Employment Judge R HarfieldMr Davies represented himself for claimantMr Jones (instructed by Counsel) for respondentDate 15 September 2023
REASONS
The law
[1]Introduction1.1 The claimant was employed by the respondent as a Property Maintenance Manager from 29 July 2019 to 21 June 2021. On 20 September 2021 he presented his ET1 claim form, indicating he was bringing complaints of unfair dismissal, sex and age discrimination (direct, indirect, harassment and victimisation), a deduction from wages claim in relation to flexi time, breach of contract, and detriment on the grounds related to trade union membership or activities. The respondent filed grounds of resistance resisting the complaints. EJ Moore conducted a preliminary hearing on 30 March 2022 where the claims brought against 3 named respondents were dismissed as being out of time. EJ Moore clarified the claimant’s complaint under s146 TULCRA but had insufficient time to clarify the basis of the remainder of the claimant’s complaints. She directed that the claimant file further particulars about his direct and indirect discrimination age and sex discrimination complaints. EJ Moore directed that a further hearing be listed to determine:1.1.1 Whether to strike out some or all of the claims because it/they have no reasonable prospect of success;1.1.2 Whether to order the claimant to pay a deposit (not exceeding £1000} as a condition of continuing to advance any specific allegation or argument in the claim if the tribunal considers that allegation or argument has little reasonable prospect of success;1.1.3 Clarify the remaining claims and make case management orders as well as list for the final hearing.1.2 The claimant provided some further particulars and a schedule found at [45 to 60] in the preliminary hearing bundle. There then followed multiple pieces of correspondence passing between the parties that are contained in the bundle.1.3 I had before me a preliminary hearing bundle extending to 170 pages. References in brackets are references to that bundle. I had a further bundle from the claimant extending to 59 pages. References to that bundle are prefixed with a “C” [C ]. Both parties provided draft lists of issues. During the course of the hearing I was also provided with a copy of a document called “Our People Strategy 2020-23.”1.4 I spent some time with the claimant clarifying the basis of his complaints, as it is not possible to decide whether to strike out complaints or order payment of a deposit if the essential basis of each complaint is not understood. I heard submissions from both parties. The claimant also gave short evidence under oath as to his means, which is relevant to considering the deposit order application. By this time the 3 hour listing had overrun so I reserved my decision.[2]The legal principles – strike out orders and deposit orders Deposit Orders2.1 The power to make a deposit order is provided by rule 39 of the ET Rules, as follows: “(1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument. (2) The Tribunal shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit. (3) The Tribunal’s reasons for making the deposit order shall be provided with the order and the paying party must be notified about the potential consequences of the order. (4) If the paying party fails to pay the deposit by the date specified the specific allegation or argument to which the deposit order relates shall be struck out. Where a response is struck out, the consequences shall be as if no response had been presented, as set out in rule 21. (5) If the Tribunal at any stage following the making of a deposit order decides the specific allegation or argument against the paying party for substantially the reasons given in the deposit order—(a) the paying party shall be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 76, unless the contrary is shown; and(b) the deposit shall be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders),otherwise the deposit shall be refunded. (6) If a deposit has been paid to a party under paragraph (5)(b) and a costs or preparation time order has been made against the paying party in favour of the party who received the deposit, the amount of the deposit shall count towards the settlement of that order.”2.2 The test for the ordering of a deposit is therefore that the party has little reasonable prospect success. It was said by the Employment Appeal Tribunal in Hemdan v Ishmail [2017] IRLR 228 that the purpose of a deposit order is “ To identify at an early stage claims with little prospect of success and to discourage the pursuit of those claims by requiring a sum to be paid and by creating a risk of costs, ultimately, if the claim fails” and it is“ emphatically not…to make it difficult to access justice or effect a strike out through the back door.” A deposit order should be capable of being complied with and a party should not be ordered to pay a sum which he or she is unlikely to be able to raise.2.3 As for the approach the Tribunal should take, in Wright v Nipponkoa Insurance [2014] UKEAT/0113/14 and Van Rensburg v Royal Borough of Kingston-UponThames and others [2007] UKEAT/0095/07 it was said, a Tribunal is not restricted to a consideration of purely legal issues; it is entitled to have regard to the likelihood of the party being able to establish the facts essential to their case and, in doing so, to reach a provisional view as to the credibility of the assertions being put forward. That said there is a balance to be struck as to how far such an analysis can go. It was also made clear in Hemdan that a mini-trial of the facts is to be avoided. If there is a core factual conflict it should properly be resolved at a full merits hearing where evidence is heard and tested. Strike Out2.4 Under Rule 37 a claim or part of a claim can be struck out on grounds that include it has no reasonable prospect of success. A claim cannot be struck out unless the party has been given a reasonable opportunity to make representations either in writing or, if requested by the party, at a hearing.2.5 Operation of rule 37(1)(a) requires a two stage test. Firstly has the strike out ground (here “no reasonable prospect of success”) been established on the facts. If so, secondly is it just to proceed to a strike out in all the circumstances.2.6 When assessing whether a claim has no reasonable prospect of success the Tribunal must be satisfied that the claim or allegation has no such prospect, not just that success is thought to be unlikely (Balls v Downham Market High School and College [2011] IRLR 217). The Tribunal must take the allegations in the claimant’s case at their highest. If there remain disputed facts there should not be a strike out unless the allegations can be conclusively disproved as demonstrably untrue or the claim is fanciful or inherently implausible (Ukegheson v Haringey London Borough Council [2015] ICR 1285; Merchkarov v Citibank NA [2016] ICR 1121). In other words a strike out application has to be approached assuming, for the purposes of the application, that the facts are as pleaded by the claimant. The determination of a strike out application does not require evidence or actual findings of fact. A strike out application succeeds where it is found that, even if all the facts were as pleaded by the claimant, the complaint would have no reasonable prospect of success. It was said by Underhill LJ in Ahir v British Airways [2017] EWCA Civ 1392 that “Employment tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context. Whether the necessary test is met in a particular case depends on an exercise of judgment… Nevertheless it remains the case that the hurdle is high, and specifically that it is higher than the test for making a deposit order, which is that there should be “little reasonable prospect of success.”2.7 There is a special need for caution in strike out discrimination cases because they are generally fact sensitive, because of the public interest in examining the merits at a final hearing, and because of the shifting burden of proof.2.8 Where a litigant in person is involved the tribunal should not simply ask the question orally to be taken to the relevant material in support of the claim but should also carefully consider the claim as pleaded and as set out in relevant supporting documentation before concluding there is nothing of substance behind it; Cox v Adecco Group UK [2021] 1CR 1307.2.9 If a strike out application fails the argument about the overall merit of the claim is not decided in the claimant’s favour. Both the claimant and the respondent argue their positions on the merits in full and afresh at the full hearing.[3]“Ordinary” unfair dismissal 3.1 The claimant confirmed that he accepted he had less than 2 years service. He said that he knew he could not bring an ordinary unfair dismissal claim and it had not in fact been his intention to do so. Notwithstanding this the box had been ticked on his ET1 claim form. The ordinary unfair dismissal claim is therefore dismissed upon withdrawal.[4]Decision to dismiss the claimant: direct sex discrimination and/or direct age discrimination – summary of the parties’ positions4.1 I will summarise the parties’ respective positions about the direct discrimination complaints, before setting out my decision and my reasoning, because there are overlapping themes between the direct discrimination complaints.4.2 Row 1 of the claimant’s schedule of his direct and indirect discrimination complaints is a direct discrimination complaint where the less favourable treatment alleged is the decision to dismiss the claimant, which he was told about on 21 June 2021 (having had no warning about it). The claimant was told he would be leaving the business that day and would be paid in lieu of notice. The claimant alleges that the decision to dismiss him was materially influenced by his sex, and/or by his age.4.3 The claimant says that the reason he was given at the meeting on 21 June 2021 was that he was not the right “fit” for the future of Melin. He says he asked if he could do anything to change the decision and that he was told there was nothing he could do as the decision ahd been made and he would be leaving that day. He says: “The claimant took this that he and/or his stereotype did not fit the image that the organisation wished to project and/or fit with the new and future working practices and strategic direction which came about following covid and Melin’s 2020-2023 People Strategy.” He identifies that a strategic review had been ongoing for some time and was due to be shared on 24 June 2021. The claimant says that Ms Kirrane, Executive Director People, Homes and Communities, sent an internal email after his dismissal which said “it was not felt that he had the skills to build the team in order to take forward the next phase of service improvement.” He considers that his age and gender consciously or unconsciously influenced how he was seen in terms of fit and succession planning for the future, as part of that wider strategic review process.4.4 The respondent’s position, taken from the ET3 rider, is that in May/June 2021 a number of those in the claimant’s team had serious concerns about the claimant’s management style which they considered amounted to bullying. It is said that some had tendered their notice and some confirmed they were actively looking for alternative employment. They say that there was serious concern within senior management that the claimant’s approach to junior staff was very different to the way in which he interacted with management, and that unless decisive action was taken, they risked losing a number of long serving employees. They state that given the claimant’s short service and with staff leaving/looking to leave they decided to terminate the claimant’s employment with immediate effect on 21 June 2021.4.5 There is a factual dispute about what the claimant was told at the meeting on 21 June 2021. The respondent asserts that the claimant was told about concerns regarding his management approach and that in response to this the claimant indicated he could change his behaviours. The respondent says the claimant was informed his management style was not in keeping with their values and had already resulted in resignations from a number of staff whilst others had actively indicated they were looking for employment elsewhere [32]. They rely on some handwritten notes they assert Mr Harris took [153-154]. If genuine and accurate, the notes suggest the claimant had been told there were feedback comments about management style that he was a big part of; that over the last week they had become aware that something was very wrong; that there had been exit interviews with staff and the claimant was aware team leaders were looking for new jobs; the common theme in all of that was the claimant; the claimant’s approach was at odds with their values; they knew there was work to be done with