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
1.
This is an appeal against the decision of an Employment Tribunal sitting
at Manchester, chaired by Employment Judge O’Hara, that the Appellant company
discriminated against the Claimant on the grounds of his age. The claim was
heard in two tranches in January and July 2010. The decision of the Tribunal
was announced orally at the conclusion of the hearing but the formal Judgment
with Reasons was sent to the parties on 23 August. The Tribunal dismissed a
claim of unfair dismissal: there is no cross-appeal against that part of the
decision.
2.
On 24 January this year the Claimant’s solicitors wrote to this Tribunal
saying that, having taken advice, he agreed that the appeal should be allowed “for
the reasons given by the Appellant”: that must be a reference to the reasons in
the Notice of Appeal. He has accordingly not appeared. The Appellant has been
represented before us by Ms Ingrid Simler QC. Before the Tribunal, the
Claimant appeared in person and the Appellant was represented by Ms Rachael Levene
of counsel.
3.
For reasons which will appear, we propose to allow the appeal and we did
not find it necessary to hear oral submissions from Ms Simler, though we were
assisted by her helpful skeleton argument.
The Facts
4.
The Claimant was born on 21 July 1948. He is a highly qualified
engineer. He started employment with the Appellant, a large civil engineering
company, in 2005. In early 2009 there was a redundancy exercise in the sub-division
in which he worked. He scored the lowest in the relevant pool and on 24 March
he was told that he would not be retained in his current job. His details were
circulated to other sub-divisional managers to see if they had a vacancy for
him. The e-mail included his CV.
5.
Mr Kevin Thistlethwaite, the sub-divisional manager for the Public Sector
Sub-Division (described as “PST”), asked the Claimant to an interview on 8 April.
The Tribunal’s findings as to what Mr Thistlethwaite was looking for and about
the interview itself are set out at paragraphs 5.17 to 5.19 of the Reasons, as
follows:
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.
6.
Mr Thistlethwaite, following the conclusion of the interview, decided
not to pursue the possibility of offering the Claimant a job. The Tribunal
summarised his evidence as to his reasons in paragraph 5.20 of the Reasons as
follows:
“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.”
7.
No alternative employment within the company was found and the
Claimant’s employment came to an end on 28 April 2009.
The Tribunal’s Reasons
8.
The Tribunal’s decision and supporting reasoning are set out at paragraphs
12 to 24 of the Reasons. Paragraph 12 reads as follows:
“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.”
9.
Paragraphs 13 to 16 are concerned with the claim of unfair dismissal.
We need not consider them here. At paragraph 17 the Tribunal rejected any claim
that the Claimant’s initial selection for redundancy had anything to do with
his age. The only issue, therefore, was whether his age had influenced Mr Thistlethwaite’s
decision not to try to find an alternative role for him in his sub-division.
As to that, the Tribunal’s reasoning can be summarised as follows.
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.
11.
The Tribunal then proceeded to consider what is in truth the central
question, namely whether the Claimant’s age had in fact been a significant part
of Mr Thistlethwaite’s reasons for not taking matters further. It said:
“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.)
12.
Although the exact sequence of the Tribunal’s reasoning in those
paragraphs is at some points a little opaque, its core thinking is adequately
clear, namely:
(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
13.
We start by setting out Mr Thistlethwaite’s evidence about his knowledge
of the Claimant’s age. In his witness statement he said (not, in fact, in
terms but by necessary implication) that he was unaware of the Claimant’s
precise age. He said that if he had had to guess he would have thought from
his general appearance that he was in his early or mid fifties. He said that
early in the interview the Claimant had suggested that his age might be a
factor in Mr Thistlethwaite’s decision whether to engage him. Mr
Thistlethwaite said that he was surprised by this and that, in order to
reassure the Claimant, he had said something to the effect that he thought the
Claimant had many more years of productive work in him and that, although a
period of training might be required, this would not usually be a barrier.
14.
We have Ms Levene’s note of the Claimant’s cross-examination of Mr Thistlethwaite.
This was sent to the Claimant’s solicitors before he decided not to oppose the
appeal. They did not dispute the accuracy of the note. Indeed, they supplied
the Claimant’s own notes of the questions which he intended to ask, which
broadly correspond to counsel’s note, at least as regards the questions. The
note shows that the Claimant started his cross-examination by challenging the
statement in Mr Thistlethwaite’s witness statement that it was he (that is, the
Claimant) who had raised the issue of his age. The exchange was as follows:
“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.”
