Mr D Dwivedi v Hindu Cultural Resource Centre Sandwell: 6006819/2024

EMPLOYMENT TRIBUNALS

Case No 6006819/2024

Between

Mr D DwivediClaimant

Hindu Cultural Resource Centre SandwellRespondent

Before

Employment Judge Taylor

Mr Austin (instructed by Counsel) for claimant

Date 24 February 2026

JUDGMENT

[1]The claim for unfair dismissal is well founded and succeeds.

[2]The claim for wrongful dismissal is well founded and succeeds.

[3]The claim for direct age discrimination is well founded and succeeds.

REASONS

[1]The claimant’s case is that he was employed by the respondent on a series of fixed term contracts and was served with notice of dismissal on or about 30 January 2024. His case is that there was no admissible/lawful reason to terminate his employment, and he was served with notice and dismissed because of his age. No dismissal procedure was followed. He received a reference from the respondent on 19 April 2024 stating that the claimant had to retire from his services at the Temple because he has reached 68 years of age. The claimant states at no time did he say he wished to retire. The claimant states he was a permanent employee by reason of being employed continuously on fixed term contracts with no gaps in his employment record.

[2]The respondent’s case is that the claimant was dismissed by reason of his conduct namely that in breach of his contract and duty of fidelity he retained donations from parishioners. He was prohibited from earning secret profits in the course of his employment. In October 2023 it was discovered that the claimant was taking funds from worshippers and failing to account for the payments. He was invited to a meeting on 30 October 2023 and was told he must pass to the committee of the respondent any funds he received from the congregation. Despite this instruction the claimant continued to take and retain donations without accounting to the Temple for the same. The respondent’s case is by disobeying the Temple’s legitimate instructions and/or by taking and retaining secret profits the claimant committed gross misconduct. His dismissal had nothing whatsoever to do with age. In the circumstances the respondent does not rely upon a justification defence. The claimant wrote the reference dated 19 April 2024. Claims and issues

[3]The claimant brought claims for unfair and wrongful dismissal and direct age discrimination. The claimant asserts are a permanent employee. There was a case management hearing on 17 December 2024 and the issues were agreed as follows: Unfair dismissal1.1 Was the claimant dismissed? There is no dispute that the respondent dismissed the claimant.

1.2 What was the reason or principal reason for dismissal? The respondent says the reason was conduct. The Tribunal will need to decide whether the respondent genuinely believed the claimant had committed misconduct.

1.3 If the reason was misconduct, did the respondent act reasonably or unreasonably in all the circumstances, including the respondent’s size and administrative resources, in treating that as a sufficient reason to dismiss the claimant? The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case. It will usually decide, in particular, whether:1.3.1 there were reasonable grounds for that belief;

1.3.2 at the time the belief was formed the respondent had carried out a reasonable investigation;

1.3.3 the respondent otherwise acted in a procedurally fair manner;

1.3.4 dismissal was within the range of reasonable responses. 2. Remedy for unfair dismissal

2.1 Does the claimant wish to be reinstated to their previous employment?

2.2 Does the claimant wish to be re-engaged to comparable employment or other suitable employment?

2.3 Should the Tribunal order reinstatement? The Tribunal will consider in particular whether reinstatement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just.

2.4 Should the Tribunal order re-engagement? The Tribunal will consider in particular whether re-engagement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just.

2.5 What should the terms of the re-engagement order be?

2.6 If there is a compensatory award, how much should it be? The Tribunal will decide:2.6.1 What financial losses has the dismissal caused the claimant?

2.6.2 Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?

2.6.3 If not, for what period of loss should the claimant be compensated?

2.6.4 Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?

2.6.5 If so, should the claimant’s compensation be reduced? By how much?

2.6.6 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

2.6.7 Did the respondent or the claimant unreasonably fail to comply with it ?

2.6.8 If so is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?

2.6.9 If the claimant was unfairly dismissed, did they cause or contribute to dismissal by blameworthy conduct?

2.6.10 If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion?

2.6.11 Does the statutory cap of fifty-two weeks’ pay or [£105,707] apply

2.7 What basic award is payable to the claimant, if any?

2.8 Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent dismissal was within the range of reasonable responses. 3. Wrongful dismissal / Notice pay

3.1 What was the claimant’s notice period?

3.2 Was the claimant paid for that notice period?

3.3 If not, was the claimant guilty of gross misconduct?

[4]Direct age discrimination (Equality Act 2010 section 13)4.1 The claimant’s age group is late 60s and they compare their treatment with people in a younger age group.

