Mr J Huang v W. Wing Yip (London) Ltd: 2307728/2020
EMPLOYMENT TRIBUNALS
Case No 2307728/2020
Between
Mr. J HuangClaimantW. Wing Yip (London) LtdRespondent
Before
Employment Judge McLarenMr. F Mortin (instructed by Counsel) for respondentDate 30 August 2022
JUDGMENT
It is the unanimous decision of the tribunal that;-[1]The dismissal was by reason of redundancy and was a fair one. The claim for unfair dismissal does not succeed.[2]There is no breach of contract and the claim for wrongful dismissal does not succeed.[3]The respondent did not contravene s13 of the Equality Act 2010 and the claim for direct age discrimination does not succeed.
REASONS
[1]The claimant was employed as a shop assistant from 28/11/05 until 24/11/2020. The claim is about dismissal which the claimant says was unfair and an act of age discrimination. The respondent says the dismissal was fair and was for redundancy and denies discrimination.[2]The hearing had been listed for 3 days but due to tribunal resources only 2 days were available. The hearing was therefore limited to liability only. Evidence before us[3]We heard evidence from the claimant who was assisted by a mandarin interpreter, two witnesses on his behalf, Nelson Pereira and Mei Ping and from 3 witnesses for the respondent, Tom Uong, Albert Yip and David Yip. We were provided with a bundle of 298 pages. We were also referred to a decision of the Birmingham tribunal for the same respondent which also arose from this redundancy exercise, albeit at a different store. This is included in tab three of the bundle. While it is not binding upon us, we have considered its findings of fact.[4]At the end of the first day’s hearing, it became apparent that the claimant had not read any of the respondent’s witness statements or the contents of the agreed bundle. These had been provided in English and the claimant had not attempted to translate any of it, either through using online translation services or asking his daughter for assistance. We agreed therefore to use the court interpreter to assist. The respondent’s witnesses were asked not to attend until 12 on the second day to allow their statements and any documents that were referred to in a statement to be read to the claimant by the interpreter. This took place and the claimant confirmed he was able to proceed Issues[5]There had been a preliminary hearing on the 3 June 2021 at which the claimant was assisted by a mandarin interpreter. The claims were identified as potentially including unauthorised deduction from wages relating to a bonus and holiday pay. These had not been set out in the claim form and the claimant was ordered to provide details by 17 June 2021 and to make an amendment application if he wished to pursue these claims. Neither the details or an amendment application were provided and the claims for a deduction from wages and holiday pay and any errors in payslips do not form part of the claim. We do not need to dismiss these heads of claim as they have not been brought. The claims that the tribunal will determine are unfair dismissal, wrongful dismissal and age discrimination.[6]The issues were agreed at the preliminary hearing as these 1. Unfair dismissal1.1 Was the claimant dismissed?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 in all the circumstances in treating that as a sufficient reason to dismiss the claimant. The Tribunal will usually decide, in particular, whether:1.3.1 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?2.2 Does the claimant wish to be re-engaged to comparable employment or other suitable employment?2.3 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.2.4 Should the Tribunal order re-engagement? The Tribunal will consider in particular whether re-engagement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just.2.5 What should the terms of the re-engagement order be?2.6 If there is a compensatory award, how much should it be? The Tribunal will decide:2.6.1 What financial losses has the dismissal caused the claimant?2.6.2 Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?2.6.3 If not, for what period of loss should the claimant be compensated?2.6.4 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?2.6.5 If so, should the claimant’s compensation be reduced? By how much?2.6.6 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?2.6.7 Did the respondent or the claimant unreasonably fail to comply with it?2.6.8 If so, is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?2.6.9 If the claimant was unfairly dismissed, did he cause or contribute to dismissal by blameworthy conduct?2.6.10 If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion?2.6.11 Does the statutory cap of fifty-two weeks’ pay apply?2.7 What basic award is payable to the claimant, if any?2.8 Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent? 3. Wrongful dismissal / Notice pay3.1 What was the claimant’s notice period?3.2 Was the claimant paid for that notice period? 4. Direct age discrimination (Equality Act 2010 section 13)4.1 The claimant’s age group is 60-66 (he is 63) he compares herself with people in the age group who are not within 5 years of retirement4.2 Did the respondent do the following things: 4.2.1 Dismiss him4.3 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 he was treated worse than someone else would have been treated. The claimant has not named anyone in particular who he says was treated better than he was, he will therefore rely on a hypothetical comparator.4.4 If so, was it because of age?4.5 Did the respondent’s treatment amount to a detriment?4.6 Was the treatment a proportionate means of achieving a legitimate aim?4.7 The Tribunal will decide in particular:4.7.1 was the treatment an appropriate and reasonably necessary way to achieve those aims;4.7.2 could something less discriminatory have been done instead;4.7.3 how should the needs of the claimant and the respondent be balanced? 5. Remedy for discrimination or victimisation5.1 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?5.2 What financial losses has the discrimination caused the claimant?5.3 Has the claimant taken reasonable steps to replace lost earnings, for example by looking for another job?5.4 If not, for what period of loss should the claimant be compensated?5.5 What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?5.6 Has the discrimination caused the claimant personal injury and how much compensation should be awarded for that?5.7 Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result?5.8 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?5.9 Did the respondent or the claimant unreasonably fail to comply with it?5.10 If so is it just and equitable to increase or decrease any award payable to the claimant?5.11 By what proportion, up to 25%?5.12 Should interest be awarded? How much?[7]Only findings of fact relevant to the issues, and those necessary for the tribunal to determine, have been referred to in this judgement. It is not necessary, and neither would it be proportionate, to determine each and every fact in dispute. While the Tribunal has not referred to every document it has read and/or was taken to in the findings below, that does not mean it was not considered if it was referred to in the witness statements/evidence.
