Mr M Richards (Deceased) by his Personal Representative Mrs W Richards v Brocade Communications UK Ltd: 3305879/2018

EMPLOYMENT TRIBUNALS

Case No 3305879/2018

Between

Mr M Richards (Deceased) by his Personal Representative Mrs W RichardsClaimant

Brocade Communications UK LtdRespondent

Before

Employment Judge Hawksworth

Date 13 January 2022

JUDGMENT

[1]The claimant’s complaint of failure to make reasonable adjustments is wellfounded and succeeds. The respondent failed to make the following 1.1. applying a redundancy policy with objective selection criteria and consideration of actual duties, skill set, experience and performance, so that the alignment decision in respect of the claimant was consistent and objective; 1.2. adequately consulting with the claimant; and 1.3. offering the claimant suitable alternative employment by modifying his role or offering a new role.

[2]The claimant’s complaint of unfair dismissal is well founded and succeeds.

[3]The claimant’s complaints of direct disability discrimination and direct age discrimination fail and are dismissed.

[4]The claimant’s complaint of indirect disability discrimination and indirect age discrimination fail and are dismissed. Page 1 of 33

[5]A remedy hearing will be listed to decide remedy.

REASONS

Remedy

[1]The claimant was employed by the respondent from 28 June 2004 until his dismissal for redundancy on 31 December 2017.

[2]In a claim form presented on 11 April 2018 after a period of Acas early conciliation from 16 January 2018 to 31 January 2018, the claimant made complaints of unfair dismissal, disability discrimination and age discrimination. The respondent presented its response on 2 July 2018 and defended the claim.

[3]The full merits hearing was listed for ten days starting on 12 July 2021. For judicial resourcing reasons, the time allocation had to be reduced to four days, 12 to 15 July 2021. The parties both wished to proceed with the reduced time allocation, and agreed that most if not all of the evidence on liability could be completed in the four days available.

[4]The hearing took place by video (CVP). The respondent’s counsel had prepared helpful opening submissions and a cast list/chronology of main events. The tribunal heard the evidence of the claimant and, for the respondent, Joe McHugh, Regan McGrath and Marc Simons. The evidence of the claimant’s witnesses Marcus Jewell and Alison Marr was accepted by the respondent.

[5]There was an agreed hearing bundle with 1031 pages. Page references in this judgment and reasons are to the agreed bundle.

[6]On the afternoon of 13 July 2021, the second day of the hearing, an issue arose between the parties about the scope of the claimant’s claim. The tribunal considered this before the hearing began on 14 July 2021. We decided that:6.1 the claimant’s claim includes the issue of the substantive role of Romain Schneider before and after the acquisition of the respondent by Broadcom; and

6.2 the complaint of a failure to consider or offer alternative employment includes the failure to offer an existing vacancy and the failure to create a new role.

[7]Written reasons for this decision were requested and sent to the parties on 28 July 2021.

[8]There was insufficient time in the reduced allocation to hear submissions. It was agreed that the respondent would have the opportunity at the resumed hearing to call further evidence on the issue of the role of Mr Schneider before and after the acquisition of the respondent by Broadcom. Page 2 of 33

[9]The hearing resumed on 28 October 2021, the date having been listed taking into account the availability of the parties and their representatives. The respondent served a witness statement for Mr Schneider and a supplemental statement for Mr McGrath. The claimant’s representative did not have any cross-examination questions for Mr Schneider or for Mr McGrath on his supplemental statement. Additional documents were added to the bundle by consent, as pages 1032 to 1241.

The Issues

[10]Both parties’ counsel prepared helpful closing submissions and made oral submissions.

[11]Judgment was reserved. A deliberation day was listed for 5 November 2021 but this had to be postponed to 20 December 2021. The parties are aware of the reason for the postponement. The employment judge apologises for the subsequent delay in the promulgation of this reserved judgment and reasons and the impact on the future conduct of the case.

The Issues

[12]The issues for us to decide were set out in an agreed list of issues which was discussed and amended slightly at the start of the hearing. The issues for us to decide are as follows (the numbering is retained from the agreed list). 1. Protected Characteristicsa. Disability: it is agreed that the Claimant was disabled by reason of his renal cancer from 2005 onwards and at all material times the Respondent was aware of this.

b. Age: The Claimant was aged 59 in 2017 and the Respondent was aware of this at all material times. 2. Unfair dismissal a. it is accepted that there was a genuine redundancy situation. The issues are therefore: i. Was there adequate warning and/or consultation either collectively or individually and a real attempt to avoid redundancies? ii. Did the Respondent adopt a fair basis on which to select for redundancy, including having a fair or objectively selected pool? iii. Did the Respondent take such steps as were reasonable to avoid or minimise redundancy by redeploying potentially redundant employees within its own organisation? iv. Was it within the band of reasonable responses not to consider bumping? v. Did the process adopted discriminate because of age or disability (see below)? vi. Did the Respondent adequately consider suitable alternative employment? The Respondent contends that there was no suitable alternative employment. b. did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant and was dismissal within the range of reasonable responses? 3. Collective redundancy a. This complaint was withdrawn by the claimant. Page 3 of 33 4. Direct disability discrimination: a. Did the Respondent treat the Claimant less favourably than Joy Gardham and/or Romain Schneider and/or a hypothetical comparator by: i. failing to offer suitable alternative employment (comparators: Joy Gardham, Romain Schneider and hypothetical); ii. dismissing the Claimant (hypothetical comparator); iii. not upholding his appeal (hypothetical comparator)? b. If so, was that because of disability? 5. Indirect disability discrimination a. Of the following acts: iv. not using selection criteria; ix. not considering the impact of dismissal on employees. b. In respect of the acts at (i) — (ix) above, did the Respondent in fact apply those PCPs to the Claimant?

c. Did any PCP put, or would it put, disabled employees at a particular disadvantage when compared with employees without cancer, in particular: i. by leading to dismissal; ii. by the impact of dismissal on life expectancy, availability of medication and health; iii. by the impact of the loss of private medical insurance and/or life cover that cannot be secured at an affordable level because of the disability; and iv. by not upholding an appeal against dismissal?

d. Did it, or would it put, the Claimant at that disadvantage?

e. Can the Respondent show it to be a proportionate means of achieving a legitimate aim? The Respondent relies on legitimate aims of business efficiency and ensuring that the Respondent and/or Broadcom retained the relevant skills it needed. 6. Discrimination for a reason arising from disability a. This complaint was withdrawn by the claimant. 7. Failure to make reasonable adjustments: a. Of the following acts: Page 4 of 33 iv. not using selection criteria; ix. not considering the impact of dismissal on employees. b. Did any PCP(s) put the claimant at a substantial disadvantage in comparison with persons who are not disabled? The Claimant relies on the following substantial disadvantages: i. leading to dismissal; ii. the impact of dismissal on life expectancy, availability of medication and health; iii. the impact of the loss of private medical insurance and/or life cover that cannot be secured at an affordable level because of the disability; and iv. not upholding an appeal against dismissal? c. Did the Respondent take such steps as it is reasonable to have to take to avoid the disadvantage? The Claimant states that the Respondent should have made the following i. Applying a redundancy policy which included fair and objective selection criteria, scoring from a pool, consideration of actual duties, skill set and experience rather than job title, consideration of past performance; ii. Having a written policy so that those who made the decision as to who was placed in the SAN BU pool and who was placed in the IP GEN pool was consistent, objective, nondiscriminatory, justifiable and fair; iii. Adequate consultation on all of the process so that employees could offer ways of avoiding redundancies; iv. Offering suitable alternative employment should it have been available; v. Considering the impact of dismissal on disabled employees (in terms of the loss of PMI/life cover and considering weighting in favour of disabled employees); vi. Not dismissing the Claimant; and vii. Upholding his appeal. 8. Direct age discrimination a. Did the Respondent treat the Claimant less favourably than Joy Gardham and / or Romain Schneider and/or a hypothetical comparator in their 30s or 40s by: i. failing to offer suitable alternative employment (Comparators: Joy Gardham, Romain Schneider and / or hypothetical); ii. dismissing the Claimant; iii. failing to uphold his appeal? Page 5 of 33 b. if so, was the treatment because of age? c. Can the Respondent show the treatment to be a proportionate means of achieving a legitimate aim? The Respondent relies on legitimate aims of business efficiency and ensuring that the Respondent and/or Broadcom retained the relevant skills it needed. 9. Indirect age discrimination a. Of the following acts: iv, not using selection criteria; ix. not considering the impact of dismissal on employees (in terms of availability of life cover /private medical insurance and effect on health, availability of medication and life expectancy) b. In respect of the acts at (i) — (ix) above, did the Respondent in fact apply those PCPs to the Claimant? c. Did any PCP(s) put, or would put, employees in their 50s/60s at a particular disadvantage when compared with employees in their 20s/30s or 40s, in particular: i. by leading to dismissal; ii. by the impact of dismissal on life expectancy, availability of medication and health; iii. by the impact of the loss of private medical insurance and/or life cover that cannot be secured at an affordable level because of age; and iv. by not upholding an appeal against dismissal? d. Did it, or would it put, the Claimant at that disadvantage? e. Can the Respondent show it to be a proportionate means of achieving a legitimate aim? The Respondent relies on legitimate aims of business efficiency and ensuring that the Respondent and/or Broadcom retained the relevant skills it needed. 10. Remedy a. Should the Claimant be reinstated or re-engaged? b. What compensation is the Claimant entitled to? c. Should there be any uplift for failure to follow ACAS procedures? d. Is a Polkey reduction appropriate? Page 6 of 33 Findings of fact

[13]We make the following findings of fact based on the evidence we heard and read. We heard a lot of evidence during the hearing, and we do not attempt to include everything here. We set out here the facts which we have found of most assistance in deciding the relevant issues. The respondent’s business

[14]The respondent is part of a global group of technology companies specialising in data and storage networking products. This is an area of work employing very technical language and frequent use of acronyms. We set out a brief outline of some aspects of the respondent’s business which are relevant to the issues we have to decide.

[15]The respondent’s business activities prior to 2017 included designing and selling systems for storing digital data, known as Storage Area Network (‘SAN’) business, and also designing and selling systems to allow clients to connect to the internet or to their own networks, known as Internet Protocol (‘IP’) business. The respondent carried out two types of IP business: i) Switching Routing and Analytics (‘SRA’), where the connection is made using hardware devices and software networking, also known as Local Area Networking or ‘LAN’ and ii) wireless networking where the connection is made without cables, also known as Wireless Area Networking or ‘WAN’. There were also other smaller areas of business. Another aspect of the respondent’s business which we need to explain briefly is that the respondent often worked in partnership with companies who manufacture IT products and those companies are referred to as Original Equipment Manufacturers (‘OEMs’).

[16]Prior to 2017 the global operations of the Brocade group, of which the respondent was a part, were organised regionally and not by reference to these business lines. Employees were grouped according to geographical region, selling a range of products and services to clients based in their region. Acquisition of the respondent by Broadcom

[17]In November 2016 it was announced that Broadcom Inc (‘Broadcom’), a global IT company, proposed to acquire Brocade. The acquisition was to take the form of a purchase of shares. The acquisition was delayed pending regulatory approval from the US, and did not complete until 2 November 2017, a year after the announcement of the proposed acquisition. The completion of the acquisition was announced on 17 November 2017.

[18]Importantly, under the terms of the acquisition, Broadcom only wanted to purchase Brocade’s Storage Area Network (SAN) business. It did not want to acquire the IP business or the other smaller areas of business. This meant that Brocade had to sell off or try to sell off those parts of its business to other purchasers, either before or shortly after the acquisition by Broadcom. Page 7 of 33

[19]This posed a challenge to Brocade because its organisational structure was not neatly delineated by business activity. It was organised by region rather than by business line. To make it possible to sell off different parts of the business to different purchasers, the workforce had to be restructured, so that it was organised by business activity. Very shortly after the announcement of the proposed acquisition, Brocade began an alignment process, moving employees into business units, to facilitate the sale of the parts of the business which Broadcom would not be purchasing.

[20]There was therefore a major reorganisation of the business between November 2016 and November 2017. During this time Brocade identified or set up business units, each dealing with a specific business activity, then aligned employees to the various business units and sought buyers for each of the units. Employees aligned to a business unit which was sold were transferred to the purchasing company. The alignment process

[21]For the respondent (that is the UK part of the global Brocade group) the alignment process focused on the organisational structure across all parts of the business in Europe, the Middle East and Africa (‘EMEA’), not just the UK. This can be seen from the organisation charts, for example pages 131 and 150 which show the structure of the EMEA West Sales part of the business before and after the acquisition by Broadcom.

[22]The alignment process was more straightforward for some employees than for others. One reason for this was because Brocade had historically developed and grown through acquisitions of other companies. Businesses acquired more recently were easier to delineate. For example, Ruckus Wireless was acquired by the respondent in November 2016 and at the time of the announcement of the acquisition by Broadcom, its employees had yet to be fully integrated into the wider business. The Ruckus Wireless business was preserved as a separate business unit, and sold to another purchaser in November 2017.

[23]For other employees, the nature of their role made it easier to align them. For example, employees who concentrated solely or predominantly on the sale of one particular product could be aligned into the business unit for that product. Similarly, an OEM relationship manager might, because of the relationship with a particular manufacturer, use only one or mainly one product, and so they could be aligned to the business unit which included that product.

[24]However, the alignment process was much more difficult for those employees whose responsibilities covered numerous business activities or products. This made it less clear which business unit they should be aligned to (or, put another way, there might be more than one business unit to which they could be aligned). This particularly applied to senior members of the business, including senior management teams who were, prior to the restructuring, responsible for all business activities across a particular geographical region. Page 8 of 33

[25]Various parts of Brocade’s business were sold off during the course of 2017 (page 374). Employees who had been assigned to those business units transferred to the purchasers of those businesses.