4.2 Did the respondent do the following things:4.2.1 On or about 30 January 2024 serve the claimant with termination notice;

4.2.2 Dismissed the claimant.

4.3 Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated. The claimant has not named anyone in particular who they say was treated better than they were.

4.4 If so, was it because of age?

[5]Remedy for discrimination or victimisation5.1 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?

5.2 What financial losses has the discrimination caused the claimant?

5.3 Has the claimant taken reasonable steps to replace lost earnings, for example by looking for another job?

5.4 If not, for what period of loss should the claimant be compensated?

5.5 What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?

5.6 Has the discrimination caused the claimant personal injury and how much compensation should be awarded for that?

5.7 Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result?

5.8 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

5.9 Did the respondent or the claimant unreasonably fail to comply with it ?

5.10 If so is it just and equitable to increase or decrease any award payable to the claimant?

5.11 By what proportion, up to 25%?

5.12 Should interest be awarded? How much? Procedure documents and evidence heard 4. This matter was listed for a liability and remedy hearing on 26-30 January 2026. An application was made by the claimant to strike out the respondent’s response and an application was made by the respondent to adjourn the hearing. Both applications were refused for reasons given orally at the hearing. A further application was made by the respondent to strike out the claim, this application was refused for reasons given at the hearing. Written reasons for that decision will be provided separately. 5. I had before me a bundle of 101 pages and, at the start of the hearing, statements from the claimants and his two witnesses, Amarkant Sharma and Chander Vashist.

[6]The respondent was given time in the morning of the first day to finalise witness statements and a statement was received from Puneet Singh. A further statement was received from Mr Singh on 27 January 2026.

[7]I have considered all of the evidence before me even where it is not explicitly referred to in this decision.

[8]The claimant asked that he be asked questions slowly because of hearing difficulties. Questions were asked slowly and the claimant was assured that he could ask for clarification, for questions to be repeated and could take as much time as needed to process and answer questions. I observed no difficulties with the claimant understanding and answering questions. Relevant findings of fact

[9]There was some deviation from the witness statements by all of the witnesses. This is to be expected given the length of time since the events happened, the direction of cross-examination and the fallibility of memory. There is a difference between adding detail to an event already referred to in a witness statement, changing reasoning, raising events and facts for the first time and directly contradicting earlier witness evidence. Where the changes to evidence fall within this spectrum, alongside the documentary and other evidence and assessing all of the evidence in the round will impact upon the findings about credibility of any aspect of an account and the account preferred by the Tribunal.

[10]The respondent made submissions that the claimant’s witnesses were motivated by divisions, disagreement and grievances with the outcome of the 2022 committee elections and members of the committee. I did not observe their evidence to be so influenced. Both witnesses denied such motivation. Whilst there does seem to have been some internal disagreement and tension relating to the 2022 committee elections, it is another matter entirely to make up evidence, attend a Tribunal and essentially lie and I do not find that any witness did this.

[11]The respondent submitted that the evidence of Mr Singh was deliberately silent on the issue of the meeting on 26 January 2026 when they say the decision to dismiss the claimant was made. Absent the evidence of the claimant’s witnesses, this would not be before the Tribunal. The absence of any mention of this, evidentially crucial, meeting in Mr Singh’s witness statement is unusual, however I do not make a finding that he was seeking to deliberately mislead the Tribunal.

[12]I make no general credibility finding about any of the witnesses. Where I have preferred the evidence of one or more witnesses over another I give reasons in this decision.

[13]Mr Awasthi has sadly passed away and was not therefore at the hearing to be cross-examined. His evidence is therefore untested and I reduce the weight afforded to his written evidence.

