Thomas v BNP Paribas Real Estate Advisory and Property Management UK Ltd

Where a tribunal finds that redundancy consultation was conducted perfunctorily and without sensitivity, it must explain why those findings do not make the consultation unreasonable. A conclusion that consultation was within the range of reasonable responses cannot stand where the tribunal has not addressed the consequences of its own critical findings, including placing the employee on gardening leave and barring contact with colleagues and clients.

In an age-discrimination claim, a tribunal need not follow a rigid two-stage formula if its reasons show that it placed the burden on the respondent after the prima facie stage and found that the respondent proved the dismissal was untainted by age.

The claimant, a long-serving property-management director aged 59, was dismissed for redundancy after a strategic review. He challenged the dismissal as unfair and directly discriminatory because of age. The Employment Tribunal dismissed both claims.

On appeal, he contended that the tribunal had inadequately addressed the reasonableness of consultation, particularly the immediate gardening leave and restriction on contact with colleagues and clients. He also submitted that the tribunal had misapplied the burden of proof under section 136 of the Equality Act 2010.

The central issues were whether the unfair-dismissal conclusion could stand consistently with the tribunal's findings about consultation, and whether its reasons sufficiently showed that the respondent had discharged the burden on the age-discrimination claim.

1. Appeal allowed in part. The appeal against dismissal of the unfair-dismissal claim was allowed. That claim was remitted to a differently constituted Employment Tribunal. The appeal on age discrimination was dismissed.

2. The Employment Tribunal's repeated reference to section 139(1)(a) of the Employment Rights Act 1996, when the relevant provision was section 139(1)(b), was an error of citation only. The respondent's case had plainly concerned a diminution in the need for employees to perform work of the relevant kind. The error therefore disclosed no substantive failure to identify a redundancy situation.

3. The tribunal had made sustainable findings on the existence of redundancy and the use of a pool of one. However, it described the consultation as perfunctory and lacking sensitivity, yet concluded without adequate reasoning that it was reasonable. It also failed to address the significance of the claimant being put on gardening leave before consultation, prohibited from contacting colleagues and clients, and left shocked and upset. Such findings do not inevitably make consultation unreasonable, but the tribunal had to explain why they did not do so. Its failure to grapple with that issue made its fairness conclusion unsafe.

4. On direct age discrimination, the tribunal's language was at points awkward and paragraph 51 was confused. Read fairly, however, paragraph 50 showed that it had placed the burden on the respondent after identifying the claimant's dismissal and inclusion in the selection pool. It was entitled to rely on its earlier finding that redundancy was the reason for dismissal and on the age-profile evidence. Those findings sufficiently showed that the respondent had proved that age played no part in the decision.

5. Remitted to a differently constituted tribunal because of the elapsed time and the risk that the original tribunal could not properly reconsider consultation.

• Employment Appeal Tribunal: Allowed the appeal on unfair dismissal and remitted that claim to a differently constituted Employment Tribunal; dismissed the appeal on age discrimination.
• Employment Tribunal, London (Central): Between 2 and 6 February 2015, dismissed the claims for unfair dismissal, age discrimination and disability discrimination in reasons provided on 29 April 2015.