Mrs V Jones v MAN Energy Solutions UK Ltd: 2408652/2022

EMPLOYMENT TRIBUNALS

Case No 2408652/2022

Between

Mrs V JonesClaimant

MAN Energy Solutions UK LimitedRespondent

Before

Employment Judge Barker

In person for claimant

Mr Gorasia (instructed by counsel) for respondent

Date 19 December 2024

JUDGMENT

[1]The claims of protected disclosure detriment are struck out under rule 37 of the Employment Tribunal Rules of Procedure 2013. The claimant had no reasonable prospect of establishing at a final hearing either that her claims for detriments were brought within the primary time limit, or that it was not reasonably practicable for her to have done so. The claimant’s remaining claims are unaffected by this judgment. JUDGMENT

[2]The judgment of the Tribunal is that:(1) The complaint of unfair dismissal is not well founded which means that the complaint is unsuccessful.

(2) The complaint of breach of contract is not well founded which means that the complaint is unsuccessful.

(3) The complaint of unpaid holiday entitlement is not well founded which means that the complaint is unsuccessful.

(4) The complaint of direct discrimination on grounds of age contrary to section 13 Equality Act 2010 is not well founded which means that the complaint is unsuccessful.

(5) The complaint of harassment relating to age contrary to section 26 Equality Act 2010 is not well founded which means that the complaint is unsuccessful.

REASONS

[1]These proceedings arose from the claimant's employment as a Team Leader with the respondent company from the 23 March 2011 until the 5 August 2022 when she was dismissed. The claimant believed that the asserted reason of redundancy was a sham and that the real reason for her dismissal was because she had previously made protected disclosures or alternatively because the employer simply wanted to get rid of her.

[2]She presented her claim to the Tribunal on the 30 October 2022 following a period of early conciliation from the 5 August until the 16 September 2022. She presented complaints of unfair dismissal, whistle blowing detriments and dismissal, redundancy payment, breach of contract and holiday pay. Age discrimination was not expressly identified as a complaint within the claim form.

[3]The respondent presented a response resisting the claim on the 6 December 2022 and argued that the claimant had been fairly dismissed by reason of her redundancy. They disputed that she was dismissed for making a protected disclosure and in general terms resisted the claim.

[4]There was a great deal of case management in these proceedings. The case was initially case managed by REJ Franey on the 9 March 2023, the 4 September 2023 and 10 October 2023. During this case management process, he dismissed the complaint of redundancy payment becaused the claimant had withdrawn that complaint.

[5]The respondents took a pragmatic approach and accepted that the 5 asserted protected disclosures for economic reasons but disputed the alleged detriments and dismissal ((p98) and (p 102)).

[6]As part of the significant case management in these proceedings, on 29 August 2024, Judge Barker determined at a preliminary hearing, that the complaint of detriments arising from the making of a protected disclosure should be struck out under Rule 37. This was because the alleged detriments occurred more than three months before the 5 August 2022 (when Acas were notified of her claim), it being considered that it was reasonably practicable for the claimant to have been presented this complaint within the normal period under section 48 Employment Rights Act 1996.

[7]In recent months there has been extensive correspondence between the parties and the Tribunal regarding the completion of case management orders, and particularly the provision of documentary evidence from the claimant relating to her new employer. The claimant had some anxiety about disclosing the details of her new employer and Judge Barker ordered that the claimant should still be able to provide the necessary disclosure having redacted these details. It was essential that these documents be disclosed becaused the claimant was seeking to argue that the respondent had been trying to persuade the new employer not to employ the claimant following her dismissal. This serious allegation needed to be supported by evidence.

[8]I was informed that I had been allocated to hear this case the on Friday 6 December 2024. I was concerned that issues remained unresolved regarding the exchange of witness evidence and the provision of the documents by the claimant. She had previously been ordered to do so by Judge Barker, Judge Slater and Judge Benson. Accordingly, I warned the parties on 6 December 2024 that there was a duty to cooperate and that they should ensure that the case was ready for the final hearing.

[9]I also explained that I expected to be able to hear the evidence, closing arguments and deliver an oral judgement given the generous listing of 9 days for this final hearing. I was concerned that any delay having to deal with preliminary matters on day one or even on subsequent days could prejudice the full consideration by me of the case within the time available.

[10]I also warned the claimant that she was required to ensure that all documents relevant to her case were disclosed without delay so that the respondent was able to consider this evidence and prepare its arguments for the final hearing. Further, I warned the claimant that if it transpired from discussions on day one of the final hearing that failures on her part had prejudiced the respondent’s ability to defend the case, I would need to consider sanctions depending upon the nature of the default that had arisen. Preliminary matters on day 1 of the hearing

[11]Fortunately, the parties were largely ready to begin the hearing on day one. There were several preliminary matters that I had to resolve. These included the following: a) The question of the claimant’s updated original witness statement served out of time on the 5 December 2024; and, b) The claimant’s allegation that the respondent had delayed exchanging their witness evidence regarding the meeting in July 2021 on 4 December 2024. c) The provision by the claimant of the outstanding pay information relating to her new employer.

[12]In order that the respondent could see the claimant’s revised statement and consider their position, I agreed that the claimant provide a copy of the tracked changes for her revised statement and which the respondent had previously asked for. Once they had had an opportunity to look at this document, I was provided with a copy during day two of the hearing. I read the updated statement before day three of the hearing began and midway through the claimant giving her evidence.

[13]However, I agreed that the claimant was effectively seeking to add new evidence to her claim and that the tracked changes within this document were extensive. On occasion there were moments when she was simply clarifying or correcting sections of her original statement but even taking this into account, there were still sentences being included which in effect amounted to the addition of new evidence. This document was provided outside the time allowed for the provision of witness evidence by the case management orders. I noted from my reading of both the substantive and procedural papers before me, that the claimant had a history of providing a stream of documents which could become disorientating.

[14]It was essential that there was certainty and finality with the witness evidence that would be heard at the final hearing. Balancing the prejudice to the respondent against any prejudice to the claimant I noted that she had ample opportunity to provide a lengthy and detailed witness statement. This involved both the bulk of the substantive issues in this case and also in relation to the supplemental statement involving the alleged protective meeting in July 2021. I therefore refused permission for this statement to replace the existing witness evidence provided by the claimant.

[15]I also considered the question of the claimant’s allegation that the respondent delayed delivering their supplemental witness evidence on 4 December 2024 following receipt of the claimant’s statement at around 5pm. The claimant believed that the delay amounted to 20 or so minutes, that it was deliberate and that it allowed the respondent to her statement so that they could update theirs before exchanging their statements with her.

[16]Mr. Jones, who is the instructing solicitor for the respondent in this case, provided me with a copy of the respondent’s e-mail ‘trail’ concerning this matter on the 4 December 2024. I was satisfied that the respondent received the claimant’s statement and sent to her by way of exchange, the respondent’s witness statements within a matter of minutes. It was not the case that the respondent’s document was sent 20 minutes after receiving the claimant and there was simply insufficient time for any amendment to take place.

[17]I was satisfied that there was no evidence that a professionally represented party would have been involved in such activities and the error arose from the claimant’s laptop providing a date and time stamp for the respondent’s email forwarding the statement of 4 December 2024 and 5:20. This was incorrect and did not reflect the brief period involved.

[18]I also noted that the claimant had provided all the relevant additional pay documentation which had previously been requested by the respondent which avoided prolonged discussions on day one of the hearing. Timetabling and Tribunal composition

[19]I discussed the question of timetabling and the question of the list of issues. A particular matter which arose on day one was the identification of a small number of age discrimination and harassment allegations which had not been available on the Tribunal electronic files, but which had remained an issue in this case.

[20]I explained to the parties that I had decided to dismiss the panel on the Friday before the hearing began because the remaining jurisdictions in this case recorded on the Tribunal’s file suggested they could be heard by a Judge sitting alone. I explained that until recently this oversight might have been a problem for the Tribunal and would have required my locating two panel members at short notice. However, I explained to the parties that recent rule changes did allow Tribunal Judges to sit alone in jurisdictions which previously required a panel, providing they were satisfied that a panel would add no further value to the case.

[21]I acknowledged that: a) the case had originally been listed with a full panel under the old Rules; and, b) that the panel had been released at short notice based upon the information before me immediately before the final hearing took place. I observed that I could recall the panel, but this action would inevitably cause delay. I was concerned that we had sufficient time to hear the entirety of the evidence in arguments and to deliver an oral judgement.

[22]I added that on the face of it, the discrimination allegations were not the core issues in this case. However, I wanted to hear the party's views before I reached a conclusive decision. Mr Gorasia on behalf of the respondent confirmed that they would have no issue with a Judge sitting alone and they believed this was a case where a panel would not be required. The claimant as a litigant in person was understandably unfamiliar with the rules concerning panel composition, although she confirmed that she had expected to see a full panel at the hearing of day one.

[23]I asked whether she had any issues with the way which I had dealt with the hearing so far and whether she felt it would be beneficial for a full panel to sit on this case. She raised no objections. On balance, I decided that considering the limited allegations of discrimination and the focus upon which this case rested (namely unfair dismissal), no value would be served by having a panel sitting in this case. It was more important to begin the hearing so that we could use the time available to conclude this case within the listing provided.

Issues

[24]The issues which the Tribunal has been asked to consider are much revised following the lengthy case management process. Remaining were the following: Protected disclosures – Part IV Employment Rights Act 1996 (‘ERA’) (section 43B)

[25]These were all conceded by the respondent ‘on commercial grounds’ in their letter to the Tribunal on 7 November 2023. In summary, they comprise of: a) PD1: Goods sold unpriced and at a loss. The claimant relies upon a disclosure on the 19 July 2021 which took place verbally and was communicated to her manager mark Melia. She further relies on a disclosure on 26 July 2021 by e-mail to Andrea Haughton from her solicitor. She also relies upon a further disclosure in writing to the respondent’s parent company on 21 August 2021. Finally, she made a disclosure on 4 September 2021 to the respondent’s parent company via MS Teams. b) PD2: Prices quoted without approval. The claimant relies upon a verbal and written disclosure to Matthew Hinton and Laurence Grace. She also relies upon her grievance of 4 September 2021 and her redundancy consultation meetings between March 2022 and August 2022 and in a compliance investigation meeting on 1 June 2022. c) PD3: Quoting incompatible engine parts. The claimant says this was disclosed verbally and in writing in July and August 2021 and then in her grievance of 4 September 2021. A further disclosure took place in redundancy consultation meetings between March 2022 and August 2022 and in a compliance investigation meeting on 1 June 2022. d) PD 4: One price list. On various states between March 2021 and June 2022 verbally and in writing by e-mail and Teams message to Mark Melia, Matthew Hinton and Steve Whitaker and in her grievance on 4 September 2021, in redundancy consultation meetings between March 2022 and August 2022 and in a compliance investigation meeting on one June 2022. e) PD5: Shipping goods without documentation. On various dates between January 2021 and 1 June 2022 and on 27 April 2022 verbally and in writing by e-mail and by Teams message to Mark Melia, Matthew Hinton and others and in a compliance investigation meeting on 1June 2022

[26]What was the reason or principal reason for the dismissal off the claimant? a) One or more protected disclosures, rendering dismissal automatically unfair under section 103A ERA? b) A potentially fair reason, being a reason relating to redundancy or some other substantial reason in the form of a business reorganisation in which case the question of fairness arises under section 98(4)?

