Ms M Rigby v Philip Wright (Transport) Ltd: 2602910/2020
EMPLOYMENT TRIBUNALS
Case No 2602910/2020
Between
Ms M RigbyClaimantPhilip Wright (Transport) LtdRespondent
Before
Employment Judge BrewerIn person for claimantMr J Heard (instructed by Counsel) for respondentDate 8 September 2021
JUDGMENT
[1]The claimant’s claim of direct age discrimination fails and is dismissed.[2]The claimant’s claim of unfair dismissal fails and is dismissed.
REASONS
[1]This case came before us for hearing over three days. The evidence and submissions concluded on day two and following deliberation we delivered our judgment on day three.[2]The claimant represented herself and gave evidence on her own behalf. The respondent was represented by Mr Heard. He called the respondent’s Managing Director, Mr Philip Wright, and Sylvia Palmer, Senior Accounts 1 of 13 Assistant. We had written witness statements from the witnesses which stood as their evidence in chief. We also had an agreed bundle of documents running to 136 pages. We have taken into account the evidence and submissions, including Ms Rigby’s written submissions in reaching our decision.
Issues
[3]The claimant brought complaints of unfair dismissal and direct age discrimination. The complaint of age discrimination is only in relation to dismissal. At a preliminary hearing the parties agreed the following issues. Unfair dismissal[4]What was the principal reason for dismissal and was it a potentially fair one in accordance with sections 98(1) and (2) of the Employment Rights Act 1996 (“ERA”)? The respondent asserts that it was redundancy.[5]If so, was the dismissal fair or unfair in accordance with ERA section 98(4), and, in particular, did the respondent in all respects act within the so-called ‘band of reasonable responses’? Remedy for unfair dismissal[6]If the claimant was unfairly dismissed and the remedy is compensation:a. if the dismissal was procedurally unfair, what adjustment, if any, should be made to any compensatory award to reflect the possibility that the claimant would still have been dismissed had a fair and reasonable procedure been followed / have been dismissed in time anyway]? See: Polkey v AE Dayton Services Ltd [1987] UKHL 8; paragraph 54 of Software 2000 Ltd v Andrews [2007] ICR 825; W Devis & Sons Ltd v Atkins [1977] 3 All ER 40; Crédit Agricole Corporate and Investment Bank v Wardle [2011] IRLR 604;b. would it be just and equitable to reduce the amount of the claimant’s basic award because of any blameworthy or culpable conduct before the dismissal, pursuant to ERA section 122(2); and if so to what extent?c. did the claimant, by blameworthy or culpable actions, cause or contribute to dismissal to any extent; and if so, by what proportion, if at all, would it be just and equitable to reduce the amount of any compensatory award, pursuant to ERA section 123(6)? EQA, section 13: direct discrimination because of age[7]At the date of dismissal, the claimant was 74 years old. She relies on the age group ‘over-70’. She relies on an actual comparator, Ms Palmer who, at the relevant time was 66 years old.[8]It is not in dispute that the respondent dismissed the claimant. It is necessary to answer the following questions: 2 of 13a. Was the dismissal “less favourable treatment”, i.e. did the respondent treat the claimant as alleged less favourably than it treated or would have treated others (“comparators”) in not materially different circumstances?b. If so, was this because of the claimant’s age?[9]The respondent did not rely on a justification defence.
