MR CATHAL McDONNELL v A M Surveying and Property Services Limited — 2021

The claimant started work on 2 January 2018 and was dismissed with notice pay in lieu on 10 July 2019. The tribunal recorded that the unfair dismissal claim had been withdrawn at the preliminary hearing because he did not have two years' qualifying service, and it noted that any such dismissal would have been procedurally unfair if the claim had been available.

The main remaining claim was direct discrimination by reason of religion or belief. The claimant said he was dismissed so that he could be replaced by Beth Lawrence, a Jehovah's Witness, and relied on the fact that the respondent's managing director and some family members were Jehovah's Witnesses. Applying s.13 Equality Act 2010 and the burden of proof approach in Igen Limited v Wong, the tribunal found that the claimant had not raised the Jehovah's Witness point at the 4 July 2019 meeting, in his 10 July grievance, or in his appeal, and that his explanation about stress did not account for that omission.

The tribunal accepted the respondent's evidence that dismissal followed documented performance concerns, including appraisals, complaints, and loss of contracts, and that Matthew Mackintosh had lost trust and confidence in the claimant's performance. It found that Beth Lawrence had been recruited into a junior property management assistant role, which the claimant accepted was junior to his own role, and that later recruitment and promotion decisions, including the promotion of Zach and the hiring and promotion of Abi, did not support the replacement theory. The discrimination claim was dismissed.

The tribunal also dismissed victimisation. It found there had been no protected act before the ET1 and no later act capable of amounting to victimisation, and it therefore treated that claim as not made out. By consent, the tribunal awarded outstanding holiday pay of £172.55.