Gay v Sophos Plc (Age Discrimination) [2011] UKEAT 0452_10

THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

INTRODUCTION

1. The Respondent is an international software business based in the UK. The Appellant, who was born on 4 October 1953, was until her dismissal for redundancy with effect from 5 July 2009 employed as Vice-President of its EMEA – Europe, Middle East and Africa – Division. She brought two sets of proceedings against the Respondent in the Employment Tribunal claiming for unfair dismissal, breach of the consultation obligations under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992, unpaid wages and age discrimination (both “primary” and by way of victimisation). The claims were heard by a Tribunal sitting at Reading chaired by Employment Judge Gumbiti-Zimuto over seven days in May last year. Prior to the hearing the Respondent conceded liability for unfair dismissal and breach of its obligations under section 188. By a Judgment and Reasons sent to the parties on 21 June 2010 the Appellant was awarded £66,200 (then the maximum) as compensation for unfair dismissal and a further £60,972.30 for the breach of section 188; but the remaining claims were dismissed. The Appellant appeals against the dismissal of her claim of age discrimination.

2. Both before the Tribunal and before us the Appellant was represented by Ms Susan Belgrave and the Respondent by Mr Niran de Silva, both of counsel.

3. It is not necessary for the purpose of the issues on this appeal that we should set out the substantive provisions of the Employment Equality (Age) Regulations 2006. But we should note that reg. 37 contains provisions in relation to the burden of proof equivalent to those which are now familiar from the other anti-discrimination legislation: specifically, para. (2) provides that where a complainant "proves facts from which the tribunal could … conclude in the absence of an adequate explanation that the respondent [has committed an act of discrimination]" the tribunal shall uphold the complaint unless the respondent proves that he did not commit that act.

THE FACTS IN OUTLINE

4. For the purposes of the issues on this appeal we need only set out the facts in outline form.

5. The Appellant was initially employed by a French subsidiary of the Respondent, Sophos SARL, and was based in Paris. On her promotion to Vice-President EMEA, which involved her becoming UK-based, she entered into a fresh service agreement with the Respondent. The contract was for a maximum term of three years (though subject to prior termination on three months’ notice). Clause 2 (6) reads as follows:

“… [I[n the case of expiry or termination of the Executive’s employment in the United Kingdom for whatever reason, it is agreed that the Executive’s French work contract with Sophos Sarl is once again immediately enforced and Sophos Sarl hereby agrees to re-employ the Executive from such date with no interruption in her period of continuous employment commencing on 9 October 2000. In the event of termination of the Executive’s employment in the United Kingdom for whatever reason, the Executive agrees that she has no claim whatsoever against the Company, the Group or the Board to the extent that such claims can lawfully be limited or compromised and the Executive will only be entitled to bring a claim under her French work contract.”

As we understand it, that unusual provision was designed to protect the Appellant as much as the Respondent, inasmuch as it secured to her the benefit of the protections available under French employment law.

6. It was common ground before the Tribunal and before us that the Appellant was a very competent and highly regarded executive. There were no criticisms of her performance. She was very well remunerated. The combination of her basic pay and her target commission entitled her to earnings in the last year of her appointment of £260,000, which made her one of the five top earners in the business.

7. Initially, in her role as Vice-President EMEA the Appellant reported to the CEO of the Respondent, Stephen Munford. In May 2008 Mike McGuinness was appointed senior Vice-President of Worldwide Sales and Field Operations, a position intermediate between the Appellant’s role and the CEO. The relationship between the Appellant and Mr McGuinness was unsatisfactory. The Tribunal found that their working styles were very different and that that gave rise to a tension between them. She complained of certain particular aspects of his treatment of her: see para. 12 below.

8. Following the acquisition by the Respondent of a German company called Utimaco, there was a restructuring in September 2008 in which a new region covering Germany, Austria and Switzerland (“DACH”) was carved out of EMEA. This contributed to the tensions between the Appellant and Mr McGuinness. Mr Munford had them both to dinner in October with a view to repairing their working relationship.