[27]If the respondent shows a potentially fair reason, was the dismissal for that reason fair or unfair applying the general test of fairness under section 98(4) taking into account the respondent’s size and administrative resource is and having regard to equity and the substantial merits of the case? Harassment related to age and age discrimination sections 26 and 13 Equality Act 2010 (EQA) Harassment related to age section 26 EQA 2010

[28]Was the claimant: a) Asked by Mark Melia during the period January 2021 to July 2021 when she was planning to retire and/or move to France and/or why she didn't retire and move back to France? b) The subject of comments which Fiona Miller told the claimant had been made by Mark Melia to Laurence Grace behind the claimants back during the period December 2022 to Spring 2021 to the effect that she “needed to move on with the times”.

[29]Were the comments made, unwanted conduct related to the claimants age?

[30]If so, did those comments have the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant under section 26(1) EQA, (if that was not their purpose), section 26(4)? Direct age discrimination section 13 EQA 2010

[31]what's the claimant passed over between 19 July 2021 and 15 October 2021 in respect of a sales manager role due to her age? The claimant has identified Yi Ling Wan as a comparator who claimant alleges was promoted in preference to the claimant due to her age.

[32]Did the claimant’s treatment by the respondent (if it occurred as alleged), amount to less favourable treatment of the claimant than healing one and if so, was the claimant's age a material influence on that conduct? Equality Act 2010-time limits: section 123 EQA 2010

[33]In so far as any of the matters for which the claimant seeks a remedy under the Equality Act 2010 occurred before 6 May 2022 (3 months prior to the presentation of the claim allowing for the effect of early conciliation), can they claim and show: a) that it formed part of conduct extending over a period ending less than three months before presentation; or, b) it would be just and equitable to extend the time limit for the presentation of the claim. Breach of contract- notice pay

[34]Was the claimant entitled to additional notice of termination? The claimant contends she was entitled to three months’ notice as per her contract at termination and as agreed with Andrea Horton in August 2021. The respondent gave notice with effect from 25 May 2022 and the claimant's last day of employment was 5 August 2022 (10 weeks and three days), which the respondent contends is consistent with the claimant’s contractual entitlement. Unauthorised deductions- holiday pay

[35]Did the respondent make an authorised deduction from the claimant’s pay by paying less than the amount properly payable in respect of accrued but untaken holiday pay on termination? The claimant estimates (subject to seeing the relevant records close) having been paid for five days she still had three or four days accrued but untaken.

Remedy

[36]To be determined following judgement on liability but which will include calculation of losses consistent with a claim for unfair dismissal including a basic award and compensatory award. If the claimant was found to have been dismissed for the principal reason of making a protected disclosure this would also include an award for injury to feelings.

[37]If there was a procedurally unfair dismissal consideration would be given to limiting the length of time it would have taken for the correct procedure to be followed in order that a fair dismissal of the claimant could take place or alternatively the chance that the claimant would have been fairly dismissed in any event had a different procedure being followed. Consideration will also be given to the question of whether the claimant would have been dismissed within a certain time period in any event if she was found to have been substantively unfairly dismissed. Consideration will also be given to mitigation and whether it was appropriate to make an award of aggravated damages in relation to any injury to feelings award should the claimant succeed with her complaint of discrimination. Interest in this case will also be considered. Evidence used

[38]The claimant provided a witness statement which contained her evidence dealing with the substance of her claim.

[39]She also provided a second supplemental witness statement which dealt with the meeting which took place on the 21 July 2021.

[40]She also produced a further witness statement and disclosed it on the 5th of December 2024 following the date for disclosure of supplemental witness evidence. She argued that this was simply a re formatting of her earlier witness statement but given its late disclosure and its slightly greater length than the original statement, I ordered that a copy of the Word document used for the statement be disclosed to the respondent in order that they could consider its contents and the extent to which it reflected the original statement and the extent to which it amounted to providing you evidence. In the meantime, I decided to consider the claimant's witness evidence based upon the original statement and the supplemental statement only.

[41]The claimant also relied upon the witness evidence of her husband Gary Jones and also former colleagues Lawrence Grace and Stephen Ball.

[42]The respondent relied upon the following witnesses: a) Andrea Haughton (Head of Human Resources) (interposed on Day 3 after the claimant gave evidence and whose evidence concluded on Day 4) b) Louise Durose (UK general counsel) (Day 5) c) Fiona Miller (external investigator) (Day 5) d) Mark Melia (claimant’s line manager) (Day 6) e) Paul Todd (grievance decision maker) (Day 6) f) Adrian Maddock (identified redundancies and claimant’s team and pooling) (Day 6) g) Cliff Burrows (was involved in the redundancy scoring) (Day 6) h) Marc Gorvin (was involved in redundancy consultation) (Day 6 and gave evidence remotely due to an attack of Norovirus) i) Steve Lammin (dealt with the claimant’s appeal against redundancy) (Day 6)

[43]There were a significant number of documents and contained within 5 lever arch files, amounting to more than 3000 pages. They consisted of proceedings, contractual documentation, redundancy process documents, grievances and remedy documentation.

[44]The claimant was a French national and French was her first language. A French interpreter Mrs Ebbing had been reserved from day 2 of the hearing until day 4. This was to coincide with the claimant giving her witness evidence and her role was simply to provide assistance during cross examination if the claimant found the case to be too stressful and in the event she felt that some of the technical language being used was more significant than could reasonably expected of a person who did not have English as a first language. As it happened, the claimant was largely able to communicate without the interpreter but from time to time when she was having difficulty answering a particular question, Mrs Ebbing would assist by translating from English into French to make sure that there was a full understanding of the question being raised by Mr Gorasia in his cross examination.

[45]The claimant is unfortunately suffering from cancer and has been receiving chemotherapy treatment. I was concerned that this might have an impact upon her fatigue and indeed there may also be other problems arising from this treatment and her illness, which could impact her ability to participate in the final hearing. I explained that I would make sure that sufficient breaks were available and urged her to let me know if additional breaks were required or we needed to start later or finish earlier or have a longer lunch. The claimant confirmed that fatigue was an issue and that she did need to take quite strong medication which would be taken shortly before the functional hearing began each day. She agreed that she would let me know if any further adjustments were required.

[46]I explained to the claimant both at the beginning and conclusion of Day1 and cautioning her concerning the restrictions placed upon a witness overnight when mid evidence and under oath. Despite this warning, she nonetheless messaged her witness Mr Ball. I discovered that she went beyond those permissible matters concerning his arrangements for attending the hearing, but also referred to the need to give evidence in relation to holiday pay. This was unfortunate and surprising as in many ways the claimant had a good understanding of the Tribunal process. This was another illustration of a failure on her part, to follow Tribunal instructions. Fortunately however, I was satisfied that this communication did not cause prejudice to the respondent,

Findings of fact

[47]The parties should note that the Tribunal’s findings of fact do not seek to deal with every point where the parties disagree, but simply what is relevant to the issues which the Tribunal is being asked to consider. If the discussion of an incident or point does not appear within these findings, it does not mean that it has not been considered by the Tribunal, simply that it is not relevant to the issues and the findings that we are required to make.

[48]In terms of the findings that we make, the Tribunal has reached its decision on what it considers to be on balance of probabilities the most likely way/reason in which an incident arose. The respondent

[49]The respondent (Man) is a large company dealing with the energy production and this also includes the maintenance of diesel engines. It employs many staff in several locations and across several sectors. I understood that it used to manufacture diesel engines but the changing uses of motive power and global moves towards decarbonisation meant that this operation has since ceased. Nonetheless, there remains many engines that require maintenance and servicing and it is understood that this claim relates to Man’s work in this sector.

[50]Man is a large employer and can therefore be expected to have access to significant HR and legal resources and to have developed extensive employment practices and procedures. The claimant

[51]The claimant (Mrs Jones) was employed by Man and worked for the company since 23 March 2011. Mrs Jones became a Team Leader in February 2018, managing the Sales Tendering Team. She worked as a team leader from July 2021 and this comprised of 1 full-time coordinator Rachel Arstall, 1 sales manager Steve Ball and 3 members of staff covering both sides of the business providing quotes for customers in the UK and outside the UK.

[52]I accepted that during the Covid pandemic and shortly before Mrs Jones’ employment ended, Man was experiencing challenging trading conditions. On 7 September 2020, Mark Melia was recruited to work as a Head of Commercial UK which involved him managing Man's sales organisation. This also meant that he became Mrs Jones's line manager.

[53]During his recruitment, Mr Melia had been made aware of the difficulties arising from the decline in business orders since 2018. He confirmed that he understood he was entering a challenging business environment and was informed that there were some challenging ‘characters’ within his team. His ‘starting activities’ which were agreed with Matthew Hinton the Sales Director involved several matters and I accepted that his recruitment involved an expectation that he would have to review the area for which he was responsible with the expectation of proposing changes if he felt that they would improve the business and allow Man to trade on a better basis.

