating “one-dimensional” content around products. He believed that the pandemic had changed the way people worked and was of the view that in the future there would be changes to how people learn and might be trained. Also there were changes in the industry and in the habits of the end users who consume the content and there had been a diversification in its uses. He believed that currently the content was used solely for training purposes, but that in the future the content would need to be deployed across physical and digital spaces for go to market and promotional purposes as well as for below the line marketing initiatives.[14]Mr Gandhi was also of the view that the six SPTs performed something of a blended role. He was of the view that currently these roles were creating one-dimensional content whereas in the future there was a need for roles centred around specific created specialisms which were aligned to Samsung’s outputs. The type of content to be delivered in the future would be different. There would be more of a need to produce engaging video content in both bite sized and long forms. There would be more of a need for dynamic, interaction infographics lead content using up-to-date software and the creation of digital animated content for broader go to market and promotional activities. This activity would require end to end production management from inception to return on investment measurement. There was a need to develop distinct disciplines rather than blending responsibilities across the team.[15]Mr Gandhi began developing proposals for a restructure towards the end of 2022. As the proposals developed Mr Gandhi involved Mr Pierce, Ms Rose, the respondent’s People Director, Mr Fox, People Business Partner and Mr Thomson from Samsung.[16]On 15 February 23 Mr Gandhi emailed Mr Thompson, Mr Springer and Mr Pearce following a meeting. He referred to a proposal for a leadership restructure (Phase 1) followed by a restructure of the content team (Phase 2). These restructures would occur simultaneously but be managed independently through a consultation process. A timeline was proposed. Next steps included finalising the proposal with phase 2, approval of job descriptions on impacted roles, and benchmarking all roles with industry. He followed this up with a further email later that day to Mr Fox, Ms Rose, Mr Springer and Mr Pearce setting out that there was likely to be a restructuring process into phases affecting seven FTE across three roles. He attached a plan which was a work in progress which would be updated once job descriptions had been created approved.[17]On 20 February 2023 Mr Gandhi sent another email to Ms Rose, Mr Fox, Mr Springer, Mr Pearce and Ms Seeley relating to the MX Training team. He enclosed job descriptions for his own role, and the head of field training and operations and confirmed that there would be consultation on three roles (seven FTE). He set out that JD’s would be created for updated differentiated roles for MX Training Content Project Manager, MX Digital Content Creator MX Training Content Producer, MX Training Videographer, MX Training Graphic Designer/Animator.[18]There was a consensus in those involved in these discussions that the restructure was sound.[19]One 28 February 2023 Mr Gandhi presented finalised proposals for the restructure of the MX Training Team in an email to Mr Thompson, Mr Springer, Mr Pearce and Ms Seeley. He sent by email some slides relating to the restructure to the same individuals class Ms Rose on 1 March 2023.[20]On 8 March 2023 consultation was launched with the affected SPT’s. There was a meeting attended by Mr Gandhi and the affected individuals. Mr Gandhi read from a script. He set out the respondent’s objectives to continuously improve the delivery of service/levels and commercial KPI performance across the respondent and Samsung. There had been opportunities to maximise efficiencies and cadence through the restructure of the MX Training Team. The core operation of the team would be protected but new opportunities driving innovation in training content and execution were identified. Mr Gandhi set out the removal of two senior management roles. This would allow a dedicated focus on two key areas to deliver the core training service levels. He set out that the proposed restructure would remove the Training Content Manager and Specialist Project Trainer roles and introduce a Training Content Project Manager, Digital Content Creators and an in-house digital production team responsible for the creation of immersive and engaging video content and animation. The restructure would create a team of Digital Content Creators, videographers, a producer as well as Graphic Designer and Animator who would lead the creative production and review process to ensure highest quality of training content assets in line with the service ambition for the team. The restructure would allow for the overall management, organisation and operational efficiencies responsible for the delivery of multiple work streams across multiple stakeholders both internally and externally to ensure projects and content were delivered in time, within scope. He set out organograms of the current structure and the proposed structure of the team. He set out the impact of the proposals, including that the Content Training Manager role would be removed which would place that individual at risk of redundancy. The SPT is would be removed which placed them at risk of redundancy. There would be a recruitment