[14]It was common ground between the parties that the claimant was employed on 01 June 2013 as Priest on consecutive fixed term contracts without breaks and that his effective date of termination was 29 February 2024. It is not contested by the respondent that the claimant was a permanent employee with continuous service from employment to termination. The claimant was therefore an employee for 11 years. Previous Dakshina practice

[15]It is common ground between the parties that, before October 2023, the priests had kept Dakshina without any issue. There was no process in place to seek the permission of the respondent nor to account to them for amounts. The discretion referred to in the contract is therefore not one which was exercised on a case by case basis, it was a blanket approval of Dakshina being retained which had, by October 2023, been in place for ten years. Communication about Dakshina

[16]It is common ground that there was a conversation between the claimant, the Head Priest, the General Secretary, the Holding Trustee and the President on 30 October 2023.

[17]The claimant’s written evidence on this meeting in paragraph 33 of his witness statement was that he and the Head Priest were told to stop taking Dakshina and that the Head Priest refused, asserting that the practice should continue as it had for the last ten years.

[18]The claimant’s oral evidence was that he neither said yes or no, he said that he would obey the Head Priest. The claimant stated that the proposal was that Dakshina should not be accepted unless it was specifically for the priests. The Head Priest confirmed that that was the practice in any event. The claimant denied that it was suggested that the committee had received reports that the priests were keeping payments not meant for them and denied that it was stated by the respondent that the employment contracts stated that Dakshina should only be accepted at the discretion of the Temple.

[19]Mr Singh’s witness statement states, “during the meeting the committee asked whether the Pundits could place that money in the donation box. This request upset the Pundits….”

[20]Mr Singh’s oral evidence was inconsistent on whether the Priests had been given an instruction or whether a suggestion was made to them during this meeting. His oral evidence was that there was a discussion on 30 October and coming to terms which would be better, there was no instruction… the respondent wanted to look at possibilities, before a compromise could be reached the Priest walked off. He also stated, we said the discretion is a no…… I started off the meeting with, this is the issue, we want you to stop accepting Dakshina, you need to hand that over to the Temple. Mr Singh accepted that the Priests walked out before a decision was reached.

[21]Mr Singh then equated instruction with suggestion and proposal and stated that, because of the standing of the priests the committee asks rather than tells them what to do.

[22]The minutes of the committee meeting on 26 October 2023 state “we need to speak with the pandits on how we could raise our finances and also discuss changes in their work.”

[23]The minutes of the committee meeting on 15 December 2023 state, “A proposal was put forward by the committee members and the proposal was rejected by both pandit ji. The committee discussed this issue and would be discussing this in further meetings. ”

[24]There is congruence between Mr Singh’s written evidence and oral evidence that a request was made of the Priests rather than an instruction issued. This is also supported by the minutes which refer to an initial and ongoing discussion. The position of the committee on 15 December 2023 was that there would be discussion in further meetings, not that a decision had been made which was final.

[25]Mr Singh stated in oral evidence that Mr Awasthi met with the claimant in early December 2023 and gave the instruction. The claimant denies that such a meeting took place. Even if that meeting did take place, I do not accept that an instruction was given because the minutes of 15 December record ongoing discussions.

[26]Whilst the claimant’s statement uses the word “told”, the overall impression of his account is that the issue was not settled, the Head Priest said no, he then refers to being informed, rather than told to deposit Dakshina in the collection boxes and to the Head Priest continuing to take Dakshina.

[27]Given Mr Singh’s evidence and the congruence of one version of that with the minutes, I find that the Priests were not given a firm instruction to no longer take Dakshina. The discussion on 30 October was along the lines that the committee would like the Priests to stop taking Dakshina, and would like to reach a compromise on that issue. There was no clear instruction. Dakshina practice after 30 October 2023

[28]Mr Singh’s oral evidence was that the Head Priest continued to take Dakshina until some point, there was no evidence as to specifically when, then he made an apology and stopped taking Dakshina.

[29]The claimant’s written evidence was that he stopped taking Dakshina. In his oral evidence he stated that he stopped in November or December 2023 because a member of the congregation had warned him that the committee was looking for a younger priest, that his job may be at risk and that he should stop. The claimant denies that Mr Awashti spoke with him about this in December 2023.

[30]The respondent contends that the claimant never stopped talking Dakshina. Mr Singh’s evidence was that Mr Awashti reported to him that the claimant continued to take Dakshina. This is dealt with in Mr Awashti’s statement where he states, “….I asked him if he could place the donation money into the designated box, as it was intended to be used for that purpose. Mr Dwivedi responded by stating that he would acknowledge my request, take it into consideration, and ensure the money was placed accordingly. However, to my knowledge, he did not follow through with this action.”

