Claimant v BGC Bidco Limited [now called Tiger Feet Limited]

The tribunal found that the claimant's dismissal was substantively and procedurally unfair. The respondent had decided to dismiss the claimant months beforehand and used an alleged breach of confidentiality as a pretext to effect his removal swiftly as a 'bad leaver' in order to avoid paying him for his shares. The respondent did not have a genuine belief on reasonable grounds that the claimant was guilty of misconduct. No fair procedures were followed, the ACAS code was ignored, and alternatives to dismissal were not considered. The respondent acted unreasonably and unfairly.

The tribunal concluded that the treatment complained of (beratement in meetings and dismissal/replacement) was not because of age but because the claimant was the managing director and a shareholder whom the respondents had decided to remove. The tribunal found that on a balance of probabilities the respondents would have behaved in a similar manner to any senior executive in similar circumstances regardless of age.

The tribunal found that the claimant had not established a PCP of requiring a 'young and dynamic' CEO or someone under 55. The tribunal considered Mr Dunn's comment about 'young and dynamic' to be a throwaway comment and not evidence of a discriminatory PCP. In line with Seldon, succession planning more likely results in recruiting someone younger but that result does not establish age discrimination without more.

The tribunal found that Mr Dunn's 'young and dynamic' comment was a private word of warning attributable to him personally and did not have the discriminatory purpose or effect required by s.26 EqA. Similarly, the reference to 'retirement' by the second respondent was understood as referring to the claimant's departure and was not unwanted conduct nor did it have the effect of harassment. The tribunal did not consider it reasonable in the circumstances for the claimant to have perceived these comments as amounting to harassment because of age.