Mr J Susskin, Counsel For the v Respondent — 2022

The tribunal heard the case remotely and held that the Fourth Respondent was the claimant's employer under the August 2018 contract, while the First Respondent was not the employer but could be liable as an agent for certain acts. It recorded that direct race discrimination and race harassment were withdrawn, and it held that the earlier age and section 111 allegations were out of time, that no continuing act was made out, and that time would not be extended under section 123 EqA. The right-to-be-accompanied complaint was also dismissed as out of time.

On the facts, the tribunal found that Mr Andre made comments in February 2018 about millennials and called the claimant an "old fossil" who did not know how to deal with millennials. It also found a strong focus within the business on recruiting younger candidates, including a push for candidates under 45 for management roles below the GEC and a succession-planning emphasis on "runway". The tribunal found that Mr Andre decided by the end of February 2019 that the claimant would be replaced, but did not tell him this until 1 August 2019, and that the claimant had not been given a clear warning or a formal performance process.

The unfair dismissal claim succeeded because the tribunal found the dismissal to be outside the range of reasonable responses. It rejected the respondents' attempt to characterise the case as a trust-and-confidence dismissal and held that the reasons later given did not match the true basis on which the decision had crystallised. The tribunal found that the claimant was dismissed without advance warning, without a proper opportunity to improve, and without a fair procedure, and it did not finally determine Polkey at liability, leaving remedy for the later hearing.

The direct age discrimination claim succeeded only in relation to allegation 18, the decision to dismiss. The tribunal held that age was one factor in the dismissal decision, alongside performance concerns and disagreement over business strategy, and that a hypothetical manager in his or her 40s would likely have been treated more patiently. Other age discrimination allegations, including the indirect age discrimination case and later post-dismissal allegations, failed or were out of time. The tribunal also found that the employer's recruitment and succession planning aims were legitimate in principle, but that they did not justify the dismissal in the manner it occurred.

The tribunal also upheld the victimisation and protected-disclosure detriment claims. It found that the 1 October 2019 grievance and appeal, and the 9 March 2020 appeal, were protected acts and protected disclosures, that the grievance was not properly routed to the Board as the contract required, that the investigation was superficial and delayed, that the appeal was refused as out of time, and that the claimant was refused good-leaver status because of the allegations he had raised. Those detriments succeeded under both victimisation and whistleblowing. Remedy was reserved to the later hearing listed for May 2022.