A decision to dismiss an older print room manager and replace him with younger colleagues was motivated by age, not a “breakdown of mutual trust and confidence”.
Facts
Mr Portelli was employed by London Legal and Imaging Solutions Ltd (”London Legal”) for seventeen years as the print room manager. He was managed by one of the directors of the company, Mr Wilson.
Mr Portelli raised a formal grievance on 22 December 2017 about a number of issues: having his routine emails ignored by Mr Wilson; being singled out for failing to adhere to a more formal dress code; and for having reasonable overtime requests rejected. One of the issues he raised concerned a letter from the directors of 16 November 2017. It raised performance concerns and said that Mr Portelli may be finding it “difficult to keep up with the pace of change”. Following that letter, Mr Portelli was sent on a basic training course.
The issues between Mr Wilson and Mr Portelli continued. He was invited to a disciplinary hearing on 25 April 2018 and dismissed on 4 May 2018. The reasons given were that the relationship between the two parties had broken down and there was a loss of trust and confidence.
He brought claims in the Employment Tribunal (ET) of unfair dismissal and direct age discrimination.
Decision
The ET held that a dismissal occurred, and two younger members of staff were subsequently promoted.
The ET discussed the letter of 16 November 2017 and its reference to Mr Portelli finding it “difficult to keep up with the pace of change”. It held that it had no direct reference to age, but the language used could reasonably be inferred to be a stereotype based on age.
The ET upheld Mr Portelli’s unfair dismissal claim and noted that unreasonable behaviour will not in itself be evidence of discrimination, but where there is a failure of explanation, that failure can lead to an inference of discrimination. London Legal failed to provide material documents that could have explained why Mr Portelli was dismissed, and the basis on which one of the younger team members was promoted. This misled the ET, and it was enough to infer the relevant discrimination.
The burden therefore shifted onto London Legal to provide an explanation for the first instance of age discrimination: the letter and reason for the dismissal. London Legal argued that there was a breakdown of mutual trust and confidence caused by Mr Portelli’s actions, and that a clear and truthful explanation for his dismissal had been put forward. The ET noted that London Legal deliberately obscured its true reason, as it did not disclose details of any of the conversations of the directors which were material to the decision to dismiss. The ET confirmed that London Legal had misrepresented Mr Portelli’s conduct in an attempt to be misleading.
The second act of age discrimination Mr Portelli alleged was in relation to his suspension on 22 December 2017 following his grievance. The ET held that this could not succeed, as it was unclear why he was suspended and when. However, the ET noted that it could find a dismissal was an act of discrimination and that dismissal arises at the end of the set of circumstances which led up to it.
As the ET had found that direct age discrimination had occurred, and as London Legal did not advance any argument that the dismissal was a proportionate means of achieving a legitimate aim, Mr Portelli’s claim of direct age discrimination succeeded.
Mr L Portelli v London Legal + Imaging Solutions Limited 2201871/2018 & 2205855/2018