[54]On 19 February 2021 and having been in post for several months, Mr Melia sent an e-mail to his team members which included Mrs. Jones, and which was headed ‘Crisis’. His emphasis was upon employees providing him with details of the activities that they were involved with and how productive they felt they were in terms of the performance, (p254)

[55]The following month on 10 March 2021, Mrs Jones received her appraisal from Mr Melia. This involved a standard template form with performance being marked against particular performance factors. Overall, Mrs. Jones was shown to be performing at a good level. However, improvement was identified as being required in relation to the way in which she communicated. There was also a comment made regarding the need for Mrs. Jones to delegate effectively. A series of targets were identified, and the approval of the appraisal walls signed by Mrs. Jones on the 11 March 2021, (pp261-273). Mr Melia’s decision regarding Tendering Team Leader post

[56]I accepted that Mr Melia had a good working relationship with Man’s managing director at the time to which this case relates, Mr Jan Zebitz Thomsen. Mr. Thomsen was described as having a particular attitude to workplace structures commonly found amongst Danish managers where management structures should be flatter with staff being encouraged to be more autonomous and being able to act independently. However, I also accept that Mr Melia had himself following his involvement with Mrs. Jones, begun to think that the role of Team Leader was becoming redundant and that it acted as a ‘bottleneck’ in terms of the processing of tenders by that team.

[57]I accept that their relationship was not an easy one and that Mr Melia found Mrs. Jones to be a challenging employee to work with. On balance however, he had clearly been appointed to a role where he was expected to improve efficiency and profitability within has team. This meant that he considered the way in which the tendering department worked where Mrs. Jones was a team leader. I was referred to a few documents which considered the improvements which Mr Melia considering during 2020 and 2021. He was concerned about streamlining the tendering department and was concerned about delays in lead times and the time that it was taken for quotations to be provided to potential customers. Man was operating in a very competitive industry, and it was clear that delays in providing quotes could prejudice the prospect of the quotation being converted into an actual sale.

[58]Ms Haughton gave convincing evidence about her discussions with Mr Melia. On 24 June 2021 she met with him to discuss the question of terminating Mrs. Jones employment. I accepted that this involved a combination of personality related issues and his belief that Mrs. Jones was effectively a bottleneck or blocker in relation to the changes he was seeking to achieve within the tendering team. At this point, the working relationship was clearly a significant issue for him, and it was not entirely clear whether ultimately his concern related to the post, the person occupying the post, or a combination of both. Following a meeting with Ms Haughton, she suggested to Mr Melia that he could proceed by having a protected conversation with Mrs Jones. This would involve a settlement agreement being offered to Mrs. Jones with a document being passed to her for consideration. The authority of Mr. Thomsen was required, and Ms Haughton confirmed that she met with him to obtain this permission following her meeting with Mr Melia on 24 June 2021.

[59]Ms Haughton prepared the draft proposal to be put to Mrs Jones on 30 June 2021. This would have taken the form of a settlement agreement document using Man's letterheaded stationery and which would provide for the ending of Mrs Jones’ employment by agreement and including several contractual terms including payments etc’. (pp3780-3796).

[60]On 19 July 2021, Mrs. Jones became aware of actions taken by Mr Melia which she believed amounted to serious misconduct. She said that he had been pushing quotations through the Man IT system without checking them. She believed that this resulted in no margin being allowed for profit on the part of Man, wrong parts being quoted, and wrong prices being given. Concerns were raised by a member of Mrs Jones's team to her, and she tried to notify Mr Melia about what had happened on the same day. This was the beginning of several protected disclosures relating to these concerns and which she referred to on other dates during the remainder of her employment to certain managers.

[61]I will deal with the dismissal elsewhere within these findings of fact. However, critically, I did not accept that those managers involved with the redundancy exercise from March 2022 namely Mr Todd, Mr Maddock, Mr Gorvin, or Mr Lammin were influenced by these disclosures. They were all to some extent aware that Mrs Jones regarded herself as a whistleblower during their interactions with her in 2022. However, I accepted that they were not really aware of the details of each disclosure until they were asked to become witnesses in these proceedings. They gave reliable evidence during the hearing, and based upon the evidence before me, I do not accept on balance that the disclosures played any role in the ultimate dismissal of Mrs Jones on 5 August 2022. The meeting on 21 July 2021

[62]The protected meeting took place on 21 July 2021 and that was some dispute between the witnesses as to what was discussed. I accept it that the meeting initially began with Mr Melia and Mrs. Jones attending together and that Ms Haughton arrived approximately 15 minutes late so that some initial discussions had already taken place. Mrs. Jones was made aware that this meeting was considered a protected conversation although it is not clear to me what was actually said and what explanation was provided before Ms Haughton arrived.

[63]Mr Melia says he initially explained to Mrs. Jones that problems continued to arise in relation to the business targets not being met and quotations were getting worse. He also referred to a ‘blockage’ which he attributed to the sales team leader role which she occupied. He also said that this was impacting upon the working relationship.

[64]Ms Haughton joined the meeting. She recalled that in her experience meetings of this nature were relatively short and involved a brief explanation of what the protected conversation was about the presentation of the proposed settlement agreement within an envelope and then the meeting would finish so that the employee could consider their position. She noted that the conversation did seem to stray into other areas and while she did not believe the meeting to be heated or difficult Mrs. Jones was described as argumentative and at times was critical of Mr Melia. She believed that Mr Melia had been drawn into discussions regarding the working relationships within the Tendering team. This said Ms Haughton did not believe that Mrs. Jones really understood the purpose of the meeting and its content. Ultimately no agreement was reached. She was adamant that no comment was made (as alleged by Mrs Jones), from either Mr Melia or herself that management would look at alternative ways to dismiss her given that an agreement could not be reached.

[65]Mr Melia confirmed that the meeting did become distracted by several management issues and also said he had no recollection of the breach of compliance concerning quotations on his part being raised by Mrs. Jones. He also confirmed that no comments were made to Mrs. Jones stating that her employment will be terminated regardless of whether or not she accepted the proposal.

[66]Mrs. Jones said she was told that her employment was being ended and that Mr Melia had to get rid of her. She also commented that she had raised the issue of the protected disclosure with him.

[67]Having heard the witness evidence from all of the parties attending the meeting I accepted that it did not go according to plan in the way envisaged by Ms Haughton (who I believe gave the most credible recollection of the majority of the meeting she attended). If anything, I concluded that what was most notable amount the meeting was that it illustrated the difficulties existing between Mr Melia and Mrs. Jones.

[68]On balance however, I was not persuaded that this was a meeting where Mrs. Jones was told that her employment would be ended one way or the other. However, I also do not accept that the question of protected disclosures in relation to the compliance failures regarding Mr Melia and quotations were raised at this meeting by Mrs. Jones. It was an emotional meeting and ultimately it descended into an expression of frustrations between Mr Melia and Mrs Jones, with the purpose of the meeting being ultimately lost.

[69]By this time, I concluded that the personalities involved were an issue and that Mr Melia and Mrs. Jones did not work well together. I also accept that the viability of the actual team leader role was becoming an issue although this was complicated by the working relationship difficulties that existed. Importantly however, this meeting did not result in a decision to dismiss Mrs. Jones.

[70]Mrs Jones’ evidence during the hearing was less credible that that given by Ms Haughton. Mr Melia’s evidence was at times affected by his poor recollection of some of the events where he was required to give evidence. But in relation to this meeting, I accepted that his evidence on balance was more credible than that of Mrs. Jones.

[71]In conclusion I felt that this meeting arose from Mr Melia’s belief that Mrs. Jones was difficult to work with and this meant that he was unable to implement the changes he required within the quotation team. This was a matter which was being considered for a month of more prior to the meeting taking place on the 21 July 2021. Considering that the alleged protected disclosures did not take place until the 19 July 2021 at the earliest, I was not convinced that this played a role in the decision made by Mr Melia that Mrs. Jones should be offered a settlement agreement to leave Man's employment. At risk letter 26 August 2021

[72]On the 25 August 2021 (p314), Mr Melia made a proposal to Mr. Thompson, the finance director Mr Whittaker and Ms Haughton in a confidential e-mail which amongst other things explained he had a concern that the team leader role could not be justified on business terms, (p316).

[73]There were emails from the managing director and the finance director giving their approval to the removal of the team leader post and the wider proposals that had been made by Mr Melia, (p317 and p313). This was not a case of Mr Melia acting alone but acting with the approval of senior managers I accepted that a culture existed within Man and led by Mr. Thomsen which encouraged the removal of layers of management and that there may have been good reasons for deleting this post. However, the actual proposal in this instance was made by Mr Melia whose opinions were clearly tainted by the poor working relationship that existed between Mrs. Jones and him. While this might be the case, the available evidence demonstrated that the deletion of the post was perceived as a genuine business reason from the point of view of senior management. Additionally, there was no evidence which on balance persuaded me that this decision to place Mrs. Jones at risk was in any way motivated by the protected disclosures that she may have made.

[74]The actual at-risk letter was sent by Mr Melia to Mrs. Jones on 26 August 2021. Ms Haughton confirmed that she assisted Mr Melia in drafting the letter, (pp322-3). The letter explained the ongoing efficiencies and streamlining that was taken place and made clear that it was the team leader role in the UK and Man sales support role which was no longer required, and this was the post which was occupied by Mrs. Jones. This was described as a proposal rather than a final decision and Mrs. Jones was informed that she was being placed at risk of redundancy. The letter also made clear that while redundancy might be a possible outcome, further discussion would take place before any decision was made concerning the post being made redundant. Grievance

[75]A few days later 3 September 2021, Mrs. Jones submitted a grievance concerning the notice that her role was being placed at risk, (pp566-570).

[76]The grievance letter was titled ‘grievance against Mr Mark Melia’ and made reference to his general behaviour and then moved on to specific events including the way he managed meetings that he had employed staff without informing her that he would ridicule her in the workplace. There were many allegations and what followed was a lengthy process with Ms DuRose being appointed as the investigating officer. She carried out an initial grievance meeting with Mrs. Jones and then preceded to interview a number of relevant witnesses including Mr Melia and Ms Haughton.

[77]The outcome of the grievance process was sent to Mrs. Jones on the 26 November 2021, and it was accompanied by a grievance decision making matrix in table form which identified the allegations, the evidence in support, the evidence against, whether the decision was upheld or rejected and the reasoning for the decision being reached, (p983 and pp991-1003). The allegations were largely rejected but there was recognition that Mr Melia had not supported Mrs Jones in her role and in relation to workload matters and that problems had arisen concerning support with requests for leave and holiday entitlement.

[78]Mrs Jones decided to appeal the grievance (pp 1101-1104 and pp1109-1119). Paul Todd was appointed to deal with the grievance appeal and on 17 January 2022 informed Mrs. Jones that he felt it was appropriate for a new investigation to take place, (p1370). He appointed Fiona Miller to undertake the investigation who was an external legal professional and not connected with Man.