Law
[10]In relation to direct age discrimination the law is as follows.[11]Under section 13 Equality Act 2010 (EqA), there are two issues:(a) less favourable treatment and(b) the reason for that less favourable treatment. These questions need not be answered strictly sequentially (Shamoon v Chief Constable of the Royal Ulster Constabulary 2003 ICR 337).[12]Given the treatment must be “less favourable” a comparison is required, and a comparator must “be in the same position in all material respects as the victim save only that he, or she, is not a member of the protected class” (Shamoon above).[13]The burden of proof is set out in section 136 EqA. The leading cases on the burden of proof pre-date the Equality Act (Igen Ltd v Wong 2005 EWCA Civ 142 and Madarassy v Nomura international Plc 2007 EWCA Civ 33, [2007] IRLR 246) but in Hewage v Grampian Health Board 2012 the Supreme Court approved the guidance given in Igen and Madarassy.[14]By virtue of section 136, it is for a claimant to prove on the balance of probabilities facts from which the Tribunal could conclude, absent any explanation from the respondent, that the respondent has discriminated against the claimant. If the claimant does that, the burden of proof shifts to the respondent to show it did not discriminate as alleged.[15]In Madarassy the Court of Appeal held that the burden of proof does not shift to the employer simply on the claimant establishing a difference in status (e.g. sex) and a difference in treatment. This merely gives rise to the possibility of discrimination. Something more is needed. Any inference about subconscious motivation has to be based on solid evidence (South Wales Police Authority v Johnson 2014 EWCA Civ 73).[16]In relation to redundancy and unfair dismissal the law is as follows.[17]Redundancy is defined in S.139(1) of the Employment Rights Act 1996 (ERA) The section provides that: ‘For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to —(a) the fact that his employer has ceased or intends to cease — 3 of 13 (i) to carry on the business for the purposes of which the employee was employed by him, or (ii) to carry on that business in the place where the employee was so employed, or(b) the fact that the requirements of that business — (i) for employees to carry out work of a particular kind, or (ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish.’[18]Under section 139(1)(b) it is the requirement for employees to do work of a particular kind which is significant. The fact that the work is constant, or even increasing, is irrelevant. If fewer employees are needed to do work of a particular kind, there is a redundancy situation — McCrea v Cullen and Davison Ltd 1988 IRLR 30, NICA.[19]The EAT has made it clear that there is no need under S.139(1)(b) for an employer to show an economic justification (or business case) for the decision to make redundancies (see Polyflor Ltd v Old EAT 0482/02)[20]The test we must apply was set out in Safeway Stores plc v Burrell 1997 ICR 523, EAT where Judge Peter Clark set out a simple three-stage test. A tribunal must decide:a. was the employee dismissed?b. if so, had the requirements of the employer’s business for employees to carry out work of a particular kind ceased or diminished, or were they expected to cease or diminish?c. if so, was the dismissal of the employee caused wholly or mainly by the cessation or diminution?[21]The test set out in the Burrell case was widely acclaimed as bringing light and clarity to a previously dark and muddled area of redundancy law and was subsequently endorsed by the House of Lords in Murray and anor v Foyle Meats Ltd 1999 ICR 827, HL.[22]For a dismissal to be by reason of redundancy, a redundancy situation must exist. However, it is not for tribunals to investigate the reasons behind such situations (Moon and ors v Homeworthy Furniture (Northern) Ltd 1977 ICR 117, EAT).[23]In Williams and ors v Compair Maxam Ltd 1982 ICR 156, EAT, the EAT laid down guidelines that a reasonable employer might be expected to follow in making redundancy dismissals. These werea. whether the selection criteria were objectively chosen and fairly appliedb. whether employees were warned and consulted about the redundancy 4 of 13c. whether, if there was a union, the union’s view was sought, andd. whether any alternative work was available.[24]However, these guidelines are not principles of law but standards of behaviour that can inform the reasonableness test under S.98(4) ERA. A departure from these guidelines on the part of the employer does not lead to the automatic conclusion that a dismissal is unfair, nor should a tribunal’s failure to have regard or give effect to one of the guidelines amount to a misdirection in law. It is also noted that these guidelines represent the view of the lay members of the EAT as to fair industrial relations practice in 1982 and are not immutable. Practices and attitudes change with time and the overriding test is whether the employer’s actions at each step of the redundancy process fell within the range of reasonable responses.