[31]There are several reasons which undermine the weight I place on Mr Awashti’s evidence on this point. Generally, the inability to test the evidence and also, the lack of specificity of the evidence. Mr Awashti does not specifically state that he has seen the claimant keeping money on any occasion, he does not say how many times this happened or when. The statement also refers to donation money intended to be used for that purpose. It is not clear from this evidence whether the money being referred to is donation money or Dakshina.

[32]The respondent contends that the claimant’s gross misconduct constituted repeated failures to follow clear instruction. This cannot be the case because I have found there was no clear instruction. Also, Mr Awashti’s evidence is not sufficient for a finding of repeated failures on the balance of probabilities. Mr Singh’s evidence is based entirely on Mr Awashti so, although there is congruence, even taken cumulatively, this evidence does not discharge the burden of proof.

[33]I therefore find that there was no clear instruction given to the claimant and there were not repeated failures to follow such instruction. I find that the claimant did not commit gross misconduct and there was no such breach of his employment contract by him.

[34]The evidence of Mr Sharma and Mr Vishist was that both current Priests continue to accept Dakshina. Mr Vashist’s oral evidence was that he gives Dakshina himself. Mr Singh was cross-examined about whether Dakshina was currently being accepted by Priests. His response was that it is not being accepted. Mr Singh was asked whether he thought that Mr Vashist and Mr Sharma were lying his response was, that is between them and the Pundits. There are no concerns or reports that the Pundits are receiving Dakshina. Mr Singh was asked whether, now that he heard the clear evidence of Dakshina being taken, whether he would investigate the Pundits for gross misconduct. The response was that he could not say yes or no.

[35]I accept Mr Vashist’s evidence that he continues to give Dakshina. He maintained his position in cross-examination. The respondent chose not to provide evidence from the current Priests. There is no reason for me not to accept Mr Vashist’s evidence on this point. The respondent’s reason for dismissal

[36]In his oral evidence Mr Singh stated that the reason for dismissal was the end of the claimant’s contract and that the committee took that option. He then stated that the reason was gross misconduct but they had to cover it up with end of contract and also that it was definitely gross misconduct. Mr Singh then accepted that gross misconduct was discussed but that the reason settled on was end of contract. Mr Singh’s oral evidence on the respondent’s reason for dismissal was entirely inconsistent and I afford that aspect of his evidence little weight.

[37]Given the fact that there are monthly committee meetings which are minuted there is a dearth of documentary evidence of any discussion about the claimant’s conduct and the reason in the respondent’s mind for dismissing him. There are no minutes from the meeting on 30 October 2023 when discussions were held about the taking of Dakshina and there are no minutes from the meeting of 26 January 2024 which was specifically convened to discuss the claimant’s employment and a vote was held on whether the renew his contract or to dismiss him. There are no written warnings, no minutes of discussions or meetings with the claimant.

[38]There are two pieces of contemporaneous documentary evidence. The letter of termination dated 29 January 2024. This letter makes no mention of gross misconduct or indeed misconduct of any kind. This letter was a private document given to the claimant by the respondent. Therefore reasons of not embarrassing the claimant by detailing the real reason for his dismissal within it would not apply to this document. The letter also makes no reference to retirement.

[39]The second document is a reference letter which states that the claimant was retired because he had reached 68 years of age. The respondent made an allegation in evidence that they were tricked by the claimant into signing this letter. I do not accept that allegation. There was nothing underhand in the claimant’s actions. The claimant provided a draft letter, which he sent to Mr Awashti with the question, is that okay. He was not insistent on specific wording, he was clearly making a request. Mr Singh’s oral evidence was that Mr Awasthi typed the letter and he then signed it. The end product is a letter on the respondent’s letterhead and signed by the General Secretary. That letter states that the claimant “had to retire from his services from the temple as he has completed sixty eight years of age.”

[40]Mr Singh’s witness statement states that he reviewed the letter and did not consider it contained anything concerning. His oral evidence contradicted this in that he stated that he had not really paid attention to the contents of the letter, he had simply asked Mr Awasthi if it was OK.

