A geophysicist was awarded £340,000 for unfair dismissal, age discrimination, victimisation, and breach of contract after his boss referred to him as a “pensioner” and added: “We need to find a way to take him out,” a tribunal has ruled.
The Reading tribunal decided that Petro Trace discriminated against Mr C Gregory because of his age, and that he was treated less favourably than comparators when he was chosen for dismissal. In addition, the geoscience company tried to replace him with “younger and more active experts”, the tribunal heard.
Judge S Matthews did not accept Petro Trace's argument that the primary reason for Gregory's dismissal was capability, because other managers had no issues with Gregory's work and the performance issues were only brought up after Gregory made allegations of discrimination.
In addition, Matthews determined that Petro Trace was unable to prove that redundancy was not the primary cause of Gregory's departure and that capability or another possibly legitimate reason was not the main one. As a result, Gregory's claims of unfair dismissal were successful.
Background
Petro Trace is a geoscience service provider for clients in the oil and gas industry. The tribunal heard that Gregory was employed as a leading project geophysicist at Petro Trace from early September 2017 until his dismissal on 30 November 2021.
During his four years of employment, Gregory received salary rises and bonuses and there were no serious or genuine concerns about his performance, according to the tribunal.
It heard that there was a downturn in business at Petro Trace in the summer of 2020 as a result of the Covid pandemic. A series of emails referring to Gregory were exchanged between the managing director, Mr Buxton, and Mr N Baranksy (NBa), a Russian national who – along with his wife – are the majority shareholders in Petro Trace.
Buxton maintained in evidence that NBa was not involved in the day-to-day management of the company.
On 23 June 2020, NBa criticised the work carried out on a project by Gregory and another employee and said of the team leader: “[He] does not play the team leader role properly.”
In July 2020, the tribunal heard there was an email from NBa to Buxton, which said: “We have to sack a few people.” He referred to Gregory as well as two others. He added: “‘We can say that the reason we let [employee x] and [Gregory] go is bad performance for the [project].”
According to the tribunal, in July 2020, NBa developed a “general comparative rating assessment of staff” that appeared “arbitrary”.
The tribunal noted that no data or documents were alluded to in support of the performance appraisal process, and instead it was NBa’s assessment of the “usefulness and future potential of each” member of staff.
The tribunal heard that Gregory and two other employees’ names were included at the top of the staff appraisal document in red, which NBa referred to as "the relegation zone". NBa claimed that Gregory had "done nothing of note" on the project and that he was in favour of firing him and another employee.
On 16 June 2021, an email from NBa to Buxton discussed replacing Gregory and another colleague – both of whom were over 60 years old – with two members of staff aged 40. NBa referred to Gregory as not “showing good performance” and being “expensive”.
In response to the email, Buxton stated: "Generally, I agree with all of your comments.”
In July 2021, NBa sent an email to Buxton, which further stated: “Gregory is far over 60 years old and I am sure he doesn’t have a shortage of money.”
The tribunal noted that, from this email, age “far over 60” was a significant factor in deciding to replace Gregory.
It was also observed that when this email was presented to Buxton in evidence, he said that NBa meant that Gregory's termination of employment would have a less severe financial impact. However, the tribunal saw Buxton as sympathising with NBa’s viewpoints.
Email exchange continues
On 4 August, NBa wrote Buxton another email with the subject: "What shall we do about [Gregory]?" He mentioned a project Gregory had been working on for five months and stated it was "absolutely useless". He again referred to his age and said Gregory was “not a young person” and was “a pensioner”.
“I don’t like to continue with [Gregory]. Let’s move on and let him go. I don’t like to blame him for his poor performance but I believe we should be able to find a good reason to take him out.
“He is not a young person and I believe he is a pensioner. As a company we don’t have any work for him at this moment and nothing planned. Please, give me the options and costs associated. In Moscow, we normally offer two months' salary and cancel the contract on mutual agreement. We should be doing that in a smart way.”
On 11 August, NBa wrote Buxton another email in which he mentioned replacing Gregory with "younger and more active experts", from which the tribunal once again deduced that he was motivated by age.
“Please, give me what kind of deal we can offer [Gregory] to let him go. I don’t like to wait. We have resources in Moscow to help London and this year it is still almost free,” he said.
“We need to bring younger and more active experts instead. This should be done as soon as we can because we will need time to get them (sic) trained and learn how we operate.”