[25]Where there is no customary arrangement or agreed procedure to be considered in determining the pool for selection, employers have a good deal of flexibility in defining the pool from which they will select employees for dismissal. In Thomas and Betts Manufacturing Co v Harding 1980 IRLR 255, CA. the Court of Appeal said that the employer need only show that they have applied their minds to the problem and acted from genuine motives.[26]The tribunal should judge the employer’s choice of pool by asking itself whether it fell within the range of reasonable responses available to an employer in the circumstances. As the EAT put it in Kvaerner Oil and Gas Ltd v Parker and ors EAT 0444/02: ‘different people can quite legitimately have different views about what is or is not a fair response to a particular situation… In most situations there will be a band of potential responses to the particular problem and it may be that both of solutions X and Y will be well within that band.’[27]In considering whether this was so, the following factors may be relevant:a. whether other groups of employees are doing similar work to the group from which selections were madeb. whether employees’ jobs are interchangeablec. whether the employee’s inclusion in the unit is consistent with his or her previous position, andd. whether the selection unit was agreed with any union.[28]In order to ensure fairness, the selection criteria must not be unduly vague or ambiguous, they must be objective; not merely reflecting the personal opinion of the selector but being verifiable by reference to data such as records of attendance, efficiency and length of service.[29]Provided an employer’s selection criteria are objective, a tribunal should not subject them or their application to over-minute scrutiny — British Aerospace plc v Green and ors 1995 ICR 1006, CA. Essentially, the task is for the tribunal to satisfy itself that the method of selection was not inherently unfair and that it was applied in the particular case in a reasonable fashion. 5 of 13[30]In order that dismissals on the basis of any particular selection criteria are fair, the application of those criteria must be reasonable.[31]In terms of consultation, in Polkey v AE Dayton Services Ltd 1988 ICR 142, HL. In that case, Lord Bridge stated that: ‘In the case of redundancy… the employer will normally not act reasonably unless he warns and consults any employees affected or their representative, adopts a fair basis on which to select for redundancy and takes such steps as may be reasonable to avoid or minimise redundancy by redeployment within his own organisation.’[32]This was reinforced in De Grasse v Stockwell Tools Ltd 1992 IRLR 269, EAT in which it was stated that the size and administrative resources of the respondent, specifically referred to as relevant to the determination of reasonableness in S.98(4) ERA could affect the nature and formality of the consultation process and later cases determined that a total absence of consultation could be excused but only if it could have reasonably been concluded that a proper procedure would be ‘utterly useless’ or ‘futile’.[33]In relation to individual consultation the question is consultation about what? To some extent, the subject matter will depend upon the specific circumstances, but best practice suggests that it should normally include:a. an indication (i.e. warning) that the individual has been provisionally selected for redundancyb. confirmation of the basis for selectionc. an opportunity for the employee to comment on his or her redundancy selection assessmentd. consideration as to what, if any, alternative positions of employment may exist, ande. an opportunity for the employee to address any other matters he or she may wish to raise.[34]The purpose of consultation is not only to allow consideration of alternative employment or to see if there is any other way that redundancies can be avoided, it also helps employees to protect themselves against the consequences of being made redundant.[35]In Thomas and Betts Manufacturing Co v Harding 1980 IRLR 255, CA, the Court of Appeal ruled that an employer should do what it can so far as is reasonable to seek alternative work.[36]In Fisher v Hoopoe Finance Ltd EAT 0043/05 the EAT suggested that an employer’s responsibility does not necessarily end with drawing the employee’s attention to job vacancies that may be suitable. The employer should also provide information about the financial prospects of any vacant alternative positions. A failure to do so may lead to any later redundancy dismissal being found to be unfair. Furthermore, when informing an employee of an available 6 of 13 alternative position, the employer should be clear about any eligibility criteria for the role, and the terms on which the role might be offered.
