Mr M Lambert v And 1 Sunsquare Limited 2 Mr J Seldis Held by CVP and in person at Bury St Edmunds on 20 to 24 September 2021 — 2021

The tribunal rejected the direct and indirect age discrimination claims. It found that the decision to propose redundancy was grounded in poor trading in 2019, cost cutting, the company’s financial position, the MBO discussions, and the view that the sales director role would no longer exist, rather than age. The comment on 3 January 2020 that the claimant would be "fine on all fronts" at 42 was treated as a reference to future prospects and his medical situation, not as evidence that age caused the redundancy decision.

The victimisation claim succeeded. The tribunal accepted that the 9 January 2020 solicitor’s letter alleging age discrimination was a protected act, and found that moving the claimant from full pay to statutory sick pay on the following day was done in retaliation for that protected act. It relied on the short time gap, the prior discretionary practice on sick pay, and the absence of evidence that senior managers were routinely restricted to SSP.

The tribunal held that the cumulative conduct of the First Respondent amounted to a repudiatory breach of contract and that the claimant resigned promptly on 28 January 2020, so he was constructively and unfairly dismissed. The matters relied on included the unilateral redundancy announcement, the garden leave decision, the way the disciplinary investigation was opened and pursued, the withholding of allegations and supporting material, short deadlines, the threat to call the police, refusal to accept his sickness certificates for meetings, and the handling of his grievance. It accepted that there were genuine concerns justifying an investigation after 6 January 2020, but found the process and correspondence fundamentally flawed and likely to have been unfair if it had proceeded to a disciplinary hearing.

The unlawful deduction claim failed because the claimant did not establish that any wages had been deducted. The First Respondent’s breach of contract counterclaim was struck out for want of jurisdiction. No remedy was assessed in this liability judgment; the tribunal said a remedy hearing would follow if the parties could not resolve matters.