Employment Appeal Tribunal
The process of drawing an inference of discrimination, and of deciding whether the first stage of the test in Wong v Igen Ltd (formerly Leeds Careers Guidance) [2005] EWCA Civ 142, [2005] 3 All E.R. 812 had been satisfied, was situation-specific and was a matter for factual assessment. The development of quasi rules of law governing that exercise was to be deprecated.
The appellant (H) appealed against the dismissal of his claim for age discrimination against the second respondent (M).
H had been employed by M as a security guard, working at a site along with two colleagues (C and E). When M's services were no longer required at the site, the three were told that they would be redeployed. Three vacancies arose at another site. Two were given to C and E, who were in their thirties. The third was filled through external recruitment. It was never offered to H, who was 64. H claimed that he had been discriminated against on the basis of his age. A tribunal dismissed his claim, accepting the evidence of the manager handling the redeployment (R) that H had refused employment at the second site. That decision was overturned on appeal and the matter was remitted to a fresh tribunal, which found R's evidence to be unreliable and held that H had never been offered a job at the second site. Nevertheless, it went on to dismiss the claim, holding that H had not proved facts from which it could conclude that there had been unlawful discrimination as required by the Employment Equality (Age) Regulations 2006 reg.37(2).
H submitted that the tribunal's findings required it to hold that he had established a prima facie case of age discrimination. M submitted, relying on the observations of Mummery L.J. in Madarassy v Nomura International Plc [2007] EWCA Civ 33, [2007] I.C.R. 867, that a claimant could not establish a prima facie case of discrimination simply by showing a difference of status and a difference in treatment. It argued that "something more" was required.
HELD: The matters relied on by H were sufficient to shift the burden of proof in accordance with reg.37(2). They raised a prima facie case of age discrimination and it was important to see what explanation M could provide. The tribunal had failed to understand what was involved in the test to be applied. While it had not enunciated its reasoning, it could be inferred that it had proceeded on the basis of what it understood to be a rule of law rather than an assessment of the inference to be drawn from the primary facts. The process of drawing an inference of discrimination, and of deciding whether the first stage of the test in Wong v Igen Ltd (formerly Leeds Careers Guidance) [2005] EWCA Civ 142, [2005] 3 All E.R. 812 had been satisfied, was situation-specific and was a matter for factual assessment, Igen and Madarassy considered. The development of quasi rules of law governing that exercise was to be deprecated. In the instant case, the inference that M's failure to offer H a position at the second site had been significantly influenced by his age was, in the absence of anything else and in the light of R's untruthful explanation for the difference in treatment, the likely explanation. In those circumstances a tribunal could properly infer that H's age, and more specifically the difference between his age and that of his comparators, was the reason for the difference in treatment unless M provided an adequate explanation. That was the case even if M had a policy of requiring retirement at 65. A general policy did not negative, or weigh very heavily against, an inference that an individual manager had been motivated by discriminatory considerations (see paras 15-17 of judgment).
Appeal allowed
Counsel for the appellant: David Cunnington
[2011] Eq LR 699
