Hussain v Vision Security Ltd & Anor

At the first stage of the statutory burden of proof, a difference in age and treatment does not automatically establish a prima facie case. The question is fact-sensitive and requires assessment of all relevant circumstances. A tribunal may infer discrimination where younger comparators receive available work, an older worker is denied the same opportunity, the vacancy is filled externally, and the employer’s explanation is rejected as unreliable. General policies welcoming older workers do not necessarily defeat an inference about an individual manager’s motivation. Tribunals should avoid rigid or sophisticated quasi-rules and must explain the factual reasoning supporting their conclusion.

The claimant, aged 64 at the relevant time, worked as a security guard. After the worksite contract ended, two younger colleagues were transferred to available work at another site, but no offer was made to him and the vacancy was filled externally.

The Employment Tribunal initially dismissed his age-discrimination claim because it accepted the manager’s evidence that the claimant had refused an offer. Following an earlier appeal and remittal after fresh evidence undermined that account, the Tribunal again dismissed the claim, finding that the claimant had not proved facts from which discrimination could be inferred. The appeal concerned whether the Tribunal had correctly applied the first stage of the statutory burden of proof.

1. Appeal allowed. The Tribunal’s factual findings showed that three vacancies existed, two were offered to colleagues in their thirties, the claimant was not offered the third, and it was filled by external recruitment. The manager’s explanation was found unreliable. Those circumstances were sufficient for a reasonable tribunal to infer that age, or the difference in age between the claimant and his comparators, influenced the treatment.
2. The first-stage inquiry under regulation 37(2) of the Employment Equality (Age) Regulations 2006 is not satisfied automatically by proof of a difference in status and a difference in treatment. It requires a situation-specific assessment of the primary facts and all relevant evidence. The additional circumstances in this case went beyond age difference alone.
3. The Tribunal wrongly treated the authorities as establishing a rule that the facts could not satisfy the first stage. Its reasoning was too brief to show what factual inference had been considered. The decision was therefore flawed by misdirection and failure to give proper reasons. A general policy that older employees could remain in employment did not negate the possibility that an individual manager was influenced by age.
4. Under section 35 of the Employment Tribunals Act 1996, the EAT could determine the issue itself rather than remit liability for a further hearing. Since the respondents proved no adequate explanation, the age-discrimination claim succeeded. The matter was remitted to an Employment Tribunal for consideration of remedy, with the question of whether the same Tribunal should hear the remedy issues left open.

• Employment Appeal Tribunal: Allowed the appeal, reversed the finding that the burden of proof had not shifted, allowed the age-discrimination claim, and remitted the case for consideration of remedy.
• Earlier Employment Appeal Tribunal decision: The earlier appeal was allowed on fresh evidence contradicting the manager’s account, and the case was remitted to the Employment Tribunal on the issue of age discrimination. The earlier decision is identified as UKEAT/0342/08.
• Employment Tribunal: The claimant’s claim was initially dismissed and, after remittal, dismissed again in the decision sent on 8 June 2010.