[26]Employees who were not aligned to the business units which were being sold off were assigned to one of two business units in anticipation of the completion of the acquisition by Broadcom. The two business units were called the Storage Area Network business unit (the SAN BU) and the Internet Protocol General business unit (the IP General BU).

[27]The SAN business unit was the part of Brocade’s business which was to be acquired by Broadcom (if the purchase completed). Those employees aligned to SAN were those who had identified future roles within the part of the business which would be continued by Broadcom (the SAN business). Those assigned to the IP General business unit had no identified future role because Broadcom was not purchasing the IP General part of the business. Purchase of the IP General business unit by another purchaser was unlikely, because staff on the unit did not do a specific business activity which would make it appealing to a purchaser. So, when the acquisition by Broadcom closed, redundancy consultation was likely to follow for staff assigned to IP General. If there was no alternative role for them, they were likely to be made redundant.

[28]It can be understood from this that the decision as to whether to align an employee to the SAN business unit or to IP General business unit played a very significant part in whether they would have a job after the acquisition.

[29]There was no written policy for the alignment exercise and no explanation as to how the business would decide which employees or which roles should be aligned to which business unit. There was no consultation with employees about the alignment exercise. Brocade did not consider there to be any requirement to consult over the potential redundancies, because the acquisition by Broadcom was still subject to regulatory approval and therefore was not certain.

[30]On 23 December 2016 a ‘talking points and FAQs’ document was sent to leaders and managers. It said it was not to be distributed to employees (page 195). The information provided to describe how Brocade had determined who was aligned with the SAN business (page 197) said as follows: “The identification process was highly collaborative, vetted across all functional executives and guided by a common set of criteria. In many cases, identification as 'SAN' was clear based on one's entire job function and duties (i.e.: role & responsibilities, key accounts and domain knowledge). Where cross-functional dependencies or duties across businesses existed (i.e.: day-to-day duties, customer support that impacted across various product lines), business leaders consulted to reach a conclusion aligned with the majority of one's duties. While your current organizational reporting structure remains unchanged, you are considered as aligned with the SAN business.” Page 9 of 33

[31]Despite the reference to a collaborative process, there were no minutes before us of any collaboration meetings and we were not aware of any taking place.

[32]Despite the reference to a common set of criteria, there was no document setting out what criteria were applied. We heard evidence about whether in carrying out the alignment process the respondent considered roles only, or whether it focused on an individual employee’s skills and capability. The respondent’s approach was inconsistent. For example, Mr Simons, the UK based manager who considered the claimant’s redundancy appeal, focused on the kind of work being carried out, not an individual’s performance, although performance could be relevant as a criteria to select from a pool.

[33]Mr McGrath, who was based in Canada, was the Vice President of America Sales and from May 2017 the Vice President of Worldwide Sales. He took a different approach. In carrying out the process of matching roles in the existing organisation with available roles in the future organisation, he relied on the knowledge of local managers as to who was “doing the job and competent at the job”. He said criteria would include “ongoing performance and a variety of other things sales managers would find valuable, such as impact to the business.” He agreed that an assessment of the person as well as the role would be part of the process. The claimant’s role

[34]The claimant’s claim arises against that background.

[35]The claimant had 18 years’ experience in the IT storage market when he joined the respondent on 28 June 2004 (page 85). His first role with the respondent was as an OEM Territory Sales Representative. He excelled in his role as a sales representative.

[36]The claimant was promoted a number of times over the years. By 2011 he was one of two regional sales managers in the UK. He had responsibility for SAN business in the UK. He was very successful in this role and was awarded the 2011 EMEA Sales Manager of the Year. In 2013, he was promoted to a sales leadership role with responsibility for improving sales effectiveness and efficiencies across the EMEA region. He was seen as a proven strong sales leader.

[37]On 27 November 2015 the claimant was promoted to the role of Director – EMEA Operations, reporting to Marcus Jewell, the respondent’s Vice President EMEA (page 169). The parties agreed that the claimant’s role was effectively chief of staff to Mr Jewell. The role included:37.1 Back up support for Mr Jewell for Governance of the EMEA business;

37.2 Support with corporate communications;

37.3 Forecast process improvements;

37.4 Sales Enablement (sales enablement is about equipping others to enhance their sales skills to generate sales efficiencies and Page 10 of 33 improvements, by way of training, guidance, techniques, processes and procedures); and

37.5 Driving and managing existing and new programs.

[38]The claimant did not manage a team. His was a ‘standalone’ role supporting Mr Jewell. It was also not a customer facing role; it was internal facing and focused on sales processes and development of the sales operation. It was not aligned to one sales product. In this role the claimant was regarded as a ‘remarkably key member of the sales team’ (page 183).

[39]The claimant had been diagnosed with cancer in 2005. He had had medical treatment under the respondent’s private medical insurance for a period of around 12 years. The private medical insurance had provided the claimant with faster medical treatment, with access to a wider range of medication and with access to that medication sooner than if he had not had the insurance cover.

[40]In November 2016, at about the time the proposed acquisition of the respondent by Broadcom was announced, the claimant had a heart attack which required emergency surgery. Mr Lindholm, the respondent’s group senior vice president for worldwide sales emailed the respondent’s HR director to highlight the risk that the circumstances (by which he meant the risk of dismissal as a result of the major reorganisation) meant that the claimant might lose his medical insurance coverage in a situation where he was facing long term significant medical expense. Mr Lindholm asked the HR director for input as to how the respondent might mitigate these risks for the claimant. The HR team responded to say they would be looking into benefit provision to understand the options which may be available (page 183). Nothing was communicated to the claimant or his managers about this until December 2017.

[41]Soon after the acquisition was announced, Mr Jewell asked Alison Marr, his executive assistant, to compile lists of all EMEA sales and sales engineering staff broken down into business units. Ms Marr asked the claimant, who was very familiar with the sales organisation, to assist her in making sure that all individuals were placed in the right business units. This process was done quickly and was carried out by reference to job title, there was no reference to job descriptions and no formal process of skills assessment.

[42]As a senior manager, the claimant was one of those employees who had responsibility for a number of different business activities within a region. His role could not continue in the same form after Brocade began separating into business units. The functions the claimant and Mr Jewell had carried out were now being done within the separate business units. In November 2016 the claimant and Mr Jewell discussed the claimant’s role. The claimant said he would accept a change in role so that he could remain employed and keep his private medical insurance, even if that meant having lower responsibilities. Mr Jewell and the claimant agreed to change the claimant’s role so that he would focus on supporting the group’s strategic and biggest SAN customers (pages 1024 and 1025). Page 11 of 33

[43]The claimant was initially assigned to the SAN business unit. He appears on a list of ‘retention employees’ on 4 November 2016 (page 175). His name was then on lists of SAN employees dated 1 December 2016 and 6 January 2017 (pages 1020 and 217). He was informed that he was assigned to the SAN business unit.

[44]However, by 3 February 2017 a decision had been taken to move the claimant and a manager based in Germany off the SAN business unit. An email dated 3 February 2017 explains the decision, saying that ‘the primary reason is that their roles are not critical when reviewing the core needs of the SAN BU’ and that there was ‘no sales enablement function planned for the SAN BU and so [the claimant’s] role is not needed’ (page 243).

[45]The sales enablement part of the claimant’s role was no longer needed. Support to Mr Jewell was no longer needed, as Mr Jewell would be leaving the respondent. The respondent still needed some aspects of the claimant’s role, such as support and prioritisation of corporate relationships for the SAN business (page 169). There was no reference in the email of 3 February 2017 to any other aspects of the claimant’s role other than sales enablement. There was no explanation as to why the changes to the claimant’s role which Mr Jewell had agreed were not or could not be put in place.

[46]The reason given for the removal of the manager in Germany from the SAN business unit is ‘Reduction required in the number of SE managers —his current org can be further collapsed across the other SE managers. The other SE leads are both more seasoned and more senior and can cope with the broader scope of responsibilities invoked by this change in the planned organisation’. (SE stands for Systems Engineering.)

[47]Some discussions followed this between HR staff in various parts of the business about notifying the claimant and his colleague of their removal from the SAN business unit. On 6 February 2017 an HR director in the US business asked ‘Will there be issues since we’ve notified them previously as SAN?’ (page 245). The UK HR lead replied to say that she would ‘work with Stuart Cooper [VP Systems Engineering EMEA] on the messaging as given [the claimant’s] personal circumstances and [his colleague’s] pure SAN background, there will be an emotional response’ (page 245).

[48]On 7 February 2017 the claimant’s line manager, Mr Jewell had a skype chat with the UK HR lead about the removal of the claimant and his colleague from the SAN business unit: “MJ: bit pissed with [Mr Cooper] et al on this I worked to save them and they have thrown 2 under the bus HR: pressure on numbers I think MJ: I get it but this is not objective there are weaker people HR: talking to [Mr Cooper] this was a role based decision rather than skills or capacity” Page 12 of 33

[49]It is clear that the description of the decision as purely role based was not accurate. The reasons given for the removal of the claimant’s colleague (that there were ‘more seasoned and more senior managers’ who could cope with broader responsibilities) clearly indicate that factors such as skills and experience were taken into account.

[50]We accept Mr McGrath’s evidence that ultimately he had responsibility for the decision to remove the claimant from the SAN list. His evidence was supported by an email exchange in late December 2016 which referred to his decision to remove some employees from the SAN business unit (page 195). We find on the basis of other contemporaneous documentation (including the above Skype chat between Mr Jewell and the UK HR lead) and Mr McGrath’s evidence that he relied on local management, that it was likely that the decision was taken in conjunction with Mr Cooper. Mr McGrath’s decision was driven by pressure on numbers. He said that there were a lot of good people who couldn’t be retained, including his chief of staff who worked in a role similar to the claimant.

[51]It was very clear to us from the evidence we heard and read that the decisions by senior managers as to who would be aligned to the SAN business unit were taken in an ad hoc, subjective way, without any formal assessment and without reliance on clear objective criteria. Whether changes could be made to someone’s role such that they could be aligned to the SAN business depended on who their manager was, whether that manager thought their skills and experience had sufficient impact on the business, and whether that manager was successful in persuading those with the final decision. For the claimant, his manager Mr Jewell supported his case to be aligned to the SAN business unit and therefore stay on in the business, and took steps to change the claimant’s role to try to achieve this. Mr Jewell’s view did not prevail, perhaps because he was leaving the business. Instead, Mr Cooper and Mr McGrath made the final decision and when dealing ‘pressure on numbers’ decided that the claimant would be one of those to be removed from the business unit, and not to have an identified future role.

[52]When he heard that he had been taken off the SAN list, the claimant contacted Mr McGrath on 3 and 17 February 2017 by email and by phone (page 1021). He set out his skills and explained that his main contribution with the respondent had been in successful SAN sales and management. Mr McGrath spoke to the claimant briefly on the phone but did not get back to him after that.

[53]Mr Jewell left the respondent in May 2017. Redundancy consultation

[54]The acquisition by Broadcom completed on 2 November 2017 and was announced on 17 November 2017. After this the group HR team began managing termination and settlement processes and other employment procedures arising from the acquisition in 12 countries across Europe (page 439). In the UK, around 30 of the respondent’s employees, including the claimant, had been assigned to the IP General business unit. They had no Page 13 of 33 identified roles in the part of the business which was being acquired by Broadcom and they were at risk of redundancy.

[55]A conference call was held with the respondent’s employees in the IP General business unit on 20 November 2017. They were told that a collective consultation process would be starting shortly. They were told that alternative employment within Broadcom was unlikely. A draft settlement agreement had been sent to the employees and they were told that all employment benefits would cease at the termination date.

[56]After the completion of the acquisition by Broadcom, there was a change to the respondent’s internal IT systems. Training on the new system was provided to employees but not to those in the IP General business unit (page 445).

[57]On 21 November 2017 the claimant received a letter from the respondent warning him that he was at risk of redundancy (page 437). The letter explained: “As you are aware, you were assigned to the IP General business unit following the internal alignment of the business earlier this year. During the course of this year business units have been sold to other buyers, and negotiations are continuing in respect of the potential sale of the Network Edge business unit to Arris. The acquisition by Broadcom was by way of a share sale and therefore you remain employed by the Company, but which in turn is now owned by Broadcom. Broadcom has reviewed the parts of the Company which it has acquired and concluded that it has a diminished requirement for the services provided by those employees aligned to the IP General business unit and those that have been assigned transition roles. After considering all possible options, the Company has concluded that there is a risk that it will be unable to continue to provide work for the IP General employees and for those in transition roles and that it may therefore have to make redundancies.”

[58]In his evidence to us Mr McHugh said that the reference to ‘all possible options’ having been considered must have been referring to the possibility of the IP General business being sold. He could not give any other examples of possible options which could have been considered at this stage.

[59]The letter went on to say that there would be a consultation exercise, during which the respondent would be exploring ways of avoiding compulsory redundancies and minimising the number of employees affected. Employee representatives would be appointed. It was anticipated that the process would take between 3 and 4 weeks.

The law

[60]Employee representatives were appointed for the IP General business unit and collective consultation with them began on 23 November 2017 (page 515). The HR1 form which the respondent submitted to the Insolvency Service at this time to give notice of the proposed redundancies was Page 14 of 33 returned by the insolvency service because it gave only 22 days’ notice rather than the 30 days required by statute (page 508). It was resubmitted with a new date of 24 December 2017 as the date of the first proposed dismissal (page 509).

[61]Collective consultation meetings were held on 23 and 30 November and 5 and 14 December 2017. The respondent confirmed that there were no vacancies for which those at risk could be considered (pages 515 and 716).

[62]At the time of the acquisition, employees with identified roles in the business were given new Broadcom email addresses. Employees in the IP General business unit were not given Broadcom email addresses. On 1 December 2017 the employees in the IP General business unit had their IT access removed, making it difficult for them to communicate with the respondent and with each other for the purposes of the collective consultation. Mr McHugh had to request the reinstatement of IT access for this group of employees (pages 442 and 596). Consultation with the claimant

[63]The claimant’s individual consultation meeting took place on 8 December 2017 with Ms Dhanoa from HR. No notes were taken of the meeting. We accept the claimant’s evidence that during this meeting Ms Dhanoa said that she was not aware of any selection process or the criteria for redundancy selection. She said it was all handled at ‘corporate level’. She said that the respondent did not appear to have a policy to consider alternative positions. She sent the claimant a copy of a settlement agreement for him to consider. This was the only individual consultation meeting the claimant had.

