R McPherson and A K Smith Mr Neir Stirrat v Healthworx Hygiene Services Ltd — 2023

Mr Neir Stirrat brought claims of age discrimination and whistleblowing detriment against Healthworx Hygiene Services Ltd. At the start of the hearing the tribunal established that the detriments relied on for the whistleblowing complaint had occurred before the alleged protected disclosure on 3 April 2023. On that basis the tribunal held that the section 47B Employment Rights Act complaint could not proceed and dismissed it.

On the age discrimination complaint, the tribunal considered allegations about additional holidays being removed, alleged comments about retirement, changes to the claimant's role and hours, the deletion of the Service Manager role, the offer of a Service Driver role, the failure to obtain the Service Co-ordinator Manager role, and the way the investigation and grievance matters were handled. The tribunal accepted Mr John Alexander's evidence that additional holidays had been granted to the three managers and later removed from all three, so the claimant was not treated differently from others in that respect.

The tribunal preferred Mr Alexander's evidence on the alleged retirement comments and found that the comments had not been established as the claimant alleged. It accepted that the business was restructured because Mr Alexander intended to step back, that the Service Manager role was subsumed into the new General Manager role, and that the claimant met Mr Alexander on 26 October 2022, was offered the role of Service Driver, and agreed to move from four days to five days a week from 1 December 2022 without loss of salary. The tribunal also found that the claimant did not apply for the Service Co-ordinator Manager role, and that the suggestion that he work part time while helping his wife recover from a stroke was unrelated to age.

The tribunal further found that the claimant had not shown less favourable treatment in relation to the investigation and grievance issues, or any basis for concluding that age was the reason for the treatment complained of. It noted that the claimant accepted the incidents under investigation had occurred, that Mr Alexander had been ill in May and in Cyprus during June, and that these circumstances explained the delay. The tribunal concluded that a hypothetical comparator would have been treated no differently, and therefore dismissed the age discrimination claim. The respondent's time limit argument was not determined because the claim failed on the merits.