Mr D Finch v Clegg Gifford & Co Ltd and 1 other — 2022

The claimant, Mr D Finch, was accepted as disabled and was 66 at the effective date of termination. The tribunal recorded long-standing health conditions including heart disease, angina, anaemia, kidney disease, hypertension and type 2 diabetes. It dismissed the age and disability direct discrimination claims arising from the laptop/homeworking decision, the furlough decision, and the later redundancy discussions, finding that the Respondents were acting in the context of Covid-19 and business prioritisation rather than because of age or disability.

On harassment, the tribunal found that some remarks by Shirley Bellamy were unwanted conduct related to disability. It held that comments to the effect that the claimant was 'planning a nap' or 'going to fall asleep', and the March 2020 remark that he 'may not be around in September or October', were capable of creating a humiliating or degrading environment and were objectively reasonable to have that effect. It rejected other alleged harassment heads, including the 'young man' allegation and other age-related and furlough-related complaints that were not made out.

The tribunal also found age-related harassment in the 21 July 2020 'Pontius Pilate' email, which it held was objectively capable of being offensive and linked to the claimant's age. It rejected the separate age and disability discrimination complaints about the July 2020 redundancy/settlement discussions, including the complaint that Shirley Bellamy had failed to explain the redundancy, and it found no disability-based detriment in the furlough or redundancy communications themselves.

The 23 September 2020 email withdrawing the severance agreement and requiring the claimant to return to work on 1 October 2020 was held to be victimisation because it followed the claimant's protected act in the 20 August 2020 solicitor's letter before action. The tribunal found that, taken together with the successful harassment findings, these matters amounted to constructive dismissal based on discrimination and also to constructive unfair dismissal under the ERA. A remedy hearing was directed; the tribunal said Polkey would likely arise on future loss and that injury to feelings and any apportionment, including any personal liability point, would need to be determined later.