[79]The relevance of the grievance (insofar as this case was concerned) however, was that it effectively stopped the proposed redundancy process arising from Mr Melia’s at risk letter from progressing any further. The grievance was dealt with during the remainder of 2021. On 16 December 2021, Mr Melia changed roles with Mr Maddock and Mr Todd taking responsibility for Mrs Jones' department. This was communicated to her by Mr Todd on the same date and it was confirmed that these changes would take place from the from January 2022, (pp1352-3). Consequently, Mr Melia ceased to have any involvement in decisions that were made regarding Mrs Jones ongoing employment with Man and I find that he was not involved in the ultimate decision to dismiss her.

[80]I found the Ms Miller gave credible and reliable evidence. Mr Todd formally instructed her to investigate the appeal to Mrs Jones's grievance by letter dated 28 January 2022. He asked that she re-investigate the grievance, interview Miss Jones and any other relevant witnesses, consider relevant evidence and prepare a report with her findings. She was reminded that she was expected to carry out a ‘robust investigation’ and that it should be conducted impartially, (pp1399-1400). During January and February, she met with Mrs. Jones, Mr Melia, Ms Haughton and other relevant witnesses and produced a report on 17 March 2022, (pp2199 – 2228).

[81]Mr Todd then wrote to Mrs. Jones on 18 March 2022 inviting her to a meeting to discuss Ms Miller's report and his decision regarding the grievance appeal. This meeting took place on 29 March 2022 and the conclusion was that all 20 points raised by Mrs Jones in the grievance would not be upheld, (pp2322- 2335). The review of the tendering department

[82]In the meantime, the new managers Mr Todd and Mr Maddock were asked to consider the streamlining of the quotation processes and to look at efficiency improvements that could be achieved. Adrian Maddock was appointed as the general manager supply chain and logistics which meant that he had responsibility for the sales order fulfilment team. Paul Todd had responsibility for the sales manager team. The sales support tendering team would now report directly to Mr Todd. Both managers wanted to revisit the structures within the department, and this included the introduction of one or two sales coordinator roles and with the team leader role which Mrs. Jones occupied being removed. In her letter sent on March 2022, they explained these issues to Mrs Jones. She was told that, if possible, Man would look at avoiding termination of her employment, with the possibility that she instead be offered a sales coordinator role as an alternative vacancy. She was also informed that if she was not interested in the sales coordinator roles it may be necessary to recruit temporary employees given the urgent nature of the measures being considered. The letter also warned Mrs. Jones that she was at risk, but that consultation would take place and Mr Gorvin would be responsible for this activity. She was reminded that she could be accompanied, and she was invited to give some thought to potential areas of Man where she would like to work, (pp1901-4).

[83]Then followed a series of redundancy consultation meetings which which took place on for April 2022, 8 April 2022, 12 April 2022, 21 April 2022, 29 April 2022, and 18 May 2022. These meetings took place with Mr Gorvin and letters summarising the consultation process were sent to Mrs. Jones as this process progressed.

[84]I accept that the consultation process was lengthy and detailed. Mrs. Jones was allowed to question the rationale for the redundancy situation and consider the question of why her role was being identified as being at risk.

[85]On 25 May 2022, Mr Gorvin gave notice to terminate Mrs. Jones employment by reason of redundancy after what was an extensive consultation process. His letter explained in detail why Mrs Jones's role as team leader was no longer required in the business and he referred to the matters discussed during the consultation process. Mr Gorvin (as I have already explained), was not aware of the protected disclosures which had been relied upon by Mrs. Jones even though he knew she believed she was a whistleblower. On balance however, I accepted his evidence that the decision to dismiss related solely to the determination that the team leader role was no longer required and, the need for that job had ceased. (pp2857-2861).

[86]Mrs. Jones questioned whether the proposed exercise should include the pooling of other team leaders and in particular, she compared herself with Michelle Mears who was a team leader in the sales order fulfilment team. Mrs Jones argued that Ms Mears and she should form part of the same pool. This resulted in a ‘dummy’ comparative scoring exercise being undertaken by both Adrian Maddock and Cliff Burrows on the 13 April 2022 and 14 April 2022 respectively to test this proposal. Ultimately, I accepted that while Mrs. Jones and Ms Mair were both team leaders, they were performing fundamentally different roles with different responsibilities. Both Mr Maddock and Mr Burrows gave credible evidence in this regard and I find that they approached the comparison exercise in a genuine way. The need to delete a post had involved Mrs Jones' department and a similar need had not been identified in relation to Ms Mair’s role and which involved a different part of the sales process and was not involved with quotations. Nonetheless, Man was willing to explore the possibility that some relationship existed in relation to the process and Man did everything reasonable to deal with Mrs Jones’ concerns. In conclusion however, they were able to reasonably conclude that this was a process where a pool of one employee was appropriate.

[87]I noted that in relation to the question of pooling, Mr Gorvin in his letter of the 25 May 2022 did express concern about the way in which Mrs. Jones had engaged with this issue and he described her approach to the matter as being ‘slippery’. His opinion was that while lists of comparable roles were discussed there was an unwillingness by Mrs Jones’ to commit to identifying those roles which she thought should fall within a wider pool and instead argued that she would need job descriptions.

[88]Mr Gorvin provided a detailed explanation concerning why he did not feel that there were other roles that should form part of the at risk process as they could not be considered interchangeable with Mrs Jones’ at risk role. Indeed, he was unhappy that she had caused disproportionate time and resources to be involved in dealing with this matter. I found Mr Gorvin’s evidence to be credible in relation to this matter and I believe that he adopted a patient approach to the consultation. Understandably however, he became frustrated with some of the avenues that he was expected to explore and requested by Mrs Jones.

[89]There was also the question of the extent to which alternative employment was made available and explored with Mrs Jones. She focused upon a failure to offer her alternative employment for the technical administrator post which was given to Claire Robson and who was the only candidate who applied for the role when it was advertised in February 2022. While Mrs. Jones had initially been placed at risk of redundancy by Mr Melia because of the at risk letter which he sent on 26 August 2021, the grievance which she subsequently raised meant that this process was placed on hold while the grievance process was determined. This was understandable given that the outcome of the grievance could have been to rescind the at risk process. This was because the grievance had been brought was against Mr Melia and it was Mr Melia who had initially decided to send the at risk letter in August 2021.

[90]It was not until the letter dated 25 May 2022 was sent by Mr Gorvin to Mrs Jones confirming that the position of team leader would be made redundant and that her employment would be terminated, that the need to explore alternative jobs required consideration. It was from this date that Man was now under this duty and to avoid (insofar as it was possible), making Mrs. Jones redundant.

[91]By May 2022, however, Ms Robson was now occupying the technical administrator role and it was no longer vacant as a potential suitable alternative vacancy.

[92]Hypothetically, had the role remained vacant, there was a further issue that arose from the technical administrator role requiring a good working relationship with the shipping manager Ian Cartwright. While the job was no longer available when the duty to offer suitable alternative vacancies arose, Mr Burrows nonetheless carried out a comparative scoring exercise and provided details of the matrix and scores reached with Ms Robson having higher scores than Mrs Jones. I accepted that while this exercise involved a role that was no longer available for consideration, Mr Burrows did his best to consider ongoing concerns and challenges that Mrs Jones continued to raise with him. Redundancy appeal

[93]Having been given notice of termination of her employment by Mr Gorvin on 25 May 2022, Mrs Jones decided to commence an appeal against the decision to make her redundant as this was offered in Mr Gorvin’s letter. This was a lengthy document and questioned whether a redundancy situation existed, argued that there were flaws in the process and redundancy criteria used, that that should have been pooling with Ms Mair’s job and alternative jobs should have been offered. Mrs Jones also disputed that redundancy would make financial sense, that there was a need for proper consultation, and she also made reference to the decision being motivated by her earlier whistle blowing. She also queried why she was being made redundant when two other employees including Yee Ling Wan had been offered permanent jobs, (pp2928-2939).

[94]Mr Lammin was appointed to deal with the redundancy appeal and a meeting took place on 29 June 2022. During July and early August Mr Lammin then carried out an investigation with his decision being confirmed on the 5 August 2022, (pp 3369-3370). This was a simple letter confirming that the appeal was rejected with full detailed reasons being provided a few days later on 12 August 2022 (pp3390- 3407).

[95]Of note was the conclusion that Mr Lammin was unable to conclude the decision to make Mrs Jones redundant was prompted or connected with the whistle blowing allegations. He was satisfied that Mr Melia played no role in the redundancy process which led to Mrs Jones being dismissed given that Mr Maddock and Mr Todd hard taken over management from the beginning of 2022.

[96]Mr Lammin observed that there was an unwillingness on the part of Mrs. Jones to acknowledge that Man as the company and employer could decide how it structured its business and how resources should be utilised. Restructures are something that are necessary and inevitably will take place from time to time. While the aim of this restructure was not to remove individuals from their business that would of course involve changes in the workforce.

[97]He added that since the restructure had taken place there had been a marked improvement in the order intake and revenue figures for the part of the business where Mrs Jones had worked. He thought that the team leader role was a standalone role and was not one that could be compared with Mrs mass rubble. He saw no reason to revisit the pooling issue and felt that the dummy exercises in comparative scoring where reasonable, demonstrated that the roles were different, and that pooling was not suitable. He did acknowledge that Ms Robson had been offered the technical administration role before the consultation process had begun in March 2022 but also confirmed that based upon his investigations it was unlikely that Mrs Jones would have been appointed to that role.

[98]Mr Gorvin was the manager who ultimately made the decision to dismiss and not Mr Melia. There was no convincing evidence before me that Mr Melia played any role in the at risk and consultation process that took place during 2022. Age discrimination allegations Direct age discrimination (section 13 EQA)

[99]Mrs Jones believed that between 19 July 2021 and 15 October 2021 she had been passed over in respect of a sales manager role and that this related to her being aged 48 years or more and that Ms Yee Ling Wan who was a much younger employee under 30 years of age at the time, was promoted to this role by Mr Melia.

