Mr M Crawford-Thomas v Collinson (Central Services) Ltd: 2305061/2024
EMPLOYMENT TRIBUNALS
Case No 2305061/2024
Between
Mr M Crawford-ThomasClaimantCollinson (Central Services) LtdRespondent
Before
Employment Judge Sudra sitting with non-legal members Ms. E.Mr. D. Soanes (instructed by solicitor) for respondentDate 16 March 2026
REASONS
[1]The Claimant began Acas early conciliation on 22nd April 2024 (‘Day A’) and was issued with an Acas early conciliation certificate on 23rd May 2024 (‘Day B’). On Page 1 of 26 29th June 2025 the Claimant presented his ET1. The Respondent defended the claim by way of an ET3 and Grounds of Resistance on 12th July 2024.
The Issues
[2]The claim is for:(i) ‘Ordinary’ unfair dismissal (ss.94 and 98 Employment Rights Act 1996 (‘ERA’)); and(ii) Direct age discrimination (s.13 equality Act 2010 2010 (‘EqA’)). A List of Issues had been agreed by the parties at a Preliminary Hearing for Case Management, before Employment Judge Elliott, on 25th June 2025. The issues to be decided by the Tribunal are as follows: ‘The Issues 33. The issues the Tribunal will decide are set out below.
The Issues
[1]Unfair dismissal1.1 Was the claimant dismissed? - The parties agree the claimant was dismissed with effect from 14 March 2024.1.2 What was the reason or principal reason for dismissal? - The respondent says the reason was redundancy.1.3 If the reason was redundancy, did the respondent act reasonably or unreasonably in all the circumstances, including the respondent's size and administrative resources, in treating that as a sufficient reason to dismiss the claimant? The Tribunal's determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case. It will usually decide, in particular, whether: Page 2 of 261.3.1 The respondent adequately warned and consulted the claimant;1.3.2 The respondent adopted a reasonable selection decision, including its approach to a selection pool;1.3.3 The respondent took reasonable steps to find the claimant suitable alternative employment;1.3.4 Dismissal was within the range of reasonable responses.[2]Remedy for unfair dismissal2.1 Does the claimant wish to be reinstated to their previous employment? Does the claimant wish to be re-engaged to comparable employment or other suitable employment?2.2 Should the Tribunal order reinstatement? The Tribunal will consider in particular whether reinstatement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just.2.3 Should the Tribunal order re-engagement? The Tribunal will consider in particular whether re-engagement is practicable and, if2.4 If there is a compensatory award, how much should it be? The Tribunal will decide:2.4.1 What financial losses has the dismissal caused the claimant?2.4.2 Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?2.4.3 If not, for what period of loss should the claimant be compensated?2.4.4 Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?2.4.5 If so, should the claimant’s compensation be reduced? By how Page 3 of 26 much?2.4.6 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?2.4.7 Did the respondent or the claimant unreasonably fail to comply with it by [specify alleged breach]?2.4.8 If so is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?2.4.9 If the claimant was unfairly dismissed, did they cause or contribute to dismissal by blameworthy conduct?2.4.10 If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion?2.4.11 Does the statutory cap of fifty-two weeks’ pay or £115,115 apply?[3]Direct age discrimination (Equality Act 2010 section 13)3.1 The claimant describes his age group as over-55.3.2 Did the respondent dismiss the claimant?- The respondent accepts it did dismiss the claimant.3.3 Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant's. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated. The claimant says they were treated worse than a hypothetical comparator, as he was in a unique role.3.4 If so, was it because of age?3.5 Note, the respondent does not pursue the defence that the treatment was a proportionate means of achieving a legitimate aim. Page 4 of 26[4]Remedy for discrimination4.1 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?4.2 What financial losses has the discrimination caused the claimant?4.3 Has the claimant taken reasonable steps to replace lost earnings, for example by looking for another job? If not, for what period of loss should the claimant be compensated?4.4 What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?4.5 Has the discrimination caused the claimant personal injury and how much compensation should be awarded for that?4.6 Is there a chance that the claimant's employment would have ended in any event? Should their compensation be reduced as a result?4.7 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? Did the respondent or the claimant unreasonably fail to comply with it? If so is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?4.8 Should interest be awarded? How much?’ Reasonable Adjustments 3. Neither party required any reasonable adjustments for the Hearing. Preliminary Matters 4. The Claimant was represented by his son, Mr. A. Crawford-Thomas who is a lay-person. The Respondent was represented by Mr. Soanes. At this juncture we wish to convey that we were impressed by, and appreciative of, the measured, calm, and professional way in which Mr. A. Crawford-Thomas Page 5 of 26 presented his father’s case and the Claimant should be proud; and we are sure he is. We know that the Respondent shares our sentiments.