15.
A little later there was an exchange about the 56-year-old recruit to
whom we have already referred, but otherwise nothing more was said about the
question of Mr Thistlethwaite’s knowledge of the Claimant’s age. However,
following the end of the cross-examination, the Judge referred Mr
Thistlethwaite to the Claimant’s CV and said this:
“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.”
16.
We should make one preliminary point about that evidence. It was never
Mr Thistlethwaite’s evidence that he was unaware that the Claimant was, to put
it broadly, an older man. Indeed, it was his evidence that the Claimant
appeared to be in his early to mid fifties. He also accepted that there had
been a discussion about the Claimant’s age, and he accepted the Claimant’s
recollection that he had said something to the effect that the Claimant had
another ten years’ work in him, which is consistent with what he had said about
his appearance. All that he denied was knowing his precise age - that is, that
he was in fact aged 60. If there was a lie, that is what it consisted of. We
have to say that it does not seem that the Tribunal understood this distinction:
see in particular the final sentence of paragraph 5.19 of the Reasons.
17.
That last point notwithstanding, the fact that Mr Thistlethwaite had the
Claimant’s CV clearly raised an arguable case that he was aware of his precise
age; and that case is reinforced, if reinforcement were needed, by the fact
that, as the Tribunal records at paragraph 5.18, the Appellant in its ET3 had
in fact stated in terms that Mr Thistlethwaite was aware of the Claimant’s age
from having seen his CV. Nevertheless, we accept Ms Simler’s submission that,
on the totality of the evidence, the Tribunal was not entitled to simply base a
conclusion on those facts. That is for two reasons.
18.
First, Mr Thistlethwaite had given, in answer to the Judge’s question,
an explanation of why he had not absorbed from the CV the information which it
contained about the Claimant’s age: see para 15 above. That explanation is not
addressed by the Tribunal at all. At paragraph 5.18 it says simply that Mr Thistlethwaite
was lying because the Claimant’s date of birth appeared on his CV, and it
refers later to the statement in the ET3. In our view that is not good
enough. A finding that a witness has lied on oath is a serious finding to
make. It should not, of course, be shirked where it is justified; but the
Tribunal’s reasons for making such a serious finding must be properly set out
and it must engage with any explanation offered by the witness for the inconsistency
which has raised its suspicions. That did not happen here.
19.
The position might be different if the explanation offered was obviously
incredible, but that is not the case here. It may perhaps be a little
surprising that someone in Mr Thistlethwaite’s position would not have noticed
the Claimant’s precise age, but it is certainly not impossible; and it is
indeed the experience of the lay members in particular (who have to deal with a
number of CVs) that it is very common to pass over the formal parts without
taking in all the information in them if it is not of particular interest. We
also note that Mr Thistlethwaite’s evidence, which the Tribunal apparently
accepted, that he told the Claimant that he would still have a good ten years
ahead supports the case that he in fact thought that the Claimant was no older
than 55, since he could not have said it if he had taken in that he was in fact
aged 60.
20.
Secondly, the Tribunal’s point based on the inconsistency between his evidence
and the contents of the ET3 was never put to Mr Thistlethwaite. It should have
been, since he might well have been able to explain it. Ms Simler tells us, on
instructions, that the contents of the Notice of Appearance in the relevant
respect represented simply an assumption on the part of the draftsman and that
Mr Thistlethwaite had had no input into it. That is a perfectly plausible
explanation, having regard to the President’s experience of how pleadings in
the tribunals are sometimes put together. But whether that is evidence or not,
the important point is that fairness required that Mr Thistlethwaite be allowed
to deal with the point if the Tribunal was going to attach importance to it and
to use it as the basis of a finding of dishonesty.
21.
Accordingly, the finding that Mr Thistlethwaite lied is legally flawed
and the appeal must be allowed on that basis alone. We should, however,
address the other aspect of the Tribunal’s reasoning.
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.
24.