[100]Ms Haughton gave credible and reliable evidence regarding Ms Wan’s employment. This involved her being appointed to the sales manager role in February 2023 and she confirmed that Mr Melia played no role in this exercise. The workflow notification document (p3453) confirmed this process began on 10 November 2022 and concluded on 13 February 2023 with an email instructing Ms Haughton (as part of HR), to start the recruitment exercise for this role. Mr Melia’s name did not feature amongst the many employees involved in the process and I accepted that he played no role or exercised any influence over Ms Wan’s recruitment. This was supported by Ms Haughton and by this time, Mrs Jones had left Man’s employment and Mr Melia had been deployed away from his original role since the beginning of 2022. Mr Todd was responsible for the employment of Ms Wan as sales manager as he was head of sales at this time. Prior to this date, Ms Wan was a temporary worker from 19 July 2021 and remained as a temporary worker until February 2023, which was confirmed by Lawrence Grace who was called Mrs Jones in support of the claimant’s case.

[101]While Ms Wan did take over some tasks which Mr Grace had been carrying out prior to his leaving the employment of Man, her employment status remained temporary. It is true that Ms Wan had described her employment history with Man somewhat generously in her LinkedIn profile. However, this was a matter for her and was something which Man had no control over. Mrs Jones argued that the LinkedIn profile should serve as evidence that Ms Wan's role was more significant than that asserted by Man in this case. However, on balance I do not agree with this submission and conclude that Ms Wan’s role of sales manager did not begin until 2023. I note that the offer letter regarding this role was sent to her on 7 February 2023 (pp3442- 3443). Age-related harassment (section 26 EQA).

[102]Two matters of age-related harassment were asserted by Mrs Jones. The first related to comments which she attributed to Mr Melia during January 2021 to July 2021, concerning when she was planning to retire and/or move to France. The second allegation is that Mr Melia had commented to Mr Grace that Mrs. Jones ‘she needed to move on with the times’. Mrs Jones said she was informed of this comment by Ms Miller.

[103]Mr Melia denied making the remarks as alleged by Mrs Jones. Indeed, the remarks as alleged were vague and I concluded involved general and mutual discussions regarding retirement. Mrs Jones’ witnesses were unable to provide any evidence supporting this allegation which was surprising given that some of the comments allegedly happened in an open plan office. I preferred Mr Melia’s recollection which related to discussions with Mrs Jones. This involved him discovering that she was from France. Mr Melia described having a great affection for that country having an apartment in the South of France and was looking forward to spending more time there in the future. Any conversations which did take place were on balance considered by me to be innocuous.

[104]Mrs. Jones did not raise any issues over these comments in her grievance which was begun on the 2 September 2021. At this point the only age discrimination allegation related to the provision of her mobile phone, (pp566-570 and p567). On balance I agree that had they been a matter of concern for her she would have raised them when bringing this grievance. She argued that she did raise this matter in the grievance appeal, but this is not supported by the detailed grounds that she provided, (pp1417 to 1453). There is a section referring allegations of age discrimination (pp 1437 to 1439). However, they do not relate to the issues under consideration in this hearing. Had the allegations occurred and had caused Mrs Jones genuine upset, there is no doubt that they would have been included by her when she prepared this document.

[105]Ms Miller gave credible evidence that Mrs Jones did not raise allegations of harassment while she was employed by Man. Ms Durose also confirmed that she did not recall Mrs. Jones raising any allegations of harassment with her at the long meeting which took place on 29 September 2021 when she was seeking to clarify the key points of her grievance. Mrs Jones accepted during cross examination that Mr Melia's alleged comments did not cause her particular trouble at the time which is why she did not raise a complaint. However, if so, this would suggest that the effect of the comments was minimal, and this was a minor or trivial matter. Ms Miller's handwritten notes do not support the allegation that is made nor do the typed notes.

[106]In terms of the second allegation, it was difficult to understand the specific comments that had been identified by Mrs. Jones and which she believed had been said behind her back. Unfortunately, she was unable to give credible evidence as to the details of what was said and how it was received. Mr Melia gave evidence concerning the alleged comment that Mrs Jones should ‘needed to move with the times’. His recollection was that he may have said something like that, but that it would have been in the context of cultural change and not relating to her age. He denied making comments of this nature behind Mrs Jones’ back and suggested that the sort of things he would have said were ‘get with the programme’ or ‘moving on with the times’. On balance Mr Melia and Ms Miller's evidence must be preferred. Ms Miller was a particularly credible witness, she was independent and unconnected with Man. Her notes record words being remembered by Mr Grace similar to those suggested by Mr Melia. Mr Grace did not believe he heard anything that could amount to bullying. Mrs Jones was unabale to give a credible explanation during her evidence concerning what was said and how it was said. Notice Pay

[107]Although there was some discussion during her evidence concerning possible contractual variations, Mrs Jones eventually accepted that she only ever signed one contract of employment on 31 October 2011 when she began working for Man. This was the only contract of employment that she had signed, and which was available within the hearing bundle produced in these proceedings, (pp131-139).

[108]The notice provisions where Man as employer terminates the contract. of employment are found under Clause 11, (p133). When read with the letter offering Mrs Jones her job with Man on 28 October 2011, the 1 month notice by either party in the offer letter (p129), is revised. Clause 11 of the contract of employment signed by both parties provides that following 4 years’ service, the notice which must be given by an employer increases thereafter each year to a maximum of 12 weeks.

[109]Clause 12 provides for situations where the employee is terminating their employment and a 1 month notice period is given for ordinary employees and a 3 month notice period for ‘Senior Employee/Management’.

[110]Mrs Jones argued that there were discussions with Ms Haughton and others in HR concerning her belief that she is entitled to 3 months’ notice under her contract of employment, (comment letter dated 25 May 2022 at p2898 and email to Ms Haughton on 30 May 2022, p2916). Indeed, in an email sent to Man on 6 June 2022, she referenced Clause 12 of her contract, which of course deals with the situation where an employee gives notice to the employer, (p2960). This case, however, involves a case where an employer (Man), gives notice to an employee (Mrs Jones) and this means that the terms of Clause 11 in the contract signed by her on 31 October 2011 applies.

[111]Man had informed Mrs Jones on several occasions that she was mistaken in her understanding of notice periods in her contract of employment, (Ms Haughton’s email dated 7 June 2022 at p2982 and appeal outcome letter dated 12 August 2022 at p3404). Indeed, this case involved extensive cross examination of Mrs Jones and she remained of the belief that she was entitled to 3 months’ notice. However, I was able to conclude that Clause 11 applied and as she had worked more than 4 years but had 10 completed years of service at the date her employment ended on 5 August 2022, she was entitled to 10 weeks’ notice pay. Holiday pay

[112]Mrs Jones maintained that she was entitled to be paid for 1.5 days outstanding holiday pay arising from her termination of employment. I noted that this complaint arose from the Man leave year of January to December 2020 and there was no dispute that this was the relevant reference period for each leave year. This was confirmed by the contract of employment and that no untaken holiday pay could be carried over into the next year unless employer and employee agreed, (p132).

[113]However, the general practice which applied at Man was that as employees could not always take their annual leave entitlement in full before the leave year ended, they would be permitted to carry over 5 days with these being taken as leave by the end of the first quarter of the subsequent leave year on 31 March. This happened with 2020’s remaining days and these were carried over into 2021.

[114]Numerous emails were exchanged with Ms Haughton in early December 2021 concerning outstanding annual leave (pp1090, 1093, 1096, 1105, 1231, 1242, 1252 and 1261), and concluding with Mrs Jones agreeing to take all her outstanding holiday entitlement by the end of the 2021 year, (p1285). During her grievance meeting on 7 February 2022 with Ms Miller, Mrs Jones confirmed when asked whether she still believed that she was owed 5 more days in respect of holiday entitlement, she replied that ‘It’s been resolved’ and that in relation to her grievance, ‘It’s closed now’, (p2057).

[115]In her statutory redundancy and accrued holiday pay on termination letter dated 11 August 2022, Ms Haughton told Mrs Jones that her entitlement to payments for untaken annual leave entitlement as at the date of termination on 5 August 2022 was paid as 14.5 days, although this amounted to a slight overpayment to her, (p3380-2).

[116]Any leave for 2020 which was untaken should have been taken by the end of March 2021 as accepted by Mrs Jones. Consequently, even if she did have 1.5 days owed on 31 December 2021 if she had failed to take them by 31 March 2021, in the absence of any evidence that she was prevented by Man from taking them, that entitlement had concluded and could not form part of this claim.

Law

[117]Section 94 of the Employment Rights Act 1996 (ERA) provides that an employee who has sufficient qualifying service has a right not to be unfairly dismissed by their employer.

[118]Under section 98(1) ERA, it is for the employer to show the reason for the dismissal (or if more than one the principal reason) and that it is either a reason falling within section 98(2) or for some other substantial reason of a kind such as to justify the dismissal of the employee holding the position he held. A reason relating to redundancy is a potentially fair reason falling within section 98(2). Some other substantial reason is also a potentially fair reason falling within section 98(1)(b)

[119]In determining the reason for the dismissal, the Tribunal may only take account of those facts or beliefs that were known to the employer at the time of the dismissal. In relation to this principle, Mr Gorasia referred to the cases of Abernethy v Mott, Hay and Anderson

[1974] ICR 323

at [330], and which was approved by the Supreme Court in Jhuti v Royal Mail Limited [2019] and UKSC 55,

[2020] ICR 731

at [44]. In Abernethy, Cairns LJ explained that “A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee”

[120]Under section 98(4) of the Employment Rights Act 1996, where the employer has shown the reason for the dismissal and that it is a potentially fair reason, the determination of the question whether the dismissal was fair or unfair 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 must be determined in accordance with equity and substantial merits of the case.

[121]Section 103A ERA provides that an employee is to be regarded as automatically unfairly dismissed if the sole or principal reason for the dismissal was that the employee had made a protected disclosure. Redundancy

[122]Section 139(1)(b) ERA provides that a redundancy situation occurs where the requirements for a business 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. A decision wholly attributable to this reason will amount to a redundancy dismissal.

