Gay v Sophos Plc (Age Discrimination)

A tribunal need not follow a formal two-stage burden-of-proof analysis in an age-discrimination claim. However, where the burden of proof is central to the claimant’s case, it is good practice to address it. A failure to do so does not invalidate the decision if the tribunal makes clear positive findings that the treatment was motivated by factors other than age, thereby discharging the burden even if it had shifted.

Unfair treatment or different treatment from colleagues does not, without more, require an inference of discrimination. Findings about the decision-makers’ motivation are ordinarily findings of fact. An appeal will succeed only where those findings are inadequately reasoned, unsupported by the evidence or perverse.

The appellant, a senior employee aged 55, was dismissed for redundancy after the respondent restructured its regional business. She was not considered for alternative roles, while younger colleagues affected by restructuring or other changes were offered continuing employment.

The Employment Tribunal dismissed her claims of primary age discrimination and victimisation. It found that the relevant treatment resulted from views about her seniority, remuneration and working relationship, rather than her age or her protected complaint. The appeal challenged the tribunal’s failure to refer expressly to the burden of proof and attacked its factual findings and reasoning.

1. Appeal dismissed. The Tribunal’s failure expressly to address the burden of proof under regulation 37 did not vitiate its decision. Although such an issue should generally be addressed where it is central to the claimant’s submissions, a tribunal is not obliged to adopt the formal two-stage approach described in Igen Ltd v Wong [2005] ICR 931. The approach was described as not prescribed in Laing v Manchester City Council [2007] ICR 1519, which was approved in Madarassy v Nomura International Plc [2007] ICR 867.
2. The Tribunal made positive findings that the appellant’s treatment was attributable to factors other than age. It found that senior managers believed she would not accept a lower-level role, that her remuneration was unusually high and that the working relationship with a senior colleague affected the respondent’s willingness to retain her. Those findings were sufficiently clear to discharge the burden of proof, even if it had shifted.
3. A tribunal may reach its own conclusion about the reasons for treatment, including a reason not fully advanced by the respondent, provided the evidence supports the finding and the claimant suffers no unfairness.
4. Unfair treatment and differences in treatment between colleagues do not of themselves require an inference of discrimination or victimisation. The Tribunal was entitled to find that the protected complaint did not cause the later treatment.
5. The remaining challenges concerned factual evaluation. The Tribunal’s conclusions were adequately reasoned and open to it on the evidence. No error of law or perversity was established.

• Employment Appeal Tribunal: dismissed the appeal from the Employment Tribunal’s dismissal of the age-discrimination and victimisation claims.
• Employment Tribunal: dismissed the relevant claims after finding that the treatment was caused by factors other than age or the protected complaint.