9. The Respondent’s results announced in October 2008 were poor. It was decided that redundancies would be needed in order to reduce costs, and in the event some thirty redundancies were made in the UK. At the beginning of December Mr McGuinness and Mr Munford decided that the EMEA and DACH regions should be restructured, so as to substitute a region covering Northern Europe (including the former DACH region), the Middle East and Africa, and a separate region covering Southern Europe. The Vice-Presidents in due course appointed to these regions were Mr Pino Kienlin and Mr Christian Pijoulat. Mr Kienlin had previously been country manager for the DACH region. Mr Pijoulat had formerly been country manager for France, Spain and Portugal, reporting to the Appellant. Mr Kienlin was aged 50 and Mr Pijoulat 40. A separate position of Vice-President UK was also created: this was given to Jon Hughes – there is no finding about Mr Hughes’s age but it appears to be accepted that he was substantially younger than the Appellant.

10. The abolition of her role as Vice-President EMEA need not necessarily have entailed the dismissal of the Appellant: quite apart from any other possibility, she might have been considered for the role of Vice-President of one of the two new regions. However, neither Mr Munford nor Mr McGuinness contemplated that possibility. From the start they proceeded on the basis that the Appellant’s redundancy involved her dismissal (including the termination of her French contract).

11. It was originally hoped that the Appellant would agree to a voluntary termination, and a colleague, Paul Smolinski, was asked to sound her out informally. However, she made it clear that she was not interested in leaving the business. Accordingly, on 5 January 2009 she was seen by Mr McGuinness and told that she was being dismissed for redundancy. The meeting was very short, and there was no attempt at any consultation. She was asked to see Kenneth Paul, the Global Head of Human Resources, who gave her a letter giving her six months’ notice of the termination of her employment. She was told that she would be on garden leave for the remainder of the period. There were attempts in the immediate aftermath to negotiate agreed terms for her departure (covering her French as well as her UK contract), but these came to nothing. The Appellant lodged a grievance, but it was not upheld and a subsequent appeal was likewise dismissed. On the Appellant’s return to Paris her French contract was also terminated, on the grounds that there was no work for her. We are told that proceedings are ongoing in France in relation to that termination.

THE APPELLANT’S CLAIMS

12. The Tribunal recorded the treatment of which the Appellant complained at para. 5.2 of the Reasons under four heads, as follows:

“5.2.1. Mr McGuinness’ behaviour to the Claimant prior to her dismissal (which is part of the series of discriminatory events up to and including the Claimant’s dismissal and her time on garden leave). ...

(i) Failing to hold appraisal meetings with her;

(ii) Having to chase Mr McGuinness to arrange formal business review meetings with her;

(iii) Consistently bypassing the Claimant and dealing with her direct reports in a manner that undermined her;

(iv) On 10 September 2008 informing her that she was no longer part of his team.

5.2.2 Dismissing the Claimant

5.2.3 Failing to find an alternative position for the Claimant within the Respondent’s organisation structure;

5.2.4 Placing the Claimant on garden leave on the termination of her UK employment and in particular during that time;

i. denying her access to the Respondent’s IT systems;

ii. refusing to allow her to attend external meetings;

iii. denying her further involvement in management issues with the company;

iv. instructing the Claimant not to contact colleagues in the company;

v. not allowing her to attend a Customer Advisory Board even in May 2009;

vi. failing to deal with the Claimant’s grievance in a timeous manner pursuant to paragraph 12 of Part 3 of Schedule 2 of the Employment Act 2002.”

13. Ms Belgrave helpfully clarified that it was not part of the Appellant’s case that the decision to dispense with the EMEA region was affected by her age: she had acknowledged as much in her cross-examination. Rather, so far as her dismissal was concerned, her case was that her age was (at least) a significant factor in the decision that the loss of her role as Vice-President of EMEA meant that she would have to be dismissed – or, to put it another way, the failure to offer her any alternative employment: the Respondent was, she suggested, not interested in finding another role for a senior manager in her mid-50s since they regarded her (consciously or subconsciously) as someone who was coming to the end of working life in any event. In the light of that clarification, there is no real difference between heads 5.2.2 and 5.2.3.