[123]Mr Gorasia reminded me of the following cases: a) That the Tribunal is only concerned with whether the reason for the dismissal was redundancy and not the economic or commercial reasons which led to the redundancy situation; James W Cook & Co (Wivenhoe) Limited (In Liquidation) v Tipper

[1990] IRLR 386

, (para 49). b) Langston v Cranfield University

[1998] IRLR 172

; the EAT considered the elements of selection, consultation and seeking alternative employment are so fundamental in redundancy cases that they should be considered in every unfair dismissal complaint where redundancy is relied upon by an employer as a potentially fair reason. c) In terms of selecting the correct pool of candidates for redundancy, Capita Hartshead Limited v Byard

[2012] IRLR 814

. Paragraph 31 of this decision described the “applicable principles”: i) was the dismissal within the range of conduct which a reasonable employer would have adopted? As considered in Williams v Compair Maxam Limited

[1982] ICR 156

, 157. ii) Was the reasonable response test applied to the selection of the pool for redundancies. Hendy Banks City Print Limited v Fairbrother 21 December 2004, para 9. iii) the question of defining the pool is a matter for the employer and it would be difficult for an employee to challenge a decision where the employer has genuinely applied their mind to the matter. Taymech Limited v Ryan [1994]

EAT/663/94

. iv) the Tribunal can consider whether the employer “genuinely applied” their mind to the matter. v) even if the employer has genuinely applied his mind to the issues of who should be in the pool for consideration, then it will be difficult, but not impossible for an employee to challenge it. d) R v British Coal Corporation and Secretary of State for Trade and Industry, ex p Price

[1994] IRLR 72

in relation to fair consultation and the need for the employer to: i) Take place at a formative stage. ii) Provide adequate information for employees to understand the issues and to respond. iii) Allow adequate time in which to respond and express their views. iv) Seriously consider those views. e) Mugford v Midland bank

[1997] IRLR 208

which provided guidance at paragraph 41 concerning consultation with trade unions and individuals: i) Where there is no consultation with a trade union or the employee, the dismissal will be unfair unless the Tribunal finds that a reasonable employer would have considered consultation to have been an utterly futile exercise in the particular circumstances of the case. ii) Consultation with the trade union over selection criteria does not automatically release the employer from individual consultation with the employees identified for redundancy. iii) It is a question of fact and degree for the Tribunal to consider whether consultation with an individual or his union was so inadequate as to render the dismissal unfair. The absence of consultation in any particular respect does not automatically lead to an unfair dismissal. Instead, the tribunal must view the overall picture up until the date of termination in order that it can determine whether the employer has acted reasonably in dismissing the employee on grounds of redundancy. f) Aramark UK limited v Fernandez

[2020] IRLR 861

the EAT provided that the scope of an employer's duty to offer alternative employment is restricted to actual alternative employment and not just the chance of it. The EAT in this case explained that the focus must be on reasonable alternatives to dismissal. Some Other Substantial Reason (SOSR)

[124]As SOSR is also a potentially fair reason in this case the Tribunal also needs to consider whether the decision to dismiss the claimant was due to a change in focus on business activities by the respondent with greater emphasis on operational efficiencies and effectiveness which did not require the ongoing engagement of the claimant’s team leader role.

[125]Whether a redundancy exercise exists where there has been a reorganisation is a fact sensitive matter. Mr Gorasia referred to the case of Kingwell & ors v Elizabeth Bradley Designs Limited EAT 0661/02 and the comments by Burton P say that redundancy not only takes place where there is a poor financial situation with the employer business but also were a successful employer who has plenty of work decides that as far as commerce and economics are concerned their business should be reorganised the cause of the belief that it is over staffed. Importantly if a business reorganisation leads to a diminution in the requirement for employees to be carrying out the relevant work, then that business reorganisation leads to a redundancy situation.

[126]I was reminded by Mr Gorasia when considering unfair dismissal cases that I should not substitute my view when assessing fairness for that of the decision maker. Reference was made to London Ambulance Services NHS Trust v Small

[2009] EWCA Civ 220

and the well known case of Iceland Frozen Foods Limited V Jones

[1983] IRLR 17

requires the Tribunal to determine whether in the particular circumstances of a case a decision to dismiss fell within the band of reasonable responses which a reasonable employer might have adopted. Section 103A ERA

[127]Mr Gorasia referred to Kuzel v Roche Products Limited

[2008] IRLR 530

. It was for the employer to show the reason or principal reason for the dismissal. If the employee contested those reasons, there was no burden on him to disprove the employer’s reasons or positively prove a different reason.

[128]Royal Mail group v Jhuti

[2020] IRLR 129

reminds Tribunals that they should not punish the employer for their conduct but should judge them by the standards of a hypothetical reasonable employer. Where a more senior manager decides that an employee should be dismissed and this influences the actual decision maker’s decision, the Tribunal may attribute to the employer the state of mind of the senior manager (described as the “manipulator”), rather than the deceived decision maker.

[129]Mr Gorasia also referred to the case of Kong v Gulf International Bank Limited [2021] 9 WLUK 125. Generally, only the decision maker’s motive for the decision to dismiss was relevant. But a wider consideration could take place if there was evidence of the decision maker being manipulated by another. It was considered a limited exception but, in this case, the decision maker was peculiarly dependent upon that person as the source for the underlying facts and information concerning the case. However, another essential feature is that the decision maker’s role or position is of a kind so as to make it appropriate for their motivation to be attributed to the employer.

[130]He also referred to the case of Nicol v World Travel and Tourism Council

[2024] ICR 893

. In the relation to a protected disclosure, for a claim of section 103A to succeed the decision maker who decided to dismiss ought to know at least something about the substance of the disclosure made. It was not enough that they simply knew a disclosure had been made. Polkey

[131]I am also required to take account of (and was referred to), the well known case of Polkey v A E Dayton Services

1988 ICR 142

, HL, which overturned the “no difference rule” where an employer could argue that even though there was a procedural irregularity, they could argue that carrying out a proper procedure would have made ‘no difference’, making the dismissal fair. Polkey meant that the reasonableness of the employer’s action in dispensing with normal procedural requirements remained highly relevant and an employer could only argue that they acted reasonably if they concluded in light of the circumstances known to them at the time of the dismissal that consultation or warning would have been utterly useless or futile.

[132]Mr Gorasia also referred to the case of Lancaster and Duke Limited v Wileman

2019 IRLR 112

where the provisions of Polkey can also apply to substantively unfair dismissals. Discrimination Direct discrimination (section 13 EQA)

[133]Section 13 of the Equality Act 2010 (EQA) provides a direct discrimination is less favourable treatment because of a protected characteristic. Age which is the characteristic that is relied upon by the claimant is a protected characteristic under the EQA. The claim of direct discrimination assumes a comparison between the treatment of different individuals. However, when making such a comparison under section 23 of the EQA, there must be no material difference between the circumstances relating to each case.

[134]Simply establishing less favourable treatment is not enough to make out a complaint of direct discrimination. The case of Madarassy v Nomura International plc

2007 IRLR 246

reminds Tribunals that the complaint must provide sufficient evidence which would allow the Tribunal to conclude in the absence of an adequate explanation, that the respondent has committed the unlawful act of discrimination.

[135]The case of Shamoon v Chief Constable of the Royal Ulster Constabulary

2003 ICR 337

provided that if the disadvantage is to amount to a detriment, a broad and ordinary meaning should be used. The Tribunal must find that by reason of the acts complained of a reasonable worker would or might take the view that they were being disadvantaged.

[136]An unjustified sense of grievance cannot amount to a detriment as provided by the case of Barclays Bank plc v Kapoor (No. 2)

1995 IRLR 87

. Harassment (section 26 EQA)

[137]Section 26(1) of the EQA provides that a person (A), harasses another (B) and in engages in unwanted conduct relating to a relevant protected characteristic and that conduct has the purpose or effect of violating B's dignity or creating an intimidating hostile degrading humiliating or offensive environment for B.

[138]Mr Gorasia referred to the case of Warby v Wunda Group plc [2012] 1 WLUK 610 which requires that the Tribunal must consider the words within the context in which they were used. He also referred to the case of Amnesty International V Ahmed

[2009] IRLR 884

which provided that the only question for the Tribunal was whether the ground for the decision was the asserted protected characteristic.

[139]Hartley v Foreign and Commonwealth Office Services [2016] ICR D17 provided that whether or not the conduct related to a disability should be determined by the evidence as a whole and the perception of the person making the remark was not decisive.

[140]Richmond Pharmacology v Dhaliwal

2009 ICR 724

and Betsi Cadwaladr University Health Board v Hughes [2014] 2 WLUK 991 reminded Tribunals that while it is important that employers were sensitive to the hurt that could be caused by racially offensive comments, it is also important not to encourage a culture of hypersensitivity.

[141]In Weeks v Newham College of Further Education [2012] 5 WLUK 195, the Tribunal must remember that the term ‘environment’ is a state of affairs and it may be created by a single event, but the effects can have a longer duration and must be seen in context. This can include other words used, the general state of affairs within the workplace and potentially the frequency of use of such words. Burden of proof

[142]Section 136 EQA 2010 sets out the burden of proof test in relation to all forms of discrimination that can be asserted. The employee must show a prima facie case of discrimination on grounds of their protected discrimination. At that point the burden shifts to the respondent to show that the alleged treatment was not on the grounds of the asserted protected characteristic. Failing which, the Tribunal is entitled to conclude that the treatment was due to the protected characteristic relied upon by the employee. This was considered in the case of Madarassy v Nomura international plc (above). In order for the burden to shift a claimant must establish more than bare facts of a difference of status and a difference in treatment. Notice pay

[143]The Employment Tribunals Extension of Jurisdiction Order 1994 provides that proceedings for breach of contract may be brought before a Tribunal in respect of a claim for damages or any other sum (other than a claim for personal injuries and other excluded claims) where the claim arises or is outstanding on the termination of the employee’s employment.

[144]A claim for notice pay is a claim for breach of contract; Delaney v Staples

1992 ICR 483

HL. Holiday pay

[145]Regulations 13 and 13A of the Working Time Regulations 1998 (‘WTR’) provide that a worker is entitled to annual leave in each leave year, (4 weeks and 1.6 weeks respectively).

[146]Regulation 13(2) WTR, provides that a worker’s leave year begins on a) On such date during the calendar year as may be provided for in a relevant agreement: or b) Where there are no provisions of a relevant agreement which apply, the date will be (for all employment beginning after 1 October 1998), on the date which that employment begins and each subsequent anniversary of that date.

[147]The word ‘calendar year’ is interpreted by regulation 2 WTR as meaning ‘…the period of twelve months beginning with 1st January in any year.’