Findings of fact
[37]Numbers in square brackets are references to pages in the bundle.[38]The respondent is a small company in the business of providing mineral supplies and related services to the building industry. At the material time the respondent employed 16 employees, ran some 30 vehicles, and had a turnover of around £2.4m. The workforce comprised HGV drivers, engineers and other technical staff, a sales and shipping department and an accounts department. As well as the employees the respondent used the services of an employment consultant, external accountants, and external IT support providers.[39]The managing Director was Mr Philip Wright (PW). The accounts department comprised Ms Sylvia Palmer (SP) and the claimant. SP’s association with the respondent dates back to 2008 when she started to work for the respondent as a self-employed book-keeper. Initially her work involved keeping sales and purchasing books up to date. Over time the work increased. SP oversaw the introduction of a computerized accounts program (Sage). The work increased such that she ceased working for herself and on 1 April 2018 became directly employed by the respondent. At that point she was responsible for managing all aspects of the respondent’s accounts. We refer to this in more detail below.[40]The claimant was employed by the respondent from 3 April 2017. She was recruited as a part-time accounts assistant. She was 71 years old at the date of her recruitment. There were three applicants considered for the role and the claimant was the oldest. We shall refer to her duties in the discussion below, save to say at this point that the claimant asserted that she was employed on the basis of the job description at [45 and 46].[41]On 23 March 2020 the government announced the first national lockdown. PW made the decision to furlough a number of staff based on their domestic situation. Some were furloughed because they had childcare responsibilities because their spouses were key workers, one was furloughed as he had a diagnosis of cancer. When considering the accounts department, SP and the claimant, PW determined that he required ongoing support at a more senior level, and he felt that SP was best placed to provide that. PW considered that as the claimant was over 70, according to his reading of the government’s guidance she was at moderate risk and therefore “clinically vulnerable” (see paragraph 15 PW’s witness statement).[42]On 26 March 2020 PW wrote to the workforce, including the claimant confirming his decision to place a number of staff on furlough.[43]The claimant was placed on furlough on 26 March 2020. This was confirmed in a letter of 27 March 2020 [87].[44]The respondent’s business is cyclical, and the winter months are a period of limited activity. This means that the respondent looks for a strong performance 7 of 13 in the following months. Given the lockdown and the decline in work, and notwithstanding government support for businesses at this time, the respondent felt the need to consider cost-cutting measures and the decision was made to consider redundancies.[45]The accounts department’s work had declined. PW took the decision that there should be a reduction to one accounts department employee.[46]PW rang the claimant on 2 June 2020 about the redundancy. There is a dispute about that conversation.[47]PW wrote to the claimant on 12 June 2020 informing her that she was to be dismissed as redundant. The termination date was to be 17 July 2020.[48]On 17 June 2020 the claimant appealed the decision to dismiss her.[49]On 24 June 2020 PW wrote to the claimant rejecting her appeal.[50]The claimant’s employment terminated as planned on 17 July 2020 which is the effective date of termination (EDT). At the EDT the claimant was 74 years old.[51]The claimant started and ended early conciliation on 29 July 2020. She presented her complaint to the Tribunal on 3 August 2020.
Discussion and conclusions
[52]We turn first to the complaint of direct age discrimination.[53]The claimant’s case is essentially that PW saw her as extremely clinically vulnerable because of her age, hence his decision to furlough the claimant. The claimant says that this shows PW’s mindset about her. The claimant asserts that on numerous occasions PW falsely represented her as required to shield because she was clinically extremely vulnerable. The claimant says PW did this “throughout the periods of furlough and redundancy; in telephone calls, a letter and thereafter in the…ET3” (paragraph 85 claimant’s witness statement).[54]The claimant was placed on furlough on 26 March 2020. Not only did she not raise any complaint about that at the time, on 26 March 2020 the claimant sent a text [86] to SP saying “…it is very hard times, particularly for [PW], who seems to have an enormous hill to climb. We can only hope that by taking very stringent precautions we can help reduce the impact of COVID19, even help to protect others and see an end to it in a timely fashion. I’m observing the rules but I know where I’d rather be! I’ll keep in touch, please stay safe & I hope your personal circumstances can be improved…”[55]The claimant’s oral evidence was at odds with the tone of this text. She now says that she believed that placing her on furlough was an act of age discrimination. In cross-examination the claimant agreed that at the point she was furloughed she was empathetic to the position the respondent was in, she 8 of 13 accepted furlough at that point, she knew SP had not been furloughed and agreed to the need for, as she put it, “stringent precautions”. The claimant was unclear how and why this perception altered.[56]What of the allegation that PW falsely represented the claimant as required to shield because she was clinically extremely vulnerable throughout the periods of furlough and redundancy; in telephone calls, a letter and thereafter in the ET3?[57]As we have said, the claimant was placed on furlough on 26 March 2020, and this was confirmed in a letter of 27 March 2020 [87].