D McFarlane Z Van Zwanenberg Mr S Murphy v SM Bayne & Co Ltd — 2021

Mr S Murphy was employed by SM Bayne & Co Ltd as Retail Operations Manager from 25 November 2014 and was 52 at the relevant time. During the early stages of the pandemic he was furloughed, and in April 2020 the respondent decided there was no business need to bring him back because significant parts of his role were tied to work that was not then operational, including new shop openings, refits, recruitment, staff development, steering groups and the suggestion scheme. The tribunal accepted the respondent's evidence that its decision reflected business need, not age, and that the respondent had never directed any lowering of employee age profiles.

On the age discrimination claim, the tribunal found no less favourable treatment because of age. It accepted that managers older and younger than the claimant existed within the retail structure, that the mistaken belief that he was shielding did not form part of the decision not to unfurlough him, and that the claimant was not selected for redundancy because of his age. Applying the statutory provisions it had set out, including s13 and s39 Equality Act 2010 and the burden of proof guidance in Madarassy v Nomura International plc, the tribunal concluded that none of the matters complained of arose in consequence of age.

On the unfair dismissal claim, the tribunal applied s98(4) and s139(1) ERA 1996 and the approach in Murray v Foyle Meats. It found that the requirements of the business for employees to carry out the kind of work done by the claimant had diminished and that his dismissal was wholly or mainly attributable to that diminution. The tribunal accepted that the respondent carried out a consultation process, that the claimant chose not to put forward substantive alternative proposals after raising concerns about furlough, and that Mr Davidson, who heard the appeal in the claimant's absence, approached it with an open and fair mind. The appeal was not upheld, and all claims failed.