[41]I do not accept Mr Singh’s assertion that he did not realise that the reference letter referred to retirement. His evidence on this was contradictory. The letter is neither lengthy nor complex. The letter was signed by Mr Singh and the word retirement was just several lines above where he signed. This letter was seen by Mr Singh and Mr Awashti. Mr Awashti created the typed version, both will have been aware of the contents and neither raised any issue with the letter stating that the claimant was retired because he had reached the age of 68.

[42]This reference letter is contemporaneous documentary evidence of the respondent’s reason for dismissal. It is a document signed by the respondent giving the reason as retirement. The respondent has argued that this document should be viewed within the context of the claimant being a revered and respected priest whom they did not want to embarrass and that the reference was a gesture of goodwill. Essentially I am asked to accept that this context led the respondent to lie in the reference letter. I do not make that finding and I do not see that it would assist the respondent if I make a finding that they are willing to lie in documents.

[43]The reference letter is contemporaneous documentary evidence of the reason in the respondent’s mind for dismissing the claimant. The contents was considered acceptable by Mr Awashti when he typed the letter and by Mr Singh when he signed the letter.

[44]In addition to the reference letter was the oral evidence of Mr Vashist that, in the meeting of January 2026 there was a vote on the non-renewal of the claimant’s contract on the basis of his age.

[45]Mr Singh made no mention at all of this meeting in his first witness statement. It is a meeting which he attended. Mr Singh accepted in oral evidence that if Mr Vashist had not attended the hearing, the Tribunal would not have been aware that the meeting took place. Whilst I do not make a finding that his omission was designed to deliberately mislead the Tribunal I prefer Mr Vashist’s evidence on this issue because of the fact that Mr Singh only disclosed the meeting after seeing Mr Vashist’s statement and I have been given no reasonable explanation for the omission of this crucial evidence. Further there were at least ten other committee members present at the meeting. The respondent did not provide evidence from any one of them.

[46]For the reasons discussed above I find that the reason in the respondent’s mind for dismissal was unilateral retirement because the claimant had reached 68 years of age and not because they believed at all that he had committed gross misconduct. The respondent has not proven that the dismissal was for a potentially fair reason. The process

[47]Mr Singh’s evidence was clear that he never spoke to the claimant about Dakshina again after 30 October 2023. Mr Singh states that Mr Awashti spoke to the claimant. The claimant denies this. No specific allegations were ever put to the claimant and he was never given the opportunity to respond to allegations. The claimant was never called to a disciplinary meeting nor specifically informed that dismissal was a possible outcome. The decision to dismiss the claimant was made in a meeting by the committee members. None of the members heard from the claimant before, during or after that meeting.

[48]In short, there was nothing like a fair process.

[49]Mr Kumar made submissions that, in the circumstances of a clear instruction being given and the claimant refusing to follow that instruction, no investigation was required. I do not agree. Whilst I accept that the committee members are all volunteers with little to no experience of employment law, Mr Singh clearly has a notion of what fairness would require as he was able to outline a fair process following an allegation being made in his oral evidence. Direct Discrimination

[50]The Head Prist is the same as the claimant in every material way except age. They are the same sex, no submissions were made that they are a different race. They attended the same meetings with the respondent about Dakshina and they both continued to take Dakshina following the meeting of 30 October 2023. The claimant was dismissed and the Head Priest was not. A younger Priest was then appointed and both he and the Head Priest, I have found, continue to receive Dakshina. This is conduct from which I could infer discrimination and is sufficient to shift the burden in the direct discrimination claim to the respondent. The less favourable treatment is the difference in how the claimant and the Head Priest were treated. The “something more” is the appointment of a younger Priest the day after the claimant’s employment ended and the current Priests being able to continue to accept Dakshina.

[51]The respondent submits that the material difference between the claimant and the Head Priest was that the Head Priest apologised for taking Dakshina and the claimant did not. I do not accept that this is a material difference. The circumstances between a comparator and a claimant need not be precisely the same. The circumstances and characteristics of the claimant and the Head Priest are close enough to enable an effective comparison. The respondent’s reason

[52]The respondent’s position is that the reason for dismissal was gross misconduct. I have found that there was no gross misconduct. Absent the respondent proving a non-discriminatory reason I find that the reason was age. Law Unfair Dismissal

Law

[53]Section 94 ERA 1996 confers on employees the right not to be unfairly dismissed, and under section 98, the employer must show that it had a potentially fair reason for the dismissal, in this case the respondent asserts conduct.