[58]There is no reference in that letter to the claimant being clinically extremely vulnerable or to her shielding.[59]The next contact between the claimant and PW was a telephone call on 2 June 2020. The claimant says that she made a note of the conversation immediately it ended, and this appears at [92/93]. In these notes the claimant says that PW stated “I thought about having a meeting, but decided not to because you are in a protected category and shielding”.[60]In his written statement PW disputes much of the content of this note. Although he does not take issue with the above comment. We find the note at best unreliable. First it is clearly not a verbatim note. The claimant’s own evidence accepted that she missed things out. It is also written as though PW made a series of unconnected somewhat staccato comments and there was no normal conversation. Finally, even with 1.5 line spacing the notes only run to just under one and a half pages of A4 paper yet according to the claimant the conversation lasted almost 7 minutes. If that is the case, then clearly a lot more was said. On balance we prefer the respondent’s evidence about this conversation. We shall return to this on the question of redundancy below, but for present purposes we ask what if PW did say words to the effect that he did not wish to meet the claimant as he did not want to put the claimant at risk as she was shielding?[61]We do not consider that the reference to shielding necessarily relates to age. According to the government’s Covid 19 guidance there were 10 categories of people at high risk (the so-called clinically extremely vulnerable) and none of those are age related. As to those at moderate risk, clearly the claimant fell into that group as the very first at-risk group is those aged 70 or over.[62]We find that PW genuinely believed that the claimant should stay at home as being at moderate risk according to the government’s guidance. If he used the term ‘shielding’ he was using it simply to mean a person who ought to avoid going out. There is no evidence that at any point PW described the claimant as clinically extremely vulnerable. The decision to furlough the claimant was only related to the claimant’s age because, as we have said, she was in fact over 70. It does not indicate that PW had a negative attitude to the claimant because of her age. In fact, we go further. We find the suggestion that PW had a negative 9 of 13 attitude towards the claimant because of her age absurd given that PW employed the claimant when she was already over 70 years old, and indeed was the oldest of the three candidates he interviewed for the position to which the claimant was appointed.[63]There is nothing in any of the other correspondence which indicates that PW had a negative attitude towards the claimant because of her age. We do not accept the claimant’s evidence on this point.[64]That finding of course does not mean that the claimant was not selected for redundancy because of her age, nor does that deal with the claimant’s argument that there was not a genuine redundancy. So, before we reach a conclusion on the age discrimination complaint it is necessary to turn to the unfair dismissal complaint.[65]We remind ourselves of the questions it is necessary for us to consider: had the requirements of the respondent’s business for employees to carry out work of a particular kind ceased or diminished, or were they expected to cease or diminish? If so, was the dismissal of the claimant caused wholly or mainly by the cessation or diminution?[66]As to the first question, there was a good deal of evidence about the financial position in which the respondent found itself at the outset of the pandemic which followed immediately after the winter downturn.[67]On the evidence before us the respondent was in some difficulty. In the 9 weeks following the lockdown in March 2020 the respondent saw a 30% reduction in sales to its major clients [88/89]. As a response to this the respondent chose to consider redundancies to ease its financial difficulties. That it may have utilized other strategies or pursued other courses is not a matter for this Tribunal. Our task is to establish that there was a ‘redundancy situation’ that is that one or more of the definitions of redundancy set out in the ERA 1996 was met. We have no doubt that it was. The respondent took a decision that it required fewer employees to do its accounts work.[68]Having got that far, the final question, leaving aside the question of procedure, is whether that situation caused the claimant’s dismissal.[69]The claimant spent a considerable amount of time arguing about job descriptions and who of her and SP did what in their roles. Much of her evidence centred around the document at [45/46]. This is the job description which was part of the advertisement the claimant responded to when applying for her job with the respondent.[70]After setting out the hours and the need for familiarity with Sage accounting software, there are a series of headings in the job description and then after each heading a set of duties. The first heading is “Shared Duties”. The claimant’s case was that this was not a heading at all. It was, as it were, the heading – in other words all the duties set out below that heading were to be shared. We do not agree. It is entirely clear from the way the job description is set out that there are headings to be populated with duties. Most have several duties, some have one and the first, “Shared Duties”, has none. 10 of 13[71]On the claimant’s own case she did not carry out all the duties set out in the job description and neither did SP, so as a matter of fact, they were not all shared.