Mitra v Montpelier Professional (West End) Ltd (Age Discrimination)

An appellate court should read an Employment Tribunal's reasons fairly and as a whole. Where the tribunal has correctly directed itself on the burden of proof, an appeal court should be slow to infer that it failed to apply that direction merely because a later passage is compressed or imperfectly expressed.

The principal reason for dismissal is a question of fact. The Employment Appeal Tribunal cannot revisit a tribunal's credibility findings or factual assessment unless they are perverse. Procedural defects in a dismissal do not, without more, establish that age was a reason for it.

The claimant appealed against the London Central Employment Tribunal's dismissal of claims for age discrimination and a redundancy payment. His unfair-dismissal claim had earlier been dismissed or struck out at a pre-hearing review.

He alleged that the chief executive had challenged him for working beyond state retirement age and argued that the tribunal had failed to determine that allegation, apply the reverse burden of proof, or consider whether age had contributed to his dismissal. The Employment Appeal Tribunal made a Burns-Barke request for clarification.

The tribunal responded unanimously that the alleged meeting and conversation had not occurred, and that capability, not age, was the reason for dismissal. The central issue was whether the tribunal had made an appealable error of law in reaching that conclusion.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the claimant's dismissal was for capability and that age played no part in the decision. Its finding depended upon its assessment of conflicting evidence and credibility. No perversity was shown.

2. The tribunal's statement that there was no evidence from which discrimination could be inferred was properly read in context. It did not mean that the claimant had adduced no evidence at all. It meant that the tribunal did not accept his evidence. Its earlier self-direction on the reverse burden of proof made it highly unlikely that it had then failed to apply the law it had correctly stated.

3. The tribunal was not required to make express findings in its original reasons about every item of evidence. Its response to the Burns-Barke request removed any possible ambiguity: it had rejected the alleged age-related conversation, found that the chief executive had not influenced the decision-makers, and found that age was not a factor in the dismissal.

4. Although the dismissal procedure was seriously deficient, that did not affect the tribunal's core factual finding as to the reason for dismissal. The Employment Appeal Tribunal would not convert disagreement with a specialist tribunal's factual assessment into an error of law.

5. A standard Burns-Barke direction requires the Employment Tribunal to answer by reference to its notes without receiving further evidence. It does not require the tribunal to provide its notes or expressly identify them in its answer unless specifically ordered.

• Employment Appeal Tribunal: appeal dismissed; the Employment Tribunal's dismissal of the age-discrimination claim was upheld.
• Employment Tribunal, London Central: claims for age discrimination and a redundancy payment were dismissed. Oral reasons were later recorded in written reasons sent on 23 February 2012.
• Employment Tribunal pre-hearing review: the unfair-dismissal claim was apparently dismissed or struck out in September 2011; the judgment was not before the Employment Appeal Tribunal.