Mott MacDonald Ltd v Rivkin (Age Discrimination)

A tribunal must give proper reasons before finding that a witness has lied, including addressing the witness’s explanation and allowing a fair opportunity to answer any alleged inconsistency. A lie is only one evidential factor and does not automatically invalidate the witness’s other evidence or determine the discrimination issue.

The two-stage burden of proof in the [2005] ICR 931 approach is not mechanistic. A failure at the second stage leads to a finding of discrimination because a prima facie case remains unrebutted, not because the rules create an irrebuttable legal presumption.

The claimant, an engineer employed by Mott MacDonald Ltd, was not selected for redeployment after a redundancy exercise. An Employment Tribunal found that the decision-maker had taken his age into account and upheld the age-discrimination complaint under the Employment Equality (Age) Regulations 2006. The tribunal considered that the decision-maker had lied about knowing the claimant’s precise age and therefore could not provide an adequate explanation under regulation 37.

The employer appealed. The Employment Appeal Tribunal considered whether the finding of dishonesty was properly made and whether the tribunal had applied the reverse burden of proof correctly.

1. Appeal allowed. The tribunal’s finding of age discrimination was legally flawed. The age-discrimination claim was to be dismissed unless the claimant sought remission within 14 days for further consideration by a fresh tribunal.
2. A finding that a witness has lied on oath is serious. The tribunal must set out proper reasons, engage with any explanation for the inconsistency, and ensure fairness by giving the witness an opportunity to address a point which may support a finding of dishonesty. The tribunal had failed to consider the explanation that the decision-maker had not absorbed the claimant’s date of birth from his CV, and had relied on an inconsistency in the ET3 which had not been put to him.
3. Even if the decision-maker had lied about knowing the claimant’s precise age, that fact could not by itself require rejection of his explanation for the employment decision. The lie might be relevant, but its significance and weight required analysis in the context of the particular issues. A lie on one point does not automatically make all other evidence untruthful.
4. Regulation 37(2) of the Employment Equality (Age) Regulations 2006 embodies the two-stage approach described in Igen v Wong, reported at [2005] IRLR 258 and [2005] ICR 931. The tribunal was entitled, for present purposes, to treat stage 1 as satisfied because the evidence could support an inference of discriminatory motivation. At stage 2, however, it remained necessary to consider the employer’s non-discriminatory explanation. The tribunal’s conclusion that the explanation became impossible to accept merely because the witness had lied was a non sequitur and was not required by Igen.
5. The burden-of-proof provisions do not operate on a tick-box basis. Discriminatory motivation is a factual finding. Stage 1 requires facts capable of supporting a prima facie case, rather than facts raising only a possibility of discrimination. If stage 2 is not satisfied, the complaint is upheld because an evidentially established prima facie case remains unrebutted.

• Employment Appeal Tribunal: allowed the employer’s appeal against the Employment Tribunal’s finding of age discrimination. The claim was conditionally dismissed, with an opportunity for the claimant to seek remission to a fresh tribunal.
• Employment Tribunal: found age discrimination but dismissed the separate unfair-dismissal claim.