Kathryn Duff has successfully represented a 66 year old building surveyor



Mr M Holden v Roalco Ltd

Kathryn Duff has successfully represented a 66 year old building surveyor who accused his employer of direct age discrimination and unfair dismissal by way of unfair selection for redundancy.

The Claimant was awarded nearly £40,000 damages, including £13,600 Injury to feelings award in relation to the age discrimination.

Background

The Respondent was found guilty by the Employment Tribunal of direct age discrimination and unfair dismissal when they made the Claimant redundant in March 2014. The Claimant was an exemplary employee who had worked for the Respondent for 7 years without ever taking a day off sick. In November 2013 the Respondent discovered it was making significant losses and placed pressure on the Claimant (who was then aged 66) to retire. When he refused, the Claimant was the only employee selected for redundancy, and, following a sham redundancy procedure, he was dismissed five months later.

Age Discrimination

The ET concluded at:

Para 6.1: The Tribunal is satisfied that the Claimant has proved on the balance of probabilities facts from which the Tribunal could conclude that the Respondent did commit acts of direct discrimination against the Claimant because of his age. These facts are the pressuring of the Claimant to retire by Mrs Clarke on 2 October 2013, her comments in a toolbox meeting in late September which were passed onto the Claimant and her email correspondence on 3 October 2013 [in which the Claimant’s manager had told him she needed a decision from him regarding retirement, otherwise she would ‘have decisions to make by Monday which may affect guys with young families’]. The Respondent is liable for these acts of Mrs Clarke. Furthermore the Claimant has proved he was side-lined from the facts set out in this judgment. The Respondent’s explanation for these facts, namely that Mrs Clarke was not authorised to pressure the Claimant into retirement and their assertion of the role of Mr Heavey at Eastcote is rejected by the tribunal Not only has the Respondent failed to satisfy the Tribunal that no part of the above treatment was because of the Claimant’s age, the Tribunal is satisfied it was because of his age.

Unfair Dismissal

The ET concluded at:

Para 6.4 – 6.6: The Tribunal is also satisfied that the principal reason for the Claimant’s dismissal was redundancy but a significant secondary reason was his age. The Respondent did not adopt a fair basis for selecting the Claimant for redundancy. The selection pool should have included Mr Heavey as he did a similar job to the Claimant. The assessment actually carried out by Mr Steve Risley was totally inappropriate and unfair…The Tribunal concludes the redundancy procedure adopted was a sham intended to remove the claimant as an employee and to ensure the retention of Mr Heavey.

Damages

The Claimant was awarded nearly £40,000, £13,600 of which was an injury to feelings award in relation to age discrimination. The Tribunal refused to make a Polkey reduction on the basis that it ‘had no evidence adduced by the Respondent…and in the Tribunal’s view it can make no sensible prediction as to what might have been’ (para 8). The Tribunal calculated that significant secondary reason of age for the Claimant’s dismissal stood at 45%, and thus reduced the element of the injury to feelings award for this act (which would have been £8,000) by the same amount to £3,600.


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