K Button v Q Despatch Ltd (t/a On Cue Transport) — 2021

The claimant, K Button, pursued a direct sex discrimination claim against Q Despatch Ltd (t/a On Cue Transport). The tribunal noted that her unfair dismissal and statutory redundancy payment claims had already been withdrawn and dismissed on 19 March 2021 because she did not have the required length of service. The reserved judgment therefore concerned whether her redundancy selection and dismissal were because of sex.

The tribunal accepted that Mr Brose made the offensive remarks the claimant complained of in management meetings and found that he had also spoken to male colleagues in a similarly direct and swear-laden way when dissatisfied with performance. It found that the 24 March 2020 video meeting was a difficult conversation about redundancy and furlough, but did not accept that Mr Brose's conduct was aggressive or intimidating. The tribunal also found that the request to return the claimant's laptop and phone when she was furloughed involved different treatment from Mr Batten, but accepted the respondent's explanation that his laptop was needed for business reasons. It rejected the claim that she had been accused of being unreasonable and rejected the allegation that dismissal was because she had applied to be a foster carer.

On the redundancy process, the tribunal found that the claimant's role was a stand-alone role and that Mr Batten was not in materially the same circumstances for redundancy selection because he was not doing the same role and was not pooled with her. It criticised the scoring exercise comparing the claimant with Mr Batten as incorrect, superficial and inaccurate, and said that it would have caused difficulty for an unfair dismissal claim, but held that this did not establish sex discrimination. The tribunal found that the respondent's explanation was that the B2C business had collapsed during the pandemic, the claimant's role had disappeared, and she would have been dismissed in March 2020 if furlough had not been used.

The tribunal also considered the Gender List it had requested. It found that the respondent was a male-dominated organisation and that the figures were sufficient to raise the issue of sex discrimination at the burden-of-proof stage. Even so, after accepting the respondent's evidence about the business downturn, the stand-alone nature of the role, and the redundancy rationale, it held that the treatment complained of was not because of sex. The direct sex discrimination claim was dismissed and no remedy hearing was needed.