AGE DISCRIMINATION, UNFAIR DISMISSAL, REMEDIES
The Claimant succeeded before the Tribunal in his claims of unfair dismissal and age discrimination (in part) following his dismissal from the Respondent at the age of 55. The comparator in respect of the dismissal was Ms Olive, aged 51. The principal challenge to the Liability Judgment is that the Tribunal erred in not properly considering the Respondents’ explanation for the treatment of the Claimant in light of the marginal age difference between the Claimant and Ms Olive, and the unchallenged evidence that all of the individual Respondents regarded the Claimant and Ms Olive as being in the same age bracket. This aspect of the appeal is upheld as the Tribunal appears not to have given due consideration to the Respondents’ evidence in this regard, and their explanation that age could not be reason for the alleged discriminatory treatment.
The Respondent also appealed against two Remedy Judgments. The appeal against the First Remedy Judgment was primarily a perversity challenge based on the Tribunal’s approach to the selection pool that would have been adopted had the Respondents followed a fair and non-discriminatory process. Whilst the inclusion of a subordinate in the selection pool for a position superior to that held by the Claimant and Ms Olive is surprising, it is not such as to establish an overwhelming case that the Tribunal had adopted a course that no reasonable tribunal on these facts would have adopted. Accordingly, the high threshold for a perversity challenge was not crossed.
The appeal against the Second Remedy Judgment challenged the Tribunal’s failure to take account of the value of the Claimant’s shareholding in a company established by way of mitigating his loss. In principle, such value could be taken into account. However, the burden is on the Respondent to establish the value of the shareholding and the extent to which that should be offset against loss. In the particular circumstances of the present case, including the unsatisfactory evidence adduced by the Respondents on this issue, the Tribunal was entitled to conclude that that burden had not been discharged. Accordingly, there was no error of law in not ascribing a value to that shareholding for the purposes of assessing loss.
Judges:
The Honourable Mr Justice Choudhury
Ms G Mills CBE
Mrs G P Todd
Citations:
[2022] EAT 103
Links:
Jurisdiction:
England and Wales
Employment
Updated: 17 July 2022; Ref: scu.679136