Preliminary Matters
[5]The Claimant stated at the outset of the Hearing that he had video footage he would like us to see. The footage was of three meetings with Louise Smith (Vice-President Risk and Compliance) which had been viewed by the Respondent and transcripts had been produced by the Claimant. The Claimant submitted that it was imperative for us to listen the recordings to appreciate the fairness, or otherwise, of the dismissal.[6]The Respondent took a pragmatic view and did not object to us listening to the recordings but ventured that the recordings were not relevant to the issues to be determined.[7]After deliberation, we agreed to listen to the parts of the recordings that the Claimant wished to cross-examine the Respondent’s witnesses on. To ensure that matters were dealt with proportionality (the recordings totalled to approximately one-hour) we asked the Claimant to play the relevant part of the recordings at the point at which he would be cross-examining a witness on the content of a meeting. The Claimant agreed and played the relevant recording during Mrs. Smith’s evidence.[8]After consulting the parties we were content that we could hear the evidence and submissions and deliberate within the trial window. Procedure and Documents[9]The Tribunal had before it:(a) A joint Hearing bundle consisting of 265 pages; and(b) an index for the bundle; and(c) video recordings. Page 6 of 26[10]The Tribunal also had written witness statements and heard live evidence from: For the Claimant(i) The Claimant; For the Respondent(ii) Louise Smith; and(iii) Stuart Harwood.[11]The Claimant and the Respondent made oral closing submissions at the conclusion of the evidence.[12]The parties were notified at the outset of the Hearing that we would only read documents specifically referred to and would only read documents referred to in witness statements insofar as they were relevant. Relevant Findings of Fact[13]The following findings of fact were reached by us, 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 our assessment of the witness evidence.[14]Only findings of fact relevant to the issues, and those necessary for us 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. We have not referred to every document we read and/or were taken to in the findings below but that does not mean it was not considered if it was referenced to in the witness statements/evidence and considered relevant.[15]The facts of this case are not complicated and the factual matrix is largely agreed. Therefore, in the interests of proportionality and in keeping with the Overriding Objective, we have confined our findings of fact to matters in dispute and those relevant to reach a fair determination of the complaints. Page 7 of 26 Employment[16]The Claimant was employed by the Respondent, as a Financial Crime Manager, from 1st February 2009 until 14th March 2024 when he was dismissed on grounds of redundancy. The Respondent is a global travel benefits company, offering airport and travel services, loyalty and reward programmes and travel insurance and protection services. It has circa 600 employees in the United Kingdom and a global workforce of 2,000 staff. The Claimant was responsible for detecting and combating financial crime and cyber-crime at the Respondent.[17]Prior to the Claimant’s appointment as Financial Crime Manager (in 2020) he had been a Fraud Manager and had an employment history of around 40 years. Change in Management[18]On 23rd October 2023, Mrs. Smith joined the Respondent and was the Claimant’s new line-manager. In addition to the Claimant, Mrs. Smith also linemanaged the Respondent’s Insurance Manager and Risk Manager.[19]Prior to Mrs. Smith commencing her employment, in or around the summer of 2023, the Respondent had completed a re-structure of its corporate operations and developed a fresh safeguarding strategy. Upon Mrs. Smith’s appointment she was tasked with evaluating what needed to be done by the Respondent to counter the increasing risk of cyber, and other, crime and to ensure business continuity and limitation of risk to the Respondent and its clients. The Respondent were aware of new risks which had arisen since the advent and widespread use of artificial intelligence (‘AI’). The Respondent was also cognisant of the need to comply with the European Union’s Artificial Intelligence Act which it believed would be rolled-out incrementally from summer 2024.[20]In order to carry out her task Mrs. Smith set about conducting a gap-analysis to ascertain what protective measures needed to be taken to minimise the risk of Page 8 of 26 the Respondent falling victim to cyber-crime and associated criminal endeavours.[21]Mrs. Smith’s starting point was to consider the competencies of her direct reports in the Risk Team (Insurance Manager, Financial Crime Manager, and Risk Manager) to identify where the apertures were, if any. Part of the process Mrs. Smith had undertaken involved her scrutinising the Claimant’s role.[22]Since Mrs. Smith became the Claimant’s line-manager she had four one-to-one meetings with him. At such a meeting, on 15th November 2023, Mrs. Smith discussed the Claimant’s job description with him and asked him to specify the parts of the role he carried out and identify those which he did not. The Claimant acceded to Mrs. Smith’s request [90-92]. Upon receipt of the Claimant’s skills he possessed in his current role, Ms. Smith formed an opinion as to what the Claimant could and could not do.