14. As regards the claim of victimisation, the Appellant’s case was that she had in the course of the discussions following the giving of notice complained that she was the victim of age discrimination and that that had caused or contributed to the failure by the Respondent to find her an alternative position and to the decision to maintain her on garden leave.

15. In relation to the claim of “primary” discrimination the Appellant identified five younger colleagues who had in various ways been affected by restructuring or reorganisation around this time but who had not been dismissed and had been found continuing roles. These were Messrs Kienlin, Pijoulat and Hughes, to whom we have already referred, and also Andy Bradshaw and Allan Broderick. She relied on them as comparators for the purpose of head 5.2.3: that is, she said that it could be inferred that the fact that they had been found alternative employment when she had not was due to the difference in their ages. In the case of Messrs Kienlin, Pijoulat and Hughes the restructuring in question was the selfsame restructuring as had led to the Appellant’s dismissal. In that respect, the argument was also put as being that the Respondent had discriminated against the Appellant by treating the loss of her role as self-contained rather than putting her and them into a pool for the purpose of selecting the new Vice-Presidents; but the essential point is the same whichever way it is put. Mr Bradshaw and Mr Broderick had both lost their current roles in different circumstances but were found alternative employment by the Respondent at around this time.

THE TRIBUNAL’S REASONING

16. The Tribunal considered the issue of primary age discrimination at paras. 88-111 of the Reasons and the issue of victimisation of paras. 118-122. We take them in turn.

PRIMARY DISCRIMINATION

17. The Tribunal starts by considering the position of each of the Appellant’s five nominated comparators. This does not seem an entirely logical starting point, but the Tribunal was loyally following the format in which the issues had been agreed prior to the hearing. It deals first, and at most length, with the position of Mr Bradshaw. He had originally been the Vice-President of UK Sales. When the Respondent bought Utimaco he was asked to take charge of its integration into the Respondent group, which for regulatory reasons meant that he had to become an employee of Utimaco. When that role came to an end, in July 2009, he was offered re-engagement with the Respondent in a specially created role as Vice-President of Business Development, though in the event he did not accept it. It was, as noted above, the Appellant’s case that the Respondent’s willingness to find a role for Mr Bradshaw, who was aged only 39, was evidence that its unwillingness to find any role for her was on account of her age. As to that, the Tribunal said, at paras. 95-96:

“95. However, the Tribunal is not satisfied that the difference in treatment that the Claimant received, to the extent that it was less favourable treatment, was related to her age. The Respondent in the case of the Claimant had made up its mind to terminate the Claimant’s employment in the United Kingdom. No attempts were made to find her alternative work. The reasons behind this were related to the fact that she held a senior position within the Respondent’s organisation and that the Respondent’s Chief Executive Officer and Human Resources Director did not consider that the Claimant was likely to accept any lower position and so they made no offers. The Claimant was an expensive employee. Her cost to the Respondent as an employee was in the region of about £250,000, taking into account on target earnings.

96. The Tribunal also considered that the Respondent must have taken into account the nature of the Claimant’s relationship with Mr McGuinness. This is something that would have gone against the Claimant and influenced the Respondent’s enthusiasm for making efforts to find ways to keep the Claimant within the organisation. While there is a significant difference in age between the Claimant and Mr Bradshaw, the Tribunal is not satisfied that it was the difference in age which was responsible for the difference in treatment that the Claimant received in comparison to Mr Bradshaw.”

18. Although those findings about the reason why no attempt was made to find alternative work for the Appellant are made in the particular context of the comparison with Mr Bradshaw, they are necessarily of general applicability. On analysis, they are threefold:

(1) That Mr Munford and Mr Paul did not believe that the Appellant would accept a role at any lower level than that which she had occupied as Vice-President of EMEA.

