Mr M Lambert v Sunsquare Ltd and Mr J Seldis: 3304163/2020
| Judgment Date | 25 October 2021 |
| Date | 25 October 2021 |
| Published date | 26 November 2021 |
| Court | Employment Tribunal |
| Subject Matter | Unfair Dismissal |
Case Number: 3304163/2020
1
MK
EMPLOYMENT TRIBUNALS
BETWEEN
Claimant Respondents
Mr M Lambert and 1 Sunsquare Limited
2 Mr J Seldis
Held by CVP and in person at Bury St Edmunds on 20 to 24 September 2021
Representation Claimant: Mr H Dhorajiwala, Counsel
Respondents: Ms B Omotosho, Consultant
Mr J Seldis, Director
Members: Ms J Buck
Employment Judge Kurrein Ms S Williams
Statement on behalf of the Senior President of Tribunals
This has been a partly remote hearing. A full face to face hearing was not held
because it was not practicable and all issues could be determined in a partly remote
hearing. The documents that we were referred to are in a bundle of over 200 pages,
which was added to in the course of the hearing, the contents of which I have
recorded.
JUDGMENT
1 The Respondents have victimised the Claimant.
2 The First Respondent has unfairly constructively dismissed the Claimant.
3 The Claimant’s claims alleging direct and indirect age discrimination are not
well founded and must be dismissed.
4 The Claimant’s claims alleging unauthorised deductions are not well founded
and must be dismissed.
5 The First Respondent’s counterclaim is struck out as there is no jurisdiction to
hear it.
Case Number: 3304163/2020
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REASONS
Background
1 At a telephone hearing on 14 January 2021 EJ Kurrein gave comprehensive
directions for the further conduct of this case including requirements for
disclosure and inspection to take place by 20 February 2021, a bundle to be
provided by the Respondent in a defined format by 26 March 2021, and for
witness statements to be simultaneously exchanged on 23 April 2021.
2 None of those directions were complied with, and neither party sought leave
to vary them.
3 The case was listed for a date to be fixed to be heard at either Bury St
Edmunds employment tribunal and/or by CVP.
4 The issues were defined as follows:-
1. Are the Claimant’s claims for dir ect age discrimination against the Second
Respondent (concerning the comment allegedly made by the Second Respondent
to the Claimant on 3rd January 2020) out of time?
2. Does the claim referred to in the paragraph above relate to conduct extending
over a period which is to be treated as done at the end of that period?
Accordingly, is such a claim brought in time?
3. If not, in each case, is it just and equitable to extend time?
Constructive dismissal (sections 94-98 of the Employment Rights Act 1996)
4. Was there a breach of the implied and/or express terms by the First Respondent
allegedly doing the following:
a. Advising the Claimant that he would be made redundant without any
consultation on 3rd January;
b. Advising the Claimant on 3rd January, that his age was a factor in the decision
to make him redundant;
c. Placing the Claimant on gardening leave;
d. Commencing an unfounded disciplinary investigation;
e. Alleging various statements against the Claimant but not providing them;
f. Demanding that company property be returned and on short timescales;
g. Threatening the Claimant with the police;
h. Refusing to accept the Claimant was unable to attend meetings;
i. Refusing to obtain any independent medical advice;
j. Refusing to consider the Claimant’s representative’s letter of 9th January 2020
as a grievance;
k. The unfounded, fabricated allegations contained in the document entitled:
“conclusion to disciplinary investigation regarding Mr Mark Lambert, Sales
Director;”
l. The reference to personal and irrelevant information in the above statement;
Case Number: 3304163/2020
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m. The frequent short deadlines given to the Claimant by the Second Respondent;
and
n. The continued and sustained unreasonable behaviour from the Second
Respondent in his correspondence with the Claimant.
5. What was the last straw? The Claimant claims that this was the email from the
Second Respondent sent to the Claimant on 28th January 2020 at 10.59. The
Claimant claims that this email made further false allegations and pushed the
Claimant to attend a meeting.
6. Was the First Respondent in serious / repudiatory breach of contract?
7. Did the Claimant resign promptly i n response to that repudiatory breach in
circumstances whereby he is treated as having been dismissed? Or did the delay
in resigning thereby accepting the breach?
8. Was this dismissal unfair?
Direct Age Discrimination (sections 5 and 13 of the Equality Act 2010)
9. The Claimant claims that the alleged discriminatory treatment was:
(i) The Second Respondent’s comment on 3rd January 2020 that the Claimant
would be able to find an alternative role elsewhere more easily that his counterpart
who was older; and
(ii) Selection for redundancy based on his age.
10. Did the First and Second Respondents subject the Claimant to the alleged
treatment identified?
11. If so, did this amount to less favourable treatment?
12. If the First and Second Respondent treated the Claimant less favourably, did
it do so because of the Claimant’s age?
13. The Claimant relies on his former colleague, Mr Howard, as an actual
comparator.
Indirect Age Discrimination (section 19 of the Equality Act 2010)
14. The Claimant alleges that the PCP is the Respondents’ practice of selecting
candidates for redundancy based on their age.
15. Did the Respondents apply the PCP identified by the Claimant?
16. If so, did the PCP place those the protected characteristic of age (in this case,
younger age) at a particular disadvantage when compared to those older
employees?
17. If so, did the PCP place the Claimant at a particular disadvantage?
18. If so, was there a legitimate aim to the PCP? What is this aim?
19. If so, was the PCP a proportionate means of achieving the legitimate aim
identified?
Victimisation (section 27 of the Equality Act 2010)
20. Was the alleged grievance raised by the Claimant r epresentative on 9th
January 2020, a protected act done by the Claimant?
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