Mr K Cook v Gentoo Group Limited Heard: Remotely (by video link) — 2019

Mr Cook had worked for Gentoo Group Limited since 1992 and was dismissed for redundancy on 16 May 2019 following a restructure away from the client/contractor model. The tribunal found that the pension issue was central: if his employment had ended on or after his 55th birthday, 11 August 2019, he would have kept unreduced LGPS benefits, and the tribunal accepted evidence that preserving those rights would have cost the respondent about £80,000 and protected pension income of about £3,500 a year.

On the whistleblowing claims, the tribunal rejected the claimant's evidence that he made protected disclosures at the SMT meetings on 10 January, 8 February and 4 March 2019. It preferred the contemporaneous minutes and the respondent witnesses, and found that the meetings did not contain the disclosures alleged. The tribunal said the claimant had retrospectively reworked later documents into an account of earlier whistleblowing.

The grievance dated 16 May 2019 contained detailed allegations about gas safety, electrical testing and fire safety that were capable of amounting to qualifying disclosures, but the tribunal held that they were made only in the claimant's own interest and not in the public interest. The water hygiene allegation lacked sufficient factual content and did not tend to show a relevant legal failure. Because no protected disclosure was made, the section 103A automatic unfair dismissal claim and the section 47B detriment claim both failed.

On ordinary unfair dismissal, the tribunal accepted that redundancy was the principal reason and that the restructure was genuine, with a subsidiary reason being the claimant's working relationships with colleagues. It nevertheless found the dismissal unfair because the respondent failed to properly consider suitable alternative employment, including the Compliance Delivery Contract Manager role, and because there were defects in consultation and in the handling of the claimant's sickness absence. The appeal review did not cure those defects.

In remedy terms, the tribunal said there would have been a 100% chance of a fair dismissal by 6 June 2019 if a fair process had been followed. It found contributory conduct reductions of 15% for delay, 25% for the claimant's pre-dismissal conduct, and 50% for the undisclosed Q3 regulatory failure, making a total reduction of 90%. It also said no basic award was payable because the claimant had already received an enhanced redundancy payment, but it did not fix a final monetary award in this liability judgment.

On direct age discrimination, the tribunal found that the respondent had timed the dismissal so that it ended before the claimant's 55th birthday and therefore avoided enhanced pension terms, which it treated as a detriment. However, it held that Messrs Wood and Caine were not proper comparators because they held different jobs, were in a different department and had engaged with the redundancy process differently. In the alternative, the tribunal said the timing would have been a proportionate means of achieving a legitimate aim. The age discrimination claim was dismissed.