(2) That the Appellant was earning at a very high level. The logic of this point, although it is not spelt out, must be either that if she were found another role she would have to continue to be paid at or around the same level, which would make the cost of employing her disproportionate to the value of the role, or that, if she were asked to take a drop in earnings, that would not be acceptable to her. It is right to say that Mr de Silva told us that this point was very much secondary in the way in which the Respondent put the case, which focused on point (1).

(3) That Mr McGuinness would not have been keen to retain the Appellant because of their poor relationship. Mr de Silva accepted that this was not a point that the Respondent itself had relied on. But he submitted, and we accept, that that did not preclude the Tribunal from making the finding. It is not unusual for a tribunal to be in a position where it does not wholly accept a respondent’s account of his own motivation or that of his employees: in particular, witnesses are sometimes reluctant to assert a motivation which, rightly or wrongly, they regard as discreditable. But that is no reason why the tribunal should not reach its own conclusions if the evidence supports them and if there is no consequent unfairness to the claimant.

19. The same points are then made, though more briefly, in relation to the other comparators. In relation to Mr Kienlin, the Tribunal said, at paras. 101-103:

“101. The Tribunal accepts that there was less favourable treatment of the Claimant. The Tribunal, however, then had to consider what were the reasons for this decision and whether it appears to the Tribunal it was on the grounds of the Claimant’s age.

102. For the reasons which have been set out earlier, the position of the Respondent as of January 2009 was one where their mindset was that the Claimant was to leave its employment. The Tribunal does not consider [on] the evidence that the Claimant’s age was the reason for this mindset. As we have already indicated there were factors which included the Claimant’s previous status ad position with the company, the level of her remuneration and the nature of her relationship with Mr McGuinness, which were all factors in that regard.

103. It was these factors that in our view informed the Respondent’s treatment of the claimant and not her age. It was these factors that left the Claimant out of consideration for the role that was given to Mr Kienlin.”

(We have inserted what must be a missing word in para. 102, to bring out the sense.) Likewise, in relation to Mr Pijoulat, the Tribunal said, at para. 105:

“Similar considerations apply to this post as set out in respect of the position filled by Mr Kienlin. The Tribunal is not satisfied that the difference in treatment between Mr Christian Pijoulat and the Claimant was related to age but the other factors relating to the Claimant’s status, levels of remuneration and relationship with Mr McGuinness were significant factors in any decisions made.”

20. Having considered the cases of the comparators, the Tribunal turned to the issues identified at para. 5.2 of the Reasons. At paras. 107-112 it reviewed the particular incidents identified at 5.2.1. We need not set these paragraphs out in full. It concluded, at para. 112:

“The Tribunal has considered whether the difficulties of the Claimant’s working relationship with Mr McGuinness were related to her age. The Tribunal is satisfied that there were difficulties between them which appear to the Tribunal to have arisen out of the differences in the way they worked and their style of operation rather than any considerations relating to the Claimant’s age.”

21. At para. 113 the Tribunal addressed head 5.2.2 of the agreed issues, as follows:

“The Claimant complains that in dismissing her, the Respondent discriminated against her on the grounds of age. The Tribunal was satisfied that the reason for her dismissal was on the grounds of her redundancy. The Tribunal does not consider that in arriving at the decision to make the Claimant’s position redundant considerations relating to the Claimant’s age played any part.”

That is brief, but it reflects the way in which the Appellant’s case was put: see para. 13 above.

22. The Tribunal dealt with head 5.2.3 of the agreed issues at paras. 114-115, as follows:

“114. The Claimant complains of discrimination in respect of that the Respondent’s failure to find an alternative position for her within the Respondent’s organisation structure, the Tribunal does not consider that this complaint is made out. The reason that the Respondent failed to find an alternative position for the Claimant, despite the fact that there appeared to be a number of positions which arose over a period of time, relates to the status and position that the Claimant had previously held within the company and the view formed by Mr Munford and the Human Resources Director that the Claimant was unlikely or unwilling to accept any lesser position.