the claimant but over the last few weeks they had become aware of how serious the issue was and needed to take action before they lost staff; and that people were telling them that the claimant was a bully.4.6 The claimant says that these notes are not genuine and these things were not said to him. He also disputes that this is the reasoning behind his dismissal. He says these assertions do not match with what he was actually told at the meeting and do not match with, for example, the email that Ms Kirrane sent about the claimant not having the skills to build the team. He says that a subject access request he made did not produce any documents about the alleged complaints from staff or these purported minutes; which again gives him cause to dispute the genuineness of the alleged rationale and record for his dismissal. (As these proceedings are at an early stage there has not yet been disclosure of documents within the tribunal claim.)4.7 The claimant says the respondent has given conflicting and shifting alleged reasoning behind his dismissal, which he says shows that the respondent’s purported reasoning is not the true reasoning. He says that the respondent on the one hand has talked about the claimant not allegedly having the skills to build the team and to take forward the next phase of service development, which implies alleged capability concerns, whilst on the other hand has said there were trade team members complaining about him; which implies conduct. He says that in different accounts given by the respondent across various documents (such as the alleged meeting notes, emails from the time obtained from a subject access request, an email sent by the respondent to their insurer, the ET3 response form, and correspondence sent by the respondent’s solicitors in the course of these proceedings) there are discrepancies about who it is said had allegedly complained about him, what the complaints about him allegedly were and when they were allegedly made. He says in one version (for example, the purported notes of the dismissal meeting) it is alleged that people had said the claimant was a bully, when in an email sent by the respondent to their insurers about the case they said that the claimant was not alleged to have bullied anyone.4.8 The claimant says that the respondent’s solicitors [82] have tried to explain the discrepancies away by saying that Ms Kirrane’s email was made after he had made a request for his dismissal to be treated as a resignation, and that her email was tailored so as to not conflict with there being a resignation. He says that cannot be correct as he says that request had not been made by the time that Ms Kirrane had sent her email after his dismissal.4.9 The claimant also alleges he has been in other meetings where comments have been made about the “fit” of other employees and their ages. He alleges [95] that from around September 2000 Mr Roberts had commenced a practice of enquiring about the retirement dates of anyone in his department who was aged late 50s and early 60s. He alleges that Mr Roberts asked the claimant his own retirement plans including an assumption that the claimant would only work a few more years before retirement. The claimant alleges he told Mr Roberts that as he did not have any significant pension he would work on. He says that Mr Roberts had instructed others to enquire about retirement plans within their teams as set out age page [95].4.10 The claimant relies on a hypothetical comparator for his sex discrimination complaint. I asked him if he was right in his summary of what was said to him at the meeting/ that the alleged notes are not genuine/ his points about alleged conflicting reasoning, what was it that made him think a reason for his dismissal was that he was male. He said that the respondent’s people strategy is about retaining staff and promoting women in construction. He asserts that if he had been a female it was more likely that he would have been retained.4.11 In relation to age discrimination the claimant compares himself to the team leaders, NE, KA and AP who he says were in their 40s, around 50, and late 30s respectively, who he says had issues with health and safety but were not dismissed. He also referred to a manager, SW, who was about 52, and was allowed to step down in a restructure. He said he would also rely on a hypothetical comparator in the age range 30 to 50, but otherwise in the same material circumstances to him, who he says would not have been dismissed. The claimant is 62. He was 58 when he was initially employed. He asserts that the respondent probably thought he was 50 when they initially employed him, and he supposes that they would have thought that from making assumptions based on his CV. He asserts that the respondent when looking at the next phase of their improvement strategy thought that he would not have sufficient length of service left to see it through.4.12 The respondent argues that the discrimination complaints about dismissal have no reasonable prospect of success or little reasonable prospect of success. They assert that the claimant is seeking to shoehorn an unfair dismissal claim (that he cannot bring) into an Equality Act complaint. The respondent argues that the claimant does not have a shred of evidence in support of any argument there was less favourable treatment because of age or sex. They refer to the notes allegedly taken at the dismissal hearing where it is alleged the claimant commented the decision was harsh and when he had less than 2 years’ service. The respondent argues the claimant was fully aware that the way he was being treated was because he had less than two years service, as it is reflected in the claimant’s own comment at the time. The respondent argues it is clear that this was a short service dismissal and the claimant has not provided a cogent, factual basis to assert that the dismissal was discriminatory. The respondent points to the claimant’s inability to identify actual comparators in materially the same circumstances as the claimant.[5]Not telling the claimant of the issues prior to dismissal: direct sex discrimination and/or direct age discrimination – summary of the parties’ positions5.1 The claimant identified at the preliminary hearing that the second row in his schedule was an allegation of less favourable treatment, on grounds of sex and/or age, in that he was not told about the alleged issues prior to dismissal or given the opportunity to respond or provide information. He says the outcome was predetermined. He says that if he had been given the opportunity to respond he would have been able to show that he had delegated the management responsibilities below him. He referred to the fact there had been no investigation in his case or following of the disciplinary policy in which dismissal should be the final sanction for gross misconduct. The claimant relies on the same comparator information identified above. He says that others who allegedly raised concerns about him had their concerns investigated, but that in his case there was no investigation as to whether the concerns alleged (if indeed they existed) had any merit or whether any impugned management practices were actually down to the managers in the chain below him, rather than the claimant himself. He alleges that he was seen as an “old school” stereotype and that issues raised by employees were automatically attributed to him and not the team leaders or supervisors who managed the individuals and who were 15 to 20 years younger than the claimant.5.2 The respondent’s position is summarised above.[6]Not taking a different course of action: direct sex discrimination and/or direct age discrimination – summary of the parties’ positions6.1 The claimant identified at the preliminary hearing that the third row in his schedule was an allegation of less favourable treatment in not taking a different course of action as an alternative to dismissal. He asserts that if he had been younger and/or female, a different course of action would have been taken instead of dismissal to help him gain the skills Ms Kirrane asserted that he needed. He said he considered that respondent took a stereotypical view of his sex and his age at being over 60 that he could not keep pace with changes, so did not consider alternatives to dismissal, such as adding him to the maintenance team development program. He also again referred to the fact there had been no investigation in his case or following of the disciplinary policy in which dismissal was to be the final sanction for gross misconduct, and that these processes should have been followed.6.2 The respondent’s position is summarised above.[7]Decision on strike out application and deposit order application in relation to the direct discrimination complaints7.1In the Equality Act 2010 direct discrimination is defined in Section 13(1) as: (1) A person (A) discriminates against another person (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.7.2 Sex is a protected characteristic, as is age. The concept of treating someone “less favourably” inherently requires some form of comparison. Section 23 provides that when comparing cases for the purpose of Section 13 “there must be no material difference between the circumstances related to each case.”7.3 It is well established that where the treatment of which the claimant complains is not overtly because of the protected characteristic, the key question is the “reason why” the decision or action of the respondent was taken. This involves consideration of the mental processes, conscious or subconscious, of the individual(s) responsible; see the decision of the Employment Appeal Tribunal in Amnesty International v Ahmed [2009] IRLR 884. The protected characteristic must have had at least a material influence on the decision in question. Unfair treatment by itself is not discriminatory; what needs to be shown in a direct discrimination claim is that there is worse treatment than that given to an appropriate comparator; Bahl v Law Society 2004 IRLR 799.7.4 Section 136(2) of the Equality Act provides that: “If there are facts from which the court (which includes a Tribunal) could decide, in the absence of any other explanation, that a person (A) contravenes the provision concerned, the court must hold that the contravention occurred.”7.5 Section 136(3) goes no to say that “subsection (2) does not apply if A shows that A did not contravene the provisions.”7.6 Guidance as to the application of the burden of proof was given by the Court of Appeal in Igen v Wong 2005 IRLR 258 as refined in Madarassy v Nomura International Plc [2007] ICR 867. The Court of Appeal emphasised that there must be something more than simply a difference in protected characteristic and a difference in treatment for the burden of proof to shift to the respondent. They are not, without more, sufficient material from which a Tribunal could properly conclude that, on the balance of probabilities, the respondent had committed an act of discrimination. The guidance to be derived from these decisions was approved by the Supreme Court in Hewage v Grampian Health Board [2012] UKSC 37. Decision to dismiss – direct sex discrimination7.7 Looking first at the decision to dismiss and the direct sex discrimination complaint, when considering whether the complaint has little reasonable prospect of success I have to take the claimant’s case at its highest. His primary case, as I understand it, is that he does not accept that there were any complaints or concerns raised about him, and that this has been constructed after the event to cover up the true reason. He says he was dismissed because he was not seen to have the right “fit” for the respondent’s plans going forward and that a material influence on that perception of him and his “fit” is that he is male, not. As I have said above, the claimant points to what he says are discrepancies and conflicts in accounts, and an absence of documentation in support of the alleged complaints about him. His case is that a female in the same position as him would not have been dismissed.7.8 The claimant has no actual female comparator he can point to who he says was in not materially different circumstances who he says was not dismissed. There is no absolute obligation to have one as a hypothetical comparator can be relied upon. However, he has to establish primary facts from which the tribunal could find that there has been less favourable treatment than a female would be treated in similar circumstances and that a material influence on this less favourable treatment was sex. The authorities are clear that a difference in treatment is not enough to shift the burden.7.9 Here I struggle to see how the claimant will show even a primary case of a difference in treatment, with a hypothetical female. He has nothing to point to other than the respondent’s strategy document which says (page 9, 7th bullet point) “We will continue to support more women into construction roles. We will embrace the Tai Pawb Deeds Not Words pledge as part of ensuring that Melin truly represents the communities in which we work.” The claimant says that the strategy document also refers to setting tailored development plans for leaders and managers and that given the desire to support women had he been female he would have been given a tailored development plan rather than being dismissed.7.10 The respondent’s strategy document does, as the claimant identifies, include a positive action statement in an industry in which it is known there is the underrepresentation of women. I struggle to see how that, by itself, can sensibly be used as prima facie basis for saying that if the claimant were female he would have been seen to have the right “fit” going forward and/or that he would have been given a development plan rather than being dismissed. As a proposition it is also called into question by the comparators that the claimant himself relies upon in his age discrimination claim, who he says were more favourably treated than him, as younger individuals, and who he says had their own employment troubles, but whom are largely male. Age aside, if the respondent is allegedly that wedded to gender, why would the respondent be protecting those individuals rather than seeing them as not having the right “fit”? It is also not the case, on the claimant’s own account of events, that he was replaced by a female who was seen to have the right fit, or that his removal was seen as an opportunity by the respondent to promote females, with or without development plans. He says, in fact, that various promotion opportunities were offered to men, and that his post went unfilled for some time [96].7.11 In reaching my decision I have reminded myself of the high threshold to strike out a discrimination claim as having no reasonable prospects of success and the case law principles I have summarised above. I am mindful of the fact I have not heard oral evidence from the relevant individuals involved. I am mindful of the usual importance in hearing oral evidence in discrimination cases where there is unlikely to be a “smoking gun” and when establishing the conscious or unconscious mental processes of the individuals involved. However, for the reasons I have just given, even if all the claimant says is correct, I do not see how he has any plausible prospect of shifting the burden of proof to the respondent. The missing piece of the jigsaw is the connection between dismissal and sex. I do not consider it enough to simply point to the type of comments that the claimant has done so in the strategy document. I do consider that the claimant’s direct sex discrimination complaint, as framed by him, is fanciful and I do consider this to be an exceptional circumstance where the direct sex discrimination complaint should be struck out as having no reasonable prospect of success.7.12 My view of this is the same whether on the claimant’s primary case that he had done nothing wrong whatsoever at all and it is all a construct by the respondent to remove him or his secondary case (as I understand it) that if there had been some criticism of him/unjustified criticism of him in some form, if he were a female he would be allowed to stay as the respondent would be more lenient, he says, to female. I would add that if I am wrong about my decision on strike out I would order the claimant to pay a deposit on the basis that the complaint has little reasonable prospect of success. Decision to dismiss – direct age discrimination7.13 The claimant’s case on age discrimination is that he asserts that if he was not over the age of 60 he would be seen as having talent and part of the fit for the respondent going forward. He relies on the strategy document which says in the first bullet point on page 9: “Ambitious and resilient people will be key to our success now and into the future. We will further develop processes to recruit, develop and engage ambitious and resilient people. Do our leaders of the future already work for us? We will develop people and processes so that we can be confident that this is the case.” The claimant says that older people at the respondent were not seen as ambitious or resilient. He asserts the respondent was not going to invest in him due to his age or his potential short service to go. He says that he was seen as an “old school” stereotype, whereby behaviours of other managers were attributed to him (if indeed there were complaints about him at all), and that he was seen as not being able to keep pace with change. He says age related stereotypes were inappropriately applied such as him having a more traditional skill and mindset and not being able to adjust to innovation.7.14 If I take the claimant’s case at its highest, here I do not find that the direct age discrimination complaint has no reasonable prospect of success. I accept that one analysis of it being said the was not the right “fit” or that it was not felt the claimant had the skills to build the team in order to take forward the next phase, could potentially involve considerations that include age related assumptions or stereotypes. There is a qualitative difference here, when compared with the sex discrimination claim, in terms of the link between “fit” and the protected characteristic of age, compared with the protected characteristic of sex. On the claimant’s account, taken at its highest, he says he can give examples of questions being asked, including the claimant, about retirement plans. I appreciate the respondent’s point that they say they recruited him at age 58. But that does not mean, again taking the claimant’s case at its highest, that he cannot argue that the respondent may have taken a different view when looking at the next phase of their strategic planning.7.15 I do, however, consider that the complaint has little reasonable prospect of success and I do consider that it is appropriate to make a deposit order payable on condition of the claimant pursuing this complaint to final hearing. When considering whether to make a deposit order, I can weigh into the equation the respondent’s position. I appreciate the various arguments the claimant seeks to make about potential inconsistencies and contradictions he sees in the account he had received from the respondent so far. I appreciate the complaints the claimant makes about the process that was followed. However, it seems to me inherently plausible that with an employee with less than 2 years service, an employer can and with some frequency often will, when in receipt of some sort of concern raised about the employee, decide to short cut their processes and proceed to dismiss. Indeed employers may do so in an even more peremptory way, without much by way of an investigation into the allegations, when the 2 year qualifying period is fast approaching. That may sound morally wrong, but it is a consequence of the 2 year qualifying period for unfair dismissal claims. In my judgment, notwithstanding all the points the claimant makes, it is inherently more plausible that is the situation here based on the undisputed parts of factually what happened. If I am wrong, and the claimant’s age at least materially influenced the decision making process, the claimant will of course have the opportunity to pay the deposit and make good his case at Tribunal. I have set out my assessment of the amount of the deposit order in my separate case management order which is designed to be payable rather than operating as a bar to continuing with the complaint. Not telling the claimant about any issues prior to dismissal and not taking a different course of action as an alternative to dismissal7.16 My analysis here is very similar to the above as factually and evidentially these points are all intertwined, given their link to the actual decision to dismiss.7.17 I consider that the direct sex discrimination complaints about not telling the claimant about any alleged issues prior to the dismissal meeting, and not taking an alternative course of action (such as a development plan) to dismissal have no reasonable prospect of success. Taking the claimant’s case at its highest for the reasons already given I struggle to see how it would establish a prima facie case. The link to showing if he was female that the respondent would have chartered a different course is simply not, in my judgment, made out. (If I am wrong about that I would find it has little reasonable prospect of success and that there should be a deposit order made).7.18 From a direct age discrimination angle, again my analysis repeats that in relation to the dismissal. I cannot say that, taking the complaints at their highest, they have no reasonable prospect of success, I would however find that these two additional age discrimination complaints have little reasonable prospect of success and that it is appropriate to order the claimant to pay a deposit on condition of continuing with the complaints. This is because again fundamentally I consider it inherently plausible here that the respondent took the actions they did because they were effecting a short service dismissal.[8]Decision on strike out /deposit order application: Indirect discrimination8.1 The claimant’s schedule identifies 3 potential “provisions, criteria or practices.” The first one is set out as being “Melin People Strategy 2020-2023.” This is the same strategy document referred to above in relation to the direct discrimination complaints. I explained to the claimant that what he had identified was not a provision, criterion or practice, and asked him to identify it further. I provided a summary of how the law relating to indirect discrimination works and had a discussion with the claimant about how he identified any provision, criterion, or practice, that he said either placed men at a particular disadvantage compared with women, or people in a particular age group at a particular disadvantage compared with other age profiles (and was a particular disadvantage he was also placed in).8.2 The claimant ultimately said that the provision, criterion or practice, he was relying on was a policy of supporting women in construction. He referred to the strategy document which says (page 9, 7th bullet point) “We will continue to support more women into construction roles. We will embrace the Tai Pawb Deeds Not Words pledge as part of ensuring that Melin truly represents the communities in which we work.” He considers that this amounts to indirect sex discrimination.8.3 The claimant talked through other aspects of the strategy document about development plans, and talent management. I asked the claimant how the respondent having a policy of offering tailored development plans would place men at a particular disadvantage compared to women. The claimant then said that this particular complaint was about age not gender. He said that it was about length of service, and older workers not being seen to have the length of service left for development. He talked about how he thought that older workers would be overlooked because of their length of service left, or were not seen to have talent or resilience or ambition. But he ultimately said that more related to his direct discrimination complaints (considered above), rather than being indirect age discrimination complaints. He said the same about the performance management strategy that he had attempted to identify as another PCP, and also about the formal performance management process, identified in his schedule as a third PCP.8.4 In the event therefore, the claimant said he was only pursuing the one complaint of indirect sex discrimination.8.5 The respondent says the strategy document identifies a positive action step to ensure females are developed and integrated into the construction industry, and that an argument that this is indirectly discriminatory against men is absurd. The respondent says there is no evidence that any men are disadvantaged by the positive action statement.8.6 I consider the claimant’s remaining indirect sex discrimination complaint has no reasonable prospect of success. I do not consider that a policy of supporting women in the construction industry is a neutral PCP that would the respondent would apply to both men and women and which would place men at a particular disadvantage when compared with women. It is something that the claimant says positively advances the cause of women in the workplace, he would say to the detriment of men including himself. If so, then it is a policy that is aimed at women, and not everyone in the workforce. It is not of neutral application across the group. If the policy is inherently about people with a specific protected characteristic (here women) would be a complaint of direct sex discrimination (subject to any positive action initiative defence under sections such as 158 and 159 Equality Act) not a complaint of indirect sex discrimination.8.7 Further I struggle to see how the claimant would establish that men were placed at a particular disadvantage. He has no evidence, beyond his assertion, that for example, females are not being dismissed but are instead being promoted and given development plans, when men are not.8.8 The complaint is in my judgment, speculative and has no reasonable prospect of success and should be struck out. If I am wrong about this then I would have ordered the claimant to pay a deposit on condition of continuing with the complaint.[9]Decision on strike out /deposit order application - Harassment related to age and/or sex9.1 The claimant’s harassment complaints as presented are set out at [19] in (a) through to (q). In the course of discussing these during the hearing the claimant withdrew the following: (b), (f), (g), (i), (j), (k), (l), (m), (n), (o), (p) and (q) and they are dismissed upon withdrawal. (l) the claimant said was already covered by (a).9.2 The claimant’s position on the remainder of the harassment complaints is as follows. (a) “The treatment of the Claimant during the meeting of 21/5/2021 including stating to the Claimant that he was going to be dismissed and without any reason.” The Claimant relies on the same points he makes in relation to his direct discrimination complaints, and says that if he had been a female and/or had a younger age profile then the respondent would have been more sympathetic in the meeting and more supportive of him and acted with more sensitivity.9.3 (c) “The humiliating treatment of the Claimant by escorting him from the office and to his car in view of colleagues and subordinates; who were outside the building or who viewed the exit through the windows”. The claimant makes the same points in relation to this.9.4 (d) and (e): This is about the alleged refusal and/or failure to use disciplinary/dismissal procedures or capability procedures. The claimant here again alleges that if he had been female or had a younger age profile one of these procedures would have been followed.9.5 (h): “The treatment of the Claimant when arranging the meeting of the 21/6/2021 without any invite or prior warning.” Again the claimant here makes the same points.9.6 The respondent says the claimant’s allegation about his treatment at the dismissal meeting is factually untrue because the reason why he was dismissed clearly appears in the handwritten note. The respondent says the claimant cannot point to a single piece of evidence to show that what he complains about was related to sex or age. The respondent says the reason for the treatment complained about by the claimant is that it was a short service dismissal.9.7 Section 26 of the Equality Act defines harassment as where person A engages in unwanted conducted related to a protected characteristic and the conduct has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. In deciding whether the conduct has the impugned effect the tribunal must take into account the perception of B, the circumstances of the case and whether it is reasonable for the conduct to have that effect. The phrase “related to” a protected characteristic encompasses conduct associated with the protected characteristic even if not caused by it; Equal Opportunities Commission v Secretary of State for Trade and Industry [2007] ICR 1234.9.8 My analysis of the harassment related to sex complaint is similar to the direct sex discrimination complaint. The conduct that the claimant complains about in relation to the handling of the meeting on 21 May 2021 was clearly unwanted conduct and it is also clear from his personal perspective how what has happened has deeply upset him. But whilst I appreciate that the test for harassment is a looser test than that for direct discrimination, the conduct complained about must still be related to sex. I do not see, taking the claimant’s case at its highest, how he would show a prima facie case that he would not have been dismissed, or that he would have had more warning, or a formal invite to the meeting, or that he would have been spoken to or treated with more sensitivity (including the way in which he was escorted from the premises) or that the respondent would have stopped and followed a formal disciplinary or capability procedure were he to be female (which is how the claimant frames “related to”). I do not consider the positive action statement in the strategy document provides this, and it is in my judgment, simply speculation on the claimant’s part. I therefore consider the complaints of harassment related to sex have no reasonable prospect of success and should be struck out. If I am wrong about this, I would alternatively have found the complaints had little reasonable prospect of success and would have ordered the claimant to pay a deposit.9.9 Turning to the alternative harassment related to age complaints, in the direct age discrimination complaints discussed above, I decided that it was not inarguable, taking the claimant’s case at its highest that a decision he was not the right “fit” going forward could be related to age. I accept an analysis that could flow from that is that the respondent would otherwise not have affected a short service dismissal and therefore would not have adopted the process that the claimant complains about. I therefore would not, again this is all based on taking the claimant’s case at its highest, say that the harassment related to age complaints have no reasonable prospect of success.9.10 I do, however, consider that they have little reasonable prospect of success. For the reasons I have given I consider it inherently more plausible that the respondent will establish that the process it was adopting was, as insensitive as it may be, a short service dismissal process unrelated to considerations of age. I do therefore consider it appropriate to order the claimant to pay a deposit on condition of continuing with these complaints. Decision on strike out/ deposit order application - Victimisation10.1 I struggled to understand the claimant’s victimisation claim at the hearing. He identified the protected act as being that the respondent believed he may do a protected act in the sense the respondent believed he may bring an Employment Tribunal claim. He referred to an email where the respondent said they would pay the claimant for accrued flexi time in recognition of risk. The email is at [C17] and is an internal email dated 22 June 2021 where Mr Roberts says “we accepted Mark’s resignation1 effective yesterday, and will pay him lieu of notice and we also agreed to pay for his flexi leave, which isn’t within policy, but we agreed given the circumstances it reduced risk and was the right thing to do.”10.2 But the belief has to be that the claimant may bring an Employment Tribunal claim of breach of the Equality Act, not simply an Employment Tribunal claim. I was left unable to understand why the claimant was saying that concern about a risk of a claim about payment of flexi time meant that the respondent believed the claimant would bring an Equality Act complaint. I really struggle to see how the claimant asserts that the respondent was anticipating that he was going to bring, for example, an age discrimination complaint or a sex discrimination complaint. If they had, logically it may have made them more inclined to follow a lengthier dismissal process, rather than doing what the respondent says they did in following a shortened process because the claimant had less than 2 years qualifying service. 10.2 In relation to detriments, the claimant alleges that the respondent dismissed him because they believed he would bring an employment tribunal claim. Here I struggled to understand the sequencing of events as the email about paying the flexi payment, and the analysis of risk, post dates the dismissal decision, rather than pre-dating it. The claimant’s analysis appeared to become that the respondent believed that if they dismissed him the claimant would bring an Equality Act complaint, and so because of this, they dismissed him, following an informal, summary procedure. But that logic appears circular.10.3 The claimant ultimately said that if I was struggling to make sense of the complaint then he did not see that he could pursue it. On the face of it he was potentially withdrawing it, but I did also say to him that I was not trying to pressure him into withdrawing claims; I was simply trying to understand their basis to deal with the strike out /deposit order applications and to give him the opportunity to set out his case to me.10.4 My understanding is that the claimant was content to withdraw the victimisation complaints, but if not, then I would in any event strike them out as having no reasonable prospect of success. I cannot identify a sustainable basis for a victimisation complaint based on what the claimant put forward. In reality it seems to be a complaint that the respondent rushed through a dismissal at a point at which the claimant had less than two years service, to deprive him of unfair dismissal rights. The respondent’s admitted position is that they followed a shortened process because of the claimant’s service. But that does not make it a victimisation claim under the Equality Act.[11]Inducing discrimination – sections 111 and 112 Equality Act 11.1 The claimant in his “details of claim” document makes various references to sections 111 and 112 Equality Act. He confirmed during the preliminary hearing that he was not pursing these complaints. They are therefore dismissed upon withdrawal.[12]Decision on strike out /deposit order application - Trade union detriment12.1 This was summarised by EJ Moore as follows [39]: “S146 TULCRA provides: 1 It was agreed, after the event, between the parties that the claimant would be treated as having resigned, however, neither party in this litigation argues that the claimant resigned; both parties accept the dismissal on 21 June was an effective dismissal at law 1) [A worker] has the right not to [be subjected to any detriment as an individual by any act or deliberate failure to act, by his employer if the act or failure takes place] for [the sole or main purpose] of – (ba) preventing or deterring him from making use of trade union services at an appropriate time, or penalising him for not doing so, or] 1.1 The claimant says he was a member of the GMB trade union. The detriment is the manner of the dismissal (with no pre warning of the meeting) which the claimant says was designed to prevent him from accessing trade union representation in respect of his dismissal”12.2 The claimant said at the hearing before me that he considered this wording needed to be amended to add in that there was no pre warning of the issues too. He says the dismissal was done without following a fair process that the union would have said was needed.12.3 The respondent says the claimant has failed to identify an individual with a conscious mindset to act/fail to act for the sole or main purpose of preventing the claimant from making use of trade union services or how it is said the dismissal process adopted was for the sole or main purpose of preventing the claimant accessing those services.12.4 The essence of this complaint is that the claimant asserts the respondent decided to follow a short, quick process, without giving the claimant warning of the meeting or warning of the issues as a deliberate act done for the sole purpose of preventing the claimant was making using of a trade union representative at the meeting. He says that otherwise the union would have intervened to say the respondent should have followed a fair process.12.5 Taking the claimant’s case at its highest, and given I have not struck out the age discrimination claim, I do not consider I can say this complaint has no reasonable prospect of success to strike it out (because it could be argued that, for example, wishing to avoid trade union representation as a cover for an age discriminatory motivation could make avoiding the trade union representation the main purpose for the conduct in question). I do, however, consider that the complaint has little reasonable prospect of success and that it is appropriate to order the claimant to pay a deposit. Again, this is because I consider it more plausible that the respondent’s actions were not done with the main purpose to deprive the claimant of representation but because they were simply affecting a short service dismissal.[13]Unauthorised deduction from wages 13.1 The claimant confirmed he was no longer pursing a complaint of unauthorised deduction from wages, which is therefore dismissed upon withdrawal.[14]Decision on strike out/ deposit order application - Breach of contract14.1 EJ Moore understood that the claimant was bringing breach of contract complaints relating to(a) not following disciplinary and dismissal procedures, and(b) a notice pay claim. The claimant told me it was only notice pay issues that he was pursuing as he accepted that the disciplinary and dismissal procedures were not contractual.14.2 I understand that the claimant is seeking to bring a breach of contract notice pay claim on two basis. Firstly, a statutory notice pay claim under section 86 Employment Rights Act 1996. The section is entitled “rights of employer and employee to minimum notice.” Section 86(1) says that the notice required to be given by an employer to terminate the contract of an employment of a person who has been continuously employed for one month or more is not less than one week’s notice if his period of continuous employment is less than two years. It therefore incorporates, if needed, a minimum 1 week’s notice period into the claimant’s contract. Under section 86(6) the section does not affect the right of either party to treat the contract as terminable without notice by reason of the conduct of the other party i.e. a summary dismissal for gross misconduct. Under section 86(3) a provision for shorter notice in any contract has effect subject to subsections (1) and (2) (i.e. if necessary the reading in of the minimum notice period), “but this section does not prevent either party from waiving his right to notice on any occasion or from accepting a payment in lieu of notice.”14.3 The claimant’s contract gave him the equivalent right to 1 week’s notice (albeit the respondent paid him four). This is not a case where the respondent argues they were entitled to, and did, summarily dismiss the claimant without notice on conduct grounds. They paid the claimant 4 weeks, which I do not understand that he disputes that he received. The respondent also does not argue that the claimant waived his notice rights. Contractually they rely upon the clause in the contract which says “At the absolute discretion of the Association, payment in lieu of working notice may be made.” I do not therefore see how it is arguable, even on the claimant’s case at its highest, that section 86(6) was engaged. It was not dismissal without notice, but a dismissal with a payment in lieu of notice.14.4 I do not consider it arguable in those circumstances that section 86 operated to incorporate into the claimant’s contract some term other than the already express term that at the absolute discretion of the Association they could pay in lieu. Section 86(3) does not, in my judgment, incorporate some term (if that is what the claimant was arguing) that he had to accept a payment in lieu. What it is seeking to do is in cases, where section 86 needs to click into action, to give an employee minimum notice (which is not the case here), and to still preserve the possibility of the parties contractually agreeing to waive notice or have pay in lieu of notice terms.14.5 The complaint under section 86 ERA has no reasonable prospects of success and should be struck out.14.6 The claimant’s alternative notice pay breach of contract claim relates to the operation of the clause “At the absolute discretion of the Association, payment in lieu of working notice pay be made.” On the face of it that clause does what it says; it gives the respondent the absolute discretion to pay in lieu. Here, however, the claimant argues that the exercise of that discretion had to be exercised in accordance with public law principles summarised in Braganza.14.7 Braganza was a shipping case concerned with death in service benefits. However, the point of principle taken from it is that when a court or tribunal is assessing the exercise of a contractual discretion it may involve implying a contractual term to moderate the exercise of that discretion. What term is implied with depend upon the facts of a particular case, however, any decision making function entrusted to an employer has to be exercised in accordance with the implied obligation of trust and confidence. When assessing whether an employer is in breach of that implied duty, public law principles of rationality will apply. This means that the decision must be made rationality, in good faith, and consistent with its contractual purpose. Assessing rationality in that public law sense means considering whether relevant matters (and not irrelevant matters) been taken into account and is the result such that no reasonable decision maker could have reached it? In Patural v DG Services (UK) Ltd [2015] EWHC 3659 (QB) Mr Justice Singh held that these principles from Braganza applied to disputes about the exercise of contractual terms in relation to, for example in an employment contract context, the payment of discretionary bonuses.14.8 A sustainable claim here would be a high hurdle for the claimant to reach. The very purpose behind a contractual clause entitling an employer to pay in lieu of notice is to give that discretion for an employee not to work out their notice period. But I do accept it is not inarguable for the claimant to say that if (taking his case at its highest) it was exercised as a cover for an underlying discriminatory motivation the operation of the discretion was not rational or in good faith. I therefore do not find the complaint has no reasonable prospect of success, on the claimant’s case at its highest. I do, however, consider that it has little reasonable prospect of success. I say this because, again it seems inherently more plausible to me that the respondent was operating a short service dismissal and in doing so simply made legitimate use of the contractual discretion to pay in lieu (which I have said is the purpose for which the contractual right generally exists) rather than the claimant work his notice. 18.9 Secondly, I fail to see what remedy the complaint would offer the claimant. This is a breach of contract claim and falls to be determined by standard contractual principles. The claimant would be entitled to his losses on the basis as to what would have been his contractual entitlement if the respondent were not in breach (presupposing of course a breach could be established). This is evaluated on the basis of what is the least burdensome to the respondent/least profitable to the claimant. The respondent could have had the claimant work for a week for which he would have been entitled to a week’s pay. It is not about what would have happened to the claimant if a fair procedure had been followed as that is not how damages are assessed in a contractual claim (unless it is a contractual procedure being enforced; which the claimant accepts it is not). The claimant had been paid four weeks pay in any event. As I expressed to the claimant at the hearing I therefore cannot see what the purpose of the complaint would be, other than to obtain a finding that there had been a breach (if indeed that is established).[19]Conclusion 19.1 I have issued a separate deposit order. The case will be listed for a case management hearing once 28 days have expired so that the claimant has time to consider what, if any, claims he wishes to pay the deposit for and continue with. I appreciate these are difficult topics and the claimant is a litigant in person. I recommend that he considers getting some professional advice (from his union or otherwise) about his situation and what claims he pursues from here.[1]This final hearing was preceded by four earlier preliminary hearings: a case management preliminary hearing conducted by Employment Judge S Moore on 30 March 2022, a public preliminary hearing conducted by Employment Judge R Harfield on 26 October 2022, a case management preliminary hearing conducted by Employment Judge S Jenkins on 24 March 2023 and a case management preliminary hearing conducted by Employment Judge S Jenkins on 21 June 2023.[2]On 30 March 2022 Employment Judge S Moore removed a number of respondents.[3]On 26 October 2022 Employment Judge R Harfield struck out a number of complaints on the basis that they had no reasonable prospects of success. The remaining complaints, those that were considered at this final hearing, were all made subject to a deposit order. The Claimant paid the deposit.[4]The issues for determination are set out in the Case Management order of Employment Judge S Jenkins, copied below. Claims of direct age discrimination – Section 13 Equality Act 2010[5]Did the Respondent treat the Claimant less favourably than it treated or would have treated an actual or hypothetical comparator because of age. The Claimant relies on the following acts/omissions:a. The decision to dismiss the Claimant;b. Not providing the Claimant with warning/details of the allegations in advance of the dismissal meeting; andc. Not adopting an alternative to dismissal[6]In relation to any proven less favourable treatment of the Claimant because of age, is the Respondent able to show that such treatment was a proportionate means of achieving a legitimate aim? Claims of age harassment - section 26 Equality Act 2010[7]Did the Respondent engage in unwanted conduct? The Claimant relies on the following alleged acts of harassment:a. The treatment of the Claimant during the meeting of 21 June 2021 including stating to the Claimant he was going to be dismissed and without any reason;b. The humiliating treatment of the Claimant by escorting him from the office and to his car in view of colleagues and subordinates (who were outside the building or who viewed through the exit windows);c. The refusal and/or failure to use the disciplinary/dismissal procedures;d. The refusal and/or failure to use the capability procedures; ande. The treatment of the Claimant when arranging the meeting of 21 June 2021 without any invite or prior warning. Was any such conduct related to age?[9]If so, did the conduct have the purpose or effect of:a. violating the Claimant’s dignity; orb. creating an intimidating, hostile, degrading, humiliating, or offensive environment for the Claimant?[10]In addressing the answer to the above, should the conduct be considered as having that effect taking into account the following: c. The perception of the Claimant d. The other circumstances of the case; and e. Whether it is reasonable for the conduct to have that effect. Claim for breach of contract[11]Has the Respondent acted in breach of any contractual provision relating to the operation of the contractual discretion to pay the Claimant in lieu of notice? Claim pursuant to section 146 TULRCA[12]Has the Respondent subjected the Claimant to any detrimental treatment? The Respondent understands that the Claimant relies on not being provided with notice of the meeting or of the issues leading to the decision to dismiss him, which prevented him from making use of trade union services.[13]Was the sole main purpose of the treatment to prevent or deter the Claimant from making use of trade union services or to penalise him for doing so? The Respondent understands that the Claimant contends that the sole purpose of holding the dismissal meeting on 21 June 2021 with no pre-warning was to prevent or deter him from accessing trade union representation in respect of his dismissal.[14]At the outset of the hearing we discussed the issues for determination with the parties, and at regular intervals throughout the hearing I reminded the Claimant about the issues the Tribunal needed to determine.[15]The Claimant compares himself with the following:a. specific team leaders – NE, KA and AP who there in their 40s, around 50 and late 30s respectively;b. A manager – SW age 52c. A hypothetical comparator age 30 – 50. Evidence and procedure[16]The parties submitted an agreed Bundle of 273 pages.[17]The Claimant provided a witness statement of 13 pages. The Claimant swore on the bible and was questioned.[18]The Respondent called the following witnesses: Mr. Carl Alston, Mr. Mike Harries, and Mrs. Paula Kennedy. They all produced witness statements. Ms. Kennedy also produced a supplemental witness statement that was prepared in response paragraph 115 of the Claimant’s witness statement which contained new matters that had not been previously raised by the Claimant. All three witnesses affirmed and were questioned.[19]The Respondent provided written Closing Submissions, and brief oral submissions. The Respondent’s submissions included reference to both legislation and case law. The Claimant gave oral submissions.[20]We established at the start of the hearing that no attendee required any adjustments to the hearing format. I explained to the Claimant the process involved in a final hearing, specifically the difference between the stages of giving and challenging evidence and submissions. I explained to the Claimant that if he did not agree with the contents of any of the Respondent’s witness statements that he must challenge it in questioning. The timetable for managing the hearing was discussed with the parties and the Claimant was informed that he may wish to think about using his time carefully and consider the questions he wishes to ask against the list of issues.
Facts
[21]The Claimant started employment for the Respondent on 29 July 2019 as a Maintenance Manager.[22]The Claimant signed a contract of employment on 25 June 2019.[23]The Respondent had a handbook, and specifically a Disciplinary and Dismissal Policy.[24]The Claimant was 58 years and 8 months old when he joined the Respondent. The application form used by the Respondent does not contain any detail about an applicant’s age.[25]The Claimant was interviewed on 17 June 2019 by Owain Roberts, Dave Cook (who was in his late 50s) and Joanne Kirrane. After Dave Cook left the Respondent Joanne Kirrane replaced him as Executive Director – Living Well. The Claimant was appointed on a permanent basis.[26]Upon joining the Respondent the Claimant was required to address some serious performance and conduct issues with staff. This included investigating some serious disciplinary matters within his teams.[27]Between commencement of employment in July 2019 and the first Covid Lockdown in March 2020 the Respondent’s office-based staff were mostly based in the office. Following the initial lockdown, and lifting of restrictions, office-based staff worked on a flexible basis and there would be less people working in the office on a day-to-day-to basis. When in the office, the Claimant was primarily based in the reception area.[28]The Team Leaders of the teams under the Claimant’s remit were responsible for most day-to-day activities and contact with the operatives in their teams. Work was allocated by a booking system, and the Claimant had minimal direct contact with operatives.[29]The Claimant had a good working relationship with his line manager Owain Roberts. Mike Harris said in evidence that Owain Roberts was loyal to the Claimant, in his view misguidedly so.[30]Mike Harris, Head of HR, had some informal conversations with the Claimant regarding his approach in the months following his commencement of employment before the first lockdown. Albeit at that time no formal concerns were raised, nothing was recorded in writing and Owain Roberts did not raise any concerns as part of the Claimant’s probation. The Respondent was generally pleased that the Claimant had been tackling the historical and challenging matters.[31]No formal complaints were made against the Claimant, but Mike Harris had heard that some Team Leaders were upset by the Claimant’s management style.[32]An exit interview was conducted with a member of staff, Ryan Walters, on 14 April 2021. The interview was conducted by Mike Harris. Key extracts are: “Since new manager came things have spiralled downhill. I have been dreading coming to work.” “All of this because of 1 man (2 if you count Mark Davies).”[33]The focus of this interview was primarily on Mark Garland, and not the[34]In or around May 2021 Joanne Kirrane developed concerns about the Claimant’s management style.[35]In a regular 1-2-1 meeting in or around May 2021, Joanne Kirrane told Paula Kennedy, Chief Executive, that she was carrying out an informal investigation into the Claimant’s behavior towards the maintenance teams.[36]Carl Aston, Team Leader, in his witness statement made general assertions about the Claimant’s management approach. He felt the Claimant told him what to do and did not let him make his own decisions and he considered this to be patronising and felt frustrated by the Claimant’s approach. In response to questioning he gave examples of where he had been personally upset by the Claimant’s approach to reviewing his work. Carl Aston said that at times he felt intimidated by what the Claimant said and did. Carl Aston felt he couldn’t approach Owain Roberts about the Claimant as he believed Owain Roberts would turn a blind eye on the effect the Claimant was having because he was seen to be getting things done.[37]Joanne Kirrane was not called by the Respondent to give evidence. She remains in employment. Owain Roberts left the Respondent in January 2022, and prior to leaving made comment on dealings with the Claimant.[38]Joanne Kirrane and Paula Kennedy discussed the matter on several occasions.[39]The Claimant went on holiday on 11 June 2021, and was due to return to work on 21 June 2021.[40]An exit interview was conducted with Ieuan Jones on 15 June 2021 which references the pressure put on staff by the Claimant.[41]Following this exit interview, on 15 June 2021 Mike Harris discussed the Claimant with a colleague in HR, Paul Williams.[42]Mike Harris then met with Owain Roberts to discuss a plan of action for managing the situation. Owain Roberts then spoke with staff.[43]Whilst the Claimant was still on annual leave Owain Roberts asked to speak with Carl Aston, together with Nathan Evans, another team leader. Owain Roberts asked for feedback on the Claimant.[44]Carl Aston was of the view that some staff were scared of the Claimant, there was bad feeling in other teams and that the teams were starting to talk and that staff felt under a lot of pressure.[45]Both Carl Aston and Nathan Evans told Owain Roberts that they were looking for another job.[46]Following the discussion between Carl Aston and Owain Roberts, Joanne Kiranne asked to speak with Carl Aston, and he provided her with his views – in particular that the Claimant was having a negative impact on staff and morale was low.[47]At some stage in the week commencing 14 June 2021 Mike Harris spoke separately with Joanne Kirrane and Paula Kennedy. He recommended that the Claimant be removed from the business as soon as possible in an attempt to prevent staff leaving. Mike Harris explained this was a short service dismissal because the Claimant did not have two years’ service and that the length of service enabled the Respondent to depart from the process.[48]Paula Kennedy made the decision to dismiss, based on the information and recommendations provided to her by Joanne Kirrane and Mike Harris.[49]Joanne Kirrane did not produce any written report or documentation as a result of her informal investigation.[50]At the time of making the decision Paula Kennedy had not read the exit interviews herself. She made the decision in consideration of the fact that senior managers were concerned about the impact the Claimant’s approach to management was having on some staff and formed the view that staff disliked working under the Claimant, did not consider him a good manager, that they felt talked down to and some staff had left or were considering leaving because of this. Paula Kennedy understood that Joanne Kirrane had spoken with Nathan Evans, Team Leader, Rhiannon Elson (Customer Service Manager) and Trish Hodinot (Sustainability Manager). The latter two did not work under the Claimant’s management lines.[51]There was no evidence to suggest whether or not Paula Kennedy knew the Claimant’s age.[52]Paula Kennedy was not involved in the specific arrangements for the termination.[53]An exit interview was conducted with Craig Sheedy on Friday 18 June 2021. Key extracts are: “Since Mark Davies came into Melin, things have gone massively downhill. He is a cancer that is destroying Melin from the inside out. The way he acts and deals with people is terrible, he’s a bully that has destroyed the morale in every team.” “There is a long list of people in all the teams that are ready to leave and can’t wait to get out”. “People haven't spoken out about how they feel because they don’t think anything will get done as they’ve tried before and no action was taken”. “Mark has actually said there is no such thing as a mistake.” “...he is just a nasty person that doesn’t care about anyone”.[54]On his return to work on 21 June 2021 the Claimant was met by his line manager, Owain Roberts – Director of Assets, in the foyer area and asked to go to a meeting room on the first floor.[55]Mike Harris accepts the Respondent was not following any form of process, and gave no thought to the Claimant being accompanied or represented at the meeting on the basis it believed it was conducting a short service dismissal.[56]Owain Roberts walked with the Claimant to a meeting room on the first floor. Mike Harris was waiting in the meeting room.[57]The Claimant was not given any advance notification about the meeting, or the topic for discussion.[58]The Claimant says he was told that he was not the right fit for the future plans of the maintenance team.[59]At page 187 of the Bundle is a handwritten contemporaneous note of meeting made by Mike Harris. A typed version is at page 189. We accept these to be an accurate account of the discussion.[60]The note has been read in full but key extracts have been copied below: “OR We know the best company feedback hasn’t been great. Comments on management style. Clearly you are a big part of that.” “OR There have been exit interviews with staff. plus, Mark aware that team leaders have been looking for new jobs. Not idle threat because they have interviews lined up. Common theme in all of that is you.” “OR Simply don’t have time to work these things through. Therefore I am making the decision to remove you from your post. “MD This feels harsh. Under 2 years service too”. “OR It needs to be said that you have done some work here that only you could have done. However, our values are important to us and your approach is at odds with these.” “OR However over last few weeks aware of how serious the issue was + we had to take action before we lost the team leaders and others”. “MD I can change, I can do things differently. “OR I feel it has gone too far. We have made our decision and that is final.”[61]On balance, taking into account the oral evidence and the contemporaneous note, we find that the discussions were as set out in the note. There was no reference to “fit” during the meeting, despite the Claimant using that language subsequently in other documents.[62]In response to cross examination the Claimant agreed that Owain Roberts and Mike Harris conducted the meeting professionally.[63]The Claimant was shocked and embarrassed.[64]At the end of the meeting Owain Roberts walked with the Claimant out of the building straight to the carpark. There were some staff in the carpark and outside the building. The Claimant saw some staff inside the building through the window. The Claimant felt humiliated by being walked to his car.[65]The Claimant was dismissed, with immediate effect, on 21 June 2021. The Claimant was 60 years old at the time of his dismissal.[66]He was not given any notice period, but was paid in lieu of his notice. The contract of employment contains a section on notice. Employee’s with less than 2 years’ serve are entitled to one weeks’ notice. “The Association has the right to terminate your employment without notice of payment in lieu of notice in the case of gross misconduct. The Association reserves the right to require you not to carry out your duties or attend your place of work during your period of notice. At the absolute discretion of the Association, payment in lieu of working notice may be made.”[67]The Claimant was given a payment in lieu of notice equivalent to one months’ pay.[68]The Claimant’s statutory notice entitlement was one week.[69]Following his dismissal, in correspondence regarding the form of announcement to be issued to staff the Claimant made no reference to the decision to dismiss him being related to age.[70]Other persons – matters in paragraph 115 of the Claimant’s witness statement[71]The Claimant says Owain Roberts made reference to Dave Cook and made comments such as “Dave has been too long now and it's his time to go”.[72]The Claimant says Owain Roberts made reference to Bob Tunley , who was around 70, that “Bob needed to be put out to pasture”.[73]The Claimant says Owain Roberts asked Geoff to ask surveyors who were coming up to 60 when they would retire, that he asked Jill Bergin (reaching 60) the same and referred to her as “incoming”.[74]The Claimant says Owain Roberts referred to Linda Wilcox, who was in her late 50s, as a “lovely old lady” and that he would speak to Dave Badham about her retirement plans.[75]The Claimant says Owain Roberts, in February 2021, suggested to the Claimant that he would be retiring soon.[76]Paula Kennedy in her supplemental witness statement, addresses all of the allegations set out above. It is noted that these matters had not been mentioned prior to the Claimant’s witness statement.[77]The Claimant did not challenge the contents of Paula Kennedy’s supplemental witness statement. The Tribunal therefore the accepts the content of Paula Kennedy’s supplemental witness statement. Law Direct Discrimination Section 13 Equality Act 2010 Direct discrimination(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.(2) If the protected characteristic is age, A does not discriminate against B if A can show A's treatment of B to be a proportionate means of achieving a legitimate aim.(3) If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B.(4) If the protected characteristic is marriage and civil partnership, this section applies to a contravention of Part 5 (work) only if the treatment is because it is B who is married or a civil partner.(5) If the protected characteristic is race, less favourable treatment includes segregating B from others.(6) If the protected characteristic is sex— (a) less favourable treatment of a woman includes less favourable treatment of her because she is breast-feeding; (b) in a case where B is a man, no account is to be taken of special treatment afforded to a woman in connection with pregnancy or childbirth.(7) Subsection (6)(a) does not apply for the purposes of Part 5 (work).(8) This section is subject to sections 17(6) and 18(7). Section 5 – Equality Act 2010 Age (1) In relation to the protected characteristic of age— (a) a reference to a person who has a particular protected characteristic is a reference to a person of a particular age group; (b) a reference to persons who share a protected characteristic is a reference to persons of the same age group. (2) A reference to an age group is a reference to a group of persons defined by reference to age, whether by reference to a particular age or to a range of ages. Section 36 – Equality Act 2010 Burden of proof (1) This section applies to any proceedings relating to a contravention of this Act. (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. (3) But subsection (2) does not apply if A shows that A did not contravene the provision. (4) The reference to a contravention of this Act includes a reference to a breach of an equality clause or rule. (5) This section does not apply to proceedings for an offence under this Act. (6) A reference to the court includes a reference to— (a) an employment tribunal; (b) the Asylum and Immigration Tribunal; (c)the Special Immigration Appeals Commission; (d)the First-tier Tribunal; (e) the Education Tribunal for Wales; (f) the First-tier Tribunal for Scotland Health and Education Chamber.
Law
[78]Under section 13(1) of the Equality Act 2010 read with section 5, direct discrimination takes place where a person treats the claimant less favourably because of age than that person treats or would treat others.[79]Under section 23(1), when a comparison is made, there must be no material difference between the circumstances relating to each case.[80]In many direct discrimination cases, it is appropriate for a tribunal to consider, first, whether the claimant received less favourable treatment than the appropriate comparator and then, secondly, whether the less favourable treatment was because of age. However, in some cases, for example where there is only a hypothetical comparator, these questions cannot be answered without first considering the ‘reason why’ the claimant was treated as he was. (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] IRLR 285).[81]Decisions are frequently reached for more than one reason. Provided the protected characteristic had a significant influence on the outcome, discrimination is made out. (Nagarajan v London Regional Transport [1999] IRLR 572, HL).[82]The case law recognises that very little discrimination today is overt or even deliberate. Witnesses can even be unconsciously prejudiced.[83]There are two stages to the burden of proof test as set out in section 136 of the Equality Act 2010. Stage 1: There must be primary facts from which the tribunal could decide – in the absence of any other explanation, that discrimination took place. The burden of proof is on the claimant (Ayodele v(1) Citylink Ltd(2) Napier [2018] IRLR 114, CA; Royal Mail Group Ltd v Efobi [2021] UKSC 22). This is sometimes referred to as proving a prima facie case. If this happens, the burden of proof shifts to the respondent. Stage 2: The respondent must then prove that it did not discriminate against the claimant.[84]In other words, where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of age, then the burden of proof moves to the respondent. It is then for the respondent to prove that it did not commit, or as the case may be, is not to be treated as having committed, that act.[85]The burden of proof provisions requires careful attention where there is room for doubt as to the facts necessary to establish discrimination, but have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or another. (Hewage v Grampian Health Board [2012] IRLR 870, SC.)[86]Guidelines on the burden of proof were set out by the Court of Appeal in Igen Ltd v Wong [2005] EWCA Civ 142; [2005] IRLR 258. Once the burden of proof has shifted, it is then for the respondents to prove that they did not commit the act of discrimination. To discharge that burden it is necessary for the respondents to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of the protected characteristic, since 'no discrimination whatsoever' is compatible with the Burden of Proof Directive. Since the facts necessary to prove an explanation would normally be in the possession of the respondents, a tribunal would normally expect cogent evidence to discharge that burden of proof.[87]The Court of Appeal in Madarassy, a case brought under the then Sex Discrimination Act 1975, states: ‘The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (e.g. sex) and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that on the balance of probabilities, the respondent had committed an unlawful act of discrimination. A false explanation for the less favourable treatment added to a difference in treatment and a difference in sex can constitute the ‘something more’ required to shift the burden of proof. (The Solicitors Regulation Authority v Mitchell UKEAT/0497/12.)[88]In Glasgow City Council v Zafar 1998 ICR 120, HL, Lord BrowneWilkinson said that in the context of a discrimination claim ‘the conduct of a hypothetical reasonable employer is irrelevant. The alleged discriminator may or may not be a reasonable employer. If he is not a reasonable employer he might well have treated another employee in just the same unsatisfactory way as he treated the complainant, in which case he would not have treated the complainant “less favourably”.’ He approved the words of Lord Morison, who delivered the judgment of the Court of Session, that ‘it cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee, that he would have acted reasonably if he had been dealing with another in the same circumstances’. It follows that mere unreasonableness may not be enough to found an inference of discrimination. Unfair treatment itself is not discriminatory.[89]In Amnesty International v Ahmed UKEAT/0447/08/ZT the EAT stated, paragraph 36, “…the ultimate question – is – necessarily – what was the ground of the treatment complained of (or – if you prefer – the reason why it occurred)…”.[90]Evidence of discriminatory conduct and attitudes in an organization may be probative in deciding whether alleged discrimination occurred: Chief Constable of Greater Manchester Police v Bailey [2017] EWCA Civ 425.[91]The EHRC Statutory Code of Practice states at §2.4: "An age group can mean people of the same age or people of a range of ages. Age groups can be wide (for example, 'people under 50'; 'under 18s'). They can also be quite narrow (for example, 'people in their mid-40s'; 'people born in 1952'). Age groups may also be relative (for example, 'older than me' or 'older than us')."[92]The IDS Handbook on Discrimination at Work suggests at §5.8 "there need not be a dramatic difference in age between the claimant and his or her chosen comparator." Section 26 Equality Act 2010 Harassment(1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.(2) A also harasses B if— (a) A engages in unwanted conduct of a sexual nature, and (b) the conduct has the purpose or effect referred to in subsection (1)(b).(3) A also harasses B if— (a) A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, (b)t he conduct has the purpose or effect referred to in subsection (1)(b), and (c) because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.(5) The relevant protected characteristics are—• age;• disability;• gender reassignment;• race;• religion or belief;• sex;• sexual orientation.[93]Although harassment is similar to direct discrimination it covers actions “related to” a protected characteristic, which goes further than “because of”.[94]When considering whether a claimant’s dignity has been violated or an intimidating, hostile, degrading humiliating or offensive environment has been created, it must be kept in mind that it is not enough that the conduct was simply upsetting.[95]When considering effect it must be considered whether it was reasonable for the conduct to have had the effect taking in to account both a claimant’s perception and the overall circumstances Section 146 Trade Union and Labour Relations (Consolidation) Act 1992 Detriment on grounds related to union membership or activities.(1) A worker has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place for the sole or main purpose of— (a) preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so, (b) preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so, . . . (ba) preventing or deterring him from making use of trade union services at an appropriate time, or penalising him for doing so, or (c) compelling him to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions.(2) In subsection 1)“an appropriate time” means— (a) a time outside the worker's working hours, or (b) a time within his working hours at which, in accordance with arrangements agreed with or consent given by his employer, it is permissible for him to take part in the activities of a trade union or (as the case may be) make use of trade union services; and for this purpose “working hours”, in relation to a worker, means any time when, in accordance with his contract of employment (or other contract personally to do work or perform services), he is required to be at work. (2A) In this section— (a) “trade union services” means services made available to the worker by an independent trade union by virtue of his membership of the union, and (b) references to a worker’s “making use” of trade union services include his consenting to the raising of a matter on his behalf by an independent trade union of which he is a member. (2B) If an independent trade union of which a worker is a member raises a matter on his behalf (with or without his consent), penalising the worker for that is to be treated as penalising him as mentioned in subsection (1)(ba). (2C) A worker also has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place because of the worker’s failure to accept an offer made in contravention of section 145A or 145B. (2D) For the purposes of subsection (2C), not conferring a benefit that, if the offer had been accepted by the worker, would have been conferred on him under the resulting agreement shall be taken to be subjecting him to a detriment as an individual (and to be a deliberate failure to act).(3) A worker also has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place for the sole or main purpose of enforcing a requirement (whether or not imposed by a contract of employment or in writing) that, in the event of his not being a member of any trade union or of a particular trade union or of one of a number of particular trade unions, he must make one or more payments.(4) For the purposes of subsection (3) any deduction made by an employer from the remuneration payable to a worker in respect of his employment shall, if it is attributable to his not being a member of any trade union or of a particular trade union or of one of a number of particular trade unions, be treated as a detriment to which he has been subjected as an individual by an act of his employer taking place for the sole or main purpose of enforcing a requirement of a kind mentioned in that subsection.(5) A worker or former worker may present a complaint to an industrial tribunal on the ground that he has been subjected to a detriment by his employer in contravention of this section. (5A)This section does not apply where— (a) the worker is an employee; and (b) the detriment in question amounts to dismissal. Section 148 Trade Union and Labour Relations (Consolidation) Act 1992 Consideration of complaint (1) On a complaint under section 146 it shall be for the employer to show what was the sole or main purpose for which he acted or failed to act. (2) In determining any question whether the employer acted or failed to act, or the purpose for which he did so, no account shall be taken of any pressure which was exercised on him by calling, organising, procuring or financing a strike or other industrial action, or by threatening to do so; and that question shall be determined as if no such pressure had been exercised. Breach of contract[96]Under the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 the Employment Tribunal was given power to deal with breach of contract claims brought by employees in relation to breaches of contract outstanding on the termination of employment.[97]If there is no expressly agreed period of contractual notice, there is an implied contractual right to reasonable notice of termination. This must not be less than the statutory minimum period of notice set out in section 86 Employment Rights Act 1996. For someone who has been employed at least one month but less than two years, this is one week’s notice. Conclusions Direct Age Discrimination
Conclusions
[98]As set out in the List of Issues above, the Claimant has made three allegations of direct age discrimination. We have considered each allegation separately and together as a whole. Decision to dismiss[99]We considered whether the Claimant had discharged the burden on him to show evidence from which the Tribunal could reasonably conclude that the decision to dismiss him was ‘because of’ age.[100]We concluded that there was no evidence sufficient to discharge the burden on the Claimant. There was no evidence from which we could reasonably conclude that age played any part in the reason for dismissal. There is no prima facie case of age discrimination.[101]We have concluded that the reason for dismissal was that senior managers within the Respondent had serious concerns about the impact of the Claimant’s management style on staff and the potential consequences to the organisation, in particular, staff (including Team Leaders Carl Aston and Nathan Evans) leaving and/or considering leaving the Respondent.[102]We noted the Claimant’s submissions on the fact that Joanne Kirrane was not a witness at the hearing and the impact on his ability to challenge matters relating to Joann Kirrane’s actions. We have not drawn any inference from the fact she was not called as a witness. There is no evidence, or anything or infer, that the Claimant’s age, had anything to do with Joanne Kirrane informally investigating concerns and speaking to staff. We consider it notable that Joanne Kirrane was on the Claimant’s interview panel, at which stage he was almost 59 years old.[103]As set out in the findings of fact above, we do not consider there to be any evidence of any discriminatory attitudes in the work place, and indeed considered the evidence that Owain Roberts had been loyal to the[104]The Claimant failed to show that the Respondent treated him less[105]There was simply no evidence that the Respondent would have[106]In any event, the Respondent has shown a non-discriminatory explanation for the Claimant’s dismissal, as set out above.[107]Accordingly, the direct age discrimination complaint in relation to dismissal fails. Not providing the Claimant with warning/details of the allegation in advance of the dismissal meeting[108]We considered whether the Claimant had discharged the burden on him to show evidence from which the Tribunal could reasonably conclude that not providing him with warning/details of the allegation in advance of the dismissal meeting was ‘because of’ age.[109]We concluded that there was no evidence sufficient to discharge the burden on the Claimant. There was no evidence from which we could reasonably conclude that age played any part in the decision to not provide the Claimant with warning/details of the allegation in advance of the dismissal meeting. There is no prima facie case of age discrimination.[110]We have concluded that the reason for not providing the Claimant with warning/ details of the allegation in advance of the dismissal meeting is that the Respondent’s senior managers, in consideration of the information gained during the Claimant’s annual leave, made a conscious and deliberate decision to dismiss the Claimant promptly at the first available opportunity after the Claimant’s return from annual leave. We conclude that this was done in order to attempt to minimise further staff discontent and the risk of staff leaving. The Respondent, as demonstrated by the comments made by Owain Roberts at the dismissal meeting, felt that things had gone too far and that there was not time to explore alternatives. The decision was made in consideration of the Claimant having less than two years’ service and the view that there was minimal risk associated with such an approach.[111]The Claimant failed to show that the Respondent treated him less[112]There was simply no evidence that the Respondent would have[113]In any event, the Respondent has shown a non-discriminatory explanation for the Claimant’s dismissal, as set out above.[114]Accordingly, the direct age discrimination complaint in relation to non-provision of warning/details in advance of the dismissal meeting fails. Not adopting an alternative to dismissal[115]We considered whether the Claimant had discharged the burden on him to show evidence from which the Tribunal could reasonably conclude that not adopting an alternative to dismissal was ‘because of’ age.[116]We concluded that there was no evidence sufficient to discharge the burden on the Claimant. There was no evidence from which we could reasonably conclude that age played any part in the reason for the Respondent not adopting an alternative to dismissal. There is no prima facie case of age discrimination.[117]We have concluded that the reason for not adopting an alternative is that the Respondent felt that things had gone too far and that there was not time to explore alternatives. The Respondent choose to act quickly and dismiss the Claimant rather that adopt an alternative in order try and prevent staff from leaving.[118]The Claimant failed to show that the Respondent treated him less[119]There was simply no evidence that the Respondent would have[120]In any event, the Respondent has shown a non-discriminatory explanation for the Claimant’s dismissal, as set out above.[121]Accordingly, the direct age discrimination complaint in relation to non-provision of warning/details in advance of the dismissal meeting fails.[122]We have concluded that there is no direct age discrimination of the Claimant, considering the allegations separately and together. The Tribunal’s conclusions are unanimous. Age Harassment[123]As set out in the List of Issues above, the Claimant has made five allegations of harassment related to age. The treatment of the Claimant during the meeting on 21 June 2021 including stating to the Claimant that he was going to be dismissed and without any reason[124]We conclude the conduct, being what happened at the meeting on 21 June 2021, namely dismissing the Claimant, was unwanted. Clearly, the Claimant clearly did not want to be called to a meeting and dismissed.[125]We have considered whether the conduct was related to age and conclude that the treatment during the meeting, what was said and done, in particular telling the Claimant that he was going to be dismissed was in no way related to age. Instead, we conclude it was for the reasons as we have concluded above in relation to the direct age discrimination claims. Namely that the Claimant was told he was dismissed at the meeting in order to attempt to avoid other staff leaving and minimise staff discontent.[126]If we are wrong on that, we have gone on to consider whether the to manage the risk of staff leaving and management of the maintenance teams going forward.[127]The Tribunal understands that the treatment at the meeting, and being told he was being dismissed, would have been upsetting for the Claimant. However, noting in particular that the Claimant accepted the meeting was professionally undertaken, we have not been able to conclude that the conduct reasonably had the effect of violate the Claimant’s dignity or create an intimidating, hostile, degrading, humiliating or offence environment for the Claimant.[128]The treatment of the Claimant at the meeting on 21 June 2021 was not age related harassment and the complaint fails. The humiliating treatment of the Claimant by escorting him from the office and to his car in view of colleagues and subordinates (who were outside the building or who viewed through the exit windows)[129]We conclude that some staff may have seen the Claimant being walked to his car with Owain Roberts. We conclude that the Claimant would not have wished to have been accompanied, or in his own words “escorted” from the office.[130]We have considered whether the conduct was related to age and conclude that Owain Roberts escorting the Claimant from the office to his car was in no way related to age. We note that it is common practice where a dismissal without notice takes place that staff are accompanied from an employer’s premises. We conclude that the reason that the Claimant was escorted to his car was not related to age, but to ensure a calm exit from the workplace after the Claimant was told that he was dismissed, which was a shock for him.[131]If we are wrong on that, we have gone on to consider whether the to achieve a calm exit from the workplace.[132]The Tribunal understands that being accompanied from the office to the car may have been upsetting and embarrassing for the Claimant. However, in the context of his relationship with Owain Roberts prior to the dismissal, noting again that the treatment at the meeting, and the Claimant being aware of the use of short service dismissals we have not been able to conclude that the conduct reasonably had the effect of violating the Claimant’s dignity or create an intimidating, hostile, degrading, humiliating or offence environment for the Claimant.[133]The escorting the Claimant from the office and to his car was not age related harassment and the complaint fails. The refusal and/or failure to use the disciplinary/dismissal procedures[134]We conclude the conduct, being refusal and/or failure to use the disciplinary/dismissal procedures was unwanted. Clearly, the Claimant clearly did not want to be dismissed.[135]We have considered whether the conduct was related to age and conclude that the decision to not follow the disciplinary/dismissal procedure was no way related to age. Instead, we conclude the Respondent made an active choice to dismiss the Claimant promptly, with immediate effect before the Claimant acquired two year’s service and in order to attempt to reduce the risk of staff leaving and minimise staff discontent. We also conclude that the reason was that the Respondent[136]If we are wrong on that, we have gone on to consider whether the to manage the risk of staff leaving and management of the maintenance teams going forward.[137]The Tribunal understands that not being given the opportunity to address matters via a formal process would have been upsetting and frustrating for the Claimant. However, noting in particular that the Claimant during the meeting referenced the lack of two years’ service, and the Claimant from his working career was aware of the ability to undertake short service dismissals, we have not been able to conclude that the conduct reasonably had the effect of violate the Claimant’s dignity or environment for the Claimant.[138]The refusal and/or failure to use the disciplinary/dismissal procedures was not age related harassment and the complaint fails. The refusal and/or failure to use the capability procedures[139]In relation to this allegation, we have reached the same conclusions as set out above in relation to the refusal and/or failure to use the disciplinary/dismissal procedures.[140]The refusal and/or failure to use the disciplinary/dismissal procedures was not age related harassment and the complaint fails. The treatment of the Claimant when arranging the meeting of 21 June 2021 without any invite or prior warning.[141]We conclude the conduct, the arrangements of the meeting on 21 June 2021, in that the Claimant was not given any invitation or prior warning, was unwanted.[142]We have concluded that the reason for not providing the Claimant with an invitation or prior warning in advance of the dismissal meeting is that the Respondent’s senior managers, in consideration of the information gained during the Claimant’s annual leave, made a conscious and deliberate decision to dismiss the Claimant promptly at the first available opportunity after the Claimant’s return from annual leave. We conclude that this was done in order to attempt to minimise further staff discontent and the risk of staff leaving. The Respondent, as demonstrated by the comments made by Owain Roberts at the dismissal meeting, felt that things had gone too far and that there was not time to explore alternatives. The decision was made in consideration of the Claimant having less than two years’ service and the view that there was minimal risk associated with such an approach. We do not consider the decision to not provide an invitation or prior warning to be in anyway related to age.[143]If we are wrong on that, we have gone on to consider whether the to act swiftly and dismiss the Claimant promptly on the first available opportunity following his return to work in order to manage the risk of staff leaving and management of the maintenance teams going forward.[144]The Tribunal understands that not being given notice or warning of the meeting would have been upsetting and frustrating for the Claimant. However, noting in particular that the Claimant during the meeting referenced the lack of two years’ service, and the Claimant from his working career was aware of the ability to undertake short service dismissals, we have not been able to conclude that the conduct reasonably had the effect of violating the Claimant’s dignity or create an intimidating, hostile, degrading, humiliating or offence environment for the[145]The arrangements for the meeting was not age related harassment and the complaint fails.[146]We have concluded that there is no harassment of the Claimant related to age, considering the allegations separately and together. The Tribunal’s conclusions are unanimous. Claim for breach of contract[147]We have considered whether the Respondent acted in breach of any contractual provision relating to the operation of the contractual discretion to pay the Claimant in lieu of notice.[148]As set out in the findings of fact above, under the Employment Rights Act 1996 the Claimant was entitled to one weeks’ notice.[149]The contract of employment gives the Respondent the absolute discretion to make a payment in lieu of notice. The Respondent actually made a payment equivalent to one months’ pay, this is above what it was required to do under statute or contract. We have concluded that in all the circumstances, noting the reason for dismissal and the contractual provisions, that the Respondent exercised its discretion reasonably and rationally in the circumstances in making the decision to pay the Claimant in lieu of his notice period.[150]The Claimant’s breach of contract claim fails. Claim pursuant to section 146 TULRCA?[151]We considered whether the Respondent subjected the Claimant to any detrimental treatment by: (ba) preventing or deterring him from making use of trade union services at an appropriate time, or penalising him for doing so, or”.[152]The Respondent understands that the Claimant alleges relies on not being provided with notice of the meeting or of the issues leading to the decision to dismiss him, which prevented him from making use of trade union services.[153]We considered whether the sole or main purpose of not providing the Claimant with notice of the meeting or of the issues leading to the decision to dismiss him was to prevent or deter the Claimant from making use of trade union services or to penalise him for doing so.[154]We conclude there was not deliberate decision, no-one with a conscious mindset, to prevent the Claimant from accessing trade union service or to penalise him for having accessed trade union services previously.[155]The fact that the Claimant was a trade union member had no bearing on the decision to call the Claimant to a meeting without prior notice of the meetings or the issues that led to his dismissal. The reasons for not being provided with notice of the meeting and/or the issues was that the Respondent considered it needed to act swiftly on the Claimant’s return from annual leave and in view of the fact it had decided to act outside of any process to effect a short service dismissal.[156]The Claimant has not put forward evidence required to discharge the burden of proof on him and has not established a prima facie case. The reason for the treatment by the Respondent is explained above.[157]The complaint of detriment fails.[158]In reaching this unanimous decision the Tribunal recognises the stress and upset this matter may have caused and the strength of feeling on the Claimant’s part. However, the conclusions reached are based on the specific allegations as set out int the List of Issues, the finding of facts made on the evidence presented and the application of relevant law. COSTS JUDGMENT The Claimant is ordered to pay a contribution to the Respondents costs. The total sum is £2,887.00. However, the Claimant has already paid £500 as a Deposit Order. This sum will therefore be paid over to the Respondent. The Claimant must therefore pay the Respondent the balance of £2,387.00.