Credit Controller Discriminated Against on Age

What Happened In The Case?

An employee in his mid-sixties was employed by a company known as Tradex as an insurance credit controller for some time and involved pursuing unpaid account arrears. In any case of this kind it is important to uncover more details about the employment status of the Creditor Controller. He apparently reported to a Line Manager however he had a degree of autonomy over the work. The Employment Tribunal were presented with evidence that in around November 2017 the insurance section of Tradex was bought over by the organisation now occupying the position of Respondent. The transaction involved a proportion of the workforce and triggered the procedure set-dpwn under the TUPE Regulations. To the credit controller’s credit he had acquired incredibly valuable skills and the Employment Judge recognised his importance to the organisation, praised him for sustaining the longevity and experience he accrued. 

Concerns for the Credit Controller’s Health 

As supported by medical evidence, the credit controller complained of having substantial problems in relation to his health situation. When he made arrangements with Tradex whereby he was provided with modified working hours where he would begin and end his working day at a suitable time. However, the management overseeing the Credit Controller in the new organisation appeared to have accepted the previous arrangement. There seems to have been some dispute surrounding the evidence of the previous arrangement and the new business seemed to have been cynical as to its existence as the credit controller lacked documentary evidence available necessary to support his claim on the arranged working hours. The issue appears to have been resolved when the new management team accepted that the arrangement existed. 

Appointment Attendance   

Now the reader may be under the presumption that this would be the end of the story. However, they would be incorrect to live under this misconception. Despite both the existence of the medical condition being accepted and the arrangement actually being in place this was not seemingly the end of things. During the proceedings correspondence came to light in the form of an email which appears to have expressly communicate management worries regarding his apparent non-compliance with his obligations under the terms and conditions of his employment in the way on the face of it not appearing to have been work his full working hours.

Nap Time?

The credit controller had been observed falling asleep and the management team sarcastically asked him whether he looked to have a siesta that day. In response he attributed the incident to the medication prescribed to alleviate his condition. The Employment Tribunal was not amused by the sarcastic comments and branded them mindless which no sensible person in a leadership position would have made and it hinted at his advancing years by commenting that he had been around since Pontius Pilate. On balance the management clarified that she meant the comment to be playful. However, the Employment Tribunal found them to be discriminatory.

End of The Line?

Eventually the Credit Controller was made redundant as he did not want to return to work and the employer made a settlement offer. However, this was withdrawn when the Credit Controller sought legal advice and claimed discrimination. The Tribunal agreed.  

Future Direction?

This judgment must be referred to by legal professionals when assisting their respondent clients:

• to ensure they are checking for any employment arrangements when conducting merger and acquisition due diligence
   
• to avoid making such comments
   
• that such comments may be interpreted negatively by workforce members and
   
• to consider not putting light-hearted comments and banter forward as a defence.

ASSESSING FIRMS

#Allen&Overy #BakerMcKenzie #HerbertSmithFreehillsLLP #LewisSilkin #MishcondeReya #Simmons&Simmons #AddleshawGoddard #CliffordChanceLLP #CMS #DACBeachcroftLLP #EvershedsSutherlandLLP #LinklatersLLP #TaylorWessing #TraversSmith #Bird&Bird 

THE ARTICLE WAS WRITTEN USING THE FOLLOWING SOURCES 

[SOURCE 1] Employment Tribunal judgment – Mr D Finch v Clegg Gifford & Co Ltd (2022) Case Number 3212890/2020 - Mr_D_Finch_-v-_Clegg_Gifford___Co_Ltd___Other_-_3212890_2020_-_Judgment.pdf (publishing.service.gov.uk)

[SOURCE 2] Mayne, Mahalia – Insurance worker compared to Pontius Pilate by head of HR – People Management – 7 October 2022 - Insurance worker compared to Pontius Pilate by head of HR was victim of harassment and discrimination, tribunal finds (peoplemanagement.co.uk)

[SOURCE 3] Section 111A Employment Rights Act 1996

[SOURCE 4] Section 95 Employment Rights Act 1996

[SOURCE 5] Section 6 and Schedule 1 Equality Act 2010 

[SOURCE 5] Section 27 Equality Act 2010

[SOURCE 6] Section 21 Equality Act 2010

[SOURCE 7] Section 22 Equality Act 2010

[SOURCE 8] Section 26 Equality Act 2010

[SOURCE 9] Section 15 Equality Act 2010

[SOURCE 10] Section 13 Equality Act 2010