115. Had the Respondent’s undertaken a proper consultation this issue is one which may have been resolved, the question whether the Claimant was interested in any lesser roles could have been properly explored as opposed to being postulated upon in the these proceedings. Regrettably there was not. We do not consider that any considerations relating to the Claimant’s age impacted on the way that the Respondent failed to consider the Claimant in respect of any alternative position within their organisation.”

(Something has gone wrong with the English in the first sentence of para. 114, but the overall sense is clear.) The reasoning in those paragraphs overlaps with, though it is not identical to, the points made in the discussion of the Appellant’s comparators. Of the three reasons which we have identified at para. 18 above, the Tribunal identifies only point (1). That, as we have said, reflects the way in which the Respondent had put its case. We are not sure whether the omission to refer to points (2) and (3) is deliberate.

23. In relation to head 5.2.4 under the agreed issues, the Tribunal said this, at paras. 116-117:

“116 The Claimant complains about being placed on garden leave and as a result suffering a number of detriments, such as being denied access to the Respondent’s IT systems, being refused permission to attend external meetings, being denied further involvement in the management of the company’s issues, being instructed not to contact her colleagues, not being allowed to attend a customer advisory board event and failing to have her grievance dealt with in a timely manner. All these matters as factual allegations are in our view made out by the Claimant. Where the Claimant fails in our view is in being able to establish that there was any connection with her age in the respect of any of these matters.

117 They arise out of the decision taken to place her on garden leave and the management of that situation by the Respondent. We do not consider that that was concerned or in any way affected by considerations of the Claimant’s age.”

24. We turn to the victimisation claim. The Tribunal found that the Appellant did a protected act by making an allegation of age discrimination at a meeting with Mr Paul and Mr Smolinski on 16 January 2009. But it found, consistently with its findings in relation to the primary discrimination claim, that the treatment of which she complained was not by reason of her having made that allegation. Specifically, it found, at para. 119:

“The failure to find the Claimant a position within the Respondent’s organisation was something which had, in our view, been decided upon at the time that it was decided to make the Claimant redundant. The attitude of the Respondent’s senior managers in not considering the Claimant suitable for a position other than a high position within the company is the crucial factor and not the fact that she made any allegation of age discrimination.

Likewise – and again consistently with the way in which it had decided the issue of primary discrimination – it held that the various matters complained of as arising during the Appellant’s garden leave “were all matters which … follow from the way that the Respondent chose to enforce, implement and manage the garden leave period” and were not related to her having made any allegation of age discrimination.

25. At paras. 121-122 the Tribunal dealt with the allegation at 5.2.4 (vi) relating to how her grievance had been handled. It concluded, at para. 122:

“… The thoroughness with which the Claimant’s grievances were investigated led us to conclude that the reason for the delay [in handling the grievance] was not because the Claimant had done the protected acts relied upon”.

THE APPEAL

26. It is clear from the foregoing analysis that the Tribunal dismissed the Appellant’s claims of age discrimination and victimisation because it found that the decision not to consider her for an alternative role (which is the heart of her complaint, the other detriments being consequent on it) was not because of her age, or because she had complained of discrimination, but was for one or more of the three reasons identified at para. 18 above – and primarily because Mr Munford and Mr Paul did not believe she would be interested in taking a more junior position. That is a finding of fact. The Appellant’s challenge to that finding as pleaded in the Notice of Appeal is put under four headings; but the distinction between the headings is not entirely clear, and the particular points made under them are rather diffuse. Ms Belgrave accepted in her oral submissions, however, that her grounds fell under two broad heads: (a) that the Tribunal failed to apply the “reverse burden of proof” required by reg. 37 and (b) that the Tribunal’s fundamental finding of fact was perverse or inadequately reasoned having regard to a number of particular points in the evidence. We proceed on that basis.