Relevant Law
[8]We were provided with a detailed opening submissions by the respondent’s counsel which we accepted as a fair summary of the law, and we refer to some parts of these below.[9]We were reminded by the respondent’s counsel that the burden of proof is on the respondent to establish the reason for the dismissal, that is what motivated the decision maker to take the decision.[10]Redundancy is defined in S.139(1) ERA The statutory words are: ‘For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to — (a)the fact that his employer has ceased or intends to cease — (i)to carry on the business for the purposes of which the employee was employed by him, or (ii)to carry on that business in the place where the employee was so employed, or (b)the fact that the requirements of that business — (i)for employees to carry out work of a particular kind, or (ii)for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish.’[11]Once the employer has established a potentially fair reason for the dismissal under section 98(1) of ERA 1996 the tribunal must then decide if the employer acted reasonably in dismissing the employee for that reason.[12]Section 98(4) of ERA 1996 provides that, where an employer can show a potentially fair reason for dismissal: "... 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.[13]In Williams and Ors v Compair Maxam Ltd 1982 ICR 156, EAT, the EAT laid down guidelines that a reasonable employer might be expected to follow in making redundancy dismissals. a) whether the selection criteria were objectively chosen and fairly applied b) whether employees were warned and consulted about the redundancy c) whether, if there was a union, the union’s view was sought, and d) whether any alternative work was available[14]Counsel referred us to Langston v Cranfield University [1998] IRLR 172 where the EAT held that so fundamental are the requirements of selection, consultation and seeking alternative employment in a redundancy case, they will be treated as being an issue in every redundancy unfair dismissal case. We were also referred to Iceland Frozen Foods v Jones [1982] IRLR 439 EAT and reminded that in determining the question of reasonableness it was not for the employment tribunal to impose its standards and decide 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’. The band of reasonable responses test is also applicable to the procedural steps taken by the employer.[15]Counsel made submissions on specific aspects of redundancy which we set out below. On the pool counsel submitted that the ET has the power to consider whether an employer has genuinely applied their mind to the pool and referred us to this case. Silber J summarised the position in Capita Hartshead Ltd v Byard [2012] IRLR 814 at [31]: “Pulling the threads together, the applicable principles where the issue in an unfair dismissal claim is whether an employer has selected a correct pool of candidates who are candidates for redundancy are that(a) “It is not the function of the Tribunal to decide whether they would have thought it fairer to act in some other way: the question is whether the dismissal lay within the range of conduct which a reasonable employer could have adopted” (per Browne-Wilkinson J in Williams v Compair Maxam Limited [1982] IRLR 83);(b) “…the courts were recognising that the reasonable response test was applicable to the selection of the pool from which the redundancies were to be drawn” (per Judge Reid QC in Hendy Banks City Print Limited v Fairbrother and Others (UKEAT/0691/04/TM);(c) “There is no legal requirement that a pool should be limited to employees doing the same or similar work. The question of how the pool should be defined is primarily a matter for the employer to determine. It would be difficult for the employee to challenge it where the employer has genuinely applied his mind [to] the problem” (per Mummery J in Taymech v Ryan EAT/663/94);[16]Counsel made submissions on the selection criteria and reminded us that In Buchanan v Tilcon Ltd 1983 IRLR 417, Ct Sess (Inner House), the Court of Session ruled that, where an employee makes a general complaint of unfair selection, the employer does not have to prove to a tribunal that its grading of employees was carried out accurately. B was selected for redundancy mainly on account of his comparatively short service and poor attendance record. The ET found the dismissal unfair. To show reasonable selection, it said, an employer must prove the accuracy of the information on which it was based. On B’s absenteeism, for example, the employer should have produced direct evidence of the retained employees’ records, to satisfy the ET that their record was indeed not as bad as B’s.[17]The EAT, overturning this decision, held that the ET had imposed too high a standard of proof on the employer and so had erred in law. On appeal, the Inner House of the Court of Session held that where an employee’s only complaint is unfair selection, all that the employer has to prove is that the method of selection was fair in general terms and that it was reasonably applied to the employee concerned.[18]The principle arising out of Buchanan was expressly approved by the Court of Appeal in British Aerospace plc v Green & Ors [1995] ICR 1006.[19]Further, Counsel reminded us of Airbus UK Ltd v Webb [2008] ICR 561, in which the Court of Appeal concluded that conduct which was the subject of an expired warning need not be ignored for all purposes when making a decision on whether to dismiss an employee for misconduct. Although this was not a redundancy case, it confirms there is no absolute bar to an employer recalling historic performance/conduct issues when assessing employees.