process for all vacant roles in the proposed structure and all of the current SPT’s could apply for roles or other vacancies across the business. This was specifically said not to be a notification of redundancy, but advising the individuals of the current situation and that their role was at risk of redundancy. Mr Gandhi set out that a period of individual consultation with the purpose of reducing the risk of redundancy, discussing and reviewing alternatives and supporting individuals in looking for alternative roles in the business would be undertaken. He set out that consultation was an important way for the organisation to engage with those impacted by the business changes, and that opportunities would be provided for those affected to make any suggestions or proposals as to how redundancies could be avoided or minimised. Individuals were encouraged to share their feedback on the changes being proposed as well as raising any concerns or suggestions. No final decision had been made and none would be made until consultation was concluded. Ahead of consultation meetings further details of the available roles within the training team and the wider business would be shared. The affected individuals were signposted to support available through the employee assistance programme.[21]Team members raised a couple of questions, including what was the difference between the new and the old ones. Mr Gandhi said that job descriptions with salaries would be provided.[22]Later that day Mr Fox, the People Business Partner, emailed the claimant again setting out the business rationale, organograms and the information provided by Mr Gandhi at the meeting that day. An indicative timeline for consultation was included which set out that a further consultation meeting would take place by 13 March 2023, interviews by 20 March 2023 and a go live date by 27 March 2023. A letter notifying the claimant being at risk of redundancy was also attached which invited him to a first individual consultation meeting on 10 March 2023. Mr Fox also provided the job descriptions for the roles within the new structure.[23]On 10 March 2023 the claimant had an individual consultation meeting with Mr Gandhi and Mr Fox. The claimant was notified of his right to be accompanied at this meeting but he confirmed he was happy continue alone. Mr Gandhi read from a script setting out more or less identical information to that which had already been provided. He set out next steps and confirmed that they would be in line with a timeline already provided. He outlined an application process for the new roles following which he would be informed what the recruitment process works. There was a discussion about alternative new roles and the claimant was told he could access them from the respondents website if he wished to apply. He was offered support with reviewing his CV and offered time to work on applications. He was told what support he could receive. The claimant was given the opportunity to ask questions. He said that he was on annual leave the following Friday when the next consultation meeting was scheduled. He was told that he did not have to attend if he did not want to, that he could ask questions at any time and he should let management know if he wished to reschedule the meeting or whether he did not require a further one-to-one meeting. He also asked whether all roles were based in Chertsey and he was told that this was not the case. He asked whether voluntary redundancy was an option and was told to email management if he wanted this to be considered. He asked if he could do a four-week trial in a new role, and he was told that that was something that could be considered. He was told the notes of the meeting would be shared with him and he would be invited to a further consultation meeting.[24]It is clear from minutes of consultation meetings with other affected staff members that others asked a number of questions about the proposed restructure. For example Mr Richards, asked during the course of his first individual consultation meeting whether he would be able to propose a different role within the structure. He was told that there was indeed an opportunity to propose alternatives, and he could share his suggestions with Mr Gandhi by email. He was told the rationale for the proposed structure, but was given the opportunity to input his ideas, which he later did. At Mr Richards’ next consultation meeting Mr Gandhi specifically addressed Mr Richards’ “counterproposal”. Mr Gandhi said that the proposal was considered, but for a variety of reasons would not be adopted.[25]On 17 March 2023 the claimant’s second individual consultation meeting was scheduled. He did not attend as he was on annual leave.[26]The claimant applied for four roles within the proposed structure.[27]He was interviewed for the role of Training Content Producer. The interviewers were we claimant and Ms Seeley. The claimant was asked three behavioural questions and three technical questions. The pro forma scoring form was in the bundle. For the behavioural questions the claimant scored two, one and one out of a possible score of three for each question. The score sheet sets out the claimant’s responses and the interviewer’s comments. For the technical questions he scored one, zero and two out of three.