[64]On 11 December 2017 the respondents replied to a letter from the claimant’s solicitors sent on 30 November 2017 (pages 592 and 700). The respondent’s HR director said that the company did not have a specific redundancy policy, and that it did not have an ill health retirement policy. Enhanced severance payments were available on redundancy, subject to the employee entering into a settlement agreement. The letter said that the claimant had not been placed in any selection pool. He had been identified as having a ‘stand alone sales enablement’ role, and there was no requirement for sales enablement activity within the remaining SAN business unit, so he was at risk of redundancy.

[65]Mr McHugh was involved with preparing the response to the claimant’s solicitors. He carried out some enquiries as he wanted to understand whether the claimant’s selection for redundancy was based on his disability. He spoke to Joy Gardham, the regional sales director for EMEA Sales (West). She said that Mr Cooper knew more about the decision to move the claimant into the IP General business unit. Mr McHugh spoke to Mr Cooper and explained he wanted to understand why the claimant’s role was selected and to receive reassurance from him that his role selection was not connected to his disability in any way. Mr McHugh concluded that the claimant had been placed at risk of redundancy because there was no requirement for someone to undertake his unique role in the new business structure. Mr McHugh found out that there was also another employee Page 15 of 33 based in North America with the same roles and responsibilities whose role was also terminated at or around the time of the acquisition. Mr McHugh felt satisfied that the decision to select the claimant for redundancy was not influenced by the claimant’s medical condition in any way.

[66]Mr McHugh also made some enquiries into medical insurance. During the consultation process the claimant had raised with the respondent that he would lose the benefit of the company’s medical insurance if made redundant. In an email on 13 December 2017 Mr McHugh asked the senior manager for global benefits to ask whether it would be possible to extend the claimant’s cover under the company policy for a short time after the termination of his employment (page 708). Mr McHugh explained that the claimant had had cancer for a number of years, and said, “Whilst his condition is managed, he's been dependent on the private health coverage for medication and treatment, and he has not been able to find an insurer that will cover him personally once his employment terminates.”

[67]Personal private health insurance was not an option for the claimant. Because of his pre-existing conditions, he was either refused cover, or policies were prohibitively expensive. The position is the same for life insurance policies.

[68]On 19 December 2017 Mr McHugh received a response which said that the respondent could not extend medical insurance for any employee, and the only way to do that would be for the individual to enquire about individual cover after leaving the respondent (page 747). Mr McHugh passed this information to Ms Dhanoa who informed the claimant.

[69]The respondent allowed another employee in IP General to remain on garden leave for one month before being dismissed with two months’ notice. This was to allow her to have some specific medical treatment (surgery).

[70]The respondent also provided permanent health insurance as a benefit to employees (page 993). This benefit was payable to employees on long term sickness absence. After 26 weeks of absence, the insurer paid 75 % of monthly earnings up to £78,750 of annual income. At the time of the alignment exercise and the formal consultation, the claimant was not eligible to claim under this insurance as he had not had 26 weeks sick leave The claimant’s dismissal

[71]The claimant was given notice of dismissal in a letter dated 29 December 2017 (page 757). He was dismissed with effect from 31 December 2017, with pay in lieu of three months’ notice. He was 59 at the time of his dismissal.

[72]The decision to dismiss the claimant at this stage was taken by Mr McHugh. A number of other employees in the IP General business unit were dismissed for redundancy on the same day. Page 16 of 33

[73]As a result of the dismissal, the claimant lost his access to private medical insurance. This has affected the treatment he receives. He has longer waiting times for diagnosis and treatment and less continuity of care than previously. This has caused him increased pain and worry and has had a significant impact on his quality of life and overall health.

[74]The claimant appealed against his dismissal by letter of 8 January 2018. The appeal hearing took place on 29 January 2018 (page 905). The appeal was heard by Mark Simons. He was junior to the claimant. Mr Simons had never previously dealt with an appeal against dismissal, or any disability case. He had had no training on redundancy, appeals against dismissal, disability or the Equality Act 2010.

[75]In his evidence to us Mr Simons accepted that he was aware when conducting the appeal that a decision had been taken to remove the claimant from the SAN business unit, but he did not know who had made that decision. His review was centred around the role the claimant was performing and his conclusion was that the role was no longer required. In reaching this conclusion he spoke to Mr Cooper and Ms Gardham about the respondent’s requirements. He did not take any notes of those conversations.

[76]On 18 March 2018 Mr Simons wrote to the claimant to say that his appeal had not been upheld (page 965). The claimant’s comparators

[77]Romain Schneider was a colleague of the claimant who was aligned to the SAN business unit and who remained with Brocade after the acquisition by Broadcom.

[78]He was based in Geneva. At the time of the proposed acquisition announcement in November 2016, he was working in a sales engineering operations and enablement role (page 1102). His responsibilities included technical training, recruitment, and process optimization. He did not manage a team. He had a similar role to the claimant’s. It was described as a standalone role supporting a more senior manager. Mr Schneider supported Mr Cooper (page 142).

Conclusions

[79]After the announcement of the proposed acquisition, Mr Cooper spoke to Mr Schneider about changing his role. Mr Cooper said that Broadcom did not wish to retain internally focused operations roles dealing with internal customers, and that Mr Schneider could not be retained working solely on the work he was undertaking. However, Mr Cooper still considered the project and operations work that Mr Schneider was undertaking as important to the business and he wanted him to continue this work. Mr Cooper said that to enable Mr Schneider to do this within the postacquisition structure, he needed to be given some additional responsibilities and a team to manage.

[80]Mr Cooper identified a pre-sales manager role managing a team of sales engineers focused on OEM clients across a number of territories including Page 17 of 33 Switzerland, Eastern Europe, Russia, the Middle East and Africa. This role was allocated to Mr Schneider, in addition to his project and operations work. On 6 January 2017 Mr Schneider was described as being ‘back on the SAN list’. Mr Cooper had spoken with an HR director and Mr McGrath to reinstate him on the list (page 218).

[81]On 27 February 2017, in response to a query about Mr Schneider’s role after the acquisition, Mr McGrath sent an email (page 1180) which said: “I altered his role and eliminated someone else and he now manages all of the [Sales Engineers] focused on the OEM partners.”

[82]The person who was ‘eliminated’ was the manager in Germany who was removed from the SAN list and referred to with the claimant in an email of 3 February 2017 (page 243). The manager from Germany led the team of sales engineers who focused on OEM partners. That team was reallocated to Mr Schneider. The organisation charts on page 142 and page 1193 referred to by Mr Schneider in his witness statement show Mr Schneider as the new manager of the team by 27 February 2017. Page 1193 has a bullet point stating ‘[Previous manager] team under Roman’. The change of manager of one team member from the manager in Germany to Mr Schneider is also noted on page 323.

[83]Up to and following the Broadcom acquisition Mr Schneider continued with this dual role, managing the team of engineers while continuing his project and operational duties. In February 2018 he was given an additional role as OEM Sales Manager for Huawei, a new customer to the business. We had no evidence about Mr Schneider’s age.

[85]Prior to the acquisition by Broadcom, Joy Gardham was the regional sales director for EMEA Sales (West). Her role included both SAN and IP (LAN). She was appointed to this role in around June 2013. The claimant had been performing the role on an interim basis prior to Ms Gardham’s appointment. Ms Gardham was appointed rather than the claimant, because she had more IP experience than him. If the role had been solely SAN business, Mr Jewell would have appointed the claimant to it.

[86]In the alignment process Ms Gardham’s role changed so that it only encompassed SAN business. The IP elements were dropped from her role. Her SAN role was expanded to include responsibility for France (pages 130 and 148).

[87]The claimant accepted at the conclusion of the hearing that Ms Gardham was not a suitable comparator for his complaint of age discrimination.

[88]After the sales of the various parts of Brocade’s business and the completion of the acquisition by Broadcom, Brocade’s workforce was dramatically reduced in size. Its global workforce fell from 4,437 to 1,754 and its EMEA workforce (which included the respondent’s workforce, that is the UK workforce) fell from 544 to 195. The claimant was one of two senior managers who were made redundant. Page 18 of 33 The Law Protected characteristics

[89]Disability is a protected characteristic under sections 4 and 6 of the Equality Act 2010. Cancer is a disability pursuant to paragraph 6 of schedule 1 of the Equality Act.

[90]Age is a protected characteristic under sections 4 and 5 of the Equality Act. Direct discrimination

[91]Section 13(1) of the Equality Act 2010 provides: “A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

[92]Section 13(2) says that in a claim of direct discrimination on grounds of age, A does not discriminate: “if A can show A’s treatment of B to be a proportionate means of achieving a legitimate aim.” Indirect discrimination

[93]Section 19 of the Equality Act 2010 provides: “(1) A person(a) (A) discriminates against another

(b) (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's. (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(d) A cannot show it to be a proportionate means of achieving a legitimate aim.” Failure to make reasonable adjustments

[94]The Equality Act imposes a duty on employers to make reasonable adjustments. The duty comprises three requirements, in this case, the first requirement is relevant. This is set out in sub-section 20(3). In relation to an employer, A: Page 19 of 33 “(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.”

[95]The EHRC Code of Practice says that transferring a disabled worker to fill an existing vacancy is a step which it might be reasonable for employers to have to take as a reasonable adjustment (paragraph 6.33). It gives the following example: “An employer should consider whether a suitable alternative post is available for a worker who becomes disabled (or whose disability worsens), where no reasonable adjustment would enable the worker to continue doing the current job. Such a post might also involve retraining or other reasonable adjustments such as equipment for the new post or transfer to a position on a higher grade.”

[96]In Archibald v Fife Council

[2004] ICR 954

, explaining the duty to make reasonable adjustments, Lady Hale said in paragraphs 67 to 70: “ … to the extent that the duty to make reasonable adjustments requires it, the employer is not only permitted but obliged to treat a disabled person more favourably than others.”

[97]In Chief Constable of South Yorkshire v Jelic (

UKEAT/0491/09/CEA

), the EAT held that a tribunal is not, as a matter of law, precluded from holding that it would be a reasonable adjustment to create a new job for a disabled employee in substitution of their existing post, if the particular facts of the case supported such a finding, and agreed with the observations of the EAT in Southampton City College v Randall

[2006] IRLR 18

, explaining that in that case (at paragraph 46) “It was not being suggested that the employer should have created a post which was not otherwise necessary. In fact, the College had embarked upon a substantial reorganisation and restructuring process. The Claimant’s line manager conceded in evidence that he had had ‘a blank sheet of paper’ for this process and for the job specifications which resulted. The Tribunal held that it would have been possible in these circumstances to devise a job which would both take account of the employee’s disability and harness the benefits of his successful career and experience, but the employer was found not to have taken this or any other reasonable step to accommodate a long-serving and valuable employee. The EAT found that this conclusion was open to the tribunal on the specific facts of the case.” Burden of proof in complaints under the Equality Act 2010

[98]Sections 136(2) and (3) provide for a shifting burden of proof: "(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. Page 20 of 33 (3) This does not apply if A shows that A did not contravene the provision."

[99]This means that if there are facts from which the tribunal could properly and fairly conclude that there has been unlawful discrimination, the burden of proof shifts to the respondent.

[100]In a complaint of failure to make reasonable adjustments, for the burden to shift, the claimant must demonstrate that there is a PCP causing a substantial disadvantage and evidence of some apparently reasonable adjustment that could have been made (Project Management Institute v Latif

2007 IRLR 579

, EAT).

[101]If the burden shifts to the respondent, the respondent must then provide an “adequate” explanation, which proves on the balance of probabilities that the respondent did not fail to make reasonable adjustments.

[102]Where the burden shifts to the respondent the respondent can defend the claim by showing that it did not know the claimant was disabled, that the reason for the unfavourable treatment was not the ‘something’ alleged by the claimant, or that the treatment was a proportionate means of achieving a legitimate aim.

[103]The respondent would normally be expected to produce “cogent evidence” to discharge the burden of proof. If there is a prima facie case and the explanation for that treatment is unsatisfactory or inadequate, then it is mandatory for the tribunal to make a finding of discrimination. Unfair dismissal

[104]Section 98 of the Employment Rights Act sets out the tests for determining whether a dismissal is fair or unfair. Subsection 1 provides: “(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.”

[105]Redundancy is a reason falling within subsection (2).

[106]If the reason for dismissal is a potentially fair reason within sub-sections (1) and (2), then the tribunal must go on to consider whether the dismissal is fair in all the circumstances of the case, and, under sub-section (4): “the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and Page 21 of 33

(b) shall be determined in accordance with equity and the substantial merits of the case.” Conclusions

[107]We have applied the legal principles to our findings of fact to reach our conclusions in respect of the issues we had to decide. We have addressed the issues in a different order to the list of issues. We have started by setting out our conclusions on the complaint of failure to make reasonable adjustments, then the complaint of unfair dismissal, and finally the complaints of direct and indirect discrimination. Failure to make reasonable adjustments

[108]The respondent agrees that from 2005 onwards the claimant was disabled within the meaning of section 6 and schedule 1 of the Equality Act because of cancer, and that at all material times the respondent was aware of this.

[109]A PCP is a provision, criterion or practice. The claimant relied on the following PCPs:109.1 the redundancy policy the respondent followed;

109.2 not having a written procedure (the respondent admits that it did not have a written redundancy procedure);

109.3 not having an objective pool;

109.4 not using selection criteria;

109.5 not considering bumping;

109.6 not adequately consulting;

109.7 not seeking to avoid redundancies;

109.8 not offering suitable alternative employment;

109.9 not considering the impact of dismissal on employees.