[23]Ms. Smith had similarly scrutinised the Insurance Manager and Risk Manager roles as part of her remit regarding the Risk Team. At the conclusion of the exercise, Ms. Smith concluded that the Insurance Manager and Financial Crime Manager roles were no longer required but that the Risk Team did need the Risk Manager role to continue. Ms. Smith also concluded that a new role of ‘Senior Risk and Assurance Manager’ was needed to deal effectively with the existing and future risks faced by the Respondent and to ensure compliance with the impending Artificial Intelligence Act.[24]The Claimant’s particular skill was to make sanction checks and examine financial crime trends. This aspect of the Claimant’s role significantly reduced due to the Respondent’s automated ‘Refinitiv’ system. Refinitiv provided, inter alia, the functions of carrying out checks and screening within seconds which was significantly quicker than such work could be done by the Claimant or other staff of the Respondent. Page 9 of 26[25]On 14th December 2023, Ms. Smith provided the results of her analytical exercise to Ikwu Amiaka (Group General Counsel). Under the old structure, three roles reported to Ms. Smith: Insurance Manager (Peter Wright); Financial Crime Manager (Claimant) and Risk Manager.[26]Ms. Smith believed that, going forward, the business would need to be able to deal with AI and data challenges and ensure business continuity. Ms. Smith also identified that there were a number of functions of the Claimant’s role which could be performed by Refinitiv or by assimilating them into the roles of other staff. In response to a request from Ms. Smith the Claimant had provided her with a list of tasks he undertook as part of his role and any other activities he would like to do. The list was comprised of 11 activities. Ms. Smith analysed the Claimant’s list and concluded that of the 11 activities, seven activities could be done by Refinitiv (in a much shorter timescale), two could be done by her (due to the minimal impact it would have on her own role), and two were already being done by – or had already been passed – to other colleagues.[27]Ms. Smith arrived at the conclusion that from the three roles that reported to her, only the Risk Manager role was needed and that the Claimant’s and the Insurance Manager role were no longer required and were at risk of redundancy. However, Ms. Smith believed that to deal with the new AI and associated risks and challenges the Respondent were facing, and would continue to face, a Senior Risk and Assurance Manager Role (at a higher grade) was needed. Therefore, the ‘new’ structure would have two roles reporting to Ms. Smith; the Risk Manager role (existing) and a Head of Risk and Assurance Manager role (new). Ms. Smith presented her business case to Mr. Amiaka on 14th December 2023 and he agreed with Ms. Smith’s proposal.[28]On 31st January 2024, Ms. Smith sent the Claimant a letter inviting him to a first consultation meeting on 7th February 2024. In her letter Ms. Smith explained that: ‘Our new safeguarding strategy has been developed and put in place to effectively safeguard and supports a new way of working. Providing Page 10 of 26 a different balanced approach to regulatory risk, governance, and contingency planning. Specific focus on utilising a joined up single approach to risk and compliance issues and removing single roles integrating these roles into a comprehensive integrated assurance role.’; and ‘Unfortunately, we are sorry to confirm that as a result your role, as Financial Crime Manager, has been placed at risk of redundancy. We will now begin a consultation process with you. During consultation, you will be given the opportunity to discuss the reasons for the proposed changes, present any alternatives, and ask any questions. You will be provided with the information of how to apply for any vacant roles, and you will be invited to apply for any that you are interested in.’ The Claimant was advised that he was able to bring a colleague or trade union representative to accompany him to the meeting. First Consultation Meeting[29]On 7th February 2024, the Claimant attended a redundancy consultation meeting with Ms. Smith and he was accompanied by his colleague, Robert Spindloe. Rebecca Woodward (People & Culture Advisor (‘HR’)) was also in attendance. The meeting was audio recorded at the Claimant’s request. The Claimant explained that whilst he had received the invitation letter he did not quite understand the purpose of the meeting. More specifically, the Claimant did not understand how his role was at risk of redundancy.