Mr S Tilley and others v Egyptair Airlines Company: 2207205/2018 and 2201502/2019
| Judgment Date | 18 November 2021 |
| Citation | 2207205/2018 and 2201502/2019 |
| Date | 18 November 2021 |
| Published date | 07 December 2021 |
| Court | Employment Tribunal |
| Subject Matter | Unfair Dismissal |
Case Numbers: 2207205/2018
2201502/2019
1
THE EMPLOYMENT TRIBUNAL
SITTING AT: LONDON CENTRAL
BEFORE: EMPLOYMENT JUDGE ELLIOTT
MEMBERS: MR S PEARLMAN
MR S SOSKIN
BETWEEN: (1) Mr S Tilley
(2) Ms J Morsy
(3) Ms D Suri
Claimants
AND
Egyptair Airlines Company
Respondent
ON: 10, 11, 12, 15, 16, 17 and 18 November 2021
(In Chambers on: 17 and 18 November 2021)
Appearances:
For the Claimants: Ms B Venkata, counsel
For the Respondent: Mr R Bailey, counsel
Interpreter in the Arabic language on days 2 and 3: Mr H Bekhiri
RESERVED JUDGMENT
The unanimous Judgment of the Tribunal is that:
1. The claim for indirect age discrimination is dismissed upon withdrawal.
2. The claims for direct age discrimination and unfair dismissal fail and
are dismissed.
REASONS
1. The claim forms were presented on the following dates: for the first
claimant Mr Tilley on 21 December 2018, for the second claimant Ms
Morsy on 29 April 2019 and for the third claimant Ms Suri on 3 November
2020.
Case Numbers: 2207205/2018
2201502/2019
2
2. The respondent is the national airline for the State of Egypt. It is
registered at Companies House as an overseas company.
This remote hearing
3. The hearing was a remote public hearing, conducted using the cloud
video platform (CVP) under Rule 46. The parties agreed to the hearing
being conducted in this way.
4. In accordance with Rule 46, the tribunal ensured that members of the
public could attended and observe the hearing. This was done via a
notice published on Courtserve.net. A member of the public attended
the hearing on day 4 only.
5. The parties and the member of the public on day 4 were able to hear
what the tribunal heard and see the witnesses as seen by the tribunal.
From a technical perspective, there were no difficulties of any substance.
We were able to overcome the minor technical difficulties, often by the
relevant person logging off and back on.
6. No requests were made by any member of the public to inspect any
witness statements or for any other written materials before the tribunal.
7. The participants were told that was an offence to record the
proceedings.
8. The tribunal ensured that each of the witnesses, who were all in different
locations, had access to the relevant written materials which were
unmarked. We were satisfied that none of the witnesses was being
coached or assisted by any unseen third party while giving their
evidence. Mr and Mrs Tilley were witnesses in the same location. When
Mr Tilley gave evidence he confirmed he was alone in the room. When
Mrs Tilley gave evidence, Mr Tilley sat behind her so he could continue
to observe the hearing and he was in view at all times
The issues
9. The issues were identified at a case management hearing on 24 April
2019 before Regional Employment Judge Potter in case number
2207205/2018. There was a further case management hearing on 4
September 2019 before Employment Judge Grewal when the first and
second claims were consolidated.
10. The full merits hearing in this case was due to take place in June 2020
and was affected by the pandemic. A case management hearing took
place on 1 June 2020 before Employment Judge Tayler. The case was
relisted for 24 March 2021. It was postponed on the respondent’s
application to which the claimants did not object.
11. A case management hearing took place on 24 March 2021 before
Case Numbers: 2207205/2018
2201502/2019
3
Employment Judge J Burns to deal with the third claim which as
consolidated with the first and second claims.
12. The issues were identified by Regional Judge Potter on 24 April 2019 for
the first claimant and the parties agreed that these issues applied to all
three cases and are as follows:
Direct age discrimination - section 13 Equality Act
13. The respondent accepts that they subjected the claimants to less
favourable treatment because of age, namely forcing them to
retire/dismissing them due to reaching the age of 65.
14. The respondent relies upon the legitimate aims of encouraging
intergenerational equality and dignity for retiring employees.
Indirect age discrimination – section 19 Equality Act
15. The claim for indirect age discrimination was withdrawn so we were not
required to make a decision on it.
Unfair dismissal
16. The parties agreed that the reason for dismissal was forced retirement
age of 65. Was the dismissal for a potentially fair reason? The claimant
asserts that the respondent does not have a potentially fair reason for
dismissal.
Remedy
17. The approach for the claims should be:
a. When with the claimant have retired in any event?
b. Would the claimant’s employment had been terminated in any
event because of redundancy or performance issues, or for any
other reason and if so when?
c. What earnings as the claimant received since dismissal?
d. Has the claimant failed to mitigate loss?
18. It was agreed with counsel at the outset that we would deal with liability
including the Polkey issue first and that we would consider at a
subsequent hearing, any remedy issues that were then outstanding.
There was therefore no cross-examination on issues such as mitigation
of loss at this hearing.
Documents
19. There was an electronic bundle in sections A to H.
20. We had helpful opening submissions from both parties and a chronology
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