(A) BURDEN OF PROOF

27. This was a case in which the allegation of discrimination depended on the unexpressed, and quite possibly unconscious, motivation of the putative discriminators. It is thus a classic case of the kind in which claimants may be assisted by the “reverse burden of proof” under – in the case of the 2006 Regulations – reg. 37, as expounded in the well-known chain of authorities culminating in Madarassy v Nomura International Plc [2007] ICR 867. Ms Belgrave in her written closing submissions (see paras. 27-33) understandably placed considerable weight on this aspect and structured her case by reference to the “two-stage” approach described (though not prescribed) in Igen Ltd v Wong [2005] ICR 931. On this appeal she complains that not only did the Tribunal not follow that approach but that at no point in its Reasons did it refer to the burden of proof at all. We agree that that is a fair criticism. In a case where, as here, a claimant has put the burden of proof at the centre of her submissions, it is good practice for a tribunal to address that case, and, if it is not going to follow the approach urged on it, to say why. However, it does not follow that the failure to take that course vitiates the Tribunal’s decision in law. It is now very well-established that a tribunal is not obliged to follow the two-stage approach: see Laing v Manchester City Council [2007] ICR 1519, at paras. 71-77 (pp. 1532-3) (approved in Madarassy). If it makes a positive finding that the acts complained of were motivated by other considerations to the exclusion of the proscribed factor, that necessarily means that the burden of proof, even if it had transferred, has been discharged.

28. The question then is whether the Tribunal in its Reasons made positive findings which excluded age as a significant factor in the treatment complained of. On the face of it, the answer is clear. In relation to each of the “primary discrimination” issues, and also in relation to victimisation, the Tribunal explicitly found that the relevant decision-takers were motivated not by the Appellant’s age but by the particular factors which it identified – see the passages quoted at paras. 20-24 above. However, it is not quite so straightforward, at least as regards issue 5.2.3 (which is the central issue). As noted at para. 22, the reasoning in para. 144 of the Reasons echoes the more elaborate findings made earlier in the Reasons in connection with individual comparators, as set out at paras. 17-19 above. The language used there is more equivocal. In relation to the comparison with Mr Bradshaw the Tribunal twice uses the phrase, at the beginning of para. 95 and the end of para. 96, “the Tribunal is not satisfied”; and it uses the same phrase in relation to Mr Pijoulat, at para. 105. If that shows that the Tribunal regarded the burden of proof as being on the Appellant, that might undermine the apparently positive terms of the subsequent findings in the Reasons. However, these phrases cannot fairly be read in isolation. The remainder of para. 95, with para. 96, goes on to make positive findings as to the reasons why the relevant decision-takers believed that the loss of the Appellant’s job meant that she would have to be dismissed (i.e rather than found another role), namely those which we have itemised at para. 18 above; and although it is not there said in terms that those reasons exclude the possibility that the Appellant’s age played a part, that is subsequently said quite clearly at paras. 102 and 103. That is consistent with the ultimate findings in para. 114 of the Reasons, and although the Tribunal’s language is not as tight as it could have been it is in our view adequately clear that it did indeed intend to make a positive finding that the Appellant’s age was not a factor in her treatment.

29. It follows that the real question is this appeal is concerned not with the Tribunal’s approach in law but simply with whether its findings as to the motivations of the decision-takers were adequately reasoned and open to it on the evidence. We consider that under head (B) below.

(B) THE CHALLENGE TO THE FINDINGS OF FACT

30. We have already commented on the diffuseness of the points made in the Notice of Appeal, notwithstanding the various headings employed. We have looked for ways of drawing together the various points made; but in the end we have thought it best simply to go through it paragraph-by-paragraph, though we can pass over the paragraphs addressing the burden of proof issue.

