Miss H Platt (counsel) For the v Respondent — 2021

The claimant, Mr M Richards, worked for Brocade from 2004 until his redundancy dismissal on 31 December 2017. He had renal cancer, which the respondent knew about throughout, and he was 59 when dismissed. The tribunal found that after Broadcom announced its intended acquisition, Brocade carried out an alignment exercise to place employees into SAN or IP General business units. That exercise was not governed by a written policy or objective criteria, and senior managers made ad hoc decisions about who would remain aligned to SAN. The claimant was initially aligned to SAN, but in February 2017 he was moved to IP General and later treated as at risk of redundancy.

The tribunal upheld the disability reasonable adjustments complaint. It found the respondent applied a redundancy/alignment PCP that placed the claimant at a substantial disadvantage because dismissal would mean loss of long-standing private medical insurance and life cover, which had particular consequences for his health and treatment. Reasonable adjustments should have included objective and consistent criteria for the alignment decision, consultation with the claimant at the alignment stage, and offering a modified or new role so that he could remain aligned to SAN. The tribunal relied on the claimant's earlier discussion with Mr Jewell about reducing his role to keep his employment, and on the fact that Ms Gardham and Mr Schneider had their roles altered to remain in SAN.

The unfair dismissal claim also succeeded. Although the tribunal accepted there was a genuine redundancy situation, it held that the dismissal was outside the range of reasonable responses because the respondent did not meaningfully consult at the alignment stage, used no transparent selection criteria, failed to consider suitable alternative employment or bumping consistently, and did not make the reasonable adjustments it ought to have made. By contrast, the direct disability and direct age discrimination claims failed because the tribunal found no evidence that the claimant was treated less favourably because of disability or age; the problem was the absence of proper consideration of disability, not discriminatory motive. The indirect disability and indirect age discrimination claims failed because the claimant did not lead evidence of group disadvantage. Remedy was not determined in this judgment, and a separate remedy hearing was to be listed.