[28]On 21 March 2023 the claimant attended a combined interview for Digital Content Creator and also the Videographer role. Again the score sheets were in the bundle and the interviews were conducted by Mr Gandhi and Ms Seeley. The claimant was asked two technical questions for which he scored two and one out of three. The claimant was asked three behavioural questions for which he scored one, two and one out of three.[29]In assessing scoring in redundancy exercises the tribunal does not conduct an in-depth assessment of the candidates scoring, and the authorities make clear that in reorganisation type redundancies an interview process can be an appropriate method of determining who fills the roles. They also make clear that a candidate’s performance is very likely to be a matter of judgment for the employer which, absent capriciousness, bias or prejudgment, is unlikely to be readily impugned by the tribunal. The claimant also made certain concessions in evidence which suggested that he accepted that he may well not have done full justice to himself in the process. Additionally, he did not challenge Mr Gandhi on his scoring in cross examination or take us to other candidates’ scoring. In the circumstances, and without going into the detail, we are prepared to accept broadly that the scoring was a reasonable reflection of Mr Gandhi’s and Ms Seeley’s assessment of the claimant’s performance at interview. We note that in one interview he did not prepare a presentation in advance, and in another his presentation was only 3 minutes long.[30]On 23 March 2023 Mr Gandhi called the claimant to give him feedback about his interviews, but the claimant declined feedback.[31]On 24 March 2023 the claimant attended a further consultation meeting with Mr Gandhi and Mr Fox. The claimant was told by Mr Gandhi that, as had been discussed in a previous conversation, the claimant had been unsuccessful at interview. He was told that he would be sent a letter confirming notice of redundancy the following Monday which would include various information. There were no questions from the claimant.[32]On 27 March 2023 Mr Fox wrote to the claimant confirming that he had been unsuccessful in his applications as he had failed to meet the required criteria. He confirmed that the claimant had not expressed interest in any alternative roles within the business and therefore his redundancy was confirmed from that date. He would not be required to work his notice which would be paid in lieu along with any outstanding holiday pay. He was informed of his entitlement to redundancy payment. Various other administrative matters were set out in the letter.[33]Within the redundancy exercise a colleague who was 29 years old was unsuccessful, and a colleague who was the same age as the claimant was successful.[34]The claimant appealed his dismissal by email to a on 17 April 2023. He appealed on various grounds including:a. He was unclear on how the new job roles are significantly different from the role he performed prior to the restructure. And he set out details relating to this.b. He said that the money paid out in redundancy payments did not make commercial sense set against losing his experience and skill and the cost of further recruitment.c. He said the decision to remove his role was predetermined in order to accommodate staff from agencies who were facing redundancy recently.d. He referred to inappropriate age-related jokes made by Mr Gandhi on staff nights out.e. He also made criticisms around data protection issues.[35]Mr Pearce, a senior manager within the organisation, was selected to be the appeal hearing manager by Ms Rose. Ms Rose felt that he was best placed to deal with it as he was within the work area and would have knowledge of the issues. Mr Pearce had been involved in some of the earlier discussions about the redundancy proposals, but, we find, he was not involved to any great extent in the implementation of such.[36]Mr Pearce invited the claimant to the meeting on 20 April 2023. The minutes of this appear in the bundle. Ms Rose of a attended to support Mr Pearce. The minutes include the following:a. The claimant said that Mr Thomson had called him during the process and indicated that no direction had been given from him to make any changes. The claimant clarified in evidence before us that this did not accurately represent what Mr Thompson said. What in fact he had said was something along the lines that he was surprised that the claimant had been made redundant.b. A number of questions were asked about the process of the redundancy exercise and the claimant gave his account and his views. Mr Pearce asked a number of questions.c. The claimant expanded on his allegation of age-related comments being made. He set out that Mr Gandhi had made a comment about him struggling with his chair due to his back due to his age at an evening out. He said that he did not raise any specific complaint but have laughed it off at the time and come back with a comment of his own.d. The claimant expanded on his concerns that he had been preselected for dismissal prior to the process and considering the age was an issue.e. When asked what outcome he wanted from the process, he said that it he did not know whether he would come back if he was reinstated as he would be a target for future redundancies.