[30]Ms. Woodward explained that the meeting was an opportunity for the Claimant to understand the reasons behind the need for a re-structure and for him to ask questions or provide alternatives to redundancy. Ms. Smith then explained that the Claimant’s role and the Insurance Manager role were no longer required and that under the new structure, a Head of Risk and Assurance Manager role would be created. Ms. Smith then showed the Claimant selected slides from her business case which were the slides in respect of the current structure, a three-paragraph slide about the impact on roles, and the proposed new structure. Ms. Smith explained that the Claimant would be sent the job Page 11 of 26 description for the proposed Head of Risk and Assurance Manager role (which was sent to the Claimant on 9th February 2024) and that he could apply for any suitable available roles from the Respondent’s ‘Collinson Careers’ webpage. The Claimant was also advised that he could participate in the Respondent’s ‘Ladder’ programme which provided assistance with job-seeking skills, curriculum vitae writing, and interview techniques.[31]Ms. Woodward informed the Claimant that when a member of staff is made redundant, redundancy pay and any other payments would be paid in the last payroll after, or upon, termination. The Claimant said that he would ponder the information he had received and ‘go from there.’[32]On 12th February 2024 Ms. Woodward emailed Ms. Smith advising her that the Claimant and Mr. Wright had been sent details of the new role and that it would be prudent to know if they wished to apply for it before it was advertised externally. Ms. Smith responded to Ms. Woodward, a short time later, simply stating ‘It has gone external already.’ The Claimant became aware that the new role had been advertised externally and was unbeatably upset by this as he had not fully digested the requirements of the role or had time to consider if he should apply for it.[33]The Claimant checked Ms. Smith’s on-line calendar and discovered that she had invited a former colleague to apply for the new role. This discovery further fuelled the Claimant’s suspicions as to the authenticity of the re-structure process. Second Consultation Meeting[34]The Claimant was sent an invitation to attend a second consultation meeting on 21st February 2024 which he declined as he had annual leave planned in the interim and would not be sufficiently prepared. The meeting was rescheduled for 26th February 2024 and the Claimant confirmed his attendance but stated that he would not be fully prepared or have had time to seek advice. Page 12 of 26[35]On 23rd February 2024, the Claimant sent Ms. Smith a message stating that he was ‘not coping mentally’ as he felt unwanted at work and was experiencing anguish of a personal familial nature. Ms. Smith responded to the Claimant offering him additional support and reminding him that the services of the Respondent’s Employee Assistance Programme were available to him.[36]As with the first consultation meeting the Claimant attended the second consultation meeting, with Ms. Smith, accompanied by Mr. Spindloe. Ms. Woodward was also present in her HR capacity.[37]The Claimant made general enquires as to how the selection pool was identified and Ms. Smith responded. The Claimant also enquired about whether or not any alternative roles had been found for him and he was informed that the Respondent had been unable to find source any suitable alternative roles.[38]In respect of the new Head of Risk and Assurance Manager role, the Claimant showed an interest in it and asked of he could have a trail period of three months, in that role. This did not happen but Ms. Smith told the Claimant that he was at liberty to apply for the new role. The Claimant was still unsure about why there was need to make him redundant and not much was said or done to explain the reality of the situation to him.[39]The Claimant mentioned to Ms. Smith that all the tasks he performed were not listed in the spreadsheet that he had provided to Ms. Smith. Ms. Smith, on 27th February and 4th March 2024, emailed the Claimant for an updated spreadsheet but it was not forthcoming. Final Consultation Meeting[40]On 7th March 2024 the Claimant attended his final consultation meeting with Ms. Smith. as with the previous two meetings, Ms. Woodward was present and the Claimant was accompanied by Mr. Spindloe. Page 13 of 26[41]The Claimant explained that due to his present state of mental health, Mr. Spindloe would be asking questions on his behalf and with his authority. The Claimant explained that he was still struggling to understand why his role was at risk of redundancy and why aspects of it were no longer required. Ms. Smith clarified what parts of the Claimant’s role were no longer required to be performed by him but the Claimant did not agree with Ms. Smith’s rationale. the Claimant asked further questions about matters regarding the restructure which he did not comprehend and Ms. Smith referred him to the notes he had previously been provided with.[42]The Claimant stated that he did not think there was any intention to ‘map’ him across to the new role or plug any skills gaps. He wanted s to know what parts of his role the business is no longer interested in taking forward and go through it ‘line-by-line.’ The Claimant also asked to see the gap analysis and, as an alternative to redundancy, asked if he could be ‘mapped’ into the new role with additional training and support. Ms. Smith told the Claimant that she did not think it was necessary for him to see the gap analysis.[43]The meeting ended on an awkward not with the Claimant asking if his contract was being ‘ripped-up’ and Ms. Smith stating that she will not be ‘making any more comments.’ Ms. Woodward, on the same day as the final meeting, sent the Claimant a letter stating that as no alternative employment had been identified, the Claimant’s employment would terminate on 14th March 2024 (which it did). The Claimant was advised of his right to appeal the decision. Appeal Against Redundancy[44]On 12th March 2024 the Claimant appealed the decision to make him redundant [218-219]. The Claimant reiterated that he did not believe there was an actual redundancy situation as parts of his role were going to be performed by Ms. Smith and other colleagues. The Claimant also questioned why an external candidate had been interviewed for the new role four days prior to his final consultation meeting. Finally, the Claimant expressed that there had never Page 14 of 26 been a proper consultation process and that he had sought legal advice regarding the termination of his employment.[45]The Respondent appointed Stuart Harwood (Operational Excellence Director) to hear the Claimant’s appeal. Mr. Harwood set about dealing with the Claimant’s appeal and obtained written responses to his queries from Ms. Woodward and Messer’s Watts and Escott. Mr. Harwood also interviewed Ms. Smith and Mr. Spindloe on 25th March 2024.[46]Mr. Harwood concluded that the redundancy process had been fair and did not uphold the Claimant’s appeal. The appeal outcome was communicated to the Claimant on 3rd April 2024. Relevant Law Unfair Dismissal
Relevant Law
[47]This important right is set out in s.94 Employment Rights Act 1996 (‘ERA’), and by s.98 ERA, the employer has first to show a fair reason for the dismissal, in this case redundancy. If that is shown, then the test of fairness under s.98(4) depends in part on the respondent’s size and administrative resources. The Respondent is a large company with an internal HR department and the appropriate standard of fairness which is to be expected has been applied.[48]The definition for the circumstances in which an employee is dismissed for the purposes of Part XI (Redundancy Payments) can be found at s.136 ERA. Where a claim is brought under Part XI ERA 1996, based on an employee’s right to a redundancy payment, or where the amount of a redundancy payment arises, it is stated that ‘an employee who has been dismissed by his employer shall, unless the contrary is proved, be presumed to have been so dismissed by reason of redundancy’ (s 163(2) ERA 1996). The statutory definition of ‘redundancy’ is found at s.139 ERA. It provides: Page 15 of 26 ‘(1) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to … (b) the fact that the requirements of that business(i) for employees to carry out work of a particular kind, 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.’[49]So, the need for the employee’s services does not have to have ended, it just needs to have diminished, or be expected to. That is then a redundancy situation.[50]In a case like this, the approach is to ask what was the reason for the reduction in the needs of the business, and then whether the company acted reasonably in all the circumstances in treating that as a sufficient reason to dismiss the Claimant.[51]A fair procedure is also very important in showing that an employer has acted reasonably. In Williams and ors v. Compair Maxam Ltd 1982 ICR 156, the Employment Appeal Tribunal laid down guidelines that a reasonable employer might be expected to follow in making redundancy dismissals. It stressed that it is not for the Employment Tribunal to impose its standards in deciding whether the employer should have behaved differently, instead it had to ask whether ‘the dismissal lay within the range of conduct which a reasonable employer could have adopted’.[52]This test, usually referred to as the ‘range of reasonable responses’ test, reflects the fact that whereas one employer might reasonably take one view, another might with equal reason take another. Tribunals are cautioned very strictly against substituting their view of the matter for that of the decision maker. That applies not just to the decision to dismiss but also the process followed. For each step, we have to ask whether it was outside that range open to the reasonable employer. Page 16 of 26[53]In the decision of Murray and anor v. Foyle Meats Ltd [1999] ICR 827 (HL), Lord Irvine stated that two questions of fact needed to be addressed in cases of redundancy: ‘[t]he first is whether one or other of various states of economic affairs exists … The second question is whether the dismissal is attributable, wholly or mainly, to that state of affairs’ (Murray, 829G [AB/9/117]).[54]An employer will have acted reasonably by having regard to the ‘band of reasonable responses’, including by reference to s.98(4) ERA. Specific guidance on reasonableness in relation to a redundancy situation is set out in the leading decision of Polkey v. A E Dayton Services [1988] AC 344 (HL). An employer will not normally act fairly unless they: i) Warn and consult any employees affected or their representatives. ii) adopts a fair basis on which to select for redundancy; and iii) takes such steps as may be reasonable to avoid or minimise redundancy by redeployment within their own organisation.