[54]Section 98(4) ERA 1996 provides that the determination of whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend 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 this shall be determined in accordance with the equity and the substantial merits of the case.

[55]The question is therefore not whether the Claimant was guilty of the misconduct, but - broadly speaking – whether it was reasonable of the Respondent to conclude that she was, and whether the dismissal was within the range of reasonable responses.

[56]The approach to misconduct dismissals is based on the decision in British Home Stores Ltd v Burchell

[1978] IRLR 379

and the following questions must be addressed :(i) Did the Respondent genuinely believe that the claimant was guilty of misconduct?

(ii) If so, was that belief based on reasonable grounds?

(iii) Had the employer carried out such investigation into the matter as was reasonable?

(iv) Did the employer follow a reasonably fair procedure?

[57]If all those requirements are met, was it within the band of reasonable responses to dismiss the Claimant rather than impose some other disciplinary sanction such as a warning?

[58]This “range of reasonable responses” test reflects the fact that whereas one employer might reasonably take one view, another might with equal reason take another.

[59]Procedural fairness is also an important aspect and in considering it Tribunals are required to consider the guidance in the ACAS Code of Practice for Disciplinary and Grievance Procedures (2015). Wrongful Dismissal

[60]Wrongful dismissal is a common-law contractual claim. The ET has jurisdiction to consider such claims by virtue of arts 3 and 4 of the Employment Tribunals Extension of Jurisdiction Order 1994.

[61]If the claim is for notice pay it must be proven that the employee had a contractual entitlement to notice of the termination of their employment. If the employee is dismissed without notice a breach of contract is established. It is for the employer to prove that it was entitled to dismiss the employee without notice.

[62]The assessment of damages for wrongful dismissal is to be done by awarding damages for the amount of remuneration that the employee had been prevented from earning by the wrongful dismissal.

[63]As a contractual claim the employee is under a duty to mitigate her loss and if the employer process that the employee failed to do so there may be a reduction in the award.

[64]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 ERA. Direct discrimination

[65]A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. 41. Section 23 EQA provides that a comparison for the purposes of Section 13 must be such that there is no material differences between the circumstances in each case. In Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

Lord Scott noted that this meant, in the majority of cases, the Tribunal will have to consider how the Claimant would have been treated if she had not had the particular protected characteristic. This is sometimes referred to as relying upon a hypothetical comparator.

[66]The Courts have long been aware of the difficulties that face Claimants in bringing discrimination claims and of the importance of drawing inferences: King v The Great Britain-China Centre

[1992] ICR 516

. Statutory provision for the reversal of the burden of proof is now made by Section 136 EQA: 67. 136 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.

[68]In Shamoon it was stated that, particularly when dealing with a hypothetical comparator, it may be appropriate to consider the reason why question first; why the treatment was afforded.

Conclusions

[69]In respect of the wrongful dismissal claim, the claimant did not commit gross misconduct and there was no breach of contract justifying termination with anything less than statutory notice.

[70]In respect of the unfair dismissal claim, the respondent has failed to prove that they believed that the claimant had committed gross misconduct and that this was the reason for which they dismissed him.

[71]In respect of the age discrimination claim, the claimant has proved facts from which the Tribunal could conclude, in the absence of another explanation, that the respondent has committed ats of discrimination and the respondent has not shown that it did not discriminate.

[72]Applying the law to the facts, I conclude as follows:(i) The reason for the dismissal was unilateral retirement because of the claimant’s age.

(ii) The claimant’s notice period was 11 weeks.

(iii) The claimant was paid for only 4 weeks.

(iv) The claimant was not guilty of gross misconduct.

(v) The respondent did serve the claimant with a termination notice on or about 30 January 2024 and dismissed the claimant. That was less favourable treatment because of age. Approved by: Employment Judge Taylor 24 February 2026 Notes All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunaldecisions shortly after a copy has been sent to the claimants and respondents. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found here: www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practicedirections/