[37]On 3 May 2023 Mr Pearce had an investigation meeting with Mr Gandhi with Ms Rose present. The minutes of this meeting were in the bundle and included:a. Mr Gandhi gave evidence about his proposals for a restructure and how this was put into effect. This included discussion held with the clients which led to the changes in structure. He mentioned that “coming out of Covid the way team functioned was quite archaic, so it was mutually agreed by all parties that there was an opportunity for change”. We find that this reference to archaic related purely to what were perceived to be outmoded ways of working and did not in any sense relate to any age profile of the team present or contemplated.b. Mr Gandhi explained that the new roles within the structure were across three different creative elements, Videographer and Animator/graphic designer digital content. These were three specialisms aligned with the client outputs and the content to be delivered moving forwards. He explained that there was a difference in the roles which justified an increase in salary and an enhanced requirement to deliver behavioural technical elements within each role. Various things within the new job descriptions were not within the old ones. There were behavioural aspects such as project management experience and experience in operational delivery which were required. Changes were needed to meet future ambitions of the respondent and its client.c. Mr Gandhi confirmed that the claimant was given the opportunity to be provided with feedback following his unsuccessful interview.d. Mr Gandhi set out his recollection of an evening out in which the claimant had used strong language towards a colleague referring to her as a commoner and another colleague had said to ignore him because he is old. The claimant had disregarded the comment. He set out that later in the evening the claimant had sat down in a chair and he had asked whether this was because his back was hurting. The claimant had not raised this matter subsequently.[38]On 11 May 2023 Mr Pearce conducted an investigation meeting with Mr Fox. The minutes of this meeting were in the bundle and include:a. Mr Fox setting out that the SPT team had previously focused on content creation that was not specialised, and that everyone was creating different types of content. The ambition was to split this and create different roles and responsibilities focusing on specialisms.b. Mr Fox said that the main objective of the restructure was to create more specialised roles operating at a higher level rather than having a team of “Jack of all trades”.c. Mr Fox spoke about the interview process.d. Mr Fox agreed to share alternative proposals provided by colleagues of the claimant’s together with his consultation notes.[39]On 12 May 2023 Mr Pearce concluded his investigation and produced an investigation summary. On 17 May Mr Pearce held a meeting with the claimant confirming its outcome which he confirmed in a letter that day. This letter includes:a. Mr Pearce setting out the methodology of his investigation.b. Under the heading “Challenges in relation to the redundancy proposals” Mr Pierce set out the evidence he had gathered. He indicated that various communications had included setting out the objectives of the proposed changes and what those changes would be. He set out the purpose of consultation and how this had been run by the respondent. In summary, he found that the respondent had provided a clear rationale for the objectives of the restructure and what impacted would have. He was satisfied that a fair consultation process had been undertaken and relevant facts were provided to the claimant for discussion, suggestions and alternative proposals. The claimant had not raised any questions in relation to the commercial justification for the proposals all the selection process.c. In relation to suitable alternative employment, Mr Pearce reviewed the SPT job description and the new job descriptions and considered there was a sufficient change in scope and remuneration for the new roles to be considered fundamentally different. He set out that he discussed this issue with Mr Gandhi and Mr Fox to understand the differences. He set out the evidence given. In particular both Mr Fox and Mr Gandhi had confirmed that once the job descriptions and job profiles for each role were drafted they were provided to the people team for review and this informed the decision to place the SPT position is at risk. Each role was benchmarked and a salary band was recommended.d. Mr Pearce considered whether there had been a predetermined outcome in relation to selection for redundancy. The claimant had alleged that the proposed redundancy was to facilitate the taking on of people at risk of redundancy within a different agency. There was no evidence to substantiate this.e. Mr Pearce considered the selection approach taken, and considered that it was open to the claimant to highlight the skills and experience through the interview process. The selection process was in line with the respondent’s usual and best practice and was comprised of a combination of a role relevant tasks alongside a competency based interview. He considered this was the best approach to the selection process for the new roles.f. Mr Pearce examined the scoring process and feedback. He was satisfied that the scoring process applied throughout the assessments of the claimant and his colleagues was consistent across all candidates. No unusually high or low scores had been identified. He set out in detail some of the comments of the interviewers during the claimant’s interview process.g. In relation to age discrimination, Mr Pearce set out the evidence the investigation uncovered. Mr Pearce viewed that a number of behaviours had been inappropriate. He made recommendations that would mitigate the possibility of such behaviour occurring in future. Mr Pearce found no connection between the age-related comments and the decisions made during the restructure. The Law Redundancy and unfair dismissal
