Burgess v Bear Stearns International Ltd

In a Polkey assessment, the tribunal must assess the chance that a fair procedure would have produced dismissal. The exercise is probabilistic, not a balance-of-probabilities, yes-or-no decision. The tribunal should assess, on the evidence, how the employer would have acted, subject to the limits of reasonableness.

In an age-discrimination claim, small age differences do not ordinarily establish a prima facie case without supporting evidence, although the significance of an age difference depends on the context. Unreasonable treatment alone does not establish discrimination. Once a prima facie case is raised, the employer must satisfy the tribunal that the prohibited factor did not influence the treatment. There is no separate requirement of especially cogent evidence.

Mr Burgess was dismissed for redundancy by Bear Stearns International Ltd. The employer conceded ordinary unfair dismissal under section 98 of the Employment Rights Act 1996 on procedural grounds, but disputed the substantive consequences and denied age discrimination.

The Employment Tribunal found that Mr Burgess would probably not have been dismissed if a fair procedure had been followed. It dismissed his direct age-discrimination claim, finding that the selection decision resulted from an inadequate assessment process and personal favouritism towards another employee, rather than age.

Mr Burgess appealed the dismissal of his age-discrimination claim. The employer cross-appealed the apparent finding relevant to the remedy question, namely whether a Polkey deduction should be made. The central issues were the correct approach to the Polkey assessment and whether the Tribunal had applied the burden of proof in an age-discrimination claim correctly.

1. Cross-appeal. The Employment Tribunal had conceded unfair dismissal liability, so section 98A(2) of the Employment Rights Act 1996 was not the issue. If the Tribunal intended its finding to exclude any Polkey deduction, that approach was legally flawed. The relevant question is the chance, rather than the probability in a yes-or-no sense, that the employee would have been dismissed following a fair procedure.
2. The Tribunal should assess, on the evidence, how the employer would have acted, subject to the limits of reasonableness, rather than substitute its own view. Its reasoning concerning the redundancy pool, the possible inclusion of Ms Casley, and the revenue spreadsheets did not adequately support its conclusion. The finding that Mr Burgess would probably not have been dismissed was therefore not binding at the remedy hearing. The issue was remitted to the same Tribunal for fresh consideration.
3. Age-discrimination appeal. The Tribunal’s statement of the burden of proof was wrong, but its actual reasoning followed the correct approach identified in Madarassy v Nomura International Plc [2007] ICR 867. It found both that there were insufficient facts from which age discrimination could be inferred and that the selection decisions were unrelated to age.
4. The Tribunal was entitled to regard small age differences between middle-aged executives as unlikely, without more, to influence a redundancy decision. The assessment remained fact-sensitive. Mere unreasonable behaviour did not establish a prima facie case of discrimination, and there was no separate requirement for a respondent to produce “cogent” evidence at the second stage of the burden-of-proof exercise.
5. The age-discrimination appeal was dismissed. The cross-appeal succeeded to the extent that the Tribunal’s Polkey finding was set aside for the remedy hearing.

• Employment Appeal Tribunal: dismissed the appeal against dismissal of the age-discrimination claim and directed that the Polkey issue be reconsidered by the Employment Tribunal.