ETZ 4(WR) IN THE EMPLOYMENT TRIBUNAL (SCOTLAND) AT EDINBURGH Judgment of the Employment Tribunal in Case No: 8000049/2023 Issued Following Final Hearing Held at Edinburgh in terms of Rule 47, on the th and th August 2023 Employment Judge J G d’Inverno Members: Ms J Chalmers Mr T Lithgow Mr Anthony Cullinane v Respondent — 2023

At the closed preliminary hearing on 19 April 2023, the tribunal dismissed the unfair dismissal complaint for want of jurisdiction because the claimant did not have the qualifying two years' continuous employment. The respondent was then ordered to provide calculations for the notice-pay and holiday-pay heads, and when the claimant did not respond as directed those section 13 complaints were struck out under Rule 38(1) on 11 August 2023.

The final hearing on 16 and 17 August 2023 proceeded in the claimant's absence after attempts to contact him failed. The tribunal heard evidence from Mr David Newstead and Ms M Suniega, found both witnesses credible and reliable, and accepted their evidence. It found that the claimant, born on 14 February 1958, had been employed as a Modification Technician from 4 July 2022, subject to a six-month probationary regime and the same written terms as the younger comparators relied on in the claim.

On the remaining age discrimination claim, the tribunal found that the claimant's dismissal followed his refusal to engage with concerns identified during his probationary reviews and his refusal to accept a three-month extension of probation. It held that he had not established primary facts from which discriminatory motive could be inferred under the section 136 burden-shifting approach, and that the reason for dismissal was wholly unconnected with age. The tribunal also found that the comparators' circumstances were not otherwise substantially the same, because they had engaged with the review process and had reached satisfactory or strength levels by their six-month reviews. The age discrimination claim was therefore dismissed.