[72]Furthermore, SP had been asked, for the purposes of this hearing, to set out a list of her main duties. This appears at [62/63]. The claimant asked SP a number of questions about this document, and she alleged that it had been fabricated, that it was untrue. However, when the claimant cross-examined SP, SP took us through her main duties as set out at [62/63] and the claimant did not dispute the list other than to say that one duty had been missed from the list. Further, in her submissions the claimant accepted that she and SP performed some duties separately and that, as she put it, “we shared several duties”. What the claimant did not take issue with was that SP’s main duties are managerial as well as what we might term operational. SP liaised with PW, the Managing Director, she liaised with the respondent’s external accountant, she prepared the management and payroll reports for those external consultants to finalise, she dealt with tax returns, albeit that the external accountants finalised and filed the return. The claimant’s tasks were all at a lower level, they were all, if we may put it that way, operational.[73]The claimant also asked SP about her training and qualifications. The claimant’s case for arguing that she and SP ought to have been pooled and that, if so, SP would have been made redundant rested in part on what she says was her greater skills and qualifications. She could, she says, have done SP’s work.[74]In support of her claims the claimant also says that the respondent should have pooled her with staff in the sales and shipping department.[75]Taking the latter first, the claimant’s best case is that she could do half the work of a person in the sales and shipping department. In our judgment the respondent acted reasonably in not pooling the claimant with those employed in the sales and shipping department. Such a decision would be irrational given that since the claimant could only do half the job, even if she had been pooled, she would have been selected for redundancy from that pool anyway so why put people at risk of redundancy with all the disruption that entails when the outcome is inevitable? No employer, acting rationally would, in our judgment, dismiss a fully functioning employee in favour of one who could only do half the job.[76]As to pooling the claimant with SP, at first sight this might seem obvious. But on this point, we accept the respondent’s evidence. SP was in a materially different role, she was senior to the claimant.[77]We have however considered the position had the claimant and PW been pooled because the same circumstances apply to the decision not to pool as would have applied had the respondent decided to pool the claimant and SP and then had to select one of them from that pool.[78]The fact is that SP had been working with the respondent for 12 years at this point. She worked on her own for much of that time. PW clearly trusted her, and she had a track record of running the entire accounts department single11 of 13 handedly. In contrast, the claimant had been employed for around three years in a junior capacity and she had no track record of undertaking the managerial level work undertaken by SP. In our judgment selecting the claimant in a pool of one was within the band of reasonable responses. But, if we are wrong about that, we find that even if the claimant had been pooled with SP, given what the respondent required going forward, the claimant would still have been selected for redundancy from that pool for the reasons set out above.[79]We turn next to consultation. We are mindful that the respondent is a small employer. PW spoke to the claimant about her potential redundancy on 2 June 2020. For the reasons set out above we prefer the evidence of PW about this conversation. In this call PW told the claimant that she was at risk of redundancy. There followed a period in which the claimant could have, but did not, make any representations about that to PW.[80]There followed the letter of dismissal some 10 days later [94].[81]On 17 June 2020 the claimant appealed [97]. We note that one of the grounds of her appeal was that the claimant’s job still existed. We did explain the concept of redundancy to the claimant. The respondent has never suggested that all the accounts duties the claimant undertook continue to be undertaken and indeed SP confirmed that she now undertakes those duties. The claimant simply failed to take on board that the redundancy situation was the respondents requirement for fewer employees to do the work, not that the work itself had diminished (although we accept the respondent’s evidence that the amount of work diminished by dint of there being less activity in the business).[82]In the event PW responded to the appeal on 24 June 2020 [99]. While the fact that PW made the decision to dismiss and determined the appeal did give the Tribunal some pause for thought, we consider that unlike in say a conduct dismissal where an independent appeal is highly preferable, in a redundancy case the appeal is more akin to a review. Taking that point, and taking into account the size and structure of this respondent, we find that the procedure followed both in the appeal and in the redundancy process overall was within the band of reasonable responses.[83]We turn back then to the allegation that the reason the claimant was made redundant was her age. The respondent says that SP is not an appropriate comparator because the difference in the roles of the claimant and SP were materially different. As we have said, we agree. We go further and say even if that is not correct the reason for the claimant’s dismissal was as we have set out above and not her age.[84]In summary:a. The claimant has not shown a prima facie case of age discrimination and the burden of proof has not shifted to the respondent;b. Even if the burden had shifted, we are satisfied that the claimant’s age played no part in the respondent’s decision to dismiss her;c. The respondent required fewer employees in its accounts department and therefore there was a redundancy situation;d. That situation was the reason the claimant was dismissed; 12 of 13e. The redundancy procedure followed by the respondent was within the band of reasonable responses.[85]For the above reasons the claims of direct age discrimination and unfair dismissal fail and are dismissed.