The Law
[40]Section 139 Employment Rights Act 1996 (“ERA”) provides: 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)… (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.[41]Under section 98(1) Employment Rights Act 1996 (“ERA”) it is for the employer to show the reason for dismissal and that such reason was potentially fair one under section 98(2). Redundancy is one such potentially fair reason. Some other substantial reason is also one such reason, and a business reorganization can fall within that category.[42]Section 98(4) ERA provides that:- “the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a)depends on whether in 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 (b)shall be determined in accordance with equity and the substantial merits of the case”.[43]Tribunals are entitled to satisfy themselves that the redundancy situation is genuine, but it is not their function to go behind or examine the commercial merits of the decision to reorganise a business, so long as it is established that the decision to make redundancies was based on proper information and consideration of the situation (Moon v Homeworthy Furniture (Northern) Limited [1977] ICR 117, Orr v Vaughan [1981] IRLR 63 EAT..[44]General principles relating to fairness in redundancy process emerge from Polkey v A E Dayton Services Ltd [1988] ICR 142 where it was held that an employer will not be acting reasonably unless it:a. Warns and consults affected employees or their representatives;b. Adopts a fair basis on which to make selections for redundancy; and;c. Takes reasonable steps to avoid redundances.[45]In Williams v Compair Maxam Ltd [1982] ICR 156 guidance was given on the factors which the tribunal should consider when assessing fairness within a redundancy process: - d. The employer should seek to give as much warning as possible of impending redundancies to employees; e. It should consult them or their unions about the best means of achieving redundancies, including the applicable criteria in selecting for redundancies; f. That criteria for selection should, so far as possible, not depend solely on the subjective opinions of decision-makers; g. Selection is made fairly according to the criteria; and h. The employer will take reasonable steps to offer alternative employment instead of dismissing.[46]In looking at all these elements it is not for us to substitute our own view, but to assess whether the employer’s actions fell within a range of reasonable responses open to a reasonable employer.[47]In Morgan v Welsh Rugby Union [2011] IRLR 376 the EAT observed that in a reorganisation/restructuring type redundancy exercise the Williams principles are likely to be of limited assistance because appointments to new roles are likely to require interviews rather than normal redundancy selection procession. The EAT observed:a. That decision must (of necessity) be forward-looking and should centre on the ability of the individual to perform in the new role: Morgan, [30].b. Appointment is likely to involve something much more like an interview process; particularly where the role involves a promotion: Morgan, [30].c. A tribunal is entitled to consider how far an interview process was objective but must bear in mind that an employer’s judgment as to who will best perform in a new role is likely to involve a substantial element of judgment[48]In terms of establishing a pool for selection, the employer is to be given considerable latitude and the tribunal is to consider whether the choice of the pool is within the range of reasonable responses open to an employer in the circumstances. Identifying the pool is primarily a matter of the employer and the pool does not have to be confined to employees doing the same or similar work. It is difficult to challenge the establishment of the pool if the employer had genuinely applied its mind to the consideration (Taymech v Ryan UKEAT/663/94, Capita Hartshead Ltd Byard [2012] IRLR 814).[49]The question of reasonable alternative employment is viewed through the reasonableness test under section 98(4) ERA, and, again, we are to consider whether the respondent’s efforts fell within the range of reasonable responses. In Thomas and Betts Manufacturing Co v Harding 1980 IRLR 255, CA, the Court of Appeal ruled that an employer should do what it can so far as is reasonable to seek alternative work. The tribunals, however, are not to impose an “unreal or Elysian standard” (British United Shoe Machinery Co Ltd v Clarke [1977] IRLR 297).[50]Under the principal in Polkey where there is a failure 51. to adopt a fair procedure at the time of dismissal, dismissal would not be rendered fair just because the procedural unfairness did not affect the end result. Compensation can be reduced to reflect the chance of dismissal taking place had a fair procedure been adopted. Additionally, it is open to the tribunal to have regard to misconduct discovered subsequent to dismissal, not on the question of the fairness of the dismissal, but on the issue of what, if any, compensation it is just and equitable to award (W Devis & Sons Ltd v Atkins [1977] IRLR 314).[52]In business reorganisation cases, it has been held that this can amount to some other substantial reason so long that there was a “sound, good business reason” (Hollister v National Farmers’ Union [1979] ICR 542) and which was not “whimsical, unworthy or trivial” (Scott & Co v Richardson EATS/0074/04). Age Discrimination[53]In respect of direct discrimination, Section 13(1) of the EqA provides as follows: 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.