31. Paragraphs 1-11 are introductory.

32. Paras. 12 and 13. Para. 12 refers in general terms to the guidance given by the Court of Appeal in not only in Igen but also Anya v University of Oxford [2001] ICR 847. Para. 13 starts by complaining that the Tribunal did not follow the guidance in Igen: we have already dealt with this. At sub-paras. 13.3 and 13.4 the Appellant makes, however, what appear to be rather different points. In the first half of sub-para. 13.3 it is complained that the Tribunal “merely recited the Respondent’s ‘explanation’ without considering whether that explanation had withstood the scrutiny of cross-examination and without considering the credibility of the witnesses involved”. The Appellant goes on to point out that some parts of Mr Munford’s witness statement have been incorporated wholesale into the Tribunal’s findings of fact. With respect, however, this criticism is of no value except to the extent that particular points made in cross-examination are identified which it is said that the Tribunal was obliged specifically to address. At sub-para. 13.4 the Appellant complains that the Tribunal should not have found an explanation which had not been advanced by the Respondent itself: as to this last point, we do not agree – see para. 18 (3) above.

33. Para. 14. In this paragraph the Appellant sets out eleven factors which it is said caused the burden of proof as regards the claim of age discrimination to shift to the Respondent. It is not clear, however, what criticism of the Reasons is being made. If the point is that the Tribunal did not address the question whether “Igen stage 1” had been satisfied, we have addressed this above. We would, however, observe in passing that the points in question mostly do no more than establish that the Appellant was unreasonably treated. That is not in dispute, but the question is whether that unreasonable treatment gave grounds for inferring discrimination on the grounds of her age.

34. Para. 15. The contention in this paragraph is that the Tribunal, having on various points preferred the Appellant’s evidence to that of the Respondent’s witnesses, should have found that the evidence of those witnesses as to their reasons for not considering the Appellant for alternative employment was unreliable. This contention is hopeless. Whether any particular inadequacies in the evidence of the witnesses in question undermined their evidence on the issue which it had to decide was a matter purely for the factual evaluation of the Tribunal.

35. Para. 16. This paragraph sets out the proposition that “a tribunal must do more than decide on the credibility of an employer’s witnesses and must test the explanation put forward by these witnesses against the facts and evidence adduced by the applicant”. If, as we understand it, what is meant by that proposition is that “credibility” cannot be decided purely on demeanour or by reference to other general considerations, we agree. But we can see no sign that the Tribunal fell into that error.

36. Paras. 17–23. In these paragraphs the Appellant recites various ways in which she was treated unfairly and/or differently from her comparators. The contention is that the Tribunal was obliged as a matter of law to draw an inference of discrimination and/or victimisation from those matters. We cannot agree. As regards the unfairness of her treatment, it is too well-established to need citation of authority that unfairness is not necessarily a ground for inferring discrimination. As regards the differences between the treatment of the Appellant and some of her colleagues, the reasons for the treatment of the Appellant as found by the Tribunal (see para. 18 above) were all (subject to the possible partial exception of the cost to the Respondent of employing her – as to which see below) peculiar to her.

37. Para. 24. In this paragraph the Appellant complains that the Tribunal found that she was selected “because she was an expensive employee without considering whether she was more or less expensive than those who were retained or offered alternative employment”. We do not believe that it was necessary that the Tribunal should have carried out such an analysis, which was on any view far from straightforward. It was not the Respondent’s case, and it had not been found, that this was the primary reason for not considering the Appellant for alternative employment. Given the findings as to her level of remuneration, the expense of retaining her was perfectly capable of being a relevant factor in the decision even if it was arguable that on certain measures there were other potentially redundant employees who were equally or more expensive. If the Tribunal was satisfied that this was an element in the thinking of Mr Munford and Mr McGuinness, a nice evaluation of whether their assessment was right was unnecessary (unless it was so obviously wrong that it could not have been genuine).

38. Para. 25. The allegation in this paragraph is that the Tribunal “erred in its approach to the evidence of treatment of comparators”, in particular Mr Bradshaw, in that it departed from what is said to be guidance given in the decision of the House of Lords in Shamoon v Chief Constable of Royal Ulster Constabulary [2003] ICR 337. Ms Belgrave did not identify any such departure and we can see none.