The question for the Tribunal, therefore, was whether the Appellant had
nevertheless shown a non-discriminatory explanation for Mr Thistlethwaite’s
decision. The Tribunal acknowledged that such an explanation had been put
forward - essentially that Mr Thistlethwaite had been unimpressed by the
Claimant’s performance in interview - and indeed it found that that explanation
“could be plausible” (see paragraph 21); but it held that it was “impossible to
accept that explanation once Mr Thistlethwaite was found to have lied”. We do
not understand that reasoning, which appears to involve a non sequitur.
No doubt the fact that Mr Thistlethwaite had told a lie, if he had, about his
knowledge of the Claimant’s precise age was a factor to be taken into account
in testing the truth of his explanation for why he had not considered him
further; but there is no basis on which it could preclude the Tribunal from
considering that explanation at all, which is the approach taken in paragraph
21 of the Reasons. If the Tribunal, as appears to be the case in the second
half of that paragraph, believed that its approach was required by Igen v
Wong, that is, with respect, simply wrong.
25.
For that reason also we would have to allow the appeal, even if the
Tribunal had been entitled to find that Mr Thistlethwaite had lied. We should make
two more general observations on this aspect of the Tribunal’s reasoning.
26.
First, even if the Tribunal had approached the matter correctly and had
treated Mr Thistlethwaite’s lie as a factor relevant to the truth of his
explanation of the conduct complained of, it would not necessarily have been a
factor of great weight. Criminal practitioners are familiar with the standard
direction given to juries that it does not automatically follow from the fact
that a defendant or other witness has lied on one point that his evidence is
untruthful at all points or, more generally, that he is (if he is the defendant)
guilty of the offence charged. It is always necessary to analyse why the lie
was told and what relevance that has to the particular issues which have to be
resolved. We will not attempt to carry out that analysis here, save to observe
that, given that Mr Thistlethwaite always acknowledged that he knew that the
Claimant was, broadly, in the last ten years of his working life, it is not at
once evident that the fact that (on the basis we are assuming) he falsely
denied that he knew that he was in the last five years made all that much
difference.
27.
Secondly, we are not very comfortable with the statement in paragraph 21
of the Reasons that, as a result of the Igen guidelines, the
Tribunal “must draw an inference of discrimination [emphasis supplied]”.
In one sense this is no doubt correct, but we have the impression that the
Tribunal may have taken it the wrong way. A finding of a discriminatory
motivation is a finding of fact, namely a finding about what was going on,
consciously or subconsciously, in the mind of the putative discriminator. It
is a serious finding, not to be made on a tick-box basis. The reason why, if a
respondent fails to discharge the burden on him at “Igen stage 2”,
a finding of discrimination “must” be made is that the finding at “Igen
stage 1” means that the evidence has already shown a prima facie case of
discrimination, which has not been rebutted. That is why “Igen
stage 1” is not satisfied merely by showing facts that might raise a “possibility”
of discrimination. It would be undesirable and dangerous if the burden of
proof rules were regarded as setting out some mechanistic rule requiring a
finding of discrimination by way of legal presumption even when the evidence overall
did not support such a conclusion.
Disposal
28.
We have considered and sought Ms Simler’s submissions on the question of
the appropriate disposal of the appeal. The logic of the arguments advanced in
support of the appeal, and on the basis of which the Claimant did not oppose it,
is that the Tribunal’s reasoning in making the finding of age discrimination is
legally flawed; but it does not necessarily follow that no finding of age
discrimination could have been made on the basis of the facts found. Thus far,
as Ms Simler correctly concedes, that would point to the case being remitted to
a fresh Tribunal. However, it is our understanding of the approach taken by
the Claimant, and of his solicitors’ letter, that he does not intend to pursue
the claim for age discrimination further; and we are bound to say, on what we
have seen, that that is a wise decision. Nevertheless, we think it right,
since there is no explicit statement to that effect, to give him the
opportunity to submit to us that we have misunderstood his position. The order
that we will therefore make is that the appeal is allowed and that the claim of
age discrimination is dismissed unless, within 14 days of the seal-date of this
order, the Claimant lodges written submissions with this Tribunal, copied to
the Appellant, contending that the case should be remitted to the Tribunal for
further consideration of the age discrimination issue. If such submissions are received
the Appellant will have 14 days to respond and the matter will then be
considered by the Tribunal on the papers.