[54]When considering direct discrimination, the tribunal must examine the “reason why” the alleged discriminator acted as they did. This will involve a consideration of the mental processes, whether conscious or unconscious, of the individual concerned (Amnesty International v Ahmed [2009] IRLR 884). The protected characteristic need not be the only reason why the individual acted as they did, the question is whether it was an “effective cause” (O'Neill v Governors of St Thomas More Roman Catholic Voluntary Aided Upper School and anor [1996] IRLR 372).[55]Guidance on the application of the burden of proof provisions of the Sex Discrimination Act 1975 (which is applicable to the EqA, including claims of harassment and victimisation) was given by the Court of Appeal in Igen v Wong [2005] IRLR 258: ''(1) Pursuant to s 63A of the SDA 1975, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II or which by virtue of s 41 or s 42 of the SDA 1975 is to be treated as having been committed against the claimant. These are referred to below as “such facts”. (2) If the claimant does not prove such facts he or she will fail. (3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that “he or she would not have fitted in”. (4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. (5) It is important to note the word “could” in SDA 1975 s 63A(2). At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them. (6) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts. (7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with s 74(2)(b) of the SDA 1975 from an evasive or equivocal reply to a questionnaire or any other questions that fall within s 74(2) of the SDA 1975. (8) Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining, such facts pursuant to s 56A(10) of the SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice. (9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent. (10) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act. (11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since “no discrimination whatsoever” is compatible with the Burden of Proof Directive. (12) That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question. (13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.''[56]Tribunals are cautioned against taking too mechanistic an approach to the burden of proof provisions, and that the process of drawing inferences of discrimination is a matter for factual assessment and is situation-specific, and that the tribunal’s focus should be on whether it can “properly and fairly infer … discrimination” (Laing v Manchester City Council [2006] ICR 1519). The Supreme Court has observed that provisions “will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence, one way or the other” (Hewage v Grampion Health Board [2012] UKSC 37).[57]The Court of Appeal has emphasised that “The bare facts of a difference in treatment, without more, sufficient material from which the tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination” (Madarassy v Nomura International plc [2007] IRLR 246). “Something more” is needed for the burden to shift. Unreasonable behaviour without more is insufficient, though if it is unexplained then that might suffice (Bahl v Law Society [2003] IRLR 640). Conclusions Reason for dismissal
Conclusions
[58]The respondent relies on redundancy or in the alternative SOSR (business reorganisation) as the reason for dismissal.[59]Case law has established that there need not be a reduction in headcount for there to be a redundancy dismissal. There can be a situation where there is a requirement for a business for employees to carry out work of a particular kind to have ceased or diminished (or to be expected to do so) when there are not fewer employees in the new structure going forward. This kind of situation can arise in a business reorganisation where work is reorganised into different functions. This can even be the case where the same sort of work is going to be redistributed between the same number of employees in a different way.[60]Our conclusion is that the requirement of the respondent’s business for employees to carry out the work of generalist SPT’s had diminished or at least was expected to cease or diminish. We accept Mr Gandhi’s evidence that the SPT’s had been performing well doing the kind of work they had been doing in a generalist way up until that point. However, we accept what he says that the world had moved on. Spreading the work across a team of generalists created certain inefficiencies. It also meant that at times there was a need to outsource work. It also meant that there were difficulties in delivering certain outputs from cradle to grave as it were.[61]We also find that the requirement of the business for SPT’s to produce flat content had diminished. The world was changing and the habits of consumers of the respondent’s clients goods and technology was changing and had changed. There was a need to produce training content not solely directed at trainers but geared towards use by end users as well.