[55]In relation to the requirement to warn and consult, a consultation must be meaningful, and must give the employee ‘fair and proper opportunity to understand fully the matters about which it is being consulted, and to express its views on those subjects, with the consultor thereafter considering those views properly and genuinely’ (R v. British Coal Corporation ex p Price (No 3) [1994] IRLR 72 (Div Ct), para [25]. Direct Age Discrimination[56]S.13 of the EqA provides (so far as material): ‘13 Direct discrimination(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. Page 17 of 26(2) If the protected characteristic is age, A does not discriminate against B if A can show A's treatment of B to be a proportionate means of achieving a legitimate aim.’ …[57]Under s.23(1) EqA, where a comparison is made, there must be no material difference between the circumstances relating to each case. It is possible to compare with an actual or hypothetical comparator.[58]In order to find discrimination has occurred, there must be some evidential basis on which we can infer that the Claimant’s protected characteristic is the cause of the less favourable treatment. We can take into account a number of factors including an examination of circumstantial evidence.[59]We must consider whether the fact that the Claimant had the relevant protected characteristic had a significant (or more than trivial) influence on the mind of the decision maker. The influence can be conscious or unconscious. It need not be the main or sole reason, but must have a significant (i.e. not trivial) influence and so amount to an effective reason for the cause of the treatment.[60]In many direct discrimination cases, it is appropriate for a Tribunal to consider, first, whether the Claimant received less favourable treatment than the appropriate comparator and then, secondly, whether the less favourable treatment was because of a protected characteristic. However, in some cases, for example where there is only a hypothetical comparator, these questions cannot be answered without first considering the ‘reason why’ the Claimant was treated as he was (Nagarajan v. London Regional Transport and others [1999] IRLR 572 (HL)).[61]S.136 EqA sets out the relevant burden of proof that must be applied. A twostage process is followed. Initially it is for the Claimant to prove, on the balance of probabilities, primary facts from which we could conclude, in the absence of Page 18 of 26 an adequate explanation from the Respondent, that the Respondent committed an act of unlawful discrimination.[62]At the second stage, discrimination is presumed to have occurred, unless the Respondent can show otherwise. The standard of proof is again on the balance of probabilities. In order to discharge that burden of proof, the Respondent must adduce cogent evidence that the treatment was in no sense whatsoever because of the Claimant’s race. The Respondent does not have to show that its conduct was reasonable or sensible for this purpose, merely that its explanation for acting the way that it did was non-discriminatory.[63]Guidelines on the burden of proof were set out by the Court of Appeal in Igen Ltd v. Wong [2005] EWCA Civ 142; [2005] IRLR 258 and we have followed those as well as the direction of the court of appeal in the well-known case of Madarassy v. Nomura International plc [2007] IRLR 246, CA. The recent decision of the Court of Appeal in Efobi v. Royal Mail Group Ltd [2019] ICR 750 confirms the guidance in these cases applies under the EqA.[64]The Court of Appeal in Madarassy, stated: ‘The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal ‘could conclude’ that on the balance of probabilities, the Respondent had committed an unlawful act of discrimination.’ (56)[65]It may be appropriate on occasion, for the Tribunal to take into account the Respondents’ explanation for the alleged discrimination in determining whether the Claimant has established a prima facie case so as to shift the burden of proof. (Laing v. Manchester City Council and others [2006] IRLR 748; Madarassy.) It may also be appropriate for the Tribunal to go straight to the second stage, where for example the Respondent assert that it has a nondiscriminatory explanation for the alleged discrimination. A Claimant is not Page 19 of 26 prejudiced by such an approach since it effectively assumes in his favour that the burden at the first stage has been discharged (Efobi).[66]We are required to adopt a flexible approach to the burden of proof provisions. As noted in the cases of Hewage v. GHB [2012] ICR 1054 and Martin v. Devonshires Solicitors [2011] ICR 352, they will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. However, they may have little to offer where we in a position to make positive findings on the evidence one way or the other.[67]Allegations of discrimination should be looked at as a whole and not purely on the basis of a fragmented approach (Qureshi v. London Borough of Newham [1991] IRLR 264, EAT. This requires us to “see both the wood and the trees” (Fraser v. University Leicester UK EAT/1055/13 at paragraph 79).