Canadian Imperial Bank of Commerce v A Beck

In an age-discrimination claim, a tribunal may find that the burden of proof has shifted where a recruitment specification expressly seeks a “younger” candidate, particularly where that wording survives advice that it is inappropriate. The tribunal must then examine whether the employer’s explanation is genuine and whether the decision-makers were significantly influenced by age. An apparently non-discriminatory reason does not automatically defeat the claim.

For a protective award, “a week’s pay” is calculated under the statutory definition applicable at the calculation date. A discretionary bonus which has not yet crystallised and is not yet payable under the contract is excluded. The exclusion does not, on the facts, deprive the protective award of effective deterrent value under European Union law.

The Employment Tribunal found that the respondent had unfairly dismissed the claimant, breached the collective redundancy consultation provisions, and was liable for age discrimination. It made a 90-day protective award but calculated a week’s pay by reference to basic salary alone, excluding a discretionary bonus which had not yet become payable.

The respondent appealed against the age-discrimination finding. The claimant cross-appealed against exclusion of the discretionary bonus. The central issues were whether the tribunal had correctly applied the burden of proof in the age claim and whether the statutory calculation of a week’s pay had to include the prospective bonus to ensure an effective deterrent.

1. Age discrimination. The appeal against the age-discrimination finding was dismissed. The tribunal was entitled to conclude that the repeated use of “younger” in the recruitment brief, despite advice that the wording was inappropriate, constituted facts from which discrimination could be inferred under regulation 37 of the Employment Equality (Age) Regulations 2006.
2. The tribunal had properly considered the employer’s asserted non-discriminatory reasons. It was entitled to find that the evidence of the principal decision-maker was unconvincing and amounted to post hoc rationalisation, while the absence of evidence from the person who was the driving force behind the restructuring made it difficult to determine whether age had influenced the decision. The tribunal was not required to identify an adverse inference from that person’s absence.
3. Later recruitment of candidates who were the same age or older did not compel dismissal of the claim. The relevant question was what influenced the decision to dismiss at the time it was made. The tribunal’s assessment was not an error of law or perverse.
4. Protective award. The cross-appeal was dismissed. Under section 190(5) of the Trade Union and Labour Relations (Consolidation) Act 1992, the applicable definition of a week’s pay was that in section 221(2) of the Employment Rights Act 1996. The discretionary bonus was wholly contingent, subject to the employer’s future decision, and had not crystallised at dismissal. It was therefore not payable under the contract at the calculation date.
5. The statutory scheme did not, on these facts, fail the requirement that the sanction be effective, proportionate and dissuasive. The basic salary was substantial, and the claimant was not yet entitled even to a decision on whether a bonus would be awarded. Both the appeal and cross-appeal were dismissed.

• Employment Appeal Tribunal: dismissed the employer’s appeal against the age-discrimination finding and the claimant’s cross-appeal concerning calculation of the protective award.
• Employment Tribunal: found unfair dismissal, breach of the collective redundancy consultation provisions and age discrimination; made a 90-day protective award and excluded the discretionary bonus from a week’s pay.