John Martin First v Prudential Distribution Limited Second Respondent: David MacMillan Third Respondent: Robert Hickson Fourth Respondent: David Ellis — 2020

The claimant, an account director in the Key Accounts team, was selected for redundancy after a restructuring in Wealth Solutions. The tribunal accepted that the business was genuinely restructuring and that the claimant and Mr Sangster were the only Grade 4 account directors without management responsibilities, while Mr Mutch was a Grade 3 director and Mr Ellis had a management role. It rejected the direct age discrimination claim, holding that the pooling decision was driven by grade and role structure rather than age, and that a hypothetical younger Grade 4 director would have been pooled in the same way.

On unfair dismissal, the tribunal held that the redundancy pool was outside the range of reasonable responses. It found that the claimant, Mr Sangster and Mr Mutch were doing the same or very substantially the same work, that the grade differences reflected seniority and pay rather than duties, and that the employer had not genuinely applied its mind to whether Mr Mutch should have been included. The tribunal also found that HR and management were concerned about salary protection and that Mr Hickson was more involved in the decision than his written evidence suggested. The dismissal was therefore unfair under s.94 ERA 1996, although the tribunal did not find unfairness in consultation, scoring or alternative employment.

The whistleblowing claims failed. The tribunal considered three emails about the HSBC tender and held that, even taking the claimant's professional background into account, they did not amount to qualifying disclosures under s.43B ERA 1996: they did not identify a criminal offence or a sufficiently clear breach of legal obligation, and they were better understood as commercial concerns about the tender process and the banking relationship. The s.47B detriment claims were dismissed because the response was to the way the emails were escalated to senior executives, not to any protected disclosure; the s.103A / s.105(6A) dismissal claim was also dismissed.

The tribunal upheld the Q1 bonus claim. It found the claimant was entitled to the full bonus of £10,800, rejected the respondent's case that the scorecard fails justified a 50% reduction, and held that the failure to progress the grievance was an unreasonable failure to comply with the ACAS Code, so the bonus-related compensation should be increased by 25% under s.207A TULRCA 1992. The separate notice-pay claim failed because the later notice letters created an entitlement to 12 weeks' notice from 27 December 2018, and the claimant was paid for the notice period actually required.

The victimisation and disability discrimination claims were withdrawn and dismissed on withdrawal, and the ss.111-112 EqA claims were dismissed because they were not pursued. A further remedy hearing was listed for January 2021 on the remaining unfair dismissal compensation if the parties could not agree it.