[20]We were referred to Glidewell LJ in the case of R v British Coal Corpn and Secretary of State for Trade and Industry, ex p Price [1994] IRLR 72, at [24] emphasised that a fair consultation should include: consultation when the proposals are still at a formative stage; adequate information on which to respond; adequate time in which to respond; conscientious consideration by an authority of the response to consultation.[21]We were reminded that in order to act fairly in a redundancy situation, an employer is obliged to look for alternative work and satisfy itself that it is not available before dismissing for redundancy. In Avonmouth Construction Co Ltd v Shipway [1979] IRLR 14, the EAT accepted that employers might be expected to offer an alternative job even if it involves demotion and should not readily assume that the employee will reject it, or at least they might be expected to discuss the possibilities with the employee (Huddersfield Parcels Ltd v Sykes [1981] IRLR 115, EAT).[22]Wrongful dismissal is a dismissal in breach of contract. Fairness is not an issue: the sole question is whether the terms of the contract, which can be express or implied, have been breached. The employee will have a claim in damages if the employer, in dismissing them, breached the contract, thereby causing them loss.[23]Contractual notice periods are subject to certain statutory minimum periods of notice. These are set out inS.86(1) of the Employment Rights Act 1996 and provide that: an employee with between one month’s and two years’ continuous employment is entitled to not less than one week’s notice an employee with between two years’ and 12 years’ continuous employment is entitled to not less than one week’s notice for each year served an employee with continuous service of 12 years or more is entitled to not less than 12 weeks notice.[24]The damages period is based on whichever is the longer of the statutory or contractual notice periods.[25]S13 of the Equality Act defines direct discrimination as (1)A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. (2)If the protected characteristic is age, A does not discriminate against B if A can show A's treatment of B to be a proportionate means of achieving a legitimate aim.[26]Section 13(2) is silent as to what may amount to a legitimate aim for the purpose of justifying unlawful age discrimination. The Supreme Court in Seldon v Clarkson Wright and Jakes (A Partnership) 2012 ICR 716, SC, held that direct discrimination can only be justified by reference to legitimate objectives of a public interest nature, rather than purely individual reasons particular to the employer’s situation, such as cost reduction or improving competitiveness.[27]Two broad categories of legitimate social policy objective were identified. These were ‘intergenerational fairness’, which could include facilitating access to employment by young people; enabling older people to remain in the workforce; sharing limited opportunities to work in a particular profession fairly between the generations; promoting diversity and the interchange of ideas between younger and older workers, and ‘dignity’, which would cover avoiding having to dismiss older workers on the grounds of incapacity or underperformance and avoiding divisive disputes about capacity or underperformance. Burden of proof[28]We were referred to Igen v Wong ltd [2005] EWCA Civ 142, [2005] ICR 931. There, the Court of Appeal established that the correct approach for an employment tribunal to take to the burden of proof entails a two-stage analysis. At the first stage the claimant has to prove facts from which the tribunal could infer that discrimination has taken place. Only if such facts have been made out to the tribunal’s satisfaction (i.e., on the balance of probabilities) is the second stage engaged, whereby the burden then ‘shifts’ to the respondent to prove — again on the balance of probabilities — that the treatment in question was ‘in no sense whatsoever’ on the protected ground.[29]The Court of Appeal explicitly endorsed guidelines previously set down by the EAT in Barton v Investec Henderson Crosthwaite Securities Ltd 2003 ICR 1205, EAT, albeit with some adjustments, and confirmed that they apply across all strands of discrimination.[30]We reminded ourselves that the Court of Appeal confirmed in Madarassy v Nomura International plc [2007] EWCA Civ 33, [2007] ICR 867, [2007] IRLR 246, that a claimant must establish more than a difference in status and a difference in treatment before a tribunal will be in a position where it 'could conclude' that an act of discrimination had been committed. Findings of Facts[31]The bundle contained a copy of the claimant’s employment contract which was signed by him on 13 April 2019. The claimant did not suggest that the document was not his contract and we accepted it as such. It was at pages 85 – 91 of the bundle. Clause 8 of the contract provided for the relevant contractual notice period and specified that after one-month’s continuous employment, but less than two years, there will be one week’s notice and thereafter there will be one week’s notice for each complete year of continuous employment up to a maximum of 12 weeks notice. As a matter of contract therefore the claimant was entitled to 12 weeks notice.