Tribunal finds in favour of finance executive in wellbeing and age discrimination case

tribunal discrimination

An Employment Tribunal has found in favour of a finance executive who worked for e-commerce fulfilment provider Selazar, in claims that included unfair dismissal, breach of contract and age discrimination.

Louise McCabe was one of the founding directors of Selazar when it was incorporated on 10 October 2014, alongside chief executive officer (CEO) Jack Williams. When she was dismissed on 25 September 2020, McCabe was 55, which she alleged factored in to her termination.

The evidence for age discrimination hinged in part on the report that, in a meeting between the business’ executives on 28 May 2020, McCabe remarked that she only had one pair of hands to manage a large amount of work, to which Williams told her to calm down, and not let her hormones get out of control, which she told the tribunal he would not have said to a younger individual. Williams denied saying this, but the court found in favour of McCabe’s version of events.

Countering this, issues were raised suggesting that McCabe made references to a male colleague’s baldness, and that she had asked a candidate’s age in a job interview, both of which the claimant denied.

On the matter of mental health and wellbeing, McCabe reported having raised issues around burnout and potential breakdown for another employee, who was unable to take holiday due to a lack of capacity, but who she felt was exhausted. She also referenced being close to burnout herself.

McCabe reported to the Employment Tribunal that she had raised concerns about organisational culture and the pressure being placed on staff, and that her dismissal was, in part, informed by this.

On 9 July 2020, she started a period of annual leave which was to end on 20 July, during which time Williams removed her as a director, including removing her listing from Companies House without due process. He claimed the latter was a clerical error, but the court found no evidence of attempts to fix it.

Williams reported that there was a meeting on 14 July among investors to discuss concerns about McCabe’s performance, but had no record or notes from the meeting.

There was some disagreement as to the running of events upon McCabe’s return, with the claimant suggesting she was told she had been removed as director and placed on gardening leave, and Williams denying that he had used those terms. The tribunal found in favour of McCabe’s notes made at the time, which were deemed to be more credible than Williams’, which appeared to have been made later, after the initial mention of unfair dismissal, and seemed largely constructed to address that point, rather than record events.

In an email recorded by the court as being sent to Williams on 28 July 2020, McCabe said: “Over the past 12 months, I have raised with you my concerns about the Selazar business culture in general, and especially how actions of the company and the senior executive can have significant implications, both in respect of its legal obligations, on the health and safety of its staff and with regards to transparency of information presented to all stakeholders, including shareholders.

“Before I went on holiday I raised my serious Case Number 2200501/2021 concern regarding the treatment of a member of staff with a potential mental health issue and rather than investigate this, the response from the company was to remove me as a director.”

Although Williams reported that he proceeded to conduct an investigation into concerns over McCabe’s performance, which he found to be extensive, the court found that these investigations did not include the necessary investigatory interviews with the claimant, nor was she sent the required documentation. McCabe also claimed that none of the performance issues in question had been raised with her previously.

When these investigations, as well as those into McCabe’s complaints about her treatment and removal as a director, were in the progress, Selazar reported that she sent information to third parties outside of the organisation, breaching disclosure rules and affecting investors’ confidence.

McCabe reported that in August 2020, she was informed by a recruitment agency that Selazar had specifically tasked it to seek out a younger candidate who would be more in tune with a young technology business, though these age specifications were later denied by the recruitment business.

The tribunal found that, regardless of whether Selazar had valid reasons for wanting to terminate her employment, McCabe was subject to unfair dismissal due to the lack of any meetings with her, and the fact that she was off sick at the time. The tribunal also found that her termination followed McCabe making protected disclosures, such as those around mental health, and therefore amounted to detrimental treatment.

The court also found that there was enough evidence to show that Williams, himself in a younger age group, viewed McCabe as an older woman, and felt that older people were less likely to understand the tech industry. Selazar was unable to meet the resulting burden of proof to show the tribunal that age discrimination had not been part of the reason she was dismissed.

At the termination of her contract, McCabe was found to be entitled to three months’ notice, or pay in lieu, as well as pay for all holiday days accrued and not taken, and reimbursement for reasonable expenses. The court found that she did not receive this compensation from the business, including expenses amounting to £6,589.61.

The Employment Tribunal will now move on to deciding the level of compensation owed to McCabe in light of these judgments.

A spokesperson for Selazar commented: “Selazar is disappointed by the decision of the Central London Employment Tribunal and disputes the claims made in the case as well as the alleged comments reported. We are an equal opportunities employer and have lodged an appeal to this decision. Given this, we are not able to comment further at this time.”