Regulation 3(1)(a) of the Employment Equality (Age) Regulations 2006 provides that X directly discriminates if it treats Y less favourably than it treats or would treat a comparator “on grounds of Y’s age”. This case deals with the issue of whether dismissing an employee with “ageist tendencies” amounts to direct age discrimination.
Mr Hussain was a front of house manager at a commercial theatre owned by the company, Live Nation (Venues). He was dismissed in May 2007. The background leading up to the dismissal involved working relationship issues between Hussain and his general manager and the assistant manager (both of whom were female and younger than Hussain). There were issues over Hussain’s performance ratings as well as general tensions.
The employer’s view was that Hussain found it difficult to be managed by younger female members of staff – in other words, that they suspected him of ageism and sexism, and it eventually dismissed him on the basis that he was “beyond management control”. Hussain brought claims for (among other things) unfair dismissal and age discrimination. The company conceded at the outset that the dismissal was automatically unfair on procedural grounds.
The tribunal concluded that the employer was guilty of age discrimination in relation to the dismissal. It said that Live Nation (Venues) had considered Hussain to be “too old to change his ways”, and this was sufficient to infer age discrimination which shifted the burden of proof to the company. The tribunal said that the company’s explanation was “totally unsatisfactory” and commented that its “decision to act so totally against all the normal process and procedure was baffling”. It came to the conclusion that the company had failed to satisfy the tribunal that it would have taken the same approach with a younger man.
The EAT took a different view, concluding that there was no age discrimination.
The EAT commented that as Hussain “had for some time protested at his treatment at the hands of younger female managers”, there was no evidential basis for inferring that the employer assumed that he could not or would not change simply because he was “too old to do so”.
The EAT also had reservations about the view the tribunal took of the company’s explanation for the dismissal.
- For the burden of proof to shift to the employer, there must be an inference of discrimination.
- While an unjustified or unreasoned belief that an employee has “ageist tendencies” may render a dismissal unfair, it does not justify a conclusion that the employee has been dismissed on grounds of age.
- When a tribunal is considering contributory fault, it must look objectively at the extent to which any blameworthy conduct actually contributed to the dismissal. It is an error of law for a tribunal to make a finding that it was not just and equitable to make any contributory fault reduction because any blameworthiness by the employee was overtaken by the conduct of the employer.
What you should do
- Provide equal opportunities training to all employees.
- Performance appraisals must be conducted in a fair and reasonable manner. Reviews should be documented.