[110]The respondent accepts that the first of these amounts to a PCP. We conclude that the redundancy policy followed by the respondent was a PCP that was applied to the claimant. The redundancy policy was unwritten. The redundancy policy followed by the respondent was to conduct an alignment exercise starting in November 2016 in anticipation of formal consultation which took place later. The alignment process very largely determined who would be redundant and subject to the later formal consultation. The alignment exercise and the formal consultation both formed part of the respondent’s redundancy policy.

[111]The other PCPs relied on by the claimant are the reverse of the reasonable adjustments which the claimant says should have been made to the policy (for example, a PCP of not having a written procedure requires the adjustment of having a written policy, or a PCP of not adequately consulting requires the adjustment of adequately consulting). That does not take things very much further than the first PCP (the redundancy policy itself) and we have concluded that the other PCPs the claimant proposes are better seen as encompassed within the wider PCP of the redundancy policy as a whole, or as part of the suggested reasonable adjustments, rather than being separate PCPs in themselves. Page 22 of 33

[112]On the issue of PCPs therefore, we have concluded that the policy adopted by the respondent from November 2016, including the alignment exercise and the formal consultation process, was a PCP.

[113]We have next considered whether the redundancy policy followed by the respondent put the claimant at a substantial disadvantage in comparison with people who are not disabled. The claimant relies on four points which can be summarised as the risk of the policy leading to dismissal and the impact which dismissal would have on him because of his disability, including the impact of the loss of private medical insurance and/or life cover that cannot be secured at an affordable level because of disability.

[114]A substantial disadvantage is one which is more than minor or trivial. A substantial disadvantage may arise where people who are not disabled are disadvantaged as well as the disabled person, but the disadvantage ‘bites harder’ on the disabled person.

[115]The claimant had had medical treatment under the respondent’s private medical insurance for a period of around 12 years. It had provided him with faster medical treatment, earlier access to some medication and a wider range of medication than if he had not had the insurance. On dismissal, the claimant was not unable to buy or to afford a personal health insurance policy for himself and he lost this benefit. This meant that there were delays in the claimant’s diagnosis and treatment and less continuity of care. Loss of private medical insurance caused him increased pain and worry and had a significant impact on his quality of life and overall health.

[116]The impact of the loss of this benefit would not be as substantial for people who are not disabled, who would be able to buy a replacement policy more easily and affordably. The life cover which the claimant was provided as part of his terms and conditions of employment was also lost.

[117]We accept that the redundancy policy did put the claimant at a substantial disadvantage in comparison with people who are not disabled, in that the risk of dismissal and the consequent loss of the private medical insurance was more of a disadvantage to the claimant. The risk of dismissal was a disadvantage to everyone who was at risk of dismissal under the respondent’s redundancy policy, but it ‘bit harder’ on the claimant because of the significant additional impact of dismissal on him arising from loss of the private medical insurance on which he had relied for many years.

[118]The respondent was aware that the claimant would be substantially disadvantaged in this way by being dismissed under the redundancy policy, because Mr Lindholm had brought it to the attention of the respondent’s HR team in November 2016.

[119]Our conclusions on these parts of the legal test mean that the respondent was under a duty to take reasonable steps to avoid the substantial disadvantage to the claimant which arose from the PCP. The final limb for us to consider is whether the respondent complied with that duty. Page 23 of 33

[120]The claimant has set out detailed steps he says the respondent could have taken. In summary there are three points: having a fair and objective redundancy policy and a written policy for the alignment decision, having adequate consultation and offering suitable employment so that the claimant was not dismissed.

[121]We have considered whether each of the steps suggested by the claimant would have avoided the disadvantage to him, if so whether it was reasonable for the respondent to take it, and if so whether the respondent failed to take it. i to ii) applying a redundancy policy with fair and objective selection criteria and consideration of skill set, experience and performance, and a written policy so that the alignment decision was consistent and objective

[122]We have found that the criteria which were applied during the alignment process were not clear or consistent. This particularly affected senior managers including the claimant, whose broad management roles meant that it was less clear which business unit they should be aligned to. We have found that some UK managers thought that the alignment exercise was about role only, but that senior managers who made the decisions took individual skills, experience and performance into account, and, in the absence of a written policy, did so in a subjective way without any formal assessment or clear objective criteria. We have found that the respondent made changes to the roles of two managers so that they were then aligned to the SAN business unit and had identified roles. Changes which were proposed to the claimant’s role for the same reason were not taken forward, without adequate explanation. The claimant’s offer to accept a role with lower responsibility in order to remain in employment, was not properly considered.

[123]In circumstances where the claimant was at a substantial disadvantage because of the additional impact of dismissal on him, a policy with clear and consistent criteria would have had a good prospect of reducing or avoiding that disadvantage. It would have enabled the claimant’s skill set, experience and performance and the proposed change to his role to have been transparently considered by the respondent and dealt with in a way which was consistent with the approach taken for Ms Gardham and Mr Schneider.

[124]We have concluded that a policy setting out clear and objective criteria for the alignment decision would have been a reasonable adjustment for the respondent to have made. A simple policy (probably but not necessarily written) explaining to decision makers in the alignment exercise the criteria to be applied and how the assessment of skills, experience and performance was to be carried out would have ensured consistency. This would not have been onerous, in fact having a policy may have made the process easier. iii) adequately consulting with the claimant Page 24 of 33

[125]The formal consultation which took place in November and December 2017 was too late to prevent the disadvantage to the claimant, as there were no suitable job roles remaining in the SAN business unit by then. Although the claimant attempted to communicate with Mr McGrath, the claimant only had very limited discussions at the alignment stage.

[126]Consultation at the alignment stage would have had a good prospect of removing or reducing the disadvantage to the claimant. Consulting the claimant at the start of the alignment exercise should have highlighted fairly quickly to the respondent that there were disability issues they needed to consider in the claimant’s case. It would have been an opportunity for the respondent to consider, as part of its wider consideration of roles within the senior management team, the claimant’s skill set, experience and performance, the proposed change to his role and his offer to accept a role with lower responsibilities.

[127]A simple process for consultation with the claimant would not have been onerous for the respondent. It could have been carried out in writing or by having a short meeting. iv to vii) offering the claimant suitable alternative employment, considering the impact of dismissal, not dismissing the claimant and upholding his appeal

[128]As explained above, we found that the claimant’s complaint in respect of the failure to consider or offer alternative employment includes the failure to offer an existing vacancy and the failure to create a new role. An offer of alternative employment would have removed the disadvantage to the claimant. It would have meant him not being dismissed; he could have remained in employment and retained his benefits including his private health insurance.

[129]We have decided that it would have been reasonable for the respondent to have modified the claimant’s role as discussed by the claimant and Mr Jewell to incorporate more work on the SAN business so that the claimant could remain aligned to the SAN business unit. For clarity, we are not referring to modifying the role because the claimant needed reasonable adjustments to perform it. Rather, we are referring to modifications to the role by increasing the SAN element of the role so that it could be aligned to the respondent’s SAN business unit, rather than the IP General business unit which was the unit of staff who had been identified as not having a future role.

[130]Offering the claimant a modified role would have been a reasonable step for the respondent to have taken because:130.1 The claimant had significant experience in SAN business activities from previous employment and gained during the 12 years’ service he had with the respondent at the time in question. It was his main area of expertise. His roles with the respondent over the years had mainly been on SAN activity; he was not considered to be as expert on the IP side. Page 25 of 33

130.2 He was a high performer and very well regarded;

130.3 The respondent still needed parts of the claimant’s role to be carried out;

130.4 The claimant’s manager had agreed changes to the claimant’s responsibilities to increase focus on SAN areas of business and there was no adequate reason put forward by the respondent as to why this was not workable;

130.5 The claimant was originally aligned to the SAN business unit from November 2016 and was only moved from the SAN business unit in February 2017;

130.6 Changes were made to Ms Gardham’s role. Her role, like the claimant’s, included SAN and IP elements and was changed so that the IP parts of the role were removed, and she was given a new area of responsibility (France). Her role became a fully SAN role, enabling her alignment with the SAN business unit;

130.7 Similarly, changes were made to Mr Schneider’s role. His role, like the claimant’s, was stand alone and not client facing. He was allocated responsibility for another manager’s team (resulting in that manager no longer having an identified future role, bumping him out of his role). This change allowed Mr Schneider to take the other manager’s place on the SAN business unit as explained by Mr McGrath in his email of 27 February 2017.

[131]The duty to make reasonable adjustments is, as the EHRC Code on Employment makes clear in paragraph 6.2, a cornerstone of the Equality Act. It requires employers to take positive steps to ensure that disabled people can access and progress in employment. As Lady Hale explained in Archibald v Fife Council, to the extent that the duty requires it, the duty to make reasonable adjustments requires an employer to treat a disabled person more favourably than others. The EAT held in Southampton City College v Randall and Chief Constable of South Yorkshire v Jelic that creating a role or devising a role for a disabled person may, if the particular facts of the case support it, amount to a reasonable adjustment.

[132]Overall, it was clear from the various changes to the outcome of the alignment exercise that during this exercise the respondent was reallocating responsibilities and considering the organisational structure of its senior management team. The respondent could have, as part of that process, addressed the substantial disadvantage the claimant was facing by making changes to his role to enable him to remain in the SAN business unit and therefore to remain employed. This would have been a reasonable adjustment to have made for the claimant, and would have removed the substantial disadvantage to the claimant. That would also have been treating him consistently with Mr Schneider and Ms Gardham.

[133]The respondent relied heavily on the fact that as the claimant was in a standalone role, he was in a pool of one for redundancy purposes. However, at the alignment stage there was no pooling. The respondent considered its organisational structure more widely than this. This is evident from the reallocation of a team to Mr Schneider (also in a standalone role), from a manager who was not performing the same role as him. Page 26 of 33

[134]Changes to the claimant’s role to enable him to remain in the SAN business unit may not have resulted in another employee being bumped from their role, but if they had, this would still have been reasonable because of the substantial disadvantage the claimant was under and because the respondent had been able to do that in Mr Schneider’s case.

[135]Changes to the claimant’s role may also not have resulted in the creation of an entirely new role for the claimant. Mr Jewell thought that it was possible to make changes to the claimant’s role to retain him on the SAN business unit, similar to the way in which Ms Gardham’s role was changed. However, even if the changes required were such that the claimant was effectively being moved into a newly created role, we consider that this would still have been a reasonable adjustment to make for the claimant in the circumstances of this case, particularly given the extent of reallocation of duties and reorganisation of management structure which the respondent was undertaking at the time.

[136]The claimant had particular reasons related to his disability which meant that he would be substantially disadvantaged if he could not remain in his employment, in particular the loss of his benefits. We are not suggesting that the respondent should have created a post which was not necessary or should have kept the claimant on in his old role even though that was no longer needed. However, we have decided that it would have been possible for the respondent to have offered the claimant a modified or new role, allowing him to remain in the SAN business unit, and avoiding the disadvantage to him of dismissal.

[137]However, the respondent did not turn its mind to the claimant’s disability. Mr McGrath, who made the decision that the claimant should be moved from the SAN business unit, saw the claimant as one of a number of good people who could not be retained because of pressure on numbers. Mr McHugh considered whether the claimant’s selection for redundancy had been influenced by his medical condition and decided that it had not. But there was a wholesale failure by the respondent to consider whether the claimant needed to be treated differently because of his disability, that is, whether he needed adjustments to prevent him being at a disadvantage. The respondent failed to consider this and followed a redundancy policy which resulted in the claimant being one of two senior managers who were made redundant, despite Mr Lindholm having explained in November 2016 the disadvantage the claimant was under from dismissal.

[138]We have therefore concluded that the respondent failed to make these138.1 applying a redundancy policy with objective selection criteria and consideration of actual duties, skill set, experience and performance, so that the alignment decision in respect of the claimant was consistent and objective;

138.2 adequately consulting with the claimant; and Page 27 of 33

138.3 offering the claimant suitable alternative employment by modifying his role or offering a new role. Unfair dismissal

[139]The reason for the claimant’s dismissal was redundancy. This is a potentially fair reason for dismissal. The claimant accepts that there was a genuine redundancy situation.

[140]We need to consider whether in the circumstances (including the size and administrative resources of the organisation) the respondent acted reasonably or unreasonably in treating redundancy as a sufficient reason for dismissing the claimant. In doing so we are not considering what we would have done or making the dismissal decision ourselves. Instead we are considering the range of approaches which a reasonable employer could take in these circumstances, and whether the respondent’s approach fell outside that range.

[141]We considered the issues agreed by the parties. i) Was there adequate warning and/or consultation either collectively or individually and a real attempt to avoid redundancies?

[142]The respondent decided that there was no requirement to warn or consult employees in the alignment exercise, either collectively or individually. The respondent took this decision because acquisition was subject to regulatory approval and so it was not certain that the acquisition would go ahead and that there would be redundancies. A similar situation was considered by the EAT in UK Coal Mining Ltd v NUM (Northumberland Area) and anor

2008 ICR 163

in the context of a claim about the duty to consult under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992. The EAT distinguished between a business decision ‘mooted as a possibility’ (where the duty to consult will not arise), and one which is ‘fixed as a clear, albeit provisional, intention’ (where the duty will arise, even though there is still something provisional about the intention).

[143]The claimant in this case has withdrawn his claim about collective consultation, but the way in which the distinction is put is helpful here. After the acquisition announcement, a decision had been taken which amounted to a clear, albeit provisional, intention. Acquisition by Broadcom had gone beyond something which was being mooted as a possibility. There was a clear intention that the respondent would be acquired by Broadcom, albeit that intention was provisional on regulatory approvals being obtained.

[144]The determinative nature of the alignment exercise was recognised by managers as they were carrying it out. They were making decisions which would determine who would be in the IP General business unit, the unit for employees who had no identified role in the future business. Despite this, there was no considered policy to avoid redundancies at the alignment stage. Rather, the respondent’s decision makers considered on a subjective basis which senior managers they wanted to retain and then reallocated responsibilities and changed roles to achieve that. Page 28 of 33

[145]The respondent’s decision not to consult at the alignment stage meant that by the time the formal consultation began around a year later, after the closure of the acquisition, the important and meaningful decisions about who would have roles in the future business had been taken many months earlier and there could be no real attempt to avoid the claimant’s redundancy. The respondent itself did not view the formal consultation process as a meaningful process, as it decided not to provide employees in the IP General group with email addresses and withdrew their IT access while still consulting them.

[146]The individual consultation process for the claimant was also inadequate. The redundancy warning letter sent to the claimant on 21 November 2017 referred to consideration of all possible options, but by this stage it was too late for any real alternatives, other than the sale of the IP General business unit, which was unlikely. In the claimant’s only individual consultation meeting there was no consideration of alternatives to redundancy and the person conducting the meeting thought there was no policy to consider alternative employment. Whether she meant that there was no written policy or no policy at all, she gave no consideration to the possibility of alternative employment for the claimant. The focus of the meeting was on the redundancy payment and settlement agreement. The failure to take notes of the claimant’s individual consultation meeting also reflects the lack of importance which the respondent attached to the process.

[147]The respondent’s decision not to consult employees during the alignment process rendered the formal consultation process meaningless for the claimant. It meant there was no real attempt to avoid redundancy for the claimant. This took the decision to dismiss him outside the range of reasonable responses. A reasonable employer would have consulted the claimant at the point of the alignment exercise and taken steps at that stage to avoid redundancy. ii) Did the Respondent adopt a fair basis on which to select for redundancy, including having a fair or objectively selected pool?

[148]The alignment exercise divided employees into groups who either had identified roles in the future business or did not. That was essentially a redundancy selection procedure. There was no written policy or criteria for the alignment exercise, meaning that there was a lack of transparency with the criteria which the respondent used to align employees to the SAN business unit or IP General busines unit. The decision makers did not apply consistent criteria, and where individual skills, experience and performance were being assessed, there was no objective process by which to make that assessment.

[149]By the time the formal consultation process started, the selection for redundancy was simply selection of whole of the IT General group.

[150]The basis of selection for redundancy adopted by the respondent for the claimant was not fair. Again, the respondent relied heavily on the fact that Page 29 of 33 the claimant was in a standalone role and a pool of one. However, the respondent’s approach to the alignment process did not involve pools. It took steps to prevent redundancy for Mr Schneider who was also in a standalone role. The inconsistency of treatment means that the decision was not within the range of reasonable responses. A reasonable employer in this situation would have adopted transparent and objective criteria for selection at the point of the alignment exercise and would have treated employees consistently. iii) Did the Respondent take such steps as were reasonable to avoid or minimise redundancy by redeploying potentially redundant employees within its own organisation? iv) Was it within the band of reasonable responses not to consider bumping? v) Did the process adopted discriminate because of age or disability? vi) Did the Respondent adequately consider suitable alternative employment? We have considered these points together.

[152]The respondent’s approach to suitable alternative employment was also outside the range of reasonable responses. The process by which the respondent revised the initial alignment decision and modified Ms Gardham and Mr Schneider’s roles but not the claimant’s was not transparent or in line with any clear criteria. The lack of consistency in relation to modification of roles led to the claimant being removed from the SAN business unit, while Ms Gardham and Mr Schneider’s roles were modified to result in their inclusion in the SAN business unit. A reasonable employer would have ensured a consistent approach to modification of roles to avoid redundancy and would have considered this for the claimant as part of the alignment process.

[153]The respondent also failed to consider the claimant’s offer to accept a role with lower responsibilities to avoid dismissal. This was also outside the range of reasonable responses.

[154]We next consider bumping. Bumping is a voluntary procedure; the obligation to act reasonably does not mean that an employer must consider bumping. We have found that it would have been a reasonable adjustment to consider bumping when looking at modifying the claimant’s role or providing him with a new role. By this we mean the sort of bumping exercise which was adopted in Mr Schneider’s case, where another employee’s responsibilities were allocated Mr Schneider so that he could remain in the SAN business unit. The tests for reasonable adjustments and reasonableness in the context of unfair dismissal are of course different tests. It does not follow that, because we have found that this type of bumping would have been a reasonable adjustment for the claimant, it is outside the range of reasonable responses in the unfair dismissal context for the employer not to have considered bumping.

[155]We have in mind that the question is what a reasonable employer would do in the circumstances. The inconsistent treatment between the claimant and Mr Schneider is significant. We have decided that it was outside the range Page 30 of 33 of reasonable responses for the respondent not to have also considered allocating a role or responsibilities from another employee to the claimant so that he could be aligned to the SAN business unit.

[156]We have found that the respondent’s approach to suitable alternative employment for the claimant amounted to a failure to make reasonable adjustment and that the respondent failed to make reasonable adjustments in relation to a written policy and adequate consultation. The process adopted by the respondent and therefore the dismissal of the claimant was discriminatory because of disability.

[157]We have concluded that the decision to dismiss the claimant was outside the range of reasonable responses in that:157.1 the respondent failed to consult the claimant during the alignment process and therefore did not adopt a meaningful process to warn or consult him about redundancy;

157.2 the respondent selected the claimant for inclusion in the IP General business unit without applying transparent and objective criteria;

157.3 the respondent did not adequately consider suitable alternative employment, including failing to offer a modified role by allocating other duties to him or bumping another employee so that he could remain in the SAN business unit; and

157.4 the respondent failed to make reasonable adjustments for the claimant.

[158]We have concluded therefore that the claimant’s dismissal was unfair, and his complaint of unfair dismissal is well founded and succeeds.

[159]The respondent said that if the dismissal was procedurally unfair, the claimant could have been fairly dismissed at the same time or a short time later in any event. We have not concluded that a fair dismissal could have taken place at the same time or within a short time in any event. We have found that the respondent did not adequately consider suitable alternative employment which would have enabled the claimant to remain in the SAN business unit and not be dismissed. Direct disability discrimination

[160]The respondent failed to offer the claimant suitable alternative employment by way of an modified role. He was treated less favourably in this regard than his comparators Mr Schneider and Ms Gardham whose roles were modified to facilitate their alignment to the SAN business unit. However, we have not found ‘something more’ from which we could conclude that the difference in treatment was because of the claimant’s disability. The problem with the respondent’s approach was that it failed to give proper consideration to the claimant’s disability. We have found that this amounted to a failure to make reasonable adjustments for him, but we have not found any evidence from which we could conclude that the respondent’s treatment was because of his disability. Page 31 of 33

[161]The claimant was dismissed and his appeal was not upheld. We have not found any evidence from which we could conclude that this treatment was because of the claimant’s disability. There was no basis to suggest that a hypothetical employee, in circumstances with no material difference to the claimant’s circumstances, would have been treated more favourably. We have not found that the respondent would have taken steps to retain the claimant if he had not been disabled.

[162]The complaint of direct disability discrimination therefore fails. Direct age discrimination

[163]The complaint of direct age discrimination was that the claimant, who was 59 at the time of dismissal, was treated less favourably than Mr Schneider or a hypothetical employee in their 30s or 40s. (The claimant no longer relies on Ms Gardham as a comparator in relation to this complaint.)

[164]We have found that the claimant was treated less favourably in this regard than Mr Schneider in relation to the offer of suitable alternative employment in the form of a modified role. However, we did not have any evidence as to Mr Schneider’s age. In any event, we have not found any evidence from which we could conclude that the difference in treatment between the claimant and Mr Schneider was because of age or that the claimant was treated less favourably than a hypothetical employee in their 30s or 40s.

[165]Similarly, we have not found any evidence from which we could conclude that the claimant’s dismissal and the failure to uphold his appeal was because of his age.

[166]The complaint of direct age discrimination therefore fails. Indirect discrimination

[167]We have explained above our conclusion that the respondent’s redundancy policy was a PCP. This policy was applied to the claimant and to people without the claimant’s disability and people of a different age to the claimant.

[168]In a complaint of indirect discrimination under section 19 of the Equality Act, we need to consider the question of whether the PCP results in group disadvantage. In this case this means considering whether the respondent’s redundancy policy put or would put people who share the claimant’s protected characteristics at a particular disadvantage when compared with those who do not. There was no evidence before us about this. The claimant’s counsel invited us to find that the crux of the issue was the effect on the claimant, but we do not consider that we can simply extrapolate from the effect of the policy on the claimant to make general findings about disadvantage to disabled people or people of the claimant’s age. In short, there was no evidence of group disadvantage such that we could conclude that there was indirect discrimination requiring justification by the respondent.

[169]The complaints of indirect discrimination fail and are dismissed. Page 32 of 33 Summary

[170]In summary:

[171]The claimant’s complaint of failure to make reasonable adjustments is wellfounded and succeeds. The respondent failed to make the following171.1 applying a redundancy policy with objective selection criteria and consideration of actual duties, skill set, experience and performance, so that the alignment decision in respect of the claimant was consistent and objective;

171.2 adequately consulting with the claimant;

171.3 offering the claimant suitable alternative employment by modifying his role or offering a new role.

[172]The claimant’s complaint of unfair dismissal is well founded and succeeds.

[173]The claimant’s complaints of direct disability discrimination and direct age discrimination fail and are dismissed.

[174]The claimant’s complaint of indirect disability discrimination and indirect age discrimination fail and are dismissed.

Remedy

[175]Notice of relisted remedy hearing will be sent separately.

[1]The claimant’s claim was presented on 11 April 2018 after a period of Acas early conciliation from 16 January 2018 to 31 January 2018. The claimant complained of unfair dismissal, disability discrimination and age discrimination. The respondent presented its response on 2 July 2018 and defended the claim.

[2]The liability hearing took place wholly by video, on 12 to 15 July 2021 and 28 October 2021, with a deliberation day on 20 December 2021. The (RJR) Page 1 of 26 claimant’s complaints of failure to make reasonable adjustments and unfair dismissal succeeded. The complaints of direct and indirect disability and age discrimination failed and were dismissed.

[3]Very sadly, the claimant died on 16 April 2022. The remedy hearing was due to take place on 25 April 2022 but at that time no personal representative had been appointed. We decided that, in the absence of a personal representative, there was no representative of the claimant's estate with legal standing to continue the claim, and as the tribunal had no power under the Equality Act 2010 to appoint a person to continue the claim, the remedy hearing could not proceed on that day.

[4]Probate in Mr Richard’s estate was granted on 28 September 2022. Mrs Richards and her co-executor were granted administration of the estate and Mrs Richards, as personal representative, continues the claimant’s claim: 4.1. under section 206(3) of the Employment Rights Act 1996 in respect of the claimant’s complaint of unfair dismissal; and 4.2. under section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934 in respect of the claimant’s complaints of disability discrimination under the Equality Act 2010.

[5]The re-listed remedy hearing took place on 5 and 6 October 2022 with a deliberation day on 10 October 2022, all by video. We heard evidence from Mrs Richards. On behalf of the respondent, we heard from Mrs Mattison (HR director) and Mr McGrath. All these witnesses had prepared and exchanged witness statements. We also heard evidence from the claimant’s consultant oncologist, Professor Pandha. We had four reports prepared by him between 12 July 2019 and 18 March 2022.

[6]We also had a supplemental witness statement on remedy issues which Mr Richards had prepared. We considered our approach to Mr Richards’ statement carefully, bearing in mind that his evidence in that statement could not be the subject of cross-examination. We have explained in our findings of fact those areas where we have accepted Mr Richards’ evidence on factual issues which were in dispute, and why we have done so.

[7]There was a main remedy bundle of 520 pages. References to page numbers in this judgment are references to the main remedy bundle. After the postponement of the remedy hearing on 25 April 2022, a supplemental remedy bundle was prepared (it had 12 pages). It included the updated schedule of loss and counter schedule.

[8]The claimant’s counsel prepared a skeleton argument on remedy. Both counsel provided helpful written and oral closing submissions.

[9]The tribunal reserved its judgment on remedy and met in private for deliberations on 10 October 2022. (RJR) Page 2 of 26 The Issues

[10]The remedy hearing is for the tribunal to decide the compensation which the claimant should be awarded for disability discrimination (that is, failure to make reasonable adjustments) and unfair dismissal.

[11]The parties had produced updated schedules of loss and counter-schedules of loss for the hearing, and a largely agreed list of issues for determination of remedy. A copy of that list is attached as an annex.

Findings of fact

[12]We set out here our findings of fact from the liability judgment which are relevant to the remedy issues, together with the further findings of fact we have made.

[13]The claimant was employed by the respondent from 28 June 2004 until his dismissal for redundancy on 31 December 2017. The claimant died on 16 April 2022. He was 63 when he died. The claimant’s pay and benefits

[14]At the time of his dismissal, the claimant’s gross annual basic pay was £150,150 (equivalent to net weekly basic pay of £1,745.01). The claimant had an additional contractual element of variable pay which was related to performance and targets. In his contract this was referred to as a ‘variable compensation portion’ which was paid ‘in addition to …base salary’ (page 53).

[15]The claimant’s total pay (basic pay plus variable pay) was called On Target Earnings (OTE). The parties agreed that at the time of his dismissal the claimant’s gross annual OTE was £200,200 (equivalent to net weekly OTE of £2,252.68). The claimant always met his performance targets and achieved his OTE.

[16]The claimant was a member of the respondent’s pension scheme. The respondent contributed 7% of his gross salary (OTE) per year.

[17]The claimant had other benefits as an employee of the respondent. After the acquisition of the respondent by Broadcom Inc, some of the providers of these schemes (and the terms of the schemes) changed. The benefits were: 17.1. Medical insurance which provided private healthcare cover for the claimant and his wife. The claimant had had private healthcare funded under this policy for a period of around 12 years at the time of his dismissal. 17.2. Life insurance which provided a death in service benefit. The respondent’s scheme provided a lump sum payment of 4 x annual OTE. After the acquisition of the respondent by Broadcom Inc, the scheme changed. The scheme in place for the period 1 September (RJR) Page 3 of 26 2021 to 31 July 2024 provided a lump sum of 4 x salary. Salary was defined as basic annual salary prior to any salary sacrifice in respect of pension (page 481 and 483). 17.3. Permanent health insurance (PHI) which, after 6 months’ absence from work, provided 75% of basic salary up to age 65 (page 479). The scheme which applied before the acquisition included a cap on annual payments which could be made under the scheme, but the scheme after the acquisition, which applied from 2018, did not have any cap.

[18]The claimant was also entitled to a car allowance which was £9,000 per annum by 2017. However, this allowance was discontinued after the acquisition by Broadcom Inc, and it was replaced with mileage reimbursement for business travel. We accept the evidence of Mrs Mattison that no compensation was paid to employees for the loss of the car allowance. The loss of the allowance was taken into account in the stocks (Restricted Share Units, or RSUs) which were offered to employees at the time of acquisition, and it was anticipated that these stocks would exceed the value of the car allowance over time (page 491).

[19]The parties agreed that if the claimant had not been dismissed, he would have received RSU stocks at the time of the acquisition which today would have been worth £153,000. The claimant’s dismissal

[20]The claimant was dismissed with effect from 31 December 2017. We found that the respondent failed to make reasonable adjustments to the alignment and consultation processes, including failing to offer the claimant suitable alternative employment by modifying his role or offering a new role. If the respondent had made adjustments, the claimant would not have been dismissed.

[21]On dismissal, the claimant was paid in lieu of three months’ notice (equivalent to pay to 31 March 2018). No employer pension payments were made in respect of the pay in lieu of notice (page 44).

[22]The claimant received a statutory redundancy payment of £9,535.50 (page 44).

[23]The claimant was not engaged in any paid employment after his dismissal on 31 December 2017. He helped out family members with some unpaid consultancy work. The loss of medical insurance

[24]The most significant impact of the dismissal for the claimant was that he lost the medical insurance provided to him as an employee of the respondent. The prospect of losing his medical insurance was a significant concern to the claimant throughout the alignment and redundancy process. (RJR) Page 4 of 26

[25]As we found in our liability judgment, it was not possible for the claimant to obtain similar medical insurance cover on a personal basis or it was prohibitively expensive. Some companies declined to provide cover. The lowest quotation the claimant received for medical insurance was £105,923.60 per year.

[26]We found that the loss of access to private healthcare affected the treatment the claimant received in that he had longer waiting times for diagnosis and treatment and less continuity of care than previously.

[27]We heard evidence at the remedy hearing from the claimant’s consultant oncologist, Professor Pandha. He treated the claimant for many years and saw him on a monthly basis. We accept Professor Pandha’s evidence that the most important impact of the claimant’s loss of access to private health care was the speed and coherence of his care. If he had retained his private healthcare cover, all of the claimant’s health issues could have been treated at one hospital. This would have made access to specialists quicker and more efficient, and would have reduced the claimant’s anxiety. It would also have reduced the duration of certain symptoms, because of a longer wait for radiotherapy, although this was not clear cut because, even if the claimant had had medical insurance, a decision might still have been taken to delay radiotherapy in case the pain settled of its own accord.

[28]In terms of differences in available medication and interventions between the NHS and the private sector, Professor Pandha suggested that it was possible he would have treated the claimant with one additional therapy if he had been treating him privately but that it was more likely that ultimately the claimant’s treatment would have been the same. However, a ‘joined up approach’ in terms of coherence of care would have been a bit better for him. We find, based on Professor Pandha’s evidence, that it was likely that the claimant received the same medication and interventions under the NHS that he would have had if he had been continuing with private treatment.

[29]Longer waiting times and reduced coherence of care caused the claimant increased pain (that is, pain over a longer duration) and anxiety. This had a significant impact on his quality of life and overall health.

[30]After his dismissal the claimant paid for some private healthcare. These payments were £1,175.10 in total (pages 173 to 181).

[31]The claimant’s medical insurance through the respondent also covered Mrs Richards. After the claimant was dismissed, Mr Richards paid for a personal medical insurance policy for Mrs Richards. For the period 1 May 2018 to 30 April 2021 (3 years, that is 36 months) the cost was £108.58 per month (page 108). From 1 May 2021 to 1 May 2022 (12 months) the cost was £350 per quarter which equates to £116.67 per month (page 114). Other impacts of the dismissal on the claimant (RJR) Page 5 of 26

[32]We have accepted the claimant’s evidence in his remedy statement about the impact of the dismissal on him. This is because it is consistent with what he said in his liability statement and what we heard at the liability hearing, and with Mrs Richards’ evidence in her statement.

[33]The claimant was devasted by the loss of his employment. He felt that the respondent had shown a throw away attitude towards him, as he had only one brief consultation meeting with a senior manager during the redundancy process, despite raising issues about disability.

[34]The claimant’s confidence and self-esteem was damaged by the loss of his job. He enjoyed his work and wanted to continue working as long as he could. This was supported by Professor Pandha’s evidence and by the fact that the claimant had in the past had very little time off work even when experiencing very significant health issues. (For example, the claimant had 3 weeks off after surgery in December 2005, and 2 weeks off after a heart attack in November 2016.)

[35]The dismissal meant that the claimant experienced a significant increase of stress and worry about his lack of income and pressure on his life savings, at the same time that he was dealing with the stresses arising from his health issues. Permanent Health Insurance (PHI)

[36]A claim could be made under the respondent’s permanent health insurance (PHI) policy after 6 months’ absence from work. If a claim had been accepted for the claimant, he would have remained employed by the respondent, and would have received monthly payments from the insurance company equivalent to 75% of basic salary up to age 65.

[37]At the time of his dismissal, the claimant was not eligible to claim under the PHI policy because he had not been absent from work for 6 months. Mr McHugh, the respondent’s director of HR, said in his evidence at the liability hearing that it would not ‘sit right’ to have considered making a claim under the PHI policy for the claimant as an alternative to dismissal. He said that because the claimant was still able to work, it would have felt ‘almost fraudulent’ to have considered making a claim. The claimant was shocked and upset by that comment.

[38]Professor Pandha said, and we accept: 38.1. whether someone with the claimant’s health conditions should remain at work or not is very much a matter for the patient to decide in conjunction with their doctor; 38.2. the claimant’s symptoms and his underlying diagnosis would have justified him being signed off sick from work from 2018 onwards; 38.3. the claimant preferred to remain at work as long as he could. The claimant’s character and resolve were quite remarkable, and he was very much at the top end of the spectrum in terms of how much (RJR) Page 6 of 26 normality he was able to keep in his life, given the health issues he had.

[39]We find on the basis of Professor Pandha’s evidence that, if the claimant had not been dismissed on 31 December 2017, the claimant could, at any time from 2018 onwards, have made a decision with Professor Pandha that he should be certified unfit for work. (The view of the respondent’s medical expert, Professor Waxman, was similar. He said that many patients would not have been able to continue working full time or part time with the symptoms the claimant had from late July 2018.)

[40]We find that if the claimant had been certified unfit for work, he would have qualified for PHI after he had been absent for 6 months. He would have met the terms of the scheme. We find that the PHI payments paid to the claimant would have been 75% of net basic pay, not 75% of OTE. The terms of the scheme in the summary we have seen refer to basic pay not OTE. Although the variable element of the claimant’s pay was contractual and the claimant always received his full OTE, the variable element of pay was still expressed in his contract as a separate element of pay than basic pay.

[41]It was accepted on behalf of the claimant that he would not have wanted to reduce his hours and to work part time as a reasonable adjustment, because of the availability of PHI. We accept that once the claimant was no longer able to work full time, it is more likely that he would have gone onto sick leave and then onto the PHI scheme, rather than reducing his hours. How long would the claimant have continued working if he had not been dismissed?

[42]Therefore, the parties agreed that, if he had not been dismissed, the claimant would have continued working for the respondent full-time, and when he became unfit to continue in his role full-time, he would then have moved onto the PHI scheme. The move to the PHI scheme could only have taken place after the claimant had been on sick leave for six months. Neither party suggested that the claimant’s pay would have been reduced during the six month period he would have been on sick leave prior to becoming entitled to apply for PHI.

[43]We have to decide the point in time at which, if the claimant had not been dismissed, his health would have led him to stop full time work with the respondent, such that he would then have become entitled to PHI payments 6 months later. This is obviously a hypothetical question and is not easy to answer. We have carefully considered the evidence which is relevant to this question.

[44]We find that the role that the claimant would have been performing if he had not been dismissed would have been likely to have been a regional sales manager or regional sales director role. In both roles the claimant would have been required to travel more regularly, within the UK and/or abroad. That requirement would have stopped in March 2020 when global (RJR) Page 7 of 26 restrictions came into place because of the pandemic. Regular travel was unlikely to have been required again until the latter half of 2021.

[45]The medical evidence showed that the claimant had major health episodes in 2018. He had increasing pain and symptoms for which he was treated during the period March 2018 to November 2018. During this time he had courses of radiotherapy to the clavicle, thoracic spine and lower spine (pages 115 to 131). The claimant had significant symptoms for about 9 weeks in about July/August 2018 and would have required time off work. He also had significant exacerbation of symptoms after radiotherapy in November 2018 (pages 128 and 131). By December 2018 many of his symptoms had settled down and he was able to go on a holiday abroad (page 130).

[46]The claimant required tests and treatment for a number of issues in 2019 and 2020, including skin cancer in August 2019, cardio investigations in January 2020, blood pressure treatment in November 2020 and colorectal investigative procedures in March 2021. In his letter of 9 June 2021, Professor Pandha said: “…for the last two and a half years he has maintained a reasonable quality of life, all things considered, but is limited by his gastrointestinal issues and high blood pressure which is finally being resolved.”

[47]There was a significant difference between the parties about when the claimant would have stopped working full time. On behalf of the claimant, it was said that he would have been well enough to continue in full-time work for the respondent until July 2021 (and, as PHI payments could not start until after 6 months of sickness absence, that means that the claimant’s case is that entitlement to PHI would have started at the end of December 2021). The respondent said that the claimant’s health would have led him to stop work and move onto PHI much sooner, by 1 October 2018 (that means that on the respondent’s case, the claimant would have stopped work by 1 April 2018).

[48]Miss Platt relied on Professor Pandha’s report dated 8 February 2022. In that report Professor Pandha said that the claimant could have continued working until mid 2021: “[His] current health is such that I fully agree he is not well enough to work. Looking back at his medical history and performance status he was able to travel to the USA in December 2017. I understand he stopped working in September 2020, but I think could have continued with suitable adjustment such as part-time work or working from home beyond that time. He has probably been too unwell to work since around the middle of last year.” (RJR) Page 8 of 26

[49]We have to treat the suggestion that Professor Pandha’s report means the claimant could have remained in full-time work until mid 2021 with some caution, because: 49.1. Professor Pandha’s reference to the claimant having stopped work in September 2020 is not correct. The claimant had not been at work since 31 December 2017. That is an important difference in the factual background which Professor Pandha had in mind when assessing how long the claimant could have remained at work; 49.2. Professor Pandha told us that normally he would wait for patients to have a discussion with him about whether they ought to remain at work. We understood his evidence to be that because he had had no such discussion with the claimant from 2017 onwards, that meant the claimant felt he was well enough to remain at work. However, the claimant was not at work after December 2017, so there would have been no need for him to have that sort of conversation with Professor Pandha. We do not think that the lack of a conversation about work meant that the claimant was well enough to remain at work; 49.3. The claimant told us in his witness statement for the liability hearing that he had not been well enough to work since December 2017 (“Since my dismissal, I have not had the health to allow me to try to return to work in order to mitigate my financial loss.”) and in his remedy statement that he had only ‘initially’ looked for other roles (“I did initially attempt to mitigate my losses and looked for other roles or consultancy opportunities”); 49.4. Professor Pandha’s opinion is based on the claimant being able to continue for part of the period up to mid 2021 (he says September 2020 to mid 2021) on a part-time or home working basis, not on a full-time basis. He accepted that the claimant may not be doing prolonged international travel as he used to be doing and that a part-time role would have been better for him.

[50]The respondent relied on a report from Professor Waxman, a consultant oncologist (page 496). Professor Waxman provided a report based on his review of the liability judgment, witness statements and some of the claimant’s medical records (he did not meet the claimant). He said, with reference to the symptoms the claimant had from late July 2018,: “…it would have been unusual for a patient to continue at work full time, and for many patients indeed this would signal the end of part time employment. However, it may have been possible for Mr Richards to have continued work on a part-time basis from the end of 2018 to August 2021…”

[51]Professor Waxman felt that if he had been able to remain at work until summer 2021, the claimant would have been likely to have been working part-time from the end of 2018. (RJR) Page 9 of 26

[52]We have to decide what we think would have been most likely to have happened. Based on the evidence we have set out above, our finding is that the claimant would have started a period of sick leave in mid 2018 and that he would have moved onto PHI payments from 1 January 2019. We have reached this finding because: 52.1. The claimant’s role in 2018 would have been demanding, requiring more travel than he was used to previously; 52.2. The claimant would have had to take a period of sick leave in July/August 2018 which was longer than he was used to taking. We think that absence would have been likely to have prompted the claimant to think about whether it was time to stop work and consider the PHI scheme, and that a decision to do so would have been reinforced by his further health episode in November 2018; 52.3. Although he was able to take holidays abroad, for example in December 2018, the demands required to take a holiday would be much less than those of a full time job with regular travel.

[53]We very much have in mind the fact that the claimant was at the top of the spectrum in terms of his ability to maintain normality, and that he wanted to remain at work. However, we also take into account that a key reason for his doing so was to retain his medical insurance. He had in the past been willing to take a pragmatic approach to achieve this, when he told Mr Jewell that he would accept a change in role so that he could remain employed and keep his private medical insurance, even if that meant having lower responsibilities.

[54]We think that in light of a new and demanding role and the health episodes he was experiencing in 2018, at the time of his sickness absence in mid 2018 the claimant would have been likely to have taken a similarly pragmatic view, recognising that stopping work and making a claim under the PHI scheme would have preserved his employment and his medical insurance.

[55]We find that the claimant would have been on sick leave from July to December 2018, and that he would have made a successful claim under the PHI scheme such that his entitlement to PHI would have come into effect on 1 January 2019. Therefore, he would have continued to receive his full OTE pay until 31 December 2018, and would have received PHI payments of 75% of basic pay from 1 January 2019 to 16 April 2022.

[56]The respondent had suggested that the claimant might have been dismissed for redundancy at a later stage, even if he had not been dismissed on 31 December 2017, but it decided not to pursue this point. Life insurance

[57]Under the PHI scheme the claimant would still have been an employee of the respondent. At the time the claimant died, his estate would have been entitled to make a claim under the respondent’s life insurance policy. (RJR) Page 10 of 26

[58]We find that the claim would have been accepted and that the claimant’s estate would have been paid the sum of 4 x the claimant’s annual basic salary. The lump sum would have been calculated by reference to basic pay, not OTE. Those were the terms of the scheme in place at the time a claim would have been made, as the scheme covered the period 1 September 2021 to 31 July 2024.

[59]We find that it would have taken one month to make a claim under the policy, for the claim to be assessed and approved, and for the lump sum to be paid out. The law Compensation for discrimination

[60]The remedy for complaints of discrimination at work is set out in section 124 of the Equality Act 2010.

[61]Under section 124(2)(b), where a tribunal finds that there has been a contravention of a relevant provision, as there has been here, it may order the respondent to pay compensation to the claimant. The compensation which may be ordered corresponds to the damages that could be ordered by a county court in England and Wales for a claim in tort (section 124(6) and section 119(2)). There is no upper limit on the amount of compensation that can be awarded.

[62]The aim of compensation is that ‘as best as money can do it, the [claimant] must be put into the position [he] would have been in but for the unlawful conduct’ (Ministry of Defence v Cannock and ors

1994 ICR 918

, EAT). In other words, the aim is that the claimant should be put in the position he would have been in if the discrimination had not occurred. This requires the tribunal to look at what loss has been caused by the discrimination.

[63]Loss may include financial losses and injury to feelings.

[64]In Prison Service and others v Johnson

[1997] ICR 275

EAT, the EAT set out the following principles that the ET should consider in making an award for injury to feelings: “(i) Awards for injury to feelings are compensatory. They should be just to both parties. They should compensate fully without punishing the tortfeasor. Feelings of indignation at the tortfeasor's conduct should not be allowed to inflate the award. (ii) Awards should not be too low, as that would diminish respect for the policy of the anti-discrimination legislation. Society has condemned discrimination and awards must ensure that it is seen to be wrong. On the other hand, awards should be restrained, as excessive awards could, to use the phrase of Sir Thomas Bingham M.R., be seen as the way to “untaxed riches.” (RJR) Page 11 of 26 (iii) Awards should bear some broad general similarity to the range of awards in personal injury cases. We do not think this should be done by reference to any particular type of personal injury award, rather to the whole range of such awards. (iv) In exercising their discretion in assessing a sum, tribunals should remind themselves of the value in everyday life of the sum they have in mind. This may be done by reference to purchasing power or by reference to earnings. (v) Finally, tribunals should bear in mind Sir Thomas Bingham's reference to the need for public respect for the level of awards made.”

[65]In Vento v Chief Constable of West Yorkshire Police (No. 2)

[2002] EWCA Civ 1871

the Court of Appeal identified three broad bands of compensation for injury to feelings awards. The Presidential Guidance on injury to feelings (as amended) sets out updated Vento bands which include the 10% ‘Simmons v Castle’ uplift. The guidance says that for claims presented on or after 6 April 2018, as this claim was, the lower band is £900 to £8,600 (less serious cases); the middle band £8,600 to £25,700 (serious cases); and the upper band £25,700 to £42,900 (the most serious cases), with the most exceptional cases capable of exceeding that upper band.

[66]The question for the tribunal when assessing injury to feelings is the effect the discriminatory act had on the claimant (Base Childrenswear Limited v Otshudi

UKEAT/0267/18

[67]When making awards for non-pecuniary losses, the tribunal must take care not to conflate the different types of award nor to allow double recovery (Base Childrenswear Limited v Otshudi

UKEAT/0267/18

[68]Interest on discrimination awards is provided for in the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996. The regulations give tribunals the power to award interest on the claimant's losses as part of the compensation for discrimination.

[69]For past financial losses, interest normally runs from the "mid-point" between the date of the discrimination and the date of calculation (regulation 6(1)(b)). For injury to feelings, interest normally runs from the date of the discrimination to the date of calculation (regulation 6(1)(a)). However, the tribunal may refuse to award interest, or may calculate interest by reference to a different period, if it believes that serious injustice would be caused if the usual rules were applied (regulation 6(3)). Unfair dismissal compensation

[70]Section 118 of the Employment Rights Act 1996 provides that compensation for unfair dismissal consists of: a) A basic award; and b) A compensatory award. (RJR) Page 12 of 26

[71]The amount of the compensatory award is such amount as the tribunal considers just and equitable in all the circumstances, having regard to the loss sustained by the claimant in consequence of the dismissal, in so far as that loss is attributable to action taken by the respondent (section 123(1)).

[72]In relation to life insurance, in Fox v British Airways plc

2013 ICR 1257

, CA, the Court of Appeal held that the full value of a death-in-service benefit would be payable in an unfair dismissal claim brought by the estate of a deceased former employee. This was to put the estate in the position that the claimant would have been if he had not been dismissed. Grossing up for taxation

[73]Grossing up is an exercise to calculate the tax which will be payable on the award. It is necessary to ensure that the claimant is properly compensated, because the figures used to calculate the losses are net figures which do not take into account the amount of tax which will have to be paid on the award. The assessment of the tax payable in the grossing up exercise is an estimate on broad lines (British Transport Commissioner v Gourley

[1955] UKHL 4

[74]Awards connected with the termination of employment are taxable under section 401 of the Income Tax (Earnings and Pensions) Act 2003. Section 401 says: “1) This Chapter applies to payments and other benefits which are received directly or indirectly in consideration or in consequence of, or otherwise in connection with— (a) the termination of a person's employment…”

[75]Payments to which section 401(1)(a) applies are called ‘termination awards’ (section 402A). Section 402B says that termination awards are treated as earnings of employment. Section 403 says that termination awards only count as employment income to the extent that they exceed £30,000 (the ‘threshold’).

[76]Section 406 establishes an exception for death or disability payments and benefits. Such payments are not subject to tax. Section 406 says: “(1) This Chapter does not apply to a payment or other benefit provided—(a) in connection with the termination of employment by the death of an employee, or

(b) on account of injury to, or disability of, an employee. (2) Although "injury" in subsection (1) includes psychiatric injury, it does not include injured feelings.”

[77]Sub-section 406(2) was inserted by section 5 of the Finance (No. 2) Act 2017. Prior to that amendment, the position was that injury to feelings awards in discrimination cases were not grossed up, as they were treated (RJR) Page 13 of 26 as falling with the section 406 exemption (Moorthy v Revenue and Customs Commissioners

2018 ICR 1326

, CA).

[78]The amendment to section 406 means that awards for injury to feelings do not fall within the section 406 exemption and are treated as taxable by HMRC. Section 5(10) of the Finance (No. 2) Act 2017 sets out when the amendment became effective: “(10) The amendments made by this section have effect for the tax year 2018-19 and subsequent tax years.” Conclusions

[79]We have applied these legal principles to the facts as we have found them, to determine the claimant’s remedy. We have started by assessing financial losses and non-pecuniary losses to be awarded as part of the uncapped discrimination complaint, then considered whether any additional award should be made in respect of the unfair dismissal complaint. Finally, we considered grossing up for taxation. Loss of earnings

[80]We have found that the claimant would have remained in full time work from 1 January 2018 until 31 December 2018. We have found that this period would have included a period of 6 months’ sick leave.

[81]The claimant would have earned his full pay from 1 January 2018 to 31 December 2018. His net weekly OTE was £2,252.68. (Neither party suggested that the claimant’s pay would have been reduced during the six month period he would have been on sick leave prior to becoming entitled to apply for PHI.)

[82]The claimant received notice pay from 1 January 2018 to 31 March 2018, and had no loss of earnings for that period. The loss of full pay starts from 1 April 2018 and continues until 31 December 2018. That is a period of 39 weeks and 2 days (39.29 weeks).

[83]Loss of full pay is therefore £2,252.68 x 39.29 = £88,507.80.

[84]We have found that from 1 January 2019 the claimant would have been paid under the PHI scheme and that the calculation of PHI payments would have been based on net weekly basic pay (£1,745.01). PHI payments would have been calculated as 75% of net weekly basic pay, so net weekly PHI payments would have been £1,308.76. The claimant would have received these payments from 1 January 2019 to 16 April 2022, that is for a period of 171 weeks and 5 days (171.71 weeks).

[85]Loss of PHI payments are therefore £1,308.76 x 171.71 = £224,727.18. (RJR) Page 14 of 26

[86]Total loss of earnings for the period from dismissal to 16 April 2022 are £88,507.80 plus £224,727.18 = £313,234.98. Car allowance

[87]We do not make any award in respect of car allowance. We have found that it was withdrawn and that if he had remained employed by the respondent, the claimant would not have received any car allowance or compensation for withdrawal of car allowance. Loss of full pay for annual leave

[88]During the period the claimant was in receipt of PHI payments at 75% of his basic salary, he would have been entitled to full OTE pay for his statutory annual leave, that is 4 weeks per year (Stringer v Revenue and Customs Commissioners (

Case C-520/06

) EU:C:2009:18).

The Law

[89]The calculation of the loss of full pay for 4 weeks annual leave during the PHI period is set out in table 1. Table 1: Loss of full pay for annual leave Net weekly OTE (full pay) £2,252.68 Less net weekly PHI payment (75% of basic pay) £1,308.76 Loss for 1 week’s annual leave £943.92 Loss for 4 week’s annual leave (= annual loss) £3,775.68 Number of years in the PHI period (171.71 / 52) 3.3 Total loss of pay for annual leave (years x annual loss) £12,459.74

[90]Total loss of pay for annual leave during the PHI period is therefore £12,459.74. Pension

[91]Both parties approached pension loss using the simple (contributions) approach.

[92]Employer’s pension contributions would have been made for the claimant during the time the claimant was at work, while he was on sick leave and while he was in receipt of PHI payments.

[93]The period of pension loss is: 93.1. from 1 January 2018 (no employer pension contributions were made on the pay in lieu of notice) to 31 December 2018 (a period of 52 weeks and 1 day) at 7% of gross OTE; and 93.2. from 1 January 2019 to 16 April 2022 (171.71 weeks) at 7% of gross PHI payments.

[94]The claimant’s gross annual OTE was £200,200 / 52 which is £3,850. (RJR) Page 15 of 26

[95]The claimant’s gross weekly PHI payment was £150,150 / 52 x 0.75 which is £2,165.63.

[96]The pension calculation is in table 2. Table 2: Loss of pension contributions i) 1 January 2018 to 31 December 2018 = 52.14 weeks Gross weekly OTE (£3,850 x 52.14) £200,739.00 7% of pay for this period £14,051.73 ii) 1 January 2019 to 16 April 2022 = 171.71 weeks Gross weekly PHI payments (£2,165.63 x 171.71) £371,860.33 7% of pay for this period: £26,030.22 Total pension loss £40,081.95 Total loss of pension is £40,081.95. Stocks

[98]The parties agreed that the claimant would have been offered RSU stocks if he had not been dismissed. The claimant has lost the value of those stocks which is agreed to be £153,000. Total losses before medical expenses/insurance

[99]The claimant’s total losses of earnings (pay and paid holiday), pension and stocks is £313,234.98 (pay), £12,459.74 (paid holiday), £40,081.95 (pension) and £153,000 (stocks) which in total is £518,776.67. Medical insurance

[100]Miss Platt said that the claimant’s loss of medical insurance should be compensated for by paying his estate the sums the claimant would have incurred if he had paid for personal medical insurance. That equates to £105,923.60 per year, or £450,175.30 for the period from dismissal to 16 April 2022.

[101]Mr de Silva said that the claimant should be reimbursed the sums he paid for private healthcare which he would not have incurred if he had still had the benefit of the respondent’s medical insurance scheme. In total, that was £1175.10.

[102]The task for us is to put the claimant’s estate in the position it would have been in but for the unlawful conduct. Money cannot always achieve this; we have to do this ‘as best as money can do it’. If we award a sum representing the amount the claimant could have paid to replace his lost medical insurance even though he did not pay it, the money would not put him (or his estate) in the position he would have been in if he had not been dismissed. That is not a sum which, if he had not been dismissed, he would have had. He would have had had the benefit of medical insurance during that period. We cannot retrospectively give the claimant back his medical insurance. This does not however mean that we should award the cost of (RJR) Page 16 of 26 personal medical insurance premiums instead. The claimant did not pay those insurance premiums, and therefore did not lose those sums. In short, the sums put forward on behalf of the claimant are not financial losses which flow from the discriminatory acts.

[103]The sums the claimant spent on private healthcare after his dismissal are losses flowing from the discriminatory dismissal. They are costs that would in all likelihood have been covered by the claimant’s medical insurance if he had still been employed. The claimant is awarded £1,175.10 in respect of private healthcare costs.

[104]The very significant impact on the claimant of the loss of medical insurance is also a factor in the assessment of the non-pecuniary element of the award. We come back to this below.

[105]We have found that the claimant paid for medical insurance for Mrs Richards, to replace the loss of her medical insurance after he was dismissed. The cost of medical insurance is a loss arising from the claimant’s dismissal, in the sum of £5,308.88.

[106]The total medical insurance element of the award is £1,175.10 plus £5,308.88 which is £6,483.98. Life insurance

Conclusions

[107]We found that the claimant’s estate would have been entitled to claim under the respondent’s life insurance scheme and that the claim would have been accepted. The loss of life insurance is a sum which is 4 x the claimant’s annual basic salary, that is £600,600.

[108]We award this element as compensation for discrimination. Although in the case of Fox the payment arose in the context of a complaint of unfair dismissal, the analysis would be analogous in a complaint of discrimination.

[109]A summary of the award in respect of the claimant’s financial losses before interest is below. Table 3: Summary of financial losses before interest Totals Loss of earnings £313,234.98 Loss of pay for annual leave £12,459.74 Loss of pension contributions £40,081.95 Stocks £153,000.00 Total financial losses before medical £518,776.67 and life insurance Medical insurance elements £6,483.98 Life insurance element £600,600.00 Interest on financial losses

[110]We award interest on the financial loss elements of the award. (RJR) Page 17 of 26

[111]Regulation 6(1)(b) of the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 provides that interest on financial loss is usually awarded at a rate of 8% from the midpoint of the period which runs from the date of the discrimination to the date of calculation. Regulation 6(3) allows us to vary the period over which we calculate interest, if we consider that to do so would avoid serious injustice.

[112]In this case, the date of discrimination is 31 December 2017, the date of dismissal. The date of calculation is 6 October 2022.

[113]Miss Platt invited us to award interest on financial losses from the date of discrimination, rather than from the midpoint. Mr de Silva invited us to award interest from a date later than the midpoint in respect of the life insurance payment.

[114]Other than the life insurance payment, the claimant’s financial losses accrued on a broadly linear basis over the period from dismissal to calculation. The use of the midpoint is intended to reflect this. We do not consider that there would be a serious injustice in respect of these losses if we only award interest from the midpoint. The standard approach of calculating the period of interest from the midpoint is appropriate for the financial losses other than the life insurance payment.

[115]Variation of the standard approach is required in relation to interest on the life insurance element. This loss did not accrue until after the claimant died on 16 April 2022. We have found that the life insurance sum would have been paid on 16 May 2022. We consider that there would be serious injustice if we award interest on this element from the mid-point, as that would mean interest being awarded for a period which pre-dates the point at which the sum would have been received. To avoid serious injustice, we have decided that interest on the life insurance payment should be calculated from 16 May 2022 to the date of calculation.

[116]Tables 4, 5 and 6 set out the calculations for interest on financial loss. We have calculated the life insurance element of the award separately because of the varied approach to the period for which interest is awarded, as explained. We have also calculated the interest on the medical insurance/expenses element of the award separately, because (like the life insurance element), that is treated differently for tax purposes. Table 4: interest on earnings, pensions and stocks Number of days to midpoint 870 Daily rate of interest 0.08 x £518,776.67 / 365 Total interest calculation 870 days x daily rate of interest Total interest £98,922.89 (RJR) Page 18 of 26 Table 5: interest on medical insurance/expenses element Number of days to midpoint 870 Daily rate of interest 0.08 x £6,483.98 / 365 Total interest calculation 870 days x daily rate of interest Total interest £1,236.40 Table 6: interest on life insurance element Interest start date 16 May 2022 Number of days 144 Daily rate of interest 0.08 x £600,600 / 365 Total interest calculation 144 days x daily rate of interest Total interest £18,955.92

[117]A summary of financial losses and interest is in table 7. Table 7: Summary of financial losses and interest Interest Totals Total financial losses before £518,776.67

£98,922.89

£617,699.56 medical and life insurance Medical insurance elements £6,483.98

£1,236.40

£7,720.38 Life insurance element £600,600.00

£18,955.92

£619,555.92 Totals £1,125,860.65

£119,115.21

£1,244,975.86 Non-pecuniary losses

[118]The claimant sought an award for personal injury (injury to health) as well as an award for injury to feelings. The loss of the medical insurance as a result of the discriminatory dismissal had a very significant impact on the claimant. However, we are mindful of the need to avoid overlap between an award for injury to health and injury to feelings, and it is difficult to make a separate assessment of the injury to the claimant’s health arising from this.

[119]Professor Pandha’s overall view was that the main impact on the claimant’s health was in terms of speed and coherence of care, and that this caused anxiety. There was increased duration of pain, but this was less clear cut.

[120]Because of the nature of these injuries, and the inevitable difficulty with clearly delineating the scope of them, is difficult for us to separate these issues out from the wider injury to feelings the claimant suffered. We decided that we should include the impact on the claimant of the loss of medical insurance as part of our assessment of injury to feelings, rather than making a separate award.

[121]On behalf of the claimant, Miss Platt also sought an award for aggravated damages, on two grounds. First, she said that the manner in which the claimant was treated at the point of dismissal was highhanded and he was dismissed in the full knowledge of the impact that this would have on him. (RJR) Page 19 of 26 We would not describe the treatment of the claimant as highhanded. Further, an additional award in respect of the manner of dismissal risks overlapping with the injury to feelings award and compensating the claimant twice for the same loss.

[122]The second ground on which the claim for aggravated damages was made was the comment made by Mr McHugh in the liability hearing that, because the claimant was not off sick at the time, it would not ‘sit right’ to make a claim for PHI, and that it would have felt ‘almost fraudulent’ to do so.

[123]We have accepted that the claimant was shocked and upset by Mr McHugh’s comment. It seems to us that the description of a claim by the claimant for PHI being ‘almost fraudulent’ was clearly wrong. The claimant’s medical situation was much more complex than Mr McHugh, who had not sought medical advice, thought. We have accepted on the basis of Professor Pandha’s evidence to us that the claimant would have been entitled to claim under the PHI scheme (and the respondent did not challenge this). We have found that he could have become entitled from 2018, shortly after the time Mr McHugh was considering the claimant’s entitlements under the PHI scheme.

[124]On the other hand, Mr McHugh did not say that the claimant had himself acted fraudulently, or that he had suggested acting fraudulently. Mr McHugh was essentially explaining that a claim under the scheme was not possible for someone who was still at work. We accept that this point is accurate, although the way Mr McHugh put it did not give the full picture in the claimant’s case and he could certainly have explained this in a more sensitive way.

[125]We have considered this carefully. An aggravated damages award is not to punish the employer, it is to compensate the claimant for additional injury. Here, we have decided that it is difficult to distinguish the additional injury caused by this comment from the claimant’s other injured feelings. We have decided that rather than make a separate award for aggravated damages in this case, we should take this point into account in our injury to feelings award.

[126]We started with the updated Vento bands for awards of injury to feelings: the lower band of £900 to £8,600 (less serious cases); the middle band £8,600 to £25,700 (cases that do not merit an award in the upper band); and the upper band £25,700 to £42,900 (the most serious cases).

[127]The claimant said that the award ought to be £46,000, above the top of the upper band. The respondent invited us to make an award of £8,400, towards the top of the lower and bottom of middle bands.

[128]We have to consider the effect of the discrimination on the claimant. We have found that the discriminatory dismissal had a considerable impact on the claimant. The prospect of and the eventual loss of his medical insurance were very significant for him. The respondent’s failure to make adjustments (RJR) Page 20 of 26 to the alignment and consultation process led to worry and anxiety for the claimant about the likelihood that he would lose his medical insurance. The loss of the insurance led to his care being less coherent, and to some increased duration of pain. This caused him further anxiety. The ongoing anxiety caused to the claimant about the loss of the medical insurance lasted for months before his dismissal and some years after it.

[129]There were other injuries to the claimant’s feelings. He was clearly a very valued and capable employee and it was very upsetting to him that more careful consideration was not given to his particular circumstances during the alignment and consultation process. His confidence and self-esteem were closely linked with his career and these were damaged when he lost his job. He was not able to work again; we have found that he would have been able to continue working for a further six months if he had not been dismissed.

[130]The increased anxiety, worry and upset that the claimant experienced was more difficult for him to deal with because it came at a time that was already very difficult for him, when he was dealing with the stress of his health issues.

[131]We have, as set out above, taken into account the impact of the loss of the claimant’s medical insurance, the manner of the dismissal and the comment made by Mr McHugh.

[132]Having considered those factors, we have decided that the appropriate award for injury to feelings in the claimant’s case is an award in the upper Vento band. The injury to the claimant was of the most serious type. We award £28,000 in respect of injury to feelings. Interest on injury to feelings

[133]We award interest on the injury to feelings award.

[134]Interest on injury to feelings awards is payable at a rate of 8% for the whole period from the date of the discrimination to the date of calculation. Table 8: interest on injury to feelings Daily rate of interest 0.08 x £28,000 / 365 Total interest calculation 1,740 days x daily rate of interest Total interest £10,678.36 The interest on injury to feelings is £10,678.36.

[136]The total injury to feelings award is £28,000 plus £10,678.36 which is £38,678.36. (RJR) Page 21 of 26

[137]Having reached our provisional conclusions, we stepped back and considered the overall level of the award. We are conscious that this award is larger than many employment tribunal awards. That reflects in large part the claimant’s high level of earnings, and the fact that he was entitled to valuable benefits, including PHI, life insurance and stocks. In respect of nonpecuniary losses, we consider that the sum awarded is appropriate and not excessive, and that it is compensatory not punitive. We are satisfied that the award as a whole is at the appropriate level. Unfair dismissal compensation

[138]The claimant is not entitled to a basic award as he received a statutory redundancy payment.

[139]The claimant lost his statutory rights as a result of the dismissal. The parties agreed that the claimant should be awarded £500 as compensation for loss of statutory rights.

[140]The claimant’s award for in the discrimination complaints includes compensation for other elements of financial loss which he would have received in the compensatory award, that is loss of earnings, benefits and pension. To avoid double recovery (compensating for the same losses twice) these losses are not included in the compensatory award.

[141]No interest is payable on the unfair dismissal element of the award. Summary

[142]A summary of the elements of the award with interest but before grossing up for tax is at table 9. Table 9: Summary of award (including interest) Earnings, pension and stocks £617,699.56 Medical insurance element £7,720.38 Insurance element £619,555.92 Injury to feelings £38,678.36 Total award before tax £1,284,154.22 Taxation

[143]Finally, we have conducted a ‘grossing up’ exercise to calculate the tax which is likely to be payable by the claimant’s estate on the award. Both parties agreed that the award will be taxable as income despite the claimant’s death.

[144]The whole award to the claimant is taxable as earnings under section 401 of the Income Tax (Earnings and Pensions) Act 2003. The discrimination was ‘in connection with’ the termination of his employment, because it concerned the respondent’s failure to make adjustments to the procedures (RJR) Page 22 of 26 which culminated in the claimant’s dismissal. The award for loss of statutory rights is also compensation for dismissal.

[145]Under section 403 the first £30,000 of an award on termination of employment can be paid without deductions. This applies once in respect of each employment. At the time of dismissal, the claimant received a termination payment in respect of his employment by the respondent in the sum of £9,535.50, and so £20,464.50 of the £30,000 remains available.

[146]The medical insurance, medical expenses and life insurance elements of the award will attract exemption under section 406, as they are payments on account of death, injury or disability.

[147]Mr de Silva said that the injury to feelings award would also attract exemption under section 406, because section 406(2) (which excluded injured feelings from the definition of injury for the purpose of section 406) only became effective on 6 April 2018, after the claimant’s dismissal date. He said that meant that the section 406 exemption would apply to the injury to feelings payment, as injured feelings were included in the definition of injury prior to 6 April 2018.

[148]We do not agree that the section 406 exemption will apply to the claimant’s injury to feelings award. The amendment became effective in respect of injury to feelings payments made after 6 April 2018, not cases involving dismissals after 6 April 2018. We have reached this conclusion on the basis of the wording of section 5(10) of the Finance (No. 2) Act 2017. Section 5(10) does not say that the amendment applies to dismissals after 6 April 2018. Rather, it refers to the amendment having effect ‘for the tax year 2018- 19 and subsequent tax years’. It is evident from this that the effective date must be considered in relation to the date of payment (to which the question of tax year is relevant) rather than the date of dismissal. This means that the claimant’s injury to feelings award will be treated as taxable, and should be included in the grossing up exercise.

[149]Therefore, the taxable elements of the award will be Table 10: Taxable elements of award Earnings, pension and stocks £617,699.56 Injury to feelings £38,678.36 Total taxable element before tax £656,877.92

[150]The first £20,464.50 is deducted from this as it is the remaining part of the £30,000 threshold under section 403. That means the sum which is treated as taxable is £636,413.42.

[151]We did not hear any evidence or submissions to suggest that HMRC will treat income tax on the award to the claimant’s estate any differently to the position if the award had been paid to the claimant. We assume that taxation of the award will take into account the standard personal allowance in full, (RJR) Page 23 of 26 as the claimant will not have any other taxable income from other sources in the tax year in which the award is paid.

[152]The grossing up calculation is set out in table 11 (figures rounded to whole pounds). Table 11: grossing up for tax Tax rates (£) Taxable tribunal award (£) gross tax net Personal allowance (0%) to 12,570 12,570 0 12,570 Basic rate (20%) 12,571 to 50,270 37,700 7,540 30,160 Higher rate (40%) 50,271 to 150,000 99,729 39,892 59,837 Additional rate (45%) over 150,000 970,629 436,783 533,846 Totals 1,120,628 484,215 636,413

[153]The amount to be added to the claimant’s award in respect of tax payable on the award so that after tax the sum broadly represents the net sum we have awarded is £484,215. Total award

[154]The total award to the claimant is £1,768,369.22, calculated as set out below. Table 12: Summary of award with interest and tax Financial loss £1,125,860.65 Interest on financial loss £119,115.21 Total financial loss £1,244,975.86 Injury to feelings £28,000.00 Interest on injury to feelings £10,678.36 Total injury to feelings £38,678.36 Total award before tax £1,284,154.22 Grossing up for tax £484,215.00 Total award including interest and £1,768,369.22 tax