[68]It was held, in James v. Eastleigh Borough Council [1990] ICR 554 (HL), that, where an employer applies a criterion that itself distinguishes between people based on a protected characteristic, the reason why they applied that criterion is irrelevant; the issue is simply whether they did so. Conclusions and Analysis Credibility of Evidence[69]We found that the Claimant’s evidence was consistent and credible. He answered questions in cross-examination in a straight-forward manner and made concessions where appropriate. We equally found the Respondent’s witnesses to be credible. Where there was a dispute in respect of a material fact, we relied on the documentary evidence before us. Unfair Dismissal[70]It was clear from the evidence before us that: Page 20 of 26(a) There was a belief by the Respondent that the need for the Claimant’s services had diminished and was expected to continue to diminish;(b) the reason for the reduction of the Claimant’s role was due to the efficiency of the Refinitiv system and that aspects of his role could be picked up by others;(c) there was a need for a new role to deal with the advances in AI and the increasing risks of cyber-crime and other crime; and(d) the Claimant was not sufficiently qualified/experienced for the Senior Risk and Assurance Manager role.[71]We heard evidence from the Claimant that at no point until he received the ‘at risk’ letter on 31st January 2024 was there any discussion with Ms. Smith of the new safeguarding strategy and the possibility that his current role was going to be impacted. Ms. Smith in her evidence [LS/para.31] stated that the Claimant was aware that she had reservations about his role and whether it was still needed within the team. We prefer the Claimant’s account as it is clear that at the first consultation meeting that he was disturbed to find his role was not needed and that he was at risk of redundancy. Whilst it may have been helpful for the Claimant to have an earlier indication of this, we find that the ‘at risk’’ letter was adequate warning.[72]Three consultation meetings were held with the Claimant on 7th and 26th February and 7th March 2024. We were taken to both the notes of the meetings, transcripts, and a short video excerpt. First Consultation Meeting[73]At the first meeting on 7th February 2024 it was clear from the notes and transcript [98-111] that the Claimant did not understand the content of the letter he had received and why his role in the organisation was being made redundant. During the meeting Ms. Smith briefly explained the rationale for the new Safeguarding Strategy and referred to two slides which set out the current structure and the proposed new structure. At the first meeting the new job Page 21 of 26 description for the new role was not available the Claimant but was sent to him the following day. The Claimant had seen the external advert before he had had an opportunity to review the job description and the opportunity to express an interest in the position. Second Consultation Meeting[74]At the second meeting on 26th February 2024 the Claimant was still questioning the business rationale and not understanding the redundancy process and why his role was being made redundant. The Claimant also suggested trailing the new role for three-months.[75]Ms. Smith during this meeting did not provide the Claimant with any reason why putting him in the new role for a trial period would not be possible but clarified that it was open for the claimant to apply for the new post. Third Consultation meeting[76]At the third and final meeting on 7th March 2024, it was clear to us that the claimant explained that he was still struggling to understand why his role was being made redundant and the reasons behind it. The claimant stated that he did not think there was any intention to map him across to the role or plug any skills gaps. He wanted to know what parts of his role the Respondet was no longer interested in taking forward and go through it line-by-line. The Claimant also asked to see the skills-gap analysis and, as an alternative to redundancy, asked to be mapped into the role with additional training and support.[77]Ms. Smith, in her responses during the interview, said that she did not think it is necessary for the Claimant to see the gap analysis and that the rationale had already been explained. Ms. Smith went on to say that the consultation meetings had concluded, the Claimant had not made any alternative proposals, and not applied for any other roles and therefore, she confirmed that the role was being made redundant with effect from 14th March 2024. Page 22 of 26[78]In answer to questions in cross-examination and questions from us, Ms. Smith said that she had only looked at the LinkedIn profile for the claimant to see his CV and that no other action was taken to identify his wider experience, skill-set, and competencies from his overall insurance career. Ms. Smith also said that she felt that Mr Crawford Thomas was just seeking to ‘elongate’ the consultation process.