Mr A Gosling v Field Sales Solutions Ltd: 3324916/2017
| Judgment Date | 16 November 2018 |
| Citation | 3324916/2017 |
| Published date | 26 November 2018 |
| Court | Employment Tribunal |
| Subject Matter | Age Discrimination |
Case Number: 3324916/2017
1
EMPLOYMENT TRIBUNALS
Claimant Respondents
Mr A Gosling
v
Field Sales Solutions Limited
Heard at: Watford On: 22-25 October 2018
and, in private, 31 October 2018
Before: Employment Judge Hyams Members: Ms A Brosnan
Ms J Smith
Appearances:
For the Claimant: In person
For the Respondent: Mr Deshpal Panesar, of Counsel
RESERVED JUDGMENT
(1) The claimant’s dismissal was for redundancy. He is therefore entitled to a
redundancy payment calculated in accordance with Part XI of the
Employment Rights Act 1996.
(2) The claimant’s dismissal was not unfair.
(3) The claimant was not discriminated against because of his age.
(4) At the start of the hearing, the respondent owed the claimant unpaid holiday in
the sum of £127.50 which it has now paid the claimant. The respondent
otherwise owed the claimant nothing by way of unpaid wages or expenses.
Case Number: 3324916/2017
2
REASONS
Introduction; the claims which were before us
1 In these proceedings, the claimant claims that he was dismissed unfairly, that he
was discriminated against because of his age, and that the respondent owes him
unpaid wages and expenses of various sorts. The claimant’s employment with
the respondent ended on 3 March 2017, and the respondent accepted that it had
dismissed the claimant. Its case was that he had been dismissed for some other
substantial reason within the meaning of section 98(1)(a) of the Employment
Rights Act 1996 (“ERA 1996”), after a reorganisation of the part of the
respondent’s business in which he worked. We return to the claims and state
them as they stood by the end of the hearing before us on 22-25 October 2018
in more detail below, after stating our findings of fact.
2 We heard oral evidence from the claimant on his own behalf and from the
following witnesses on behalf of the respondent: (1) Mr Luke Sandy, Account
Manager; (2) Mrs Aisling Green, the respondent’s Human Resources (“HR”)
Director; (3) Mrs Kirstie Adams, Regional Field Manager; (4) Ms Louise James,
who was an Account Director for the respondent until 2018; and (5) Mr Paul
Spicer, Group Finance Director. We had before us in addition a bundle which, by
25 October 2018, had 970 pages. The claimant put before us in addition several
documents described by him as witness statements, sometimes in the form of
emails, at other times in the form of a response to a questionnaire which he had
written. There was also a transcript made by the respondent of a telephone
conversation that the claimant had had with Ms James in October 2016 and
which he had, without Ms James’ knowledge, recorded on his mobile telephone.
3 Having heard that evidence and seen those documents, we made the following
findings of fact. Where there was a material conflict of evidence, we refer to it
below and state how we resolved it. We do not refer to all of the facts, merely
those which it was necessary to find in order to arrive at our conclusions on the
claims as they stood at the end of the hearing on 25 October 2018.
The facts
(1) The events in sequence
4 The claimant worked for the respondent for a period until 2008, when he
resigned from his employment as a Team Manager. He worked elsewhere
before returning to the respondent’s employment, to work as a Regional
Manager, working for one of the respondent’s clients, The Health Lottery (“THL”).
That employment commenced on 23 June 2014.
5 The respondent provides a range of sales and related services (such as in
relation to lottery tickets) to businesses. Those services are provided by
Case Number: 3324916/2017
3
employees who might in the past have been called sales representatives, but
given the development of national and local lotteries whose tickets are sold in a
number of retail outlets around the country and the fact that the sale of such
tickets is regulated by the United Kingdom Gambling Commission, the
respondent used the term “Brand Ambassador” (“BA”) to describe the role of the
employees who provide those services “in the field”.
6 The work done by the respondent for THL was a mixture of sales and regulatory
work. The claimant, as a Regional Manager, managed a team of BAs who
provided the services for which THL had contracted with the respondent. He did
not have any manager to assist him in doing so.
7 THL is, according to the evidence of Mr Sandy (in paragraph 3 of his witness
statement), “made up of 51 different local society lotteries, each representing at
least one local authority within England, Scotland and Wales”. As Mr Sandy
continued:
“Each society lottery is licen[s]ed by the Gambling Commission and operates
as an individual Community Interest Company. This means THL is subject to
stringent licence conditions from the Gambling Commission and relies
heavily on Brand Ambassadors to visit store locations to ensure that they are
compliant with the conditions of its licence.”
We accepted that evidence of Mr Sandy.
8 Until the end of 2015, THL paid the respondent a fee for the work done by the
respondent for THL. As from the beginning of 2016, however, THL paid the
respondent per call actually made by a BA to a retail outlet at which THL tickets
were sold. The respondent at that time carried out a reorganisation of the
workforce dedicated to servicing the respondent’s contract with THL. That
reorganisation led to a reduction in the number of Regional Managers. When the
claimant was appointed to that role, there were five such managers. At the
beginning of 2016, the respondent reduced the number of such managers to
three. The number of regions was also reduced, from five to three. As part of the
reorganisation, the post of Team Leader was introduced. The Team Leaders
were appointed to spend four days per week as a BA, and one day per week
assisting the Regional Manager. There were four Team Leaders. The software
which the respondent used for determining the routes that BAs should follow in
making their calls to retail outlets was called CACI, and that software also
identified ideal locations for the placements of the Team Leaders and Regional
Managers under the new structure. Those locations were shown in the email at
page 125A of the bundle. The ideal locations for the Regional Managers were
Manchester, Nottingham and Basingstoke. For the Team Leader post, they were
Glasgow, Crewe, Braintree and Bristol.
9 The hourly rate of pay for a Regional Manager was £12.15. The hourly rate of
pay for a BA was £8.00. The hourly rate of pay for a Team Leader was (it was
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