: E Farrell S Larkin Mr W Brown v Represented by: Mr E Mowat Solicitor Hayward Contracts Ltd — 2021

The claimant, a fencer, was employed from 25 September 2018 until his dismissal on 16 March 2020, when he was 64. He brought claims of direct age discrimination, indirect age discrimination, age harassment, discrimination arising from disability, disability harassment, unfair dismissal, notice pay, holiday pay and wages. At the start of the hearing he accepted there had not been a TUPE transfer, so the unfair dismissal and notice pay claims were withdrawn; the holiday pay and wages claims were sisted for 28 days to allow settlement discussions.

The tribunal accepted that the respondent had raised concerns about the claimant's workmanship before the disciplinary process, including a letter of concern, a verbal warning and client complaints. It found the dismissal was because the level of complaints had escalated and his position had become untenable, not because of age. It rejected the direct age discrimination claim, found no primary facts from which to infer age was the reason for dismissal, rejected the indirect age discrimination claim because no PCP requiring a minimum speed was proved, and rejected the section 15 claim because the dismissal was for shoddy workmanship rather than something arising in consequence of disability.

On the harassment claims, the tribunal found that comments made by Ms Hay at the disciplinary meeting about age and slowness did not create an offensive environment. It did, however, uphold the disability harassment claim in relation to Ms Hay's comment about the claimant's sore hands during a period when he was off work with gout. The tribunal awarded £1,154.70 for 12 weeks' loss and £1,000 for injury to feelings, declined to apply any ACAS uplift, and made no award for failure to provide written employment particulars because it found particulars had been issued by post.