[32]There is of course a statutory provision for notice and as set out above the statutory provisions will override the contractual terms where the contractual terms are less. In this case the contract and statute mirror each other. The claimant confirmed that he had been paid 12 weeks notice. He believed he should be entitled to 15 weeks notice because he had been employed for 15 years.[33]The claimant gave evidence that he believed his dismissal was unfair because he was at the time 63 years old. His claim is based on being in the age range 60-66, that is within 5 years of retirement. He explained several times that because of his age he would not find another job. He had been planning to work for another three years and then retire. He felt it was very unfair that he had been selected for redundancy in the circumstances. The claimant also appeared to believe that there was a legal requirement that individuals could not be dismissed within five years of their retirement age. He is wrong in that belief. There is no such provision in law.[34]He was asked on a number of occasions if he was saying that his selection for redundancy was “because of” his age. In answer to this question he repeated that he should not have been selected for redundancy because he could not find another job. He did, when the question was asked for the final time, say that it “might” also be because of his age. In his evidence he also suggested that he had been picked on because of complaints made about his performance. We find that the claimant’s real concern about the redundancy selection as discrimination was the impact on his future employability because of his age and he did not believe that he had been selected because of his age. We note that his challenges to the process of redundancy at the time made no reference to age.[35]The claimant had produced at page 64 a document which provided some more detail of his age discrimination claim. In that he listed the 11 individuals who were made redundant from the shop floor or retail area. Of these five are in the category 60 to 66. Six were below that. It included one individual of 30 years old one of 40, two of 50. We find that on his own evidence the age range of those made redundant included more staff who were younger than the claimant. This document does not, on its face, raise any inference of age discrimination. It shows that there is a wide age range in those made redundant and no particular age group was selected. It does not show that individuals aged 60 to 66 were picked on.[36]As part of this litigation the respondent provided full disclosure of the ages of all staff working within its Croydon branch, both those who were selected for redundancy and those who were not. These details were at pages 221 – 224. While it differs from the list the claimant produced, the employer is in a better position to access the information and we accept that it is factually correct.[37]In the retail redundancy pool, that is the pool the claimant was in of the 11 people who were not selected for redundancy one was aged 61. Of those who were selected for redundancy, 5 were in the same age bracket as the claimant 8 were not. The youngest person who was made redundant was 21. In the sales redundancy pool only one individual was dismissed on the grounds of redundancy, and they were 20. The age range of those who remained varied from 22 to 59. In the warehouse redundancy pool 2 individuals, both in their early 40s, were dismissed on grounds of redundancy, 8 individuals were retained, this included three within the age range 60 to 66. In the driver redundancy pool, there were only two staff members, both of the same age. One individual of 57 was made redundant and the other individual aged 57 was retained.[38]We find that the respondent’s uncontested evidence shows that age was not a factor in the selection of staff. The needs of the business to carry out work of a particular kind[39]We heard evidence from Mr Albert Yip who is a director and store manager of the Croydon branch of the respondent which is a Chinese supermarket. In February 2020 it became clear that the store had been substantially impacted by the covid 19 pandemic. Customers decided not to use their store and also not eat out in Chinese restaurants, a number of which were supplied by the respondent.[40]On 15 April 2020, the claimant, along with other staff were placed on furlough. The letter which the claimant received and signed indicated that footfall installed have been variable over the last few months. The letter identified that they were seeing around 50% footfall and sales then the same time the previous year. The letter also indicated that the business did not want to consider making redundancies and it was for that reason that staff were asked to agree to furlough leave.[41]The impact of the pandemic and lock down, however, not only reduced footfall in the store, but also made the respondent look for more efficient ways of working. It identified new processes that had multi skilled employees working across multiple departments, so as to have a more flexible workforce to work outside trading hours to increase productivity of work when customers were not on site.[42]The bundle contained at pages 249 – 251A redundancy proposal rationale. This analysed the downturn in sales and set out detailed reasoning about why the respondent considered that turnover would not return to prepandemic figures. It set out why it concluded that the business needed to consider redundancies. The document also indicated that the respondent had considered alternatives, it had stopped overtime and capital expenditure, had withheld staff bonus to assist cash flow, pay rises, other than those on minimum wage, had been held back to assist with cash flow and they had used the coronavirus job retention scheme.