39. Para. 26. This paragraph complains of “the Tribunal’s failure to concentrate on ‘the reason why’ as required by the authorities”. We do not understand this contention. The Tribunal plainly addressed, and sought to answer, the question of the reason why the relevant decision-takers treated the Appellant in the way complained of – that is, to adopt the terminology used by Lord Nicholls in Nagarajan v London Regional Transport [1999] ICR 877, their motivation for doing so.

40. Paras. 27 and 28. These paragraphs return to the question of whether the Appellant was any more “expensive” than other employees who were retained or offered alternative employment. Reference is made to evidence said to have been given which established that Messrs Kienlin, Pijoulat and Bradshaw were equally or more expensive. We refer to what we say at para. 37 above.

41. Para. 29. This paragraph criticises the Tribunal’s finding that the relevant decision-takers believed that the Appellant would not accept a position junior to her current position. But that finding is one of fact and the matters raised do not come close to establishing that it was perverse.

42. Para. 30. This raises again the point which we have already addressed at para. 37 above.

43. Para. 31. The Appellant here complains that the finding that Mr McGuinness’s attitude to her was the result not of her age but of the difference in their working styles was contrary to evidence that she had given that he was hostile towards her from the start. That does not begin to raise a case of perversity.

44. Para. 32. In this paragraph the Appellant refers to evidence given by Mr Munford, Mr McGuinness and Mr Paul that the Appellant was regarded as “resistant to change”, which it is said is “a trait often associated with older members of staff but not borne out in the Appellant’s working practices”. The Tribunal did not refer to this evidence in the Reasons, and it is contended that it should have done so. We were referred to agreed notes of the cross-examination of Mr Munford and Mr McGuinness on this point. Although it is clear that Ms Belgrave probed what was meant by this criticism, and obtained some partial admissions, there is nothing in the evidence in question which is specifically indicative of age discrimination, or which plainly shows that the witnesses did not believe what they were saying and which might therefore have required some adverse inference to be drawn. Although in her closing submissions Ms Belgrave referred (at para. 34) to “the view shared by Mr Munford and Mr McGuinness without any real justification that the claimant was resistant to change” as one of the factors relied on as shifting the burden of proof, the point is not otherwise developed or emphasised. In those circumstances we do not believe that the point is one which required to be expressly addressed by the Tribunal in its Reasons.

45. The fourth heading in the Notice of Appeal is that “the Tribunal’s decision is perverse and contrary to the weight of evidence”. The first paragraph under that heading, para. 33, asserts that the Tribunal made several findings of fact which were either contradicted by the live testimony of the witnesses or unsupported by the documentary evidence. The Appellant goes on at para. 34 to note that the Reasons made virtually no reference to the oral evidence but appear to be derived almost wholly from the documents and the witness statements. We agree that that is potentially a troubling characteristic, but it could only give rise to a ground of appeal to the extent that the Appellant was able to identify findings, inconsistent with the evidence, which go to the heart of the Tribunal’s reasoning. The Notice of Appeal goes on to list, at sub-paras. 34.1-10, some thirteen specific points (sub-para. 34.10 has some sub-divisions). We do not propose to go through these seriatim. They appear to us without exception to relate to matters which are either wholly peripheral or in any event have no bearing on the crucial question of the Respondent’s motivation.

46. Standing back from the multiplicity of particular points made by the Appellant, the fundamental point is that the question of the motivation of the various decision-takers was one of fact for the assessment of the Tribunal. The conclusions to which it came are in our view sustainable and adequately reasoned. We can see why the Appellant may have thought that her treatment was, at least to some extent, influenced by her age, but that was by no means a necessary inference, and it was one which the Tribunal, having heard the evidence, declined to make. We can see no error of law.

CONCLUSION

47. The appeal is dismissed.

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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Gay v Sophos Plc (Age Discrimination) [2011] UKEAT 0452_10_1609 (16 September 2011) URL: http://www.bailii.org/uk/cases/UKEAT/2011/0452_10_1609.html Cite as: [2011] UKEAT 0452_10_1609, [2011] UKEAT 452_10_1609

United Kingdom Employment Appeal Tribunal