[148]Regulation 30 WTR, provides workers with the right to bring a complaint to the Tribunal regarding (amongst other things), breaches of rights under regulation 13 and 13A. Time limits Time Limits under ERA 1996

[149]Sections 48 and 111 ERA provide that a Tribunal shall not consider a complaint unless it is presented to the Tribunal:(a) before the end of the period of three months beginning with the date of detriment or termination; or,

(b) within such further period as the Tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. Time Limits under EQA 2010

[150]Section 123(1) of the EQA provides that a complaint may not be brought after the end of(a) the period of 3 months starting with the date of the act to which the complaint relates, or

(b) such other period as the Tribunal thinks just and equitable. Under section 123(3) conduct extending over a period is to be treated as done at the end of the period; and failure to do something is to be treated as occurring when the person in question decided on it. Case law

[151]Mr Gorasia referred to the case of Adedeji v University Hospitals Birmingham NHS Foundation Trust

[2021] EWCA Civ 23

which involved allegations of discrimination and reminded Tribunals of the need for time limits to exist in order that certainty and finality in litigation can take place. Granting of extensions should also be acknowledged too results in the other party having to deal with the claim that they would not otherwise have had to defend.

[152]Mr Gorasi also referred to the case of Virdi v Commissioner of Police of the Metropolis and anor

[2007] IRLR 24

which provided that limitation periods in discrimination claims begin to run from the date of the discriminatory act and not when the claimant became aware of the act. He also noted that the case of Parr V MSR Partners LLP and ors

[2022] ICR 672

provided that a one off act with continuing consequences is not a continuing act.

[153]He also referred to the well known Court of Appeal decision in Robertson v Bexley Community Centre

[2003] IRLR 434

which reminded Tribunals that the exercise of the just and equitable discretion under section 123 EQA should be considered the exception rather than the rule.

[154]Reference is also made to the case of Abertawe Bro Morgannwg v University Local Health Board

[2018] ICR 1194

, CA and the need to consider when dealing with an application for an extension of time the question of why the primary time limit has not been satisfied and (insofar as it is distinct), the reason why after the expiry of the primary time limit the claim was not presented sooner than it actually was.

[155]Finally, Mr Gorasia referred to the case of Rathakrishnan v Pizza Express (Restaurants) Limited

2016 IRLR 278

observing that where the claimant advances no case to support an extension of time, it must follow they are not entitled to one. However, I did note that the EAT expected Tribunals to consider the balance of overall prejudice and the merits of the claim when considering whether an extension should be granted. Discussion Protected disclosures – Part IV Employment Rights Act 1996 (‘ERA’) (section 43B)

Discussion

[156]By way of a reminder, these allegations were all conceded by the respondent ‘on commercial grounds’ in their letter to the Tribunal on 7 November 2023. In summary, they comprise of: f) PD1: goods sold unpriced and at a loss. g) PD2: prices quoted without approval. h) PD3 quoting incompatible engine parts. i) PD 4: one price list. j) PD5: shipping goods without documentation.

[157]There was no dispute that Mrs Jones was dismissed by her employer and that this dismissal took effect on 5 August 2022. Reason

[158]In a complaint of unfair dismissal, the employer bears the burden of proving that the dismissal was for a potentially fair reason. This means that where an employee argues that his or her dismissal was not by reason of redundancy but was instead for a reason that is not potentially fair, it falls to the employer to show the reason for dismissal.

[159]For a dismissal to be by reason of redundancy, a redundancy situation must exist. I have reminded myself that it is not for Tribunals to investigate the reasons behind such situations, and it is entitled only to ask whether the decision to make redundancies was genuine, not whether it was wise.

[160]However, even if a redundancy situation exists, it does not automatically follow that a claimant was dismissed by reason of redundancy. Indeed, where there a failure to show an asserted potentially fair reason for dismissal was the reason for the dismissal, this will inevitably result in a finding of unfair dismissal without the need for any consideration of reasonableness. Consequently, (and as is the case in Mrs Jones’ claim), an employer will often plead in the alternative that the employee was fairly dismissed for ‘some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held’ (commonly known in its abbreviated form of SOSR) within the meaning of section 98(1)(b) ERA.

[161]During closing arguments, I explored this matter further with Mr Gorasia and he explained that in reality this was a clear cut redundancy situation albeit, one with an unusual chronology.

[162]While the process which led to Mrs Jones’ dismissal could be said to have begun in 2021 with discussions taking place with Mr Melia on 21 July 2021, it must be remembered that the decision maker in this case was Mr Gorvin who gave notice of termination of employment on 25 May 2022. This decision was confirmed by Mr Lammin in during the appeal in brief terms on the date of dismissal on 5 August 2022 but with further details being provided on 12 August 2022.

[163]As discussed in the findings of fact, Mrs Jones and Mr Melia did not have the best of working relationships. Indeed, Mr Melia was considering ways in which Mrs Jones' employment could be added as early as June 2021. This was before she made her first protected disclosure and having considered the evidence in this case, I am not satisfied that the decision to dismiss Mrs. Jones was in any way motivated by one or more of the protected disclosures which she has asserted, (and which for pragmatic reasons on grounds of economy the respondent has chosen not to defend).

[164]Accordingly, while the protected disclosures were accepted as being protected by section 43B ERA, there is simply insufficient evidence before me to suggest that these factors were operating in the mind of Mr Melia when he was looking to dismiss Mrs Jones.

[165]I was actually more concerned by the reasons behind Mr Gorvin's decision to give notice following redundancy consultation that the deletion of the team leader post would be confirmed, and that Mrs Jones would be dismissed on 5 August 2022.

[166]Mr Melia has remained employed by Man despite having been moved away from the line management of Mrs Jones at the end of 2021 or the very beginning of 2022. I also acknowledge that Mr Melia did have a good relationship with the managing director at the time Mr. Thomsen. However, there is simply insufficient evidence available to persuade me that operating behind the scenes of the redundancy consultation which took place in 2022 was Mr Melia or Mr Thomsen exerting some sort of pressure or influence upon Mr Gorvin as the manager who the person dealing with the consultation and who was ultimately responsible for the decision to dismiss.

[167]During her closing arguments Mrs Jones did assert that the decision to dismiss her in 2022 was ultimately connected with decisions made by Mr. Thomsen as managing director. This was the first time that this had been asserted. Based upon the information within the bundle, I accepted that Mr Thomsen was aware of the ongoing problems that were taking place, but his role appeared to be more one of acquiescence to the situation rather than being actively involved in any process designed to engineer Mrs Jones’ dismissal.

[168]Accordingly, I am not persuaded that this dismissal arose for the reason or principal reason that protected disclosures have been made. Nor did I accept that Mr Melia and Mr Thomsen were actively seeking to engineer a way which would give the impression of a fair dismissal for redundancy, but where the genuine reason was a reason that was unfair.

[169]As I have already explained above, the grievance process which began in September 2021 did result in Mr Melia’s involvement in any redundancy process ending. Once the investigation began, he did not play a further role in consideration being given to the deletion of the team leader post. This instead became a matter for the new managers Mr Todd and Mr Maddock. They carried out a proper and reasonable review which while disputed by Mrs Jones, did not involve her challenging these witnesses when they gave their evidence in this case.

[170]The decision to terminate Mrs Jones’ employment was made by Mr Gorvin on 25 May 2022, but only after he had carried out a full consultation process. On balance, this process was extremely thorough, and afforded Mrs Jones every opportunity to explore ways in which the deletion of her team leader post or her dismissal could be avoided. I find Mr Gorvin's decision to be a fair and reasonable one and it was fully explained to Mrs Jones in the detailed correspondence that he produced during the lengthy exercise.

[171]For these reasons I did conclude that Man acted reasonably in all the circumstances as treating redundancy as sufficient a reason to dismiss Mrs Jones. I agree with Mr Gorasia’s submission that although Man had attempted to rely upon two possible potentially fair reasons in the alternative (and for logical reasons), this ultimately was a case where the need for a post ceased and in a way consistent with the definition of redundancy under section 139(1)(b) ERA.

[172]While Mrs Jones raised the question of pooling during her consultation, I accepted that the respondent Man were able to identify that the role of team leader in the tendering team was the only post falling within the relevant pool being considered for redundancy. Perhaps understandably, Mrs Jones did look to her neighbouring team leader in sales order fulfilment Ms Mairs and argued that she should also be considered as being within scope for the pool. Man was very reasonable in exploring her role and carrying out a dummy exercise to see whether Mrs. Jones was making a reasonable argument in relation to pooling. Indeed, they perhaps went further than a reasonable employer would be expected to go, but nonetheless demonstrated the fair and reasonable way in which they behaved throughout this process.

[173]Understandably, Mrs. Jones was concerned about the reason for her post being placed at risk and the fact that she believed there was no economic crisis which was gave rise to the potential deletion of her post. As Mr Gorasia explained, the test for redundancy under section 139 ERA involved a situation where the requirements of a business for employees to carry out work of a particular kind have ceased or diminished. Accordingly, an employer can reach a view that an existing role can simply no longer fit into the way in which the business operates. I acknowledged that there may have been some tension between the question of whether the problem with the team leader role was the role itself or Mrs Jones when she was managed by Mr Melia in 2021. However, by the time the process took place in 2022 which resulted in her dismissal, I was satisfied that the reason for redundancy was correctly identified, and it was reasonable for Man to conclude that dismissal should take place for reason of redundancy.

[174]Alternative employment was considered by Man and possible vacancies were provided to Mrs Jones once she was given notice that her role would move from being at risk to being terminated. The only role that Mrs Jones really expressed an interest in was that of the technical administrator role which was already filled by Ms Robson in February 2022. While Mrs Jones had been given notice of being at risk on 26 of August 2021, she had raised a grievance which effectively stalled the process, and which was only revisited in March 2022 when the next at risk letter was sent on 2 of March 2022 and which provided details of consultation. The actual decision to dismiss Mrs Jones for redundancy would not take place until the 25 May 2022 and by this stage Ms Robson had already accepted the role which might have interested Mrs Jones.

[175]This role however was not brought to Mrs Jones attention during the period prior to the 2 March 2022. On balance, this would appear to have been an oversight rather than a deliberate act on the part of Man and of course the revised at risk letter had not been sent. However, I noted that once Mrs Jones raised the question of this role as part of the consultation process consideration was given to whether that would have been a job that she would have been suitable for. A ‘dummy’ exercise took place but the scoring which was used demonstrated that Ms Robson would have in all probability secured the job ahead of the claimant had they competed against each other for the role. There was the unfortunate situation of the head of shipping Mr Cartwright having concerns about Mrs Jones, but even allowing for this the overall performance considered as part of the dummy exercise suggested that Ms Robson would have been the preferred candidate in what was admittedly a hypothetical exercise.

