James v Gina Shoes Ltd & Ors

Before making a deduction for contributory fault in an unfair dismissal case, an Employment Tribunal must raise the issue with the parties and give them an opportunity to address it. The Tribunal must also identify culpable or blameworthy conduct. That inquiry is distinct from the separate question whether the employee would have been dismissed fairly in any event.

References by an employer to an employee’s age may be sufficient to pass stage 1 of the Igen burden-of-proof process. It is immaterial at that stage that no other evidence demonstrates that age influenced the treatment. Detrimental treatment occurring after termination may still complete the statutory tort. The matter may then require a stage 2 explanation from the employer.

Mr James appealed against parts of the East London Employment Tribunal’s reserved judgment, promulgated on 12 April 2011. The Tribunal upheld his complaint of constructive unfair dismissal and made an unchallenged finding that he would have been fairly dismissed for capability six months later.

It nevertheless deducted 40 per cent from his compensatory award for contributory conduct and dismissed his age discrimination complaint. The appeal challenged both findings. The central questions were whether the Tribunal had acted fairly and applied the correct test when finding contributory fault, and whether two age-related remarks were sufficient to pass stage 1 of the Igen test.

1. Contributory conduct. The appeal against the 40 per cent deduction was allowed. The parties had not raised contribution, and the Tribunal had not invited submissions on it before deciding the issue. That was a material procedural irregularity. The right to a fair hearing requires notice of material factual and legal matters on which the Tribunal proposes to determine the case.
2. The Tribunal’s reasoning also failed to show that it had applied the requirement for culpable or blameworthy conduct. That test, identified in Nelson v BBC (No. 2), must be kept distinct from the Polkey question whether the employee would have been fairly dismissed in any event. The contribution issue was remitted for reconsideration after submissions from both parties.
3. Age discrimination. The Tribunal’s dismissal of the age discrimination complaint was set aside. The Managing Director’s references to the claimant’s age on 27 July and 6 October plainly raised a prima facie case sufficient to pass stage 1 of the Igen v Wong process. The absence of other evidence showing that age was a factor did not prevent stage 1 being satisfied.
4. The later remark, made after resignation, could still amount to detrimental treatment and complete the statutory tort. The age discrimination complaint was remitted for determination of stage 2, namely whether the Respondent could provide a wholly non-discriminatory explanation unconnected with age. If the 27 July remark was found discriminatory, the Tribunal would also need to consider whether it significantly contributed to the resignation and the effect on remedy.
5. The case was remitted, if practicable, to the same Employment Tribunal for reconsideration of both issues.

• Employment Appeal Tribunal: Allowed the appeal against the findings on contributory conduct and age discrimination. Remitted both issues to the same Employment Tribunal, if practicable, for reconsideration.
• East London Employment Tribunal: Upheld constructive unfair dismissal, found a Polkey counterfactual dismissal, deducted 40 per cent for contribution, and dismissed the age discrimination complaint.