[79]The Respondent took a genuine approach to consultation. However the key person in ensuring meaningful consultation occurred, was the Claimant’s immediate line manager, Ms. Smith. She failed to make the process meaningful in two key areas:-(i) Alternative Employment (a) Ms. Smith had a pre-determined mindset that the Claimant was not suitable for the new role, after her initial meeting with him, when she asked the Claimant to provide her with the detail of what he did in his current role. She was in the early stages of formulating the new structure at the point (even if only in her mind) as this was one of the first significant tasks she undertook with the Respondent after her employment began. (b) Ms. Smith was of the firm position that the new future-proofing role (of Senior Risk Assurance Manager) was required, based upon her horizon scanning assessment of the need to take steps to mitigate the new risk facing the Respondent. She took an early view that the Claimant did not have the skills, abilities or experience to perform this role. (c) However, Ms. Smith formed this view based upon her first meeting with the Claimant and it was based largely on the Claimant’s description of his current role. Ms. Smith was new to the company and had little knowledge of the Claimant’s ability. Whilst she also looked at LinkedIn to inform her of the Claimant’s wider skills, this is not a satisfactory way to obtain Page 23 of 26 a full picture of the abilities of an employee within her own team. (d) Whilst Ms. Smith met with the Claimant several times after this (and more formally as part of the redundancy consultation process), it was not meaningful with regard to the alternative role of Senior Risk Assurance Manager, as she had already formed the view that no one could undertake this role without the appropriate qualification. The Claimant did not possess such a qualification. (e) Ms. Smith confirmed in evidence that upskilling of the Claimant was not an option in her view, as no period of time was reasonable to delay and allow the Claimant to be appropriately trained. She was clear that there could be no delay to the recruitment and appointment of the new Senior Risk Assurance Manager role. Therefore, her consultation with the Claimant in this regard was not meaningful, as she was suggesting this role to the Claimant as potential suitable alternative employment, despite already having formed the view that the Claimant did not have the prerequisite skills and qualifications to carry out the role. (f) It is, however, a reasonable position for an employer not to delay recruitment of what they perceived as an important new role of Senior Risk Assurance Manager. The Respondent reasonably believed that a candidate with the relevant qualification was urgently required (which ruled out the possibility of an upskilling period) as they had a genuine belief there was a need to protect their business from newly identified risk.(ii) Consultation on the new Structure, Business Case (a) Ms. Smith fell short of engaging in meaningful consultation with the Claimant with regard to ensuring he understood the new structure and business case. Page 24 of 26 (b) Ms. Smith repeatedly referred the Claimant back to slides, produced by the Respondent, as her only way of explanation. This was not adequate or meaningful, as the Claimant had previously highlighted that he did not understand those slides. She made no attempt to find an alternative way to explain this to the Claimant. She felt the Claimant was being difficult, attempting to elongate the process and took the view she could do no more. (c) As a consequence the Claimant did not fully understand the process he was going through and this detrimentally impacted upon his ability to suggest ways to mitigate the risk of his role being made redundant.[80]Applying the principles of R v. British Coal Corporation ex p Price the Claimant did not have a full opportunity to engage in the consultation process, which he would have done, had it been meaningful.[81]Therefore, the allegation of ‘ordinary’ unfair dismissal is well founded and upheld. However, we also accept Mr. Soanes submission that had a fair process taken place the Claimant would have still been made redundant. Direct Age Discrimination[82]This allegation was not put to the respondent by the Claimant and we heard or saw no evidence suggestive of the Claimant’s age being the reason for a difference in treatment Nagarajan. The burden of proof did not pass to the Respondent.[83]As per Madarassy a mere difference in in treatment only implies a possibility of discrimination and, in the absence of any sufficient material from which we could conclude, that on the balance of probabilities, the Respondent had committed an unlawful act of discrimination, the Claimant has failed to make out this complaint and it is dismissed. Page 25 of 26[84]If we are wrong about the burden of proof finding we have made, the Respondent has provided reasonable and adequate explanations for its treatment of the claimant and none of them approach the reals of discriminatory conduct on grounds of age.
Remedy
[85]It may be more expedient and cost-efficient for the parties to agree an amicable settlement. Rule 4 of the ET Rules 2024 states that, ‘The Tribunal must, wherever practicable and appropriate, seek to encourage the use by the parties of the services of ACAS, judicial or other mediation, or other means of resolving their disputes by agreement.’ We endorse this rule and encourage the parties to enter negotiations with a view to agreeing a mutually acceptable settlement. If the parties do reach an agreement they must write to the Tribunal within 28 days from the date this Judgment is sent out to the parties and request a Remedy Hearing to be listed.