[43]The claimant did not dispute the respondent’s need to reduce costs and headcount. His evidence was that he was not in a position to identify this as he was a worker. He did think that the store was doing well now.[44]We accept the respondent’s evidence that it had carefully thought about ways of avoiding redundancy. We find that the needs of the business for work of a particular kind had diminished as a result of external forces and a restructuring of its needs as of June 2020. There was a genuine redundancy situation. Collective consultation, pools for selection and scoring matrix[45]By June 2020 Albert Yip told us that the respondent had considered each part of the business and had identified that reductions needed to be made in a number of teams. He sent a letter to all staff on 18 June 2020. This was sent in English and also in Mandarin. This letter explained that the company required fewer employees to carry out particular work and had decided that there was a risk that would have to reduce its workforce. The letter made it clear that it was not a notice of redundancy but confirmation of the numbers and positions of those at risk of being made redundant. The letter explained that the company would go to a consultation exercise with elected representatives and the letter went into the details about how these representatives would be elected.[46]The letter also set out that if the company was not able to avoid the need to make redundancies it was likely to need to reduce headcount by a total of 17. That was a reduction of one in the sales team, 13 in retail, 2 in the warehouse and 1 from drivers. At the same time the respondent filed an HR one form with the BEIS identifying 17 proposed redundancies [115].[47]The company established four different pools of staff. These were all the staff engaged in the four areas that the respondent had identified needed to be reduced. The claimant accepted that he worked in retail and was therefore put into the appropriate pool.[48]On 2 July 2020, the claimant was informed who his employee representatives were, he was provided with draft selection criteria and asked if he wanted to share his details or request the representatives’ details [122]-[125]. On 14 July 2020, Albert Yip chaired the first collective consultation meeting [129]- [135].[49]On 21 July 2020, Albert Yip chaired the second collective consultation meeting [136]-[141]. On 28 July 2020, Albert Yip chaired the final collective consultation meeting [142]-[147]. The claimant described in his evidence that he understood from his representative that the company were considering reduced hours but that was all he was really aware of.[50]We can see from the notes of the collective consultation meetings that this was proposed by elected representatives and was considered fully by management. Unfortunately, it was not enough to avoid redundancies and at the end of the collective process no alternative to redundancy had been found. We find that the elected representatives were given adequate time to respond to the proposals made and the respondent carefully considered the responses they were given.[51]The collective consultation process had considered the process for scoring staff who were at risk and the identity of those who were scoring. For those in retail, this was Amber Thorpe, assistant store manager and, because she had not been long in that role, she would be assisted by Tom Uong, the retail supervisor, because he had a detailed working knowledge of the staff.[52]The representatives did not object to the criteria selected. They did not suggest any other criteria, nor did they suggest any alternative to the scoring process. The criteria that were therefore agreed as part of the collective consultation process were four things, work performance, ability and attitude – scored at a five and multiplied by three, experience skills and qualifications – scored at five and multiplied by two, attendance record, punctuality and sickness record – scored out of five and disciplinary records – scored out of five.[53]The criteria did not expressly or implicitly include length of service or age. The claimant suggested in his evidence that the respondent did in fact use length of service and dismiss those with less than two years service. We find that this was not the case.[54]It is clear that the respondent consulted while its proposals were at a formative stage. It provided adequate information in in advance to each individual employee directly and then to the elected representatives. It made efforts to ensure that information was provided in Mandarin. The bundle contains letters addressed to the claimant in Mandarin and we find that he was given adequate information in advance about the process and the reasons for it. Scoring the claimant[55]On 5 August 2020, Amber Thorpe carried out the claimant’s provisional scoring. She did this with the assistance of Mr Uong. He explained that he was not told by Ms Thorpe what the criteria that she was using were, but he was asked in general terms about work performance, ability, and attitude. He was asked the same questions about all the staff in the retail department. His feedback was used to complete the scoring on to the criteria identified, work performance, ability and attitude and experience skills and qualifications.