[62]In the circumstances we conclude that the definition within section 139 was satisfied. In short, there was a genuine redundancy situation. The reason for the claimant’s dismissal was because of the reduced requirement for employees to carry on the work of generalist SPTs. Fairness of dismissal[63]We remind ourselves that the statutory test for dismissal as set out in section 98(4) ERA is the test that we apply. A number of cases have set out enormously helpful guidelines in applying this test, but there is no substitute for the statutory test itself. In the list of issues drafted for the hearing the test set out in the Williams case is set out. However, the case of Morgan makes the point that these guidelines can often be a poor fit for a reorganisation type redundancy situation. We will consider the Williams guidelines, setting out where we feel they are not a particularly good fit. Consultation[64]The consultation involves discussion when proposals are formative, adequate information is given on which to respond, adequate time to respond and conscientious consideration of the response (R v British Coal (ex p. Price) [1194] IRLR 72).[65]The obligation to consult individuals generally arises once they have been at least provisionally selected and will be for the purpose of explaining their personal situations or giving them the opportunity to comment on their assessments. It will be a question of fact and degree for the employment tribunal to consider whether consultation with the individual and/or his union was so inadequate as to render the dismissal unfair. A lack of consultation in any particular respect will not automatically lead to that result. The overall picture must be viewed by the tribunal up to the date of termination to ascertain whether the employer has or has not acted reasonably in dismissing the employee on the grounds of redundancy (Mugford v Midland Bank [1997] IRLR 208).[66]The tribunal had some concerns about the clarity of the communications of the rationale for and the implementation of the restructure. Of course, the panel are industry outsiders and may not get all of the buzzwords. However, it seems that the plain straightforward case the respondents were running at tribunal, namely that the landscape was changing, that the team needed to be divided into specialists, and that it would be providing more up-to-date content, was slightly obscure in Mr Gandhi’s proposals as set out to the team. It may be that the team, working in that field, had a better understanding of them than we did.[67]That said, we considered that further clarity was provided with the provision of job descriptions which made it clear that the roles in the new structure would be more sharply delineated and encompassing certain specific and discreet elements of work.[68]The claimant was consulted at a team consultation meeting followed by a first individual consultation meeting. At that meeting the rationale and implementation of the restructure were explained to him. He was given the opportunity to ask questions and to set out any alternative proposals he had. We find that the approach of a colleague of his, Mr Richards, in his individual consultation meeting, shows that it was a genuine opportunity to put forward alternative proposals, and that the respondent was receptive to considering those proposals even if it did not adopt them.[69]We also conclude that the claimant did not say during the process that he was confused with what was put forward.[70]In the circumstances, despite our concerns about an initial lack of clarity, we consider that consultation by the respondent fell within the band of[71]One further aspect of consultation is that consultation should take place with a pool of affected employees. The claimant asserts that the respondent failed to identify a pool. We disagree. The word “pool” was not actually used by the respondent during the process, but it is abundantly clear that it sharply identified the individuals potentially affected, and applied the process to them consulting with them. Selection criteria[72]The case of Morgan makes clear that in a restructure type redundancy scenario it will often be appropriate to use an interview process rather than, say, a skills matrix. In these types of situations the decisions are likely to be forward-looking and need to centre on the ability of an individual to perform in a new role. This is all the more likely when the case involves something akin to a promotion. We note here that the new roles within the structure were set at a slightly higher level at a slightly higher salary.[73]As we have set out above in our findings of fact, there is little scope both in general and having regard to the evidence in this case, to impugn the claimant being required to interview for two roles at once. Other of the affected individuals also did the same, albeit the two roles they interviewed forward not exactly the same as the ones interviewed by the claimant.[74]It is right to say that Mr Gandhi had some time previously, on something of a drunken night out, made one inappropriate comment about the claimant’s age. We have found nothing from which we could detect that this infected Mr Gandhi’s ability to act in a reasonable and unbiased way as interviewer.[75]An assessment of somebody’s presentational skills and their answers at interview will necessarily involve a degree of subjectivity. This can be mitigated against by having a consistent set of questions for all applicants and having more than one interviewer. Both of these featured in this exercise. Also, as set out in the Morgan case, these types of scenarios will necessarily involve the application of judgement by the respondent. We have not found anything about this process to be reliant on overly subjective appraisals of the claimant’s skills experience and abilities.