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United Kingdom Employment Appeal Tribunal |
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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Mott MacDonald Ltd v Rivkin (Age Discrimination) [2011] UKEAT 0488_10_0803 (08 March 2011) URL: http://www.bailii.org/uk/cases/UKEAT/2011/0488_10_0803.html Cite as: [2011] UKEAT 488_10_803, [2011] UKEAT 0488_10_0803 |
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EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At the Tribunal
Before
THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
Transcript of Proceedings
JUDGMENT
APPEARANCES
SUMMARY
AGE DISCRIMINATION
Finding of age discrimination made on basis that witness had lied and that in those circumstances the employer could not, apparently as a matter of law, satisfy “Igen stage 2”.
Held:
(1) Tribunal not entitled on the evidence to find that the witness had lied.
(2) Even if he had, that could not by itself be a determinative factor – Observations on relevance of lies by witnesses/parties and to the effect that the exercise required by Igen is not mechanistic or “tick-box”.
THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
Introduction
The Facts
5.17. Mr Thistlethwaite invited the claimant to meet him on 8 April. As stated above he was the Sub-divisional Manager in the Public Sector Sub-division Manager in the Public Sector Sub – division (PST). In PST many of the assignments have elements of research analysis and reporting commensurate with the skills of most degree qualified individuals. Many of the assignments involve making presentations for a variety of purposes. The key to success in the PST assignments was the ability of individuals to illicit information and communicate with individuals at different levels. At the time there was no specific vacancy but because the claimant had an outstanding academic achievement and experience Mr Thistlethwaite considered that he was a potential fit for the competencies needed and a possible addition to the team. If the claimant was able to demonstrate at the interview that he had the skills which Mr Thistlethwaite believed he could use Mr Thistlethwaite would then make a business case to create a role for the claimant. Amongst other things he was looking for thought leadership and a style of presentation which in his experience was appropriate for Public Sector clients.
5.18. The meeting lasted for two hours which was much longer than the length of such an interview which Mr Thistlethwaite would normally offer to potential candidates. Prior to the interview he had a copy of the claimant's CV which shows his date of birth at the top of the first page. The Tribunal finds that he did therefore know the claimant's age before the interview. It also finds that his witness statement and sworn testimony to the Tribunal was untruthful insofar as he said that he first became cognisant of the claimant’s age when he looked at the Tribunal application. The Tribunal noted at paragraph 16.2 of the Notice of Appearance the respondent stated:
"Mr Thistlethwaite was aware of the claimant's age when he received his CV."
5.19. During the interview the claimant presented the work he had done for the Russian presentation. Mr Thistlethwaite did not inform the claimant by the end of the meeting that he had decided not to make an offer. He did tell the claimant that there were several potential pieces of work which might be about to start and which could be used to help him adapt to the PST way of working. There was also a discussion on the issue of age. Mr Thistlethwaite said that the claimant would still have a good ten years ahead. He also said that his main concern was the length of time it would take the claimant to train up to the PST way of working. The fact that this discussion took place made it even more implausible that Mr Thistlethwaite did not know the claimant's age at the time of the interview.”
We note here, by way of anticipation, that the finding made in paragraph 5.18 that Mr Thistlethwaite lied to the Tribunal about his knowledge of the Claimant’s precise age is fundamental to its reasoning.
“The Claimant failed to demonstrate interpersonal skills, intuitive knowledge and basic knowledge of PST. He found that the Claimant had not prepared for the meeting and demonstrated little interest in the PST. He said that the Claimant’s presentation was not to standard. He said that the Claimant lacked motivation and demonstrated an unwillingness to consider an alternative view.”
The Tribunal’s Reasons
“Dealing firstly with the credibility of the witnesses the Tribunal found that all of the witnesses gave evidence which was credible. The claimant was a very focused individual who frequently sought clarification of terminology and procedure in the Tribunal. He was also very concerned that the decision to select him for redundancy was an adverse reflection on his qualifications and experience. The Tribunal found that apart from one issue the evidence of Mr Thistlethwaite was reliable. However the issue on which the Tribunal found that his evidence we was untruthful was an important aspect of the· consideration of the complaint under the Employment Equality (Age) Regulations.”
10. At paragraphs 18 to 19 it discussed the characteristics of the so-called “hypothetical comparator”. The discussion is not entirely clear and affords yet another illustration of the wisdom of Lord Nicholls’ suggestion in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 - still too little heeded by tribunals despite repeated reminders - that it may be easier in cases of this kind first to ask the “reason why” question rather than the “less favourable treatment” question, on the basis that the first will generally be more straightforward and will almost inevitably produce the answer to the second. However, one point which emerges from the discussion in these paragraphs is that the way in which the Claimant put his case that Mr Thistlethwaite might have been influenced by his age was that he made it clear in the interview that it would take six months to train him for a role in PST and that, so he believed, Mr Thistlethwaite must have formed the view that it was disproportionate to give him six months’ training in circumstances where he was liable to retire fairly shortly: the compulsory retirement age at the Appellant company was 65.
“20. So it seemed to the tribunal that it must decide whether the evidence showed that Mr Thistlethwaite had taken the claimant's age into account as part of its consideration of less favourable treatment. On this issue, the Tribunal found that he had. This is because he had lied about whether he knew of the claimant's age before the interview. The fact that they had had a discussion during the interview about his age, together with the relevant inconsistent section in the Notice of Appearance suggested to the tribunal that age was a factor in the decision. This undermined the explanation given for the decision not to offer redeployment and the denial that the need for 6 months training was significant. It also suggested that a younger candidate would have enjoyed a different outcome.
