Tim Dracass, Counsel For the v Respondent — 2022

The tribunal dismissed the claimant's direct age discrimination case. It found that Mr Wylde did make the comments alleged when explaining the appointment of Mr Tyerman as CEO, but held that the remarks did not amount to a detriment on the facts and that the complaint was also out of time. The tribunal rejected the other age allegations, including the complaints about redundancy consultation, exclusion from pitches, late salary payments, expenses scrutiny, recruitment exclusion, and the selection for redundancy and dismissal.

On unfair dismissal, the majority held that the principal reason for dismissal was redundancy. It accepted that the Respondent's financial position had worsened and that the pandemic affected the business, but found that the redundancy exercise was unfair because it was driven to a degree towards the claimant from the outset, and because the claimant was not given a proper opportunity to understand and challenge the subjective scoring process used to select him. The tribunal accepted that the pool and some elements of consultation were reasonable, but found the process lacked sufficient transparency, particularly where the claimant was being compared with employees of very different lengths of service.

Dr Weerasinge dissented on the redundancy point, concluding that no genuine redundancy situation had been shown and that the dismissal should instead be treated as lacking a fair and genuine redundancy basis. On the majority view, however, the dismissal was unfair rather than discriminatory, because the tribunal did not infer that age was the reason for the selection or dismissal.

At the remedy hearing in October 2022, the tribunal recorded that the claimant had already received a statutory redundancy payment, so no basic award was sought. It assessed the claimant's total loss at £121,147.67, then applied the majority's 80% Polkey deduction to arrive at a compensatory award of £24,229.53. The tribunal did not gross the figure up because it was under £30,000, ordered payment within 14 days of proof of VAT registration steps from 12 August 2020 onwards, and awarded £1,400 costs separately.