The tribunal noted that Buxton did not challenge NBa on his statements about age or replacements. Buxton claimed that he did not act on the grounds indicated by NBa in the emails and he based his decision on the financial performance of the company.
However, the tribunal rejected Buxton's claim that Gregory's termination was a result of financial difficulties, noting that the emails at the time were very directly related to Gregory's age, as there was no emphasis on the financial downturn and NBa was "actively talking about replacements".
On 17 August, Gregory was informed that his employment would be terminated because of the lack of work coming in.
Buxton said he asked Gregory to consider retiring to allow the company to recover from the crisis, and that there was discontent among the team because of them having to shoulder a “high workload”.
However, the tribunal determined that Buxton informed Gregory of his dismissal, rather than discuss retirement options. It also determined that Gregory was very credible when he stated that his performance was not discussed. The tribunal concluded that Gregory's capability and performance were not the primary reasons for dismissal.
Sequence of events following the meeting on 17 August to 24 October 2021
The tribunal found that Petro Trace sent a series of letters to Gregory about the termination following the meeting. All of the letters refer to the 'current downturn' in the oil business as the explanation. They do not refer to capability or performance.
The tribunal ruled that Buxton had given redundancy as the cause for his termination rather than performance.
According to the tribunal, Gregory did not feel in a position to "negotiate" because he was told he was leaving and was attempting to grasp why and on what conditions. He asked Buxton to confirm whether he was being made redundant.
The tribunal also determined that the letters did not reflect the reason for the termination, as, in Buxton's view, they were reaching a deal to give Gregory two months' money and to go without a fuss. He wanted to move him on and put together a package that he thought was “attractive enough”, the tribunal said.
It also found that although Petro Trace referred to cutting staff in 2020 in the emails with NBa, there was not a serious attempt to consider redundancies.
On 24 October, Gregory expressed his worries about the intention to make him redundant in an email to Buxton, claiming that he was being “singled out” because of his age.
Gregory had a conversation with Buxton the following day, during which he claimed Buxton was aggressive.
When questioned about the meeting in evidence, Buxton admitted he was "extremely disappointed" since he thought they "had a deal" to work until the end of October, followed by two months' garden leave.
Buxton accepted in oral evidence that he behaved – in his words – “assertively”.
According to notes recorded at a meeting on 5 November: “The meeting was aggressive. Only [Buxton] spoke, telling [Gregory] that he must resign and retract his letter, threatening [Gregory] with an HR alternative, saying we can go down that route if you force us but they’ll have it all done in one week.”
The tribunal determined that Buxton shouted at Gregory and there was a clear attempt to “bully” and “intimidate” him.
Gregory's claims of age discrimination, victimisation and breach of contract for being dismissed without notice were successful. His claim of direct race discrimination failed.
Gregory was awarded a basic fee of £3,264, followed by an award of financial loss of £147,853.
He was then awarded £20,000 in respect to injury to feelings – including the “long-term effect on his confidence” – and an Acas uplift of 25 per cent, which amounts to £42,779.25.
An interest rate of 8 per cent was then applied on past loss and injury to feelings, amounting to £7,477.22. This was followed by a gross-up fee of £118,839.33.
Consequently, Petro Trace was ordered to pay him a total of £340,212.80.
Judge’s comments
The panel did not accept Petro Trace's argument that the primary reason for Gregory's departure was capability (performance) because neither Buxton nor anyone else had any difficulties with Gregory's work.
The tribunal stated that the capability difficulties were first raised after Gregory filed discrimination accusations at the end of October and beginning of November 2021 and that the primary reason was not redundancy.
According to Matthews, even though Petro Trace was concerned about its financial stability, "there were no serious attempts to enter a redundancy or restructuring process".
They also stated that Petro Trace considered other people to replace Gregory, which is not "consistent with a diminution" in the need for personnel to carry out work of the type that Gregory was carrying out.
Furthermore, Matthews deemed NBa's email comments that Gregory was "over 60 years old" and not a "young person" but a "pensioner" to be "inherently discriminatory".
Employment lawyer’s comments
According to Rob McKellar, Peninsula's director of legal Services, this case is a good reminder that a tribunal would not simply accept the respondent's reasoning for dismissal at face value, but will carefully analyse what the underlying reason was.
He emphasised the importance of following a fair procedure and stressed that businesses cannot just decide not to follow the Acas code because it does not suit them. The "code is there for employers to follow" and there are financial ramifications if they do not, he said.