Osoba v The Hertfordshire Constabulary (Age Discrimination)

Where the burden of proof has shifted in a direct discrimination claim, the employer must give an adequate explanation for the treatment. An Employment Tribunal may accept an honest explanation that the decision-maker made errors while attempting to apply the relevant process fairly. The employer need not invent a further mitigating explanation if the Tribunal finds, as a fact, that the errors were not caused by conscious or subconscious discrimination.

The ultimate question remains why the claimant received the treatment. A flawed or shambolic selection process can justify shifting the burden, but it does not itself establish age discrimination where the Tribunal permissibly finds that the alleged discriminatory motive was absent.

The claimant, a police officer approaching entitlement to retire on a full pension after 30 years' service, alleged that a reorganisation selection matrix had been manipulated to remove him because of his age. The Employment Tribunal found substantial errors and inconsistencies in the matrix, so that the burden shifted to the respondent. It nevertheless accepted the responsible officer's evidence that she had acted honestly and without a discriminatory motive, and dismissed both direct and indirect age discrimination claims.

The claimant appealed, principally contending that an honest denial of discriminatory intent could not discharge the burden of proof without a further explanation for the errors. He also advanced reasons and perversity challenges. The central issue was whether the Tribunal had erred in accepting the explanation despite its findings that the selection process was shambolic.

1. Appeal dismissed. The Employment Tribunal made no error of law in rejecting the claim. Its finding that the selection process was inconsistent, shambolic and in places incompetent was capable of shifting the burden under Equality Act 2010 section 136. That finding did not compel a conclusion that age was the reason for the treatment.

2. The ultimate inquiry in a discrimination claim is why the claimant was treated as he was. Once the burden had shifted, the Tribunal was entitled to accept the officer's explanation that she had attempted to follow the policy, had made errors, and had not manipulated the matrix to secure the claimant's removal because he was nearing retirement.

3. An employer's explanation need not always identify a separate cause, such as overwork or personal pressures, for an admitted error. There may be nothing more to explain than that the decision-maker got the process wrong and accepts responsibility. An honest denial of discriminatory intent is not automatically conclusive, since a Tribunal may infer conscious or subconscious discrimination where the evidence warrants it. Here, however, the Tribunal was entitled to find that the officer was not mistaken about her own intention, but mistaken in her application of the scoring process.

4. The retirement enquiry was made pursuant to the applicable policy and in the context of natural turnover. Once the claimant said that he wished to remain, there was no evidential basis requiring the Tribunal to infer that the officer wanted him to leave because of pensionable age.

5. The reasons adequately explained why the claim failed, and the case did not meet the high threshold for perversity. Permission to appeal was refused.

• Employment Appeal Tribunal: dismissed the claimant's appeal: [2013] UKEAT 0055_13_1107.
• Employment Tribunal: dismissed claims of direct and indirect age discrimination in reasons sent on 25 October 2012.