Mr N Burton (1) Ms L de Souza (2) v Decision Logic Ltd and 3 others — 2021

The tribunal found that R2 was the Claimants' employer and that their employment began on 1 January 2018, following an onboarding process in which they moved from contractor to employee status. It also held that the direct discrimination claims were in time because the Claimants said they only appreciated Mr Fish's role from the organisation chart in late June 2019, not from earlier references on LinkedIn.

The age and sex discrimination claims were dismissed. The tribunal held that the Claimants were not treated less favourably because of age or sex when they were not invited to apply for the Head of Sales role. It accepted the respondents' explanation that Mr Miles appointed Mr Fish to manage the sales department and the Claimants' performance, and found the age difference between Mr Fish and the proposed comparator too small to support an inference of age discrimination. It also found the sex claim unsupported and noted that the respondents had appointed women to senior roles and had previously offered other roles to the Claimants.

The victimisation claim also failed. The tribunal accepted that the Claimants had made protected acts between 2 July and 13 August 2019, but rejected each alleged detriment, including alleged threats of dismissal, the appointment of Ms Mitchell to hear grievances, individual performance targets, companion arrangements, refusal to take further grievances, and the handling of performance review and SAR issues. It held that the performance concerns pre-dated the protected acts and that the respondents' responses were reasonable management actions rather than conduct because of the grievances.

On whistleblowing and the asserted statutory-right dismissal, the tribunal accepted that the Claimants had made protected disclosures to a previous employer, and that an internal concern about an uncapped whistleblowing claim had briefly arisen in September 2019, but held that this was not the reason or principal reason for their resignation. It also held that the complaint about asserting the right to written particulars under s.1 ERA 1996 was not the reason or principal reason for the dismissal.

The constructive dismissal claim failed because the tribunal found no repudiatory breach of contract and no breach of the implied term of trust and confidence. Applying Western Excavating and Mahmud v BCCI, it held that Mr Sawyer's wording in the 4 December 2019 grievance outcome was clumsy but was not an accusation of lying, that the Claimants did not raise the point immediately, and that there was no genuine last straw. It also rejected the broader allegations of unfair investigation and collusion, found that the handbook was not contractual for the equal-opportunities wording relied on, and therefore rejected the breach of contract claim. Because there was no constructive dismissal, the wrongful dismissal / notice-pay claim failed, and the separate Employment Act 2002 written-particulars complaint also failed. No monetary award was made.