Appeal No. UKEAT/0488/10/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 March 2011

Before
THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
MR J R RIVERS CBE
MS P TATLOW

MOTT MACDONALD LTD	APPELLANT

DR L S RIVKIN	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MS INGRID SIMLER 
(One of Her Majesty’s Counsel)
Instructed by:
Messrs Davenport Lyons Solicitors
30 Old Burlington Street
London
W1S 3NL	
For the Respondent

	No appearance or representation by or on behalf of the Respondent	

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.