[56]Mr Uong had personal knowledge of the claimant’s performance and had experience of his lack of stock rotation, failures to check his working area at the end of the day and was also aware of his attitude towards customers and staff. He felt the claimant was slow, did not follow instructions fully and had a bad attitude to colleagues. The claimant challenged this evidence and said that that was not the case.[57]Mr Uong also explained that in addition to concerns about the claimant’s performance he discussed the claimant’s experience, skills and qualifications with Ms Hurd. The claimant did not have or need any qualifications for his role and so that was not considered. Mr Uong explained that the claimant displayed some of the competencies required in that role but required regular supervision support and was not multiskilled. It was not disputed that the claimant does not speak good English. It was also agreed that he suffers from a bad back and this limits his ability to lift heavy objects. The respondent had adjusted his role to accommodate this.[58]The claimant took issue with criticism of his relationship with staff and colleagues, criticism as to stock issues and that he required supervision. The claimant said many times during the hearing that his workload was too heavy, and it was unfair to criticise him for not keeping stock on shelves when he had such a large area to service. Two former employees of the respondent gave evidence. Both did so relying on written statements in identical terms. Both Mr Pereira and Mr Xie said that the job the claimant was doing used to have two people, but the claimant had to do it alone and that the big goods shelf was 3 m long with 40 shelves and the medium goods shelf was 2 m long with 30 shelves, which was a very heavy workload.[59]Mr Uong was asked about this and told the tribunal that on the claimant’s day off only one person did his role and there were never any difficulties with keeping these shelves stacked on that day. On the balance of probabilities, we prefer the evidence of Mr Uong to that of the claimant’s witnesses and the claimant on this point. We place little weight on written statements produced by individuals in identical terms which do not appear to be written by them. We found both witnesses to be unreliable. Mr Xie when asked could not remember his address and told us that everyone in the company was biased. Mr Pereira had been dismissed by the respondent for gross misconduct and had lost his unfair dismissal complaint before the Croydon employment tribunal. When asked about this he said that this was because the tribunal was corrupt. In contrast Mr Uong’s evidence was consistent with a written documentation, and we accept his evidence. We find he provided accurate feedback on the claimant’s performance and his contribution to the scoring was fair and reasonable based on his genuine experience of the claimant. His experience was consistent with the claimant’s HR record of warnings for performance issues.[60]We were taken to a number of instances of prior verbal and written warnings that the claimant had been given over the course of his employment. These were set out from pages 225 – 248. This included a verbal warning on 6 April 2008 about rotten vegetables being found on sale in one of the chillers. A similar issue arose on 10 March 2010. Another issue arose 26 May 2010. A final written warning was given on 29 September 2010 for matters including leaving rotting food in a chiller cabinet. In 2014 there was a review meeting about failure to fill stock in a timely and orderly manner. In March 2014 he was given a verbal warning about stock issues. In July 2014 he was given a first written warning about stock issues. On 17 May 2015 there was a customer service review meeting following a customer incident with the claimant. There was a further warning on 24 August 2015.[61]There was a review meeting about a customer complaint on 18 January 2016 and on 16 February 2016 which resulted in a first written warning. This was overturned on appeal to a verbal warning. We were also taken to the details of another issue that was noted in his personal file on 19 October 2019 about not answering calls from colleagues. With the exception of the warning given in 2016, the claimant did not appeal or challenge any of the warnings he was given. In his evidence before us he felt that had been treated unfairly but accepted that he had made some mistakes as everyone does.[62]We find that this undisputed evidence supports the scoring the claimant was given about the claimant’s performance, and we accept Mr Uong’s evidence about how he found the claimant in relation to the relevant criteria, work performance ability and attitude.[63]On the question of supervision Mr Uong explained to us that during an eight-hour shift because the claimant consistently did not check the stock, he and Ms Hurd would check the claimant’s work area more or less every hour. The claimant gave contradictory evidence on this point. He said that no one could be checked as often as that but also gave evidence that he was continually monitored by the respondent. On the balance of probabilities, we prefer the evidence of Mr Uong. The need for supervision is supported by the criticism of the claimant’s performance over a number of years. His evidence was consistent throughout while the claimant contradicted evidence on this point.[64]We are satisfied that the respondent used clear and objective criteria which it had discussed in the collective consultation process. It applied those criteria to an appropriate pool in each case. The claimant accepts that he was put in the correct pool for selection. The respondent obtained the opinion of two individuals who had worked with the claimant who completed the scoring in good faith and objectively. The claimant was scored a “16” placing him at risk [221].[65]While we were taken to past warnings as a part of the evidence put before us, we are satisfied that the respondent did not rely on expired warnings or previous formal conduct issues that have been raised with the claimant in reaching its scoring. Indeed, the claimant was given a 5, the highest score for his disciplinary record. The claimant was scored based on active working knowledge of him from his two most senior members of staff who had responsibility for his work. We accept the undisputed evidence of the respondent’s witnesses, Mr Uong and Mr Albert Yip that they had forgotten that these had occurred when the scoring was made and reviewed. Individual consultation process[66]On 14 August 2020, Albert Yip invited the claimant to an individual consultation meeting [148]-[149].[67]On 18 August 2020, Albert Yip chaired the claimant’s individual consultation meeting [150]-[155]. The claimant said he did not attend any such meeting, but the notes show that he raised the fact he was 63 years old prior to discussing scoring [152] and that he challenged his scoring under two criterions [153]-[154]. The notes also show that he agreed he was in the correct pool, that the selection criteria were fair and that there were no alternatives to redundancy.[68]We prefer the evidence of Mr Yip which is supported by contemporaneous documents to the recollection of the claimant of events which occurred some two years ago. We find that the claimant was at this meeting and did respond as the notes record.[69]On 24 August 2020, Albert Yip re-assessed the claimant’s scoring. He upheld the original scoring [165]-[169]; on 26 August 2020. Albert Yip undertook this process for all staff and on some occasions, probably around two, he increased the scores. In undertaking this process, he reviewed the written information given by those who had done the initial scoring and assessed whether or not the evidence they had given him matched the marking scheme that had been agreed. In the claimant’s case, he relied mainly on information given to him by the two individuals who compiled the marking information, but he also did so from his personal knowledge of the claimant.[70]Albert Yip invited the claimant to a consultation meeting and identified his final scoring [173]-[174]. On 1 September 2020, Albert Yip chaired a second individual consultation meeting with the claimant [175]-[178]. Following the meeting, the claimant was issued with written notice of termination of employment on grounds of redundancy [179]-[180]. The claimant remained on furlough throughout his notice period on full pay.[71]At the second meeting we find that the claimant was made aware of an alternative position which he refused because he did not speak sufficiently good English.[72]At each meeting the claimant has given an opportunity to state his case. There was a Mandarin interpreter present. Albert Yip ensured that the claimant understood what was happening as he has some knowledge of Mandarin and was able to follow the gist of what interpreter was saying. We find that the claimant’s concerns were considered before any decision was finalised. He had a full opportunity to have his views considered at a formative stage.[73]We find that Albert Yip followed a fair and thorough process with the claimant who had been provided with sufficient information in advance. The communication process ensured that the claimant was able to take part. He expressed his views and these were considered.The scoring process had been fairly and properly reviewed. The appeal process[74]On 8 September 2020, the claimant appealed the decision to dismiss him [186]-[187]. on 11 September 2020, David Yip invited the claimant to an appeal hearing [188]-[189].[75]On 17 September 2020, David Yip chaired the appeal with the claimant and went through each point of appeal [190]-[196]. The notes show that the criteria used to select the claimant as redundant were discussed and David Yip went through the comments made by Ms Thorpe in some detail with the claimant. David Yip also went through the comments that the claimant had made in response to this in his meeting with Albert Yip. The claimant had an issue with the way he had been marked for work performance, ability and attitude and the way he had been marked for skills and qualifications.[76]On the first, he believed that he was being penalised in relation to one incident of walking through a forklift truck door. He admitted he had walked through that door, but only once. He disputed that he was blunt to customers and other members of staff. He also disputed that he did not put fresh stock out. He explained that he did not accept did not help other colleagues, he had a medical issue with his back and therefore he could not help when he was asked to do heavy lifting or carrying.[77]In response to the second criterion, again he said it was unfair to mark him down for not being multiskilled because he could not lift heavy loads. He accepted that he could not work as a cashier because of his lack of English. He did not accept that he needed regular supervision as he said that he could carry out many tasks unsupervised.[78]On 24 September 2020, David Yip carried out several interviews with Rizwan Imtiaz, Warehouse Assistant Store Manager [197]; Albert Yip [198]-[200]; Amber Thorpe [201]-[203]; and Tom Uong, Retail Supervisor on his role in assisting Ms Thorpe [204]-[205]. He asked them to tell him about the claimant’s work performance, how much supervision he needed to carry out duties, whether there were complaints from customers or colleagues and how his duties were adjusted to accommodate his back condition.[79]The answers to all three individuals were consistent. They aligned with the scoring that had already been given by Ms Thorpe and Mr Uong. David Yip recognised the discrepancy between the claimant’s perspective on his performance and that of those he spoke to. He preferred the evidence of the four individuals that he spoke to over that of the claimant’s on the balance of probabilities.[80]On 30 September 2020, David Yip sent the claimant his appeal outcome and upheld the scoring [206]-[212]. The outcome letter was very detailed. It set out the claimant’s grounds of appeal, the company position, the part the claimant disputed and more detail of the claimant’s response. Then in each case it considered the evidence and reached a finding.[81]The find that the respondent carried out a fair and thorough consultation process including an appeal. The respondent reached its conclusion that the scoring was fair and justified following thorough and objective consideration of the point. At all stages there was conscientious consideration of the responses given by the claimant prior to any decisions being confirmed. Alternative employment[82]On 5 November 2020, R invited the claimant to apply for three new positions that had become available [213A]. This was the second offer of alternative employment. The claimant accepted that he had been sent a letter identifying these alternative positions. He thought this is inappropriate because they were at a lower pay than he had been earning.
Conclusion
[83]Having made our findings of fact we then applied the law as we have set it out and concluded as follows.[84]There is no basis on the undisputed facts or in law for the claim for 15 weeks’ pay. This claim does not succeed.[85]Where a claim of age discrimination is brought the initial burden of proof is on the claimant to show that there are facts and circumstances from which a tribunal could infer the discrimination has taken place. This has to be more than a mere assertion of “I am this age, and I was made redundant.” If the claimant satisfies that initial step, the burden then shifts the respondent to provide evidence of a non-discriminatory reason for the treatment of the individual.[86]Given our findings of fact above, we conclude that the claimant has not shifted the initial burden of proof. We have found that he does not consider that his selection was because of his age. We have also found that neither age nor length of service formed any part of the selection criteria agreed in the collective consultation process. Further, the claimant has not provided any evidence from which age discrimination could be inferred. The evidence of the ages of those who made redundant he did produce, which could have amounted to the something more that he needed to provide to the tribunal, did not support his assertion. It did not show that only older people were dismissed and indeed, we are satisfied that the picture from the respondent’s evidence is that age played no part in the selection of any individual for redundancy.[87]The claim for discrimination does not succeed.[88]For a dismissal to be fair there must be a genuine redundancy and a fair process is also required which has a number of elements.[89]We have found that the needs of the business for work of a particular kind had diminished as a result of external forces and a restructuring of its needs as of June 2020. There was a genuine redundancy situation. There was a fair reason for dismissal.[90]The method of selection must be fair in general terms and reasonably applied. Historic performance issues can be recalled. We have found that the respondent used clear and objective criteria which it had discussed and agreed in the collective consultation process. It applied those criteria to an appropriate pool and the claimant accepts that he was put in the correct pool for selection. The respondent obtained the opinion of two individuals who had worked with the claimant who completed the scoring in good faith and objectively. The method of selection was therefore a fair one.[91]Employees must be warned and consulted at a sufficiently formative stage. Here we have found this was the case. We have found that the claimant was advised of the possibility of redundancy on 18 June and a process of collective and individual consultation took place before a decision was made. Efforts were made to provide translation and the claimant was able to take part and to make his views known and these were considered before decisions were made.[92]The respondent has an obligation to seek alternative employment. It should not make assumptions as to what staff will not accept but should fully offer up all vacancies. The respondent did this in this case. The claimant chose not to engage.[93]We conclude that the respondent followed a fair and reasonable process and acted within the reasonable range of responses throughout.[94]For the reasons given above the complaints of wrongful dismissal, unfair dismissal and age discrimination do not succeed. .