[176]When the temporary roles of sales coordinator were suggested to Mrs Jones when the initial at risk letter was sent in August 2021, she explained that she had been advised by Acas not to consider those potentially suitable alternative vacancies because they may simply result in her dismissal at a late date. That was a matter for her, but there was a clear intention on the part of Mrs Jones to fight to preserve her existing job of team leader during 2021 and 2022. This was her focus, and she only began to look for alternative vacancies once confirmation had been given that her post will be deleted by Mr Gorvin on the 25 May 2022. The simple fact was that by the time her post had been confirmed as being made redundant, she had missed some possible alternative roles, and it would not be reasonable for the respondent to dismiss or move employees within the organisation simply because Mrs Jones decided that the roles that they occupied were of interest to her. As an employer Man could only offer those roles which were vacant at the time when suitable alternative vacancies were being considered.

[177]On balance, I was satisfied that Man took all reasonable steps to find Mrs Jones alternative employment and the question of temporary sales coordinator roles were mentioned by Ms Horton in the at risk letter in 2021. Fairness

[178]Consequently, applying the test of fairness in section 98(4) ERA, Man acted reasonably in all the circumstances in treating redundancy as sufficient reason to dismiss Mrs Jones. They adequately warned and consulted her, adopted a reasonable selection decision, including its approach to a selection pool and any scoring within the pool, took reasonable steps to find the claimant suitable alternative employment and Mrs Jones’ dismissal was therefore within the range of reasonable responses. Age discrimination Direct age discrimination section 13 EQA

[179]Mrs Jones argued that she was passed over between 19 July 2021 and 15 October 2021 in respect of a sales manager role because of her age. She identified Yi Ling Wan as a comparator whom she alleges was promoted in preference to her because Ms Wan was much younger.

[180]As I explained in the findings of fact above this allegation consisted of a number of difficulties. I heard convincing evidence that Ms Wan was recruited on 19 July 2021 as a temporary worker and remained in this role until she was appointed as a sales manager in February 2023. This was a post that was only processed for advertisement from November 2022 until February 2023. Mr Melia gave persuasive evidence that in his mind Ms Wan was always a temporary worker and he was not involved with the recruitment process for the sales manager role. This was supported by other managers’ evidence including Ms Horton as HR manager who had considerable involvement in this recruitment exercise and Mr Todd who recruited Ms Wan.

[181]An additional difficulty was that Mrs Jones had ceased to work for Man from 5 August 2022 and therefore was no longer working for the company when the recruitment process for the sales manager role began in February 2023. For these reasons I am not persuaded that the alleged treatment happened as alleged. It is fair to say that Ms Wan was a younger employee, but she was initially engaged as a temporary worker and remained as such while Mrs. Jones remained employed by Man. I did not hear any evidence to suggest that the way in which their respective career paths progressed was managed in such a way to deprive Mrs Jones of the possibility of applying for the sales manager post. It was not a position which began being processed until November 2022.

[182]Accordingly, I'm unable to find that the treatment happened as alleged and there is no age discrimination in relation to this allegation.

[183]Moreover, time limits are a difficulty for Mrs Jones in relation to this allegation. She referred to treatment which took place between 19 July 2021 and 15 October 2021. The dates that she has provided mean that the alleged treatment which is the subject of this allegation occurred significantly earlier than the 3-month period before she notified ACAS of her potential claim on 5 August 2022. The original claim is therefore out of time. Some suggestion was made by Mrs Jones concerning continuing acts during her closing arguments when I prompted her about submissions regarding time limits. However, I did not hear any explanation as to why this argument could be sustained from the available evidence and I was not persuaded that it was just and equitable to extend time. Harassment Harassment related to age section 26 EQA

[184]By way of a reminder, Mrs Jones alleged that she was asked by Mark Melia during the period January 2021 to July 2021 when she was planning to retire and stroke or move to France and stroke or why she didn't retire and move back to France? She also alleged that comments had been made by Mark Melia to Laurence Grace behind her back during the period December 2020 to Spring 2021 to the effect that she “needed to move on with the times”.

[185]Firstly, I accept that things may have been said in relation to Mrs Jones retiring and/or Mrs Jones moving to France. However, I must look at this matter within the whole context behind these discussions. It may have been the case that Mr Melia was finding Mrs Jones difficult to manage. Nonetheless however, day to day conversations would have continued in the workplace and there is no supporting evidence to suggest that there was any attempt to subject Mrs Jones to unwanted treatment which had the intention or effect of diminishing her by reason of her age.

[186]This was simply a situation where a manager appreciated some connection with an employee whom he managed. He attempted to make small talk and in relation to this connection. This could not reasonably be considered to be a conversation which had any purpose or effect in accordance with section 26 EQA and I do not accept that harassment had taken place as alleged. While things may have been said which Mrs Jones said were upsetting, she did not raise them at the time they occurred which suggests that it did not have the effect provided under section 26. Even if it did have that effect however, I cannot conclude that it was objectively reasonable for this to have the asserted effect, being an innocuous, innocent and friendly approach.

[187]Moving on to the second allegation, this involved some very vague comments regarding Mr Melia speaking behind Mrs Jones's back about her inability to progress and her belief that these criticisms were motivated by her age.

[188]Not surprisingly, given the time elapsed, Mr Melia did not have a particularly good recollection of what was happening at that time. However, the way in which he considered the words used by Mrs Jones and the words that he would typically use himself, was a credible explanation. I am persuaded that while there may have been some suggestion that he expected Mrs Jones to progress and to adjust to the changing workplace these were not comments that occurred as she had alleged. Even allowing for some criticism of Mrs Jones taking place and that these comments may have been unwanted, I do not accept that they could be considered as reasonably having the effect of creating an intimidating hostile degrading humiliating or offensive environment for Mrs. Jones.

[189]In summary, I did find that the allegations of age discrimination to be the weaker complaints that have been brought in these proceedings and at the highest Mrs Jones appeared to be complaining about minor or trivial matters which cannot reasonably be considered as amounting to unwanted conduct mounting to harassment in accordance with section 26 EQA.

[190]A final difficulty for Mrs. Jones in relation to the complaint of harassment is that she has referred to allegations which appeared to take place more than three months before she notified ACAS of potential claim on 5 August 2022. This means that any alleged act of harassment should have taken place on or after 6 May 2022. The allegations, however, involve historic matters which long predate this time limit. No convincing submissions were made despite my prompting of Mrs Jones to persuade me that these allegations formed part of a series of continuing acts which ended on or after 6 May 2022 or alternatively, that it was just and equitable to extend time under section 123 EQA. Mrs Jones did make some vague submissions regarding her inability to present a claim earlier but given that she was engaged with the internal grievance and consultation process from the summer of 2021 onwards it is reasonable to expect that she would have had the capability of raising any such complaint with ACAS and consequently the Tribunal. I am not persuaded that it was just and equitable to extend time in accordance with section 123 EQA. Notice pay.

[191]Mrs Jones argued that she was entitled to 3 months’ notice in accordance with her contract of employment at termination and as agreed with Andrea Horton in August 2021. Man gave notice with effect from 25 May 2022 and Mrs Jones’ last day of employment was 5 August 2022 (10 weeks and three days), which Man asserts is consistent with Mrs Jones’ contractual entitlement.

[192]This was a relatively small element of the list of issues, but which involved a surprising amount of questioning during Mrs Jones’ cross examination. It was not clear whether she simply did not understand the difference between the employer’s notice provisions in Clause 11 of the contract of employment and the employee’s notice provisions in Clause 12, or whether there was a genuine belief that the original contract of employment was superseded by later contracts with different notice provisions.

[193]I preferred Ms Haughton’s evidence concerning this issue but, in any event, the available documents confirmed to me that the original contract of employment signed in October 2011 remained in force throughout Mrs Jones’ employment. No other contracts had replaced the very clear terms, albeit terms which had different notice periods concerning whether the employer was giving notice under Clause 11, or the employee was given notice under Clause 12.

[194]Consequently, Mrs Jones’ notice period was 1 year for each completed year of service making a contractual notice period on 5 August 2022 of 10 weeks, (she had started working for Man in November 2021). Mrs Jones was therefore paid by Man for the correct notice period of 10 weeks and this complaint must fail. Unauthorised deductions- holiday pay

[195]This involved a complaint where Mrs Jones was seeking to recover holiday pay from 2020 and which during the hearing she asserted amounted to 1.5 days holiday. She did accept that the holiday year was based upon a period running from January to December and this was supported by the contractual documents within the hearing bundle.

[196]There was no dispute between the parties that holiday could not be carried over at the end of the leave year, unless there was prior agreement between the employer and the employee. This was supported by an agreement in 2020 Mrs. Jones was permitted to carry over five days annual leave from 2020 into 2021 but that it must be taken by the 31 March 2021.

[197]While the question of holiday pay was an ongoing matter there was evidence that Mrs Jones agreed to take all of her holiday entitlement that was outstanding by the end of the 2021 calendar year and subsequent discussions with Ms Miller confirmed that this issue had been resolved. In any event she did not have authority to carry over any holiday entitlement into 2022.

[198]Another difficulty is that Mrs Jones is referring to a complaint involving annual leave entitlement which arose in 2020. She could have presented this complaint to the Tribunal within the relevant time of 3 months. Instead, she only included the complaint as part of her wider claim presented following her dismissal on 5 August 2022 when she first notified ACAS. This complaint was therefore presented significantly out of time and despite some brief references to an inability to present the claim earlier Mrs Jones failed to convincingly argue that it was not reasonably practicable to present the claim within the relevant time period. This complaint therefore fails.

Conclusion

[199]Accordingly, the judgment of the Tribunal is that:(a) The complaint of unfair dismissal is not well founded which means that the complaint is unsuccessful.

(b) The complaint of breach of contract is not well founded which means that the complaint is unsuccessful.

(d) The complaint of direct discrimination on grounds of age contrary to section 13 Equality Act 2010 is not well founded which means that the complaint is unsuccessful.

(e) The complaint of harassment relating to age contrary to section 26 Equality Act 2010 is not well founded which means that the complaint is unsuccessful.