21. The Tribunal finds that the performance related reasons given by Mr Thistlethwaite for his decision not to make an offer could be plausible. It could, as submitted by Ms Levene therefore constitute an adequate explanation. She also submitted that the fact that Mr Thistlethwaite did recruit someone of a similar age to the claimant as credible evidence that showed his decision had nothing whatsoever to do with age. However, it is impossible to accept these potential explanations once the finding was made that Mr Thistlethwaite had lied about knowing the age before the interview. The Tribunal finds that it must infer that his decision did not contain an adequate explanation for the purposes of the test in Regulation 37 of the Regulations. The Tribunal is guided in this in the Court of Appeal decision in Igen v Wong 2005 IRLR 258 and other authorities which makes it clear that at the second stage of the test the respondent is required to prove that he did not commit or is not to be treated as having committed the unlawful act. If the respondent fails to do so the Tribunal must uphold the complaint. As stated by the Court of Appeal in Igen: "If the second stage is reached and the respondent's explanation is inadequate it will not merely be legitimate but also necessary for the Tribunal to conclude that the complaint should be upheld”.
22. Ms Levene submitted that the claimant had not shown a prima facie case on this issue and that the Tribunal did not therefore need to consider the burden of proof. With respect to her the Tribunal disagreed. She firstly said that the claimant did not really believe that there was an issue of age. The tribunal was quite sure that the claimant had shown that he did believe this to be the case. He had mentioned in a number of the meetings. If he did not put the issue to the respondents' witnesses, that was no doubt because he was not a lawyer and was representing himself in the Hearing.
23. She also submitted that the claimant's case on this was entirely vague. With respect to her, the tribunal disagrees. It was evidence from the outset of this Hearing and the case was defended on the basis that the claimant was complaining under the Age Regulations about these two decisions. If he spoke in a roundabout way when making submissions that was more likely to be because he is not a lawyer than that his complaints were vague. The tribunal did not draw any conclusions which were adverse to the claimant on these issues based on the way in which he conducted the Hearing. Many litigants in person appear before the tribunal and the tribunal would not consider it consistent with the Overriding Objective to decide the outcome of cases on the basis of the quality of the representation.”
(We should explain the reference at paragraph 21 to Mr Thistlethwaite recruiting someone of similar age to the Claimant. It had been his evidence in his witness statement that shortly before the date of his interview with the Claimant he had recruited a man of 56. Ms Simler very fairly mentioned in her skeleton arguments that it has since transpired that he had been mistaken as to the age of that recruit, but nothing turns on that mistake for present purposes.)
(1) Mr Thistlethwaite had lied in his evidence about whether he knew the Claimant’s age.
(2) Because he had lied, the effect of regulation 37 of the Employment Equality (Age) Regulations 2006 - the so-called reverse burden of proof provision - was that the Tribunal was obliged to reject his explanation.
Ms Simler challenges both elements in the Tribunal’s reasoning. We take them in turn.
The finding that Mr Thistlethwaite lied
“C - Paragraph 9 – you state that I suggest that my age could be a factor, and your response was that I had many more productive years ahead. I did not mention my age.
KT – In conversation the Claimant used words that raised his age.
C – (to the tribunal) I think he said age would not be a factor against me. This was at the end.
KT – my recollection was this was at the beginning.
Judge – Dr Rivkin says that he never raised age and you did.
KT – I recall saying that he had a good 10 years ahead. I made the comment to put him at ease. He did raise it.”
“It has the date of birth. You looked at his CV so knew his age?”
Mr Thistlethwaite answered:
“At the time I didn’t read it. I get lots of CVs – 2-3 a day. It’s Mott MacDonald standard format so I am not interested in the top part. I jump to ‘Key Qualifications’, particularly Education and Professional status. I did not read [his] age.”
Burden of proof
22. We start by setting out the terms of regulation 37 (2) of the 2006 Regulations:
“Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this regulation, conclude in the absence of an adequate explanation that the respondent—
(a) has committed against the complainant an act to which regulation 36 applies; or
(b) ...
the tribunal shall uphold the complaint unless the respondent proves that he did not commit, or as the case may be, is not to be treated as having committed, that act.”
(The present complaint is of an “act to which regulation 36 applies”.)
23. This provision and its cognates in the other anti-discrimination legislation have been the subject of a good deal of case-law, most notably Igen Ltd v Wong [2005] ICR 931, to which the Tribunal referred in its short account of the relevant law, and Madarassy v Nomura International Plc [2007] ICR 867 (and the two associated cases reported with it), to which the Tribunal did not refer; but for present purposes we do not need to refer to these in detail. The Tribunal purported to follow the familiar two-stage approach based on Igen v Wong. We are content to accept for present purposes that it was entitled to find that “Igen stage 1” was satisfied - that is, that facts had been shown from which an inference of discriminatory motivation could be drawn: there had, after all, been a discussion at the interview about the impact of the Claimant’s age, though the Tribunal does not find who initiated it, and of course at this stage of the argument we are proceeding on the basis that Mr Thistlethwaite had lied about his knowledge of the Claimant’s precise age.
Disposal