[76]In all the circumstances we find that the selection process, by way of presentation and competency based interview fell within the band of Alternative employment[77]Some older cases in the tribunal have made the point that an employer is not expected to operate an Elysian standard when it comes to finding alternative employment. More recent authorities make clear that it is not a one-way obligation on the respondent to make all the running.[78]In this case the respondent operated its standard procedure and largely ran a scripted consultation process. It is clear from the script that part of that was to direct the employee towards the respondent’s vacancies website where potential alternative employment could be found. We find in this case there was something of a misunderstanding by the claimant as to what the obligation to offer alternative employment was. He seemed to be suggesting that the new roles within the restructure were alternative employment that he should have been offered. These were not suitable alternative roles but identified new roles within the proposed structure. The question of alternative employment only arises when he was unsuccessful within the process. We find that the claimant was alerted to where he could find potential alternative employment and yet he took no steps to identify or apply for any appropriate roles.[79]In the circumstances, we find that the respondent’s efforts in this regard fell within the band of reasonable responses. We would however observe that while heavily scripted consultation is helpful as a framework, and can aid consistency, it can lead to a perception that the process is impersonal. We recognise that the claimant may have felt that consultation lacked a personal dimension in the context of the ending of a ten year employment relationship with people he appears to have regarded as both colleagues and friends. Other procedural issues[80]The claimant says that a further unfairness arose when Mr Pearce was the person hearing his appeal against dismissal. He says that Mr Pearce was unsuitable as he had been party to some earlier discussions about the restructure proposals.[81]We conclude that Mr Gandhi was very much the architect of the proposals and that any involvement of Mr Pearce was agreeing with them in conjunction with other senior managers and the client. In an ideal world somebody outside of that process may have been a better person to hear the appeal. However, we do not find that Mr Pearce was conflicted and do not find that him being the appeal officer fell outside the band of[82]In the circumstances, and returning to the statutory test, having regard to the equity and substantial merits of the case, we conclude that the respondent acted fairly in treating the reason for dismissal (redundancy) as sufficient reason for dismissing the claimant. The claim is not upheld. SOSR[83]If we are wrong and our conclusions in relation to redundancy, we would have found in the alternative that the reason for dismissal was some other substantial reason, namely a business reorganisation. The matters we have identified above in relation to redundancy would support a finding of fair dismissal for SOSR. There were good, sound reasons for the reorganisation. Age discrimination[84]The claimant confirmed that the allegations in relation to age-related comments on nights out were pursued as background rather than standalone claims. The age discrimination claim that we are dealing with is therefore one of direct discrimination in relation to the dismissal.[85]The claimant relies on these age-related comments as illuminating the motivation of the respondent. Additionally he relies on the use of the word archaic in the interview Mr Pearce had with Mr Gandhi. As we have set out above, we find that the use of the term archaic did not have any age related connotations. It was used to describe working processes rather than people.[86]As regards the age-related comments, the two individuals responsible for the comments in 2019 had nothing to do with the restructure. We find that the one comment made by Mr Gandhi, while inappropriate, was a one-off on a drunken night out. There is nothing further from which we could conclude that he viewed the claimant’s age in a negative way. In his evidence to us he made clear that he had worked with the claimant for a number of years and held him in high regard, having championed him during previous promotions.[87]There is nothing from which we could conclude that age was a motivating factor in the decisions of Mr Gandhi or any other of the respondents employees in the restructure process.[88]We have also not been given a great deal of evidence about the age profile of the group original SBT team and the team in the new structure. We know that one 29 year old was unsuccessful in gaining a new role. We also know that one 49 year old was successful. We also note that the claimant’s contention, which informed the creation of the List of Issues, was that no older people were successful in the restructure. This was not the case. There is nothing about the age profile in the evidence that we have been presented which suggests any age-related motivation by the respondent.[89]The reason why the claimant was dismissed was that his role was identified as at risk of redundant, and he did not perform well in the ensuing selection process. This complaint is not upheld. Approved by: