Employment Judge R McPhersonC MacColl (instructed by Counsel) for respondentDate 3 August 2021
JUDGMENT
[1]the claimant’s claims in terms of s13 of the Equality Act 2010 (EA 2010) direct discrimination because of age, do not succeed.[2]the claimants claim for unfair dismissal does not succeed.
REASONS
[1]The claimant’s ET1 was presented Monday 14 September 2020 following ACAS Early Conciliation (ACAS certificate identifying receipt of EC notification on Thursday 27 August 2020 and issue of the ACAS Certificate on Friday 28 August 2020) against the respondents following termination of his employment with the respondent as Retail Operations Manager on Friday 7 August 2020, having commenced employment with the respondents on Tuesday 25 November 2014. The claimant brought a complaint for unfair dismissal and discrimination in respect of protected characteristic of age. The claimant further asserted that he was placed on furlough (a new concept in UK employment law reflecting the UK Treasury Direction of 15 April 2020 made under ss 71 and 76 of the Coronavirus Act 2020) – he does not challenge being placed on furlough. He asserted that his employment was terminated 12 September.[2]The respondent lodged its ET3 timeously. The respondent admitted the dismissal under explanation they assert the dismissal was lawful by reason of redundancy occurring on Friday 7 August 2020, or alternatively for some other reason on the same date. Further the outcome of appeal was notified to the claimant by letter dated Monday 14 September 2020. The claimant’s complaints of unlawful dismissal, age discrimination and further his assertion of being instructed to breach furlough are denied.[3]At Preliminary Hearing on Friday 13 November 2020, it had been identified that the claimants’ claims were in respect of unfair dismissal and complaint of age discrimination in terms of the Equality Act 2010. The claimant was directed to set out the relevant provision of the EA relied upon.[4]On Thursday 19 November 2020, the claimant provided Further and Better Particulars, setting out detail of his complaint including that he was “directly discriminated due to others being brought back” from furlough, i.e. s13 EA 2010 Direct Discrimination due to protected characteristic of age. The claimant also provided a schedule of loss.[5]On Thursday 7 January 2021, the respondent issued its responsive Further and Better Particulars, in reply to the claimant’s Further and Better Particulars.[6]On Friday 8 January 2021, the claimant sought from the respondent, what the claimant described as the management tool relied upon by the respondent and details of the respondent current trading position.[7]On Saturday 16 January 2021, the claimant issued request for “forecast tool used” to place his role at risk of redundancy and certain business reports from April 2020 to January 2020.[8]On Monday 18 January 2021, the respondent provided the requested business reports and sought clarification of the management tool sought, it being intimated that no such tool was used or existed.[9]An application by the claimant to amend to introduce claims of disability discrimination, specifically claims in terms of s13 EA 2010 Direct Disability Discrimination, s19 EA 2010 Indirect Disability Discrimination, s20 and s21 Reasonable Adjustments in respect of Disability and S 26 Harassment (in respect of Disability) was refused by the Tribunal on Tuesday 2 June 2021.[10]Following the evidential element of the Final Hearing, parties were permitted to exchange their respective written submissions with each other, it being a matter of agreement and in accordance with the overriding objective that the respondent would set their position out to the claimant in the first instance, addressing the claimant’s claims of unfair dismissal and in terms of s13 EA 2010 and thereafter both parties provided final written submissions to the Tribunal.[11]The Tribunal’s private deliberation took place at Members’ Meeting on Friday 30 July 2021, final written submissions being available by that date and being the earliest mutually available date for the full panel of the Tribunal. Issues for this Tribunal included: Time Limits[13]It was not argued that the unfair dismissal claim was out of time. It was, however, in any event for the Tribunal to consider whether any or all the claimant's existing complaints presented were within the time limits as set out in Sections 123(1)(a) & (b) of EA 2010. a) Dealing with this issue may involve consideration of subsidiary issues including whether there was an act and/or conduct extending over a period, and/or a series of similar acts or failures; whether time should be extended on a "just and equitable" basis; when the treatment complained about occurred; etc. b) Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before Thursday 28 May 2020, was potentially brought out of time, so that the Tribunal may not have jurisdiction to deal with it. c) Some claims may be argued to have been lodged out with 3 months less one day time limit (allowing for the operation of ACAS early conciliation). The provisions of section 207B of ERA 1996, since 2014, provide for an extension to that period where the claimant undergoes early conciliation with ACAS. In effect initiating early conciliation “stops the clock” until the ACAS certificate is issued, and if a claimant has contacted ACAS within time, he will have at least a month from the date of the certificate to present her claim. Issues in relation to discrimination claim.[14]In respect of s13 EA 2010 Direct Disability Discrimination because of age, it was identified that the claimant asserts that the respondent discriminated by:(a) Not bringing him back from furlough; and(b) Dismissing him[15]The issues in respect of those specific claims included:a. Was that treatment "less favourable treatment", i.e., did the respondent treat the claimant less favourably than it treated or would have treated others ("comparators") in not materially different circumstances?b. Does the claimant rely on hypothetical or actual comparators?c. If so, was this because of the claimant’s age and/or because of the protected characteristic of age more generally?[16]In relation to the asserted redundancy, issues included what was the principal reason for the selection and dismissal and was it a potentially fair one in accordance with Sections 98(1) and (2) (c) of the Employment Rights Act 1996 (ERA 1996)? 17. s139 of the ERA 1996 sets out provisions around redundancy. Issues for the Tribunal where redundancy is relied upon, may include whether a dismissal is wholly or mainly attributable to the fact that the requirements of that business for employees to carry out work of the particular kind the claimant was employed in, in the place where the employee was employed by the employer had ceased or diminished. The claimant seeks compensation.[19]The Tribunal was provided with written witness statements from the claimant (dated 25 May 2021) supplemented with an undated document Key Points to Consider at Tribunal, Mrs. Dawn Murphy (dated 14 February 2021), Ms. Kerry Myers (dated 5 October 2020) former employee of the respondent. For the respondent, the Tribunal was provided with written (undated) witness statements from Mr John Bayne the respondent’s Managing Director, Mr Elliot Johnston the respondent’s Head of Retail, Mr Sandy Davidson respondent’s Bakery General Manager, Ms. Suzanne Matheson the respondent’s Head of HR, Mr Stewart Frearson respondent’s HR and Recruitment Manager, Ms. Susan Howitt respondents Training and Development Manager and Ms. Lorraine Robertson respondents Area Manager. The witness statements having been directed by Tribunal as set out in Note of Hearing 13 November 2020, parties being directed to exchange the witness statements simultaneously no later than a week before the Final Hearing. Each of the witnesses confirmed their written witness statement at the Final Hearing with limited supplementary oral evidence being given and were thereafter subject to cross examination and re-examination.[20]The claimant’s document Key Points to Consider at Tribunal described the heads of claim as separately being unfair dismissal, age discrimination (which is a protected characteristic which may be relied upon in relation to claims such as direct or indirect discrimination), indirect discrimination (which would be a claim under s19 EA 2010), direct discrimination (which would be a claim under s13 EA 2010).[21]The Tribunal was conscious that the claimant had provided, as directed by the Tribunal, Further and Better Particulars on Thursday 19 November 2020, setting out detail of his complaint including that he was “directly discriminated due to others being brought back” from furlough, i.e. s13 EA 2010 Direct Discrimination due to protected characteristic of age.[22]The Tribunal was further conscious that the claimant’s application to amend on Thursday 27 May 2021 and as previously set out by the claimant in email of Thursday 28 January 2021, seeking to add “case of Disability discrimination, in conjunction to my present claim. I believe my redundancy was based on direct and indirect discrimination towards me”, to include s13 EA 2010 Direct Disability Discrimination, s19 EA 2010 Indirect Disability Discrimination, s20 and s21 Reasonable Adjustments in respect of Disability and s 26 EA Harassment (in respect of Disability) had been refused by the Tribunal on Tuesday 2 June 2021.[23]In relation to s 19 EA 2010 indirect discrimination because of asserted protected characteristic age, the issues would have included. 1. A "PCP" is a "provision, criterion or practice", broadly a general practice or provision etc applied by the company. What is the PCP the claimant alleges to have been applied by the respondent (It being for the claimant to set out in written notice what is the PCP he alleges)? Did the respondent have or apply that PCP? 2. Did the respondent apply the PCP(s) to the claimant at any relevant time? 3. Did the respondent apply (or would the respondent have applied) the PCP(s) to persons with whom the claimant does not share the characteristic? 4. Did the PCP(s) put persons with whom the claimant shares the characteristic, at one or more particular disadvantages when compared with persons with whom the claimant does not share the characteristic, e.g., "younger” employees, if so how? 5. Did the PCP(s) put the claimant at that/those disadvantage(s) at any relevant time? 6. If so, has the respondent shown the PCP(s) to be a proportionate means of achieving a legitimate aim? What is the legitimate aim the respondent relies upon?[24]However, no application having been made by the claimant to add to the particularised claim under s13 EA 2010 Direct Age Discrimination, set out on Thursday 19 November 2020, the Tribunal does not consider that there was any relevant claim in terms of s19 EA 2020 Indirect Age Discrimination.[25]Similarly, and while the claimants statement issued 25 May 2021 referred to both protected characteristic of age and disability and separately s13 EA 2010 Direct Disability Discrimination, s19 EA 2010 Indirect Disability Discrimination, and s 26 EA 2010 Harassment, the Tribunal did not consider that the statement amount to an application to amend. The issue for the Tribunal was identified as s13 Direct Discrimination because of the protected characteristic of age.[26]An agreed joint bundle was provided. That bundle included 3 short excerpt recordings provided by the claimant. The respondent did not object to the use of the recordings. Findings in fact[1]The claimant commenced employment with the respondent on Tuesday 25 November 2014.[2]The respondent is a retail bakery chain with over 50 shops in the central belt of Scotland. It has around 550 employees.[3]The company’s joint managing directors at the material time were John Bayne and his father, founder of the business Stanley Bayne (referred to “Mr Bayne”) who is in his 80s.[4]At the material time, John Bayne was running the business as Mr Stanley Bayne, his father, was due to his age shielding at home. The respondents operated as two departments, the Bakery Department; managed by Mr Sandy Davidson and the Retail Department managed by Mr Elliot Johnston.[5]The claimant was at the material time employed as Retail Operations Manager within the Retail Department reporting to Mr Johnston. He was 52 years of age at the relevant time. The claimant had been promoted to that role in 2019 following a business review. The claimant supervised two Business Support Administrators, one full time and one part time. The claimant’s role was to support the retail shops.[6]The age of Retail Managers varied some of them were older than the claimant some were younger.[7]Of the 209 employees who started with the respondent in 2018, 36 employees were aged 50- 59 with one employee aged in excess of 70.[8]Of the 249 employees who started with the respondent in 2019, 55 employees were aged 50- 59 with 13 employees aged 60 – 69.[9]Of the 126 employees who started with the respondent in 2020 despite a significant reduction in recruitment, 26 employees were aged 50- 59 with 13 employees aged 60 – 69.[10]Of the 39 employees who started a retail management role with the respondent in 2020, 10 were aged 50- 59 when they started and 15 were aged 29-50 when they were promoted and 4 were age 60 -69 when they started with the respondent and or were promoted.[11]On the 147 employee who left the respondent in 2020 the majority were in the age range 30 to 29, while 29 were aged 50 to 59.[12]Of the around 560 respondent employees, as at 31 December 2020 some 166 are aged 50 to 59 and slightly under 100 are aged 60 to 69.[13]The respondent had never issued any direction that it was seeking to lower the age profile of any group of employees. The respondent does not operate any system of targeting age profiles in relation to employees’ departures.[14]At the commencement of 2020, the respondent employed 5 Area Managers each of whom had responsibility for between 12 -14 shops including the Shop Managers within those shops. The 5 Area Managers reported directly to Mr Johnston. In addition, Mr Johnston as Head of Retail managed a Training and Development Manager (Susan Howitt) and a Marketing Manager (Kerry Myers).[15]The claimant’s 2017 written terms of employment defined his role as Retail Project & Development Manager. The claimant, however had a mixture of roles, supporting new shops, signing off on shop managers, carrying out development work with managers, supervising and working with a Business Support team within to support the shops, managing improvement groups. In addition, the claimant reported on productivity within the shops and managed relationships with third party suppliers in relation to the respondent’s coffee offer to Mr Johnson.[16]In February 2020, in advance of the pandemic the respondent had prepared a strategy for the year (the February 2020 Strategy), which envisaged proceeding with opening two additional shops which were already under development in Airdrie and Wishaw and other plans.[17]In advance of lockdown pandemic, the claimant who had undergone treatment the preceding year for pancreatitis resulting in some time off work the preceding year requested to work from home. The respondent, and in particular Mr Elliot Johnson formed, an erroneous belief, that the claimant’s request was made because he was shielding. He was not shielding and by March 2020 he was fit and able, he however chose to request to work from home, the claimant’s request was granted.[18]On or about Tuesday 17 March 2020 (page 347), prior to the pandemic, Mr J Bayne had spoken to the claimant in relation to work provided by the claimant to Mr J Bayne earlier that month and carried out under the claimant’s oversight which had contained errors.[19]On Monday 23 March 2020, the Government announced a national lockdown arising from the onset on the Coronavirus pandemic. The respondent closed all its shops on Tuesday 24 March 2020 reflective of the then applicable Government guidance.[20]That week the UK Government created the Coronavirus Job Retention Scheme (“CJRS”), a new concept within UK employment law and the respondent elected to offer the then applicable version of furlough to most of its employees that week.[21]The respondent retained one of its 5 Area Managers on an unfurloughed basis to address maintenance requirements of all the shut shops.[22]The respondent elected to propose to place the claimant on furlough, the claimant signing the offered furlough agreement on Friday 27 March 2020 [p182] (the March 2020 Furlough Agreement). That agreement, issued by Ms Matheson as the respondent’s head of HR, set out that this was a temporary change to the claimant’s terms and conditions and the respondent would honour permanent staff 100% of current wages for 4 weeks up to Saturday 25 April 2020 and if the closure continues after Saturday 25 April 2020 the company would pay a minimum of 80% of salary subject to Government Limits in place. It further set out that “Unfortunately, as we do not know the extent of the closure, it is imperative that the Company can support and pay you for as long as possible during the shutdown period whilst making sure we have a company to return to when this is all over… You remain employed by the Company during furlough period accruing annual leave, benefits and continuity of service. You cannot carry out any work for the company unless the furlough period ends.” The March 2020 Furlough Agreement further set out that “I would like to reassure you that you are still employed by the Company during this period. We hope to be able to notify you of your return to work as soon as possible once the current situation is resolved”.[23]Around Wednesday 1 April 2020, Mr Johnson concluded that it would be possible to reopen 10 bakery shops with a limited product range as such shops were defined as “essential retailers”, having regard to the viability of shops against reduced customer footfall.[24]To re-open shops, in line with then applicable Government guidance, Mr Johnson identified that staff would require to be trained consistent with guidance around pandemic protocols.[25]On or about Wednesday 1 April 2020, Mr Johnson decided to un-furlough the respondent’s Training and Development Manager, Ms Howitt to write and deliver this training, given her existing training role, and she drafted initial training sign off sheet on social guidance Friday 3 April 2020. At this date, the respondent and in particular Mr Johnson identified that they did not have a business need to unfurlough the claimant as Retail Operations Manager, nor the remaining 4 Area Managers as the remaining around 40 shops were not, at that stage, operational and there were no new development plans.[26]While Mr Johnson had mistakenly thought that the claimant was shielding in consequence of previous ill health at this time, this belief was not part of his decision to leave him on furlough . Mr Johnson view reflected his assessment that significant areas which would fall under the claimant’s responsibility were not at that stage operational, such as new shop openings, refits and normal levels of staff recruitment, ordinary staff development, operation of staff steering group and the staff suggestion scheme.[27]In April 2020, following upon both the re-opening of 10 shops, and Ms Howitt having established initial pandemic protocols the respondent extended Ms Howitt’s role, beyond the provision of training to encompass that of Area Manager for a limited period in a limited capacity. The respondent did not award a pay rise to employees as would have occurred traditionally in April 2020 and did not pay out any Retail Bonus Scheme in May 2020.[28]The respondent’s decision reflected its business needs in the context of the then operational version of the furlough scheme which did not permit furloughed employees, including the 5 Area Managers to operate on a flexible basis. That is, either they were furloughed, or they were unfurloughed. The respondent identified in April 2020 that having regard to the limited number of shops open there was insufficient work to return the remaining 4 furloughed Area Managers.[29]Having regard to the needs of the business the respondent allocated, in effect, a 0.5 role of Area Manager to Ms Howitt.[30]As the pandemic proceeded, the operational management including Mr Johnson were meeting regularly to address the impact of lockdown on the retail operation. In this period Mr Johnson, concluded that the sales in viable shops would be the key driver to address the economic impact upon the respondent. Further, Mr Johnson considered how the customer/retail department could become more efficient. Several activities which the respondent would have carried out such as new shop openings, refits and normal levels of staff recruitment, ordinary staff development, operating staff steering group and staff suggestion scheme were not proceeding.[31]The respondent by early July 2020, reflective of the pandemic impact on the retail environment in which the shops operated, decided it was appropriate to hold a Strategy Meeting in July 2020, specifically on 8 July 2020 (the July 2020 Strategy Meeting) to revaluate its pre-pandemic February 2020 Strategy.[32]In advance of the July 2020 Strategy Meeting, Mr Johnston with Ms Matheson prepared a Business Case which encompassed placing 2 jobs at risk within the customer/retail division (the July 2020 Restructure Business Case and Rationale), it described a 35%+ downturn in pre-opening sales Post Covid Lockdown and “the belief that sales turnover will not return to pre Covid sales for a considerable period of time”. It set out that “as a result of the sales reduction, it has been agreed that all work must focus on driving sales and Marketing and Retail operational projects such as new shop opening, refits, brand and website development have been indefinitely cancelled. In addition, individual responsibilities for data analysis and reporting “were to be centralised into the finance department with the deployment of “smart technology”. It described that this meant “the need for the level of Retail and Marketing managerial; specialist and higher level administrative style is reduced substantially and which is underlined by the fact that one of the current job holders is still on furlough with no detriment to the Retail operational performance.” It was proposed that Marketing and Business support function be combined into one department and business support reporting direct to Mr Johnson. It described that “the restructure proposal means that the following roles are potentially at risk 1) Retail Operations Manager 2) Marketing Manager”. It identified, in table form, the then unfurloughed single Area Manager together with a further “.5”, Area Manager, a reference to the temporary function of Ms Howitt supplemental to her training role as “0.5” Area Manager. The remaining 4 Area Managers being furloughed. As this was a new development, the company. having not previously proceeded with redundancy decided to engage advice. It further set out a timescale/process from Saturday 4 July 2020 to Friday 24 July 2020 as a 3rd consultation meeting date “if required” with that also being the target completion, agreement and notice served end date.[33]Mr Johnston’ views reflected a trading crisis for the respondent since the start of what has become known as lockdown. He did not rely on any specific formal model. The company had, however, maintained sales data within the Finance Department and the respondent was able to make estimates based upon that information.[34]The July 2020 Restructure Business Case and Rationale was presented at the July 2020 Strategy Meeting by Mr Johnson who explained his rationale. His rationale reflected lockdown’s significant adverse impact on retail trade prompting review of the February 2020 Strategy.[35]Mr Johnson described that he had reflected on the operation of Retail Department which he managed. Mr Johnson, set out in the present circumstances the respondent could be leaner, more efficient and more commercially resilient and further that several activities which would normally be carried out were being cancelled or postponed. Mr Johnson described several activities his department would not be carrying out, such as new shop opening, refits, normal levels of recruitment, staff development work, operating steering group, and running a staff suggestion scheme. Those activities were pre-pandemic handled by the claimant, as Retail Operations Manager. Mr Johnson explained his view that the Retail Department did not require a Retail Operations Manager and under new proposed structure. Mr Johnson described that pre- pandemic work carried out by Retail Operations Manager was diminished as it was either not required considering the cancellations or postponement of new shops or could otherwise be accomplished by other employees.[36]Mr J Bayne as Managing Director considered Mr Johnson’s recommendation of redesign of the Retail Department, within the July 2020 Restructure Business Case and Rationale and approved same reflecting the respondent’s business needs. In doing so, he did not take into consideration the occasion prior to lockdown in March 2020 when he had spoken to the claimant in relation to work carried out under the claimant’s oversight which had been contained errors.[37]No equivalent recommendation was presented by Mr Davidson in relation to the Bakery Department, as the nature of production within the Bakery Department did not lend itself to an equivalent reduction. Mr J Bayne did not recommend proceeding with consultation in the Bakery Department.[38]The outcome of the July 2020 Strategy Meeting was that two roles would be potentially impacted including that of the Retail Operation Manager.[39]Mr Davidson was present at the July 2020 Strategy Meeting; he however was not involved in any decision-making role around the July 2020 Restructure Business Case and Rationale, nor the decision taken by Mr J Bayne to accept same.[40]The respondent, reflective of its decision at the July 2020 Strategy Meeting proceeded with a consultation process.[41]Following upon the conclusion of the July 2020 Strategy Meeting, Ms Matheson prepared documentation including a table for the purpose of seeking legal advice which identified details regarding both posts affected identifying the contract status (permanent) of both, the annual salary, the average weekly wage, the date of birth and the start date and a final column headed “Any other key considerations” which in relation to claimant set out “has recent health conditions that would fall within disability criteria”. That was a reference to medical treatment, the claimant had undergone in 2019 and it being wrongly believed by Mr Johnson and Ms Matheson, that the claimant was shielding at the start of the pandemic in consequence, on which basis it was wrongly perceived that the claimant had at that date a qualifying condition in terms of s 6 of the Equality Act 2010.[42]On Friday 10 July 2020, Mr Johnson emailed the claimant proposing a remote video “a business catch up … on Monday 13 July at 11am”.[43]On Monday 13 July 2020 the respondent issued an internal staff newsletter “Bayne’s business update”, setting out that that it could take the respondent a long time to get back to where it was pre-pandemic and that “we will all need to be totally focused on sales and service standards in the most cost efficient manner possible. One piece of good news is that Airdrie and Wishaw shops are now on track to open in August and September.”[44]Mr Johnson attended the arranged remote video meeting with Mr Frearson, with the claimant who was at home, on Monday 13 July 2020 (the Monday 13 July 2020 remote video meeting), and following a prepared script, explained that reflective of drop in sales and following a strategy meeting the post held by the claimant as Retail Operations Manager was at risk of redundancy and set out the consultation process to discuss alternatives whereby the claimant’s employment could be protected. It was confirmed that the first formal consultation meeting would take place remotely on Wednesday 15 July 2020.[45]The respondent followed up this remote video meeting with a letter to the claimant dated Monday 13 July 2020 (the Monday 13 July 2020 letter) confirming a period of consultation. The Monday 13 July 2020 letter, signed by Ms Matheson as a clerical error as she was not present, and which was designed to be issued formally from Mr Johnson set out that he would “meet and formally consult with you on a regular basis to discuss alternatives whereby your employment could be protected. I would also ask you to personally consider and put forward alternative proposals and suggestions at our consultation meetings which you feel are relevant, with the aim of avoiding redundancy” and confirmed that the respondent would not make a final decision on any at risk position until the consultation has concluded, and reminded the claimant “about the Retail Trust benefit offered to all employees and I would urge you to make use of the service to assist you in dealing within this challenging situation”.[46]Ms Matheson as HR Manager prepared prompt scripts for each of the 3 following consultation meeting to ensure that all relevant matters were covered and, for the meetings she attended prepared her own supplementary notes.[47]By the First Consultation Meeting the respondent, reflecting a rapidly changing pandemic retail environment, had concluded that they would be able to proceed to open 2 previously planned shops as they were at by that time in an advanced preparatory stage, and the claimant had already completed much of the work that related to his role for those two shops prior to lockdown. Ms Matheson expressed to the claimant that in accordance with the consultation process and reflecting her pre-prepared script asked the claimant to consider whether he had any ideas about other ways a restructure could be carried out that would avoid his redundancy. This was confirmed in the letter written following the meeting.[48]On Wednesday 15 July 2020, the claimant attended the First Remote Consultation Meeting with Ms Matheson and Mr Johnson, the claimant having declined the notified right to be accompanied. The claimant did not notify the respondent that he was arranging for a recording of this meeting to be made in part or in whole. The claimant having requested clarification as to whether any redundancies were expected in the Bakery Department was advised no. On requesting clarification as to why the Training and Development Manager was brought back from furlough it was explained that Mr Johnson had mistakenly thought the claimant was shielding but that the training need had been identified and that Mr Johnson did not consider that the claimant had the skillset he required. The claimant questioned the basis for the assumed reduction in sales against an exceptional previous year, Mr Johnston described that he had applied business modelling and considered the impact of social distancing and restrictions, he further clarified that while the 2 previously scheduled shops were due to open there were no further plans and all “big projects cancelled”.[49]The claimant’s wife, who was off screen and not visible to Mr Johnson and Ms Matheson, was able to hear the conversation, made an audio recording of part of the Monday 15 July 2020 remote video meeting during which Ms Matheson used the phrase “please do”. The claimant did not notify the respondent that he was arranging to record this meeting in part or in whole. In using that phrase Ms Matheson did not direct the claimant to carry out any work, in particular Ms Matheson did not direct the claimant to carry out work in breach of the terms of Furlough or otherwise in breach of the March 2020 Furlough Agreement. In particular Ms Matheson, was setting that out that a purpose of the consultation process was to allow the claimant to set out suggestions which would avoid redundancy saying, “please do”.[50]The respondent provided a copy of its notes to the claimant on Friday 17 July 2020, by email with covering letter (the Friday 17 July 2020 letter to the claimant) which described the company review, the sales being down 75% the preceding week and the activities which the company had concluded could be postponed or cancelled including new shops (other than the 2 they had already committed although not identified were Airdrie and Wishaw) and set out in table form (following the table adopted in the July 2020 Restructure Business Case and Rationale) the 5 Area Managers, and a further “.5” which was a reference to the temporary function of Ms Howitt supplemental to her training role as “0.5” Area Manager.[51]The Friday 17 July 2020 letter to the claimant set out “having asked all your questions, we asked if you had any suggestions or alternatives you might like to put forward at this stage. You replied no, as you had been out of the business for 4 months and did not know what could be done. We encouraged you to think of any alternative approaches that could still achieve the main aim of the exercise but prevented redundancy. We can then discuss them at the next meeting” and set out the 6 current vacancies including retail maintenance engineer, shop manager roles in East Kilbride and Leith providing details of same.[52]Following the first consultation meeting, the claimant requested that the respondent provide the model or tool which he considered Mr Johnson had relied upon in preparing his business case. No such tool or model existed. The respondent considered that sales data was commercially sensitive and did not provide same at this time.[53]Further and in advance of the Second Remote Consultation meeting, the claimant elected to enter the isolated phrase “please do”, which had been used by Ms Matheson in the Wednesday 15 July 2020 remote video meeting, into a search engine and concluded that it was an instruction. In addition, the claimant took legal advice from the Retail Trust setting out to their adviser that he had now been instructed to undertake a task of restructuring a team while on furlough and was provided with advice reflective of that hypothesis to the effect that this would be classed as providing a service to the respondent and thus created a potential (criminal) liability for the respondent. In particular the claimant, who elected to provide excerpt of legal advice he had received as part of the agreed Tribunal bundle, within a collated email he created Monday 21 September 2020, set out to the Retail Trust that he was being paid whilst under furlough asking “Would my employer be committing fraud by asking to completed tasks while on furlough” and was advised, the then applicable guidance (on the furlough scheme) did not explicitly state whether collective or individual redundancy could be carried out during furlough or whether it would fall under the prohibition on doing work, however, it was not making money for employer or providing services so was most likely permissible, it being intimated that the guidance for employers also said that employee representatives may undertake duties and activities for the purpose of individual or collective representation and this would not be considered work which strongly suggested that individual and collective consultation must also be allowed.[54]The claimant further sought advice from an advice agency, without explaining the context of redundancy consultation, setting out that he had “been asked to undertake a task that involves restructuring the retail team as I had better ideas. The task is to make a better outcome from myself but still achieve the company aim”. The advice set out, in the absence of the context, that this would be classed by HMRC as a fraud and “therefore, these activities should not be undertaken”. The claimant did not give the respondent notice, in advance of the Second Remote Consultation Meeting of the advice he had sought and received.[55]On Thursday 23 July 2020, the claimant attended a Second Remote Consultation Meeting with Ms Matheson and Mr Johnson. The claimant did not notify the respondent that he was arranging for a recording to be made of this meeting in part or in whole. The claimant confirmed that he was happy to proceed unaccompanied. The note of the First Consultation Meeting was reviewed with the claimant identifying areas where he considered the note required to be revised, specifically the claimant referencing an occasion in March 2020 when the claimant had considered that Mr J Bayne had pulled the claimant up and the claimant indicated that he had felt humiliated.[56]During the Second Remote Consultation Meeting, the claimant advised that he had been told by a solicitor “to stop this” to ensure that he was not involved in any criminal activity stop all work as on furlough”, the claimant read out a refence to the furlough scheme which indicated the claimant “must not take any work during furlough … to benefit the company is a breach of employment” and to benefit the company “financially would be considered as fraudulent activity and breaking the law” Ms Matheson noted the concern and advised, it being a novel issue, that the respondent would seek legal advice on the position.[57]The claimant identified further omissions in the Friday 17 July 2020 letter and some of those were addressed in a revised letter dated Monday 24 July 2020. The changes included identifying the respondent had agreed with the claimant when he stated that he had skills on creating guidance, it however, being the respondent’s position that the provision of “training” as provided by Ms Howitt in her capacity as Training and Development Manager was a key priority (to address the retail environment in the pandemic) and that Mr Johnson explained that the respondent Finance department “had done some business modelling”. That was a reference to the Finance Department providing figures to Mr Johnson.[58]After the exchange regarding, what the claimant described as the legal advice received, the claimant raised further matters: 1. why the separate Bakery Operations Manager role was not at risk, to which Mr Johnson responded to the effect that the volume of production and/or product mix did not impact on that role, and 2. what had been identified as a 50:50 split between Training and Area Manager in respect of Ms Howitt and whether the 1/2 Area Manager role (allocated to Ms Howitt) had been allocated through a selection criterion and process. Mr Johnson explained that that there had not been a vacancy but as there had been insufficient training (at the time as set out above above) Ms Howitt was going to help running some shops to allow Area Managers to focus on sales.[59]On Friday 24 July 2020, the respondent issued a further Baynes Business Update to staff which described that the company at that stage was “cautiously optimistic” and described, in relation to the re-opened shops, that sales “are increasing every week and are nearly 80%” of the previous year. It further set out that Mr Bayne’s back pain was improving.[60]On Monday 27 July 2020, the respondent issued letter summarising the Second Remote Consultation Meeting (the Monday 27 July 2020 letter), which set out that the claimant had indicated that there were two questions omitted from the notes of the First Remote Consultation Meeting and that Mr Johnson had “reviewed the actions agreed at the last meeting and asked “ if the claimant…” had thought of any alternative proposals to avoid compulsory redundancy”, to which the claimant responded that that he had “spent several days on” alternative proposals “but had then been advised” by his solicitor “not to proceed any further”. It set out the view expressed by the claimant that as he was on furlough, he considered that any work he undertook to consider alternative proposals and which could benefit the company financially could be considered to be a fraudulent activity and a criminal act and set out that the claimant stated that his solicitor therefore advised him to cease all work immediately to ensure that the claimant was not involved in any “illegal activity”. The letter set out that for the respondent Ms Matheson “would take it under legal advisement on the next steps”.[61]The claimant identified further errors in the Friday 17 July 2020 letter and some of those were addressed in a revised letter dated Thursday 6 August 2020. Specifically, the claimant sought reference to the event in March 2020 when the claimant argued that Mr J Bayne had raised errors which occurred under the claimant’s supervision but for which the claimant did not consider himself to have made. It was set out that Mr Johnson confirmed that the event and the matters surrounding were not the reason. Mr Johnson further confirmed, again in response to issue raised by the claimant, that the claimant’s promotion from Area Manager to Retail Operations Manager in 2019 had not been with a view to easing the claimant out.[62]On Sunday 1 August 2020, in response to Ms Matheson seeking clarification as to whether the claimant wished to raise a grievance in relation to his description of March 2020 exchange with Mr Bayne, the claimant stated that he would not be raising a grievance setting out his reasons.[63]On Wednesday 5 August 2020, Ms Matheson set out that whilst the claimant had indicated that he would not be raising a grievance in relation to his description of March 2020 exchange with Mr Bayne, the respondent considered as a responsible employer they should carry out some sort of investigation and she would be asking another senior manager to carry that out and set out if the claimant wished to be contacted by the person or submit any evidence he should make contact, although he was not obliged to do so. The claimant did not respond.[64]On Thursday 6 August 2020, the claimant attended the Third Remote Consultation Meeting. The claimant did not notify the respondent that he was arranging for a recording of this meeting to be made in part or in whole.[65]For the Third Consultation Meeting, Ms Matheson had prepared a script [285] describing that the respondents had given some thought as to how to present the advice they had received that there was no breach of the furlough arrangement, and what to do depending on the reaction that they got. The script set out that if the claimant offered a credible and suitable alternative proposal the respondent would consider same and would write to the claimant.[66]During the Third Remote Consultation Meeting, Ms Matheson, following the script, set out to the claimant that that the respondent had sought advice confirming that it was permissible for the claimant to engage in the process by suggesting alternatives to redundancy and this would not be deemed to be work in breach of furlough, Ms Matheson set out that while the respondent could not comment on what the claimant reported as his legal advice, the respondent did “not agree that making counter proposals” was in breach of furlough. Ms Matheson set out that the respondent was prepared to continue the process and allow the claimant further opportunity to put forward alternative ideas, if the claimant was persuaded that this was appropriate by this different advice. The claimant responded asserting that Ms Matheson had instructed him to go away and restructure the retail team, asking if she would encourage him to break the law.[67]The claimant confirmed that he had prepared a document containing proposals (prepared over a period of 3 days) which he placed in a brown paper envelope and waved it unopened at the screen saying in effect, taking a confrontational approach, he would only open if it he was instructed to break the law. Ms Matheson confirmed she could not instruct him to break the law, having already explained that the respondent’s advice was that the claimant would not be doing so. The claimant elected not to provide any proposals. In response he was advised, as the respondent did not have any proposals to consider, the respondent could not progress the consultation further and that they would serve notice. The claimant advised that he would be adding a recording of that meeting to other meetings, that was the first notification to the respondents of any recording being made. Ms Matheson advised that the claimant was entitled to 5 weeks’ notice, however the company did not require him to work that notice period and having asked if the pay in lieu of notice should be split over the pay periods and the claimant confirmed that it should be.[68]The respondent confirmed matters in their letter issued the following day Friday 7 August 2020 which further set out that he would be paid 5 weeks in lieu of notice setting out agreement about how his redundancy payment would be made.[69]By email Monday 10 August 2020, Ms Matheson provided the claimant with formal notice of redundancy also dated Monday 10 August 2020 issued by Mr Johnson, although signed by Ms Matheson, which set out that the claimant had the right to appeal and that the company would be pleased to provide a reference should any future employer require one, a financial statement setting out the calculation of statutory redundancy, reflective of the claimants pay there having been no pay rise in April 2020, notice pay and 8 days accrued outstanding holiday, summary of the Third Consultation Meeting (in letter from Ms Matheson dated Monday 10 August 2020) and requested amended summary of the First Consultation meeting held on 15 July 2020.[70]The letter from Ms Matheson dated Monday 10 August 2020, set out that in response to Mr Johnson, asking if the earlier notes were accurate the claimant advised that that there was an error in the note from the First Consultation Meeting (relating to a para on the third page which was then agreed to be removed, with revised version attached) and continued “You also referred to the invite letter and the point around presenting alternative proposals and also to the notes from the 2nd consultation meeting and in particular paragraph 6 relating to the discussion around legal advice what you could or could not do legally under the furlough scheme. You stated you did not say this and any reluctance to present an alternative was in direct response to “my instruction in the 1st meeting1 to carry out the task of coming up with an alternative retail structure that could benefit yourself. I denied I had ever instructed you to do anything but explained as the consultation process relies upon both sides coming up and discussing alternatives I would have asked you to go away and consider alternative counter proposals to reach the company aim. Unfortunately, no matter what I said you did not believe me referring to a handwritten scripted record of the meeting as evidence. You maintained that unless I wanted you to breach the law you could not present or discuss any alternative proposals. I confirmed I would not want anyone to break the law but if we had no proposals to consider we have exhausted the consultation process.”[71]On Friday 14 August 2020, the claimant submitted an appeal in writing addressed to Mr Davidson the respondents Bakery Department General Manager, setting out that he considered that there was a conflict in Mr Davidson hearing the appeal as he was part of the decision-making July 2020 Strategy Meeting. The claimant set out his further points in 25 bullet points which are broadly summarised as: 1. details of a message on Friday 10 July 2020 requesting catch up on Monday 13 July 2020, that he believed the company had acted too quickly as sales had reached 80% and the country had not moved into phase 3; and 2. he was asked to carry out a task of restructuring the retail team while on furlough which is an activity is breaking the law and considered fraud by HMRC; and 3. He had spent 3 days working on different permutations on restructure but “never got the change to present them …” as Ms Matheson “declined my offer to present them at the meeting on 06.08.2020 as she said as a company they would NOT be asking me to break the law”; and 4. The respondent’s Monday 27 July 2020 letter said the purpose of the consultation was to allow the claimant the opportunity to discuss views and suggestion – he was not offered the opportunity to present his ideas/solutions: and 5. The respondent’s Monday 27 July 2020 letter stated if no new redeployment or suitable counter proposals were presented, the company would have no option other than dismiss on compulsory redundancy – he was not offered the opportunity to present his ideas/solutions “I felt pressured to break the law or lose my job at this point”: and 6. The company had identified an additional Area Manager (part time) position which would have been classed as a vacancy: and 7. The claimant struggled to “understand how training could be considered as a sales driver in the current climate”: and 8. There was no opportunity to apply for the part time Area Manager position: and 9. There were no suitable alternatives roles offered by the company and nothing was discussed at the third consultations: and 10. He set out that had to ask on 3 occasions to have a statement removed from notes stating he wished to stay with the company and would consider any role for redeployment: and 11. There were many amendments he requested on the summary letters. 12. Until he was given verbal notice he was not provided with redundancy calculation: and 13. He had requested copy of the respondent policies and was advised that the company follow ACAS; and 14. He referred to his encounter with Mr J Bayne in March 2020 setting out what he said occurred; and 15. Only the marketing manager and the claimant had been made redundant and he believed this was due to the March 2020 event: and 16. There had been no clear reasons why he had been made redundant, each letter being inconsistent; and 17. His current key responsibilities showed that 17/20 activities are still meaningful equating to 85% of his job role: and 18. Bakery production was down year on year by over £120,000 but no redundancies were planned in bakery; and 19. The (respondent’s) financial model was not supplied to him nor were minutes from the respondent July 2020 Strategy Meeting and thus he was not given the opportunity to fully understand how his position became at risk: and 20. On Monday 13 July 2020, he was told there would be no new shop openings, but that that day the newsletter confirmed that Airdrie and Wishaw were on track to open in August and September 2020; and 21. The letter issued Monday 13 July 2020, had described that the consultation was envisaged to last 2 weeks, but it had lasted longer; and 22. The letter issued Monday 13 July 2020 described that the company “need to implement some organisation changes the activities listed … do not sit within my job role.”; and 23. The Training and Development Manager (Ms Howitt) had been asked to come back off furlough to set out new ways of working and write retail policies which activities fell into the claimant’s job role and when asked Mr Johnson stated he thought the claimant was shielding; and 24. The claimant had been made aware that his office workspace was no longer operational, and his desk had been removed; and 25. The process of “note taking, lateness of key communication, summary letters, the integrity, the mistakes and failure to follow process had been nothing short of hurtful.” The claimant set out a request for documentation.[72]On Tuesday 17 August 2020, Mr Davison acknowledged receipt of the letter and indicated that he would confirm date of appeal once he had had read it properly.[73]Also, on Tuesday 17 August 2020, Ms Matheson confirmed to the claimant that Mr Mackie would conduct the internal investigation of the claimant’s allegation regard Mr J Bayne and confirmed that the claimant could provide any information he wished direct to Mr Mackie.[74]On Wednesday 21 August 2020, the respondent issued a 3-page internal weekly Bulletin to staff, which on the third page stated that the claimant and the Marketing Manager were “no longer with the business following a review of the Retail function” and indicated that any communication for either should be directed to Mr Johnson (the 21 August 2020 respondent bulletin).[75]On Monday 24 August 2020, Mr Davidson issued a communication to the claimant which erroneously proposed a date for the appeal of Wednesday 9 August 2020, the communication also referred to the claimant’s information request.[76]Later, on Monday 24 August 2020, the claimant responded pointing to the error and stating that “as stated in my appeals letter, there is a clear conflict of interest in you hearing the appeal. You were part of the senior team who attended the strategy meeting and therefore some more senior that is impartial should be hearing the appeal, to made it a fair process. This is the last act of discrimination” from the respondent. The claimant set out that he had sought legal advice and “have been instructed to raise an unfair dismissal claim” and confirmed that he would be raising that claim “in due course.”[77]In advance of the appeal the claimant intimated that the appeal should be heard by Mr Bayne Snr. The respondent’s noted the request but confirmed that the appeal would, as previously intimated, be heard by Mr Davidson. The respondent had received advice to the effect that Mr Davidson was an appropriate person to conduct the appeal as he had not been directly involved in the decision-making process which led to the termination of the claimant’s employment, the respondent having concluded that it was appropriate to proceed with Mr Davidson rather than Mr Bayne Sr who was still shielding.[78]On Tuesday 25 August 2020, Mr Davidson sought clarification whether the claimant was intending to attend appeal hearing, intimating to the claimant that he was hearing the appeal as he had not been involved in the decisionmaking process.[79]The claimant had elected at this stage to stop participating in the appeal process.[80]By email Thursday 27 August 2020, Mr Davison intimated that the claimant had not yet confirmed whether the claimant was attending the appeal hearing requesting confirmation by Friday 28 August 2020 and advised that if the claimant refused to attend or did not respond, the appeal may be held in the claimant’s absence.[81]By email Monday 7 September 2020, Mr Davidson apologised his error confirming that the appeal date was Wednesday 9 September 2020 and requested that the claimant confirm by 5pm that day, his intentions, confirming that if the claimant did not attend or respond the appeal may be held in his absence.[82]On Wednesday 9 September 2020, the respondent responded to the data request explaining that they believed that data used for management forecasting or management planning would prejudice the business, and provided documentation some of which the respondent considered could fall within legal professional privilege which documentation was categorised into 29 subcategories and included emails, file drives, personnel files, whatsapp group, and bulletins and confirmed that as none of the respondent policies contained personnel information those were not provided.[83]Mr Davidson approached the appeal with an open and fair mind and considered each of the claimant’s appeal points.[84]On Monday 14 September 2020, Mr Davison set out that due to the claimant’s non-attendance and failure to respond to repeated reminders to confirm intentions he had held the appeal in the claimant’s absence and set out that the appeal was not upheld. Mr Davidson set out his findings in relation to the 25 appeal points. In conclusion Mr Davidson set out that general comments including that the confrontational approach on the claimant’s “part particularly around the legality of presenting alternative solutions seems to have precluded any attempt to find creative solutions to what became an impasse. This is currently a legally grey area but alternative legal advice the company received suggests that presenting alternative solution to preserve a job would not have been illegal.”[85]The claimant had decided to stop participating in the appeal process without notification being issued to the respondent. The claimant considered that as Mr Davidson had been present at the July 2020 Strategy Meeting when Mr Johnson had presented the Business Case, it was not independent. The respondent took steps, reflective of their concern on lack of communication to arrange to hand deliver the outcome letter to the claimant.[86]During the consideration of the appeal Mr Davidson, had no recollection of having read the 21 August 2020 respondent bulletin which had stated the claimant had left the company and those communications should be directed elsewhere. Mr Davidson was, however, aware from the documentation that the claimant had been dismissed by reason of redundancy.[87]Mr Davidson considered the grounds of appeal at the hearing held without the claimant present. In the minutes of the hearing, he set out his remit of determining whether the process was open, fair, timely and gave the opportunity to discuss the rationale and to propose alternative solutions, and in light of that whether the outcome was reasonable. He did make some recommendations, but his overall conclusion on the points made was that the process had been fair and rejected the appeal.[88]Subsequently the respondent provided the financial information requested by the claimant.[89]The claimant has not secured alternate employment, he has however taken reasonable steps to mitigate his loss applying for around seven jobs.[90]It remains the respondent’s view that the restructure which resulted in the termination of the claimant’s employment was correct. The respondent has not replaced either of the two positions which were made redundant. Submissions[91]Both the claimant and respondent provided written submissions. The Tribunal considered that it was appropriate for the respondent to provide its written submissions to the claimant in draft format who was unrepresented to enable him to have the opportunity to set out his submissions thereafter. The respondent agreed to this model. The Tribunal does not consider it necessary to set out the full term of each of the parties’ submissions.[92]The claimant in essence argued that the Tribunal should uphold complaints both of unfair dismissal and discrimination which he set out in his submission as being discrimination direct and indirect, Harassment under the Equality Act 2010 and Age Discrimination under the Equality Act 2010 Disability Discrimination (by perception) under the Equality Act 2010. The claimant argued that he had sustained loss and he should be awarded compensation in consequence.[93]For the respondent it was argued that the correct approach is as set out in Murray v Foyle Meats [2000] 1 AC 51 (Murray).[94]In relation to the discrimination claim the respondent sets out that although there is a heading “Indirect discrimination” in the claimant’s evidential document, the Breakdowns of Key Points, that there was no case of Indirect Discrimination under s19 EA 2010 identified in this case, there was no identification of some provision, criterion or practice which is generally applied by the respondent to the claimant and others of a different age, and which puts people of the same age as the claimant at a particular disadvantage when compared with people of a different age. The respondent submits that the claimant’s case (as pled) is one of direct discrimination.[95]The respondent further refers to s39(2) of the EA 2010 which it concedes may be relevant to the present case ss39(2) identifies discrimination at (b) in the way that A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service; at (c) by dismissing B; and at (d) by subjecting B to any other detriment.[96]The respondent argued it provided managers at a level appropriate to consider and respond to the claimant’s questions at the consultation meetings. The respondent was able to respond to the claimant questions about why the Training and Development Manager had been brought back from furlough, about whether the decision had anything to do with the meetings with Mr J Bayne, and how the company had come to the view that sales during the ongoing pandemic were not going to recover quickly. Further and by the Third Consultation Meeting, the respondents had given some thought as to how to present the advice they had received that there was no breach of the furlough arrangement, and what to do depending on the reaction that they got. The claimant elected not to accept the respondent’s advice and declined to provide any proposal which had the effect of bringing matters to a conclusion. Further and while the claimant appealed, he elected not to attend the appeal. In summary the respondent argues that the respondent had been dismissed by reason of redundancy and that the claimant’s claims of age discrimination were not supportable.[97]The respondent did not choose between all the staff for the part time Area Manager role, Mr Johnson turned to the one employee already employed, the mistaken belief that the claimant was shielding did not play a part in the decision making and it was not based on age at all. Relevant law. Fair Notice of case[98]It is not considered necessary to address heads of claim beyond those of unfair dismissal and age discrimination. Further claims as have been referred to by the claimant in submission were not set out for the respondent to respond to in the ET1 and Further Particulars.[99]The Tribunal does not make criticism of the claimant, who is unrepresented although the Tribunal has reminded itself of Employment Appeal Tribunal observations in Khetab v AGA Medical Ltd [2010] 10 WLUK 481 (Khetab) that the purpose of the ET1 and in effect further particulars “…is so that the other party and the Employment Tribunal understand the case being advanced by each party so that his opponent has a proper opportunity to meet it”. Statutory basis of EA 2010 claims[100]The Tribunal considers it useful in this instance to set out the statutory provisions of s5 and 13 of the EA 2010.[101]Section 5 Age: 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.[102]Section 13 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.[103]A complaint may be brought, relying on the protected characteristic of age, under s13 EA 2010.[104]In relation to s39 EA 2010, it is provided: (2) An employer(a) (A) must not discriminate against an employee of A's (B)— (a) as to B's terms of employment;(b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;(c) by dismissing B;(d) by subjecting B to any other detriment. Time[105]In terms of s123 of the EA 2010, where allegations of discrimination stretch over a period, only part of which falls within the primary limitation period, the Tribunal requires to assess whether individual allegations together constitute an “act extending over a period “or else are to be treated as a series of discrete or isolated specific acts each with its own time limit. As set out above, a complaint about something that happened before Thursday 25 May 2020, was potentially brought out of time, so that the Tribunal may not have jurisdiction to deal with it. However, in all the circumstances including having regard to the overall conclusions of the Tribunal, it is not considered necessary to address that issue further. EA 2010 Relevant Law[106]In Madarassy v Nomura International plc [2007] IRLR (Madarassy) Mummery LJ held at [57] that ‘could conclude’ [The EA 2010 uses the words ‘could decide’, but the meaning is the same] meant: ‘[…] that “a reasonable Tribunal could properly conclude” from all the evidence before it.’[107]However, a simple difference of treatment is not enough to shift the burden of proof, something more is required: Madarassy per Mummery LJ at para 56: ‘The bare facts of a difference in status and a difference in treatment 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.’ Appeal[108]Although not referred to by the parties, the Tribunal has reminded itself of the Court of Appeal decision in Slater v Leicestershire Health Authority [1989] IRLR 16 (Slater) that for some employers, it may not always be straightforward to arrange for a different person conduct an appeal (than for instance the person who conducted an preliminary investigation) and set out that “it could not be held that because the person, conducting the disciplinary hearing had conducted the investigation, he was unable to conduct a fair inquiry. While it is a general principle that a person who holds an inquiry must be seen to be impartial, the rules of natural justice do not form an independent ground upon which a decision to dismiss may be attacked”. Recordings[109]In the course of the hearing, the Tribunal noted the respondent had no objection to the claimant use of recordings. The respondent’s position was consistent with the EAT guidance in Phoenix House Ltd v Stockman [2019] EAT/0284/17/OOUKEAT/0058/18/OO, (Stockman) the EAT's reasons contain observations on the varied circumstances in which covert recordings might be misconduct. It is good employment practice for an employee or employer to say if there is any intention to record a meeting, and it is generally misconduct not to do so, except in the most pressing of circumstances. The EAT noted that modern technology meant that it was straightforward, and no longer uncommon, for employees to covertly record meetings occurring within employee relations disputes. How an employment tribunal would treat the making of such recordings depended on their purpose and the circumstances in which they were made. It remained good practice for parties to tell each other if they intended to make a recording, and failure to do so would generally amount to misconduct. Redundancy[110]Section 98(1) 1996 provides that it is for the employer to establish the principal reason for dismissal and that it is of a kind specified in section 98(2) or some other substantial reason.[111]Section 98(2) 1996 specifies redundancy. Section 98(4) 1996 provides that where the employer has fulfilled the requirements of section 98(1) 1966: “The determination of the question whether the dismissal is fair or unfair, having regard to the reasons shown by the employer—(a) depends on whether in the circumstances, including the size and administrative resources of the employer's undertaking, the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and(b) shall be determined in accordance with equity and the substantial merits of the case.”[112]The key statutory provision is section 139(1) of ERA 1996, which defines redundancy as “For the purposes of this Act an employee who is dismissed should be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to—(a) the fact that his employer has ceased or intends to cease— (i) to carry on the business for the purposes of which the employee was employed by him, or (ii) to carry on that business in the place where the employee was employed, or(b) the fact that the requirements of that business— (i) for employees to carry out work of a particular kind, or (ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer, Have ceased or diminished or are expected to cease or diminish.”[113]The correct approach in relation to redundancy (s139(1)(b)(i) of ERA 1996) remains as set out in similar worded Northern Irish legislation considered by the House of Lords in Murray, namely the legislation should be interpreted simply, the focus is on the employer’s requirement for employees, and whether that has diminished, it being then a factual question whether that situation was what caused the dismissal.[114]In Murray the House of Lords emphasised the importance of following the statutory wording, Lord Irvine said that two questions had to be addressed: “The first is whether one or other of the various states of economic affairs exists. In this case, the relevant one is whether the requirements of the business for employees to carry out work of a particular kind have diminished. The second is whether the dismissal is attributable, wholly or mainly, to that state of affairs. This is a question of causation.” Conclusion on witness evidence[115]The Tribunal accepts the evidence of all the respondent’s witnesses as straightforward and credible, in particular Mr Bayne and Ms Matheson who were wholly straightforward and credible in their evidence. The claimant gave his evidence honestly reflecting his view of the respondent and his recollection. Mrs Murphy’s evidence was accepted as broadly straightforward. Ms Myres evidence, so far as relevant to the issues in this hearing was straightforward in her recollection. The Tribunal wishes to record that it makes no assessment in relation to matters relating to Ms Myres separate Tribunal complaint. The Tribunal however preferred the evidence of the respondent witnesses as being wholly straightforward to that of the claimant where there was any dispute of fact.[116]In the present case the Tribunal concludes that the excerpt recordings were partial excerpts, and the Tribunal has been unable to draw any conclusions in reliance upon same. Discussion and Decision[117]In relation to what the claimant asserts as his complaint under s13 EA 2010, being that the respondent dismissed him, the respondent did not dismiss him because of the claimant’s age and/or because of the protected characteristic of age more generally.[118]On the evidence, the Tribunal accepts that the requirements of the business for employees to carry out work of a particular kind (as carried out by the claimant) had diminished.[119]Further the Tribunal accepts that the dismissal of the claimant was wholly (or mainly) attributable to that state of affairs.[120]The respondent’s dismissed the claimant by reason of redundancy arising from a reduction or diminution in the requirement for employees.[121]In summary the respondent’s action were not because of the claimant’s age and/or because of the protected characteristic of age more generally. The respondent did not discriminate against the claimant by reason of age in the way it afforded or did not afford) access to opportunities for promotion, transfer, or training or otherwise by dismissing the claimant or subjecting the claimant to any detriment contrary so s39 of EA 2010.[122]The unanimous conclusion of the Tribunal is that none of the things complained of arose in consequence of the claimant’s age.[123]The respondent dismissed the claimant because a diminution in the respondent’s requirement for employees. The respondent provided a consultation process which ultimately the claimant elected not to substantively participate in, by not offering to the respondent proposals. The Tribunal accepts that the respondent offered information as it its own legal advice on whether the claimant could make any proposals. The Tribunal does not accept that the legal advice relied upon was obtained reflecting the correct factual matrix, namely that the claimant was participating in a redundancy consultation.[124]The Tribunal accepts that Mr Davidson was not a decision maker in relation to the July 2020 Strategy meeting and that in any event he approached the appeal with an open and fair mind. The claimant elected not to participate.[125]The Tribunal does not uphold the claimant’s claim for unfair dismissal. The claimant was dismissed by reason of redundancy.[126]The respondent did not assert that some of the claimant’s claims were out of time. For the reasons set out above the question of whether any or all the claimant's existing complaints presented within the time limits set out in Sections 123(1)(a) & (b) of the Equality Act 2010 (EA 2010) do not arise. The Tribunal notes, however, that given the claim form was presented and the dates of early conciliation, any complaint about something that happened before Thursday 28 May 2020 was potentially brought out of time, so that the Tribunal may not have jurisdiction to deal with it and dealing with those issues could have involved consideration of subsidiary issues including when the treatment occurred, whether there was an act and/or conduct extending over a period, and/or a series of similar acts or failures; whether time should be extended on a "just and equitable" basis. Given the Tribunal’s conclusions above the Tribunal does not consider it necessary to consider that matter further.
Conclusion
[127]The claimant’s claims do not succeed.[128]The role of the Tribunal is to weigh the evidence before it. This involves an evaluation of the primary facts and an exercise of judgment. The Tribunal has done so applying the relevant law.[129]If there are further submissions which either party considers it is necessary, in the interests of justice, to address supplemental to their respective existing submissions, they should set out their position in a request for reconsideration in accordance with Rule 71 of the 2013 Rules.