Mr J Holding v Omega plc — 2022

The claimant worked in the respondent's paint shop and was a health and safety representative. He relied on a series of events, including an email from Mr Spurr on 25 September 2019 describing him as a "main protagonist" and as having "whipped" others up, as part of a constructive dismissal case. The tribunal accepted that the email was written in frustration, but found that it was not conduct calculated or likely to destroy trust and confidence, and that there was reasonable and proper cause for the criticism. It also found no evidence that age played any part in that criticism.

When the respondent phased employees back from furlough during the pandemic, the tribunal accepted that the decision-maker used a skills-based approach. The claimant had not been signed off as trained and competent on the water-based paint line, so he was not brought back before employees who could work on both paint lines. The tribunal found that this decision, and the later redundancy scoring exercise, were driven by the respondent's assessment of skills and business need, not by the claimant's health and safety activities. It accepted that the redundancy process was genuine, that the criteria were set for legitimate reasons, and that the claimant was rescored by additional managers after he challenged the first assessment.

The claimant later moved to the warehouse on a four-week trial, which was extended, and then resigned by email on 15 October 2020 because he did not want to lose the redundancy payment while the trial continued. The tribunal found that criticism of his pick-rate performance had reasonable and proper cause, that the cumulative matters relied on did not amount to a breach of the implied term of trust and confidence, and that the claimant had in any event affirmed the contract by continuing with the warehouse trial. It therefore rejected the unfair dismissal complaint, including the automatic unfair dismissal argument based on health and safety activity, and recorded that no dismissal had been shown.

On indirect age discrimination, the claimant said the redundancy scoring practice favoured employees with recent experience of work and disadvantaged those in the 50-plus age group. The tribunal found no evidence of such a PCP being applied in the way alleged, and the statistical material did not show a bias towards older or younger workers. It noted that one employee over 50 had been returned from furlough earlier and that two employees in the 50-plus group, including Mr Clamp, remained in employment after successful warehouse trials. The claim of indirect age discrimination was dismissed. No monetary award was made.