A front-of-house manager at the Bristol Hippodrome Theatre was
dismissed and won his case for unfair dismissal because statutory
dismissal procedures had not been followed.
Live Nation, which owns the Theatre, appealed against aspects of
the decision, though.
The Employment Tribunal had found that front-of-house manager Mr
G Hussain had been dismissed partially because Live Nation managers
thought he found being managed by younger female staff
difficult.
The Tribunal concluded from this that there could have been
discrimination against Hussain on grounds of age.
Live Nation argued on appeal, though, that the managers' fears
did not amount to ageism. The EAT agreed, saying that while such a
dismissal might be unfair, it would not be unfair because of
alleged age discrimination.
"An unjustified or unreasoned belief that the claimant himself
has ageist tendencies may render a dismissal unfair, but it does
not begin to justify an inference that he has been dismissed by
reason of his age," said the EAT's ruling. "We agree with [Live
Nation] that were it otherwise, no employer could safely deal with
a suspected discriminator for fear that they would be found to be
discriminating."
The Tribunal had had other grounds for suspecting Live Nation
managers of ageism, though. It said that the managers had acted
based on an unsubstantiated belief that Hussain was taking
advantage of his age and was too old to change.
It said that this was enough to shift the burden of proof that
managers had not been ageist to Live Nation.
The EAT said that the burden of proof should not have been
shifted, that the Tribunal did not have grounds to suspect ageism
in Hussain's dismissal.
"The reference to him being 'too old to change' could, in an
appropriate case, provide some basis for inferring age
discrimination," said Mr Justice Elias in the ruling.
"In this case, however, there was no evidence as such to justify
that conclusion. The Tribunal stated in terms – protesting too
much, we think – that this was evidence and not mere supposition.
We respectfully disagree."
"The evidence that he would not change in his attitudes was
supported by the genuine perception of management – whether rightly
or wrongly is immaterial in this context – that he had for some
time protested at his treatment at the hands of younger female
managers," said the ruling. "There was simply no evidential basis
whatsoever for inferring that [Live Nation managers] Mr Newman or
Mr Murtagh assumed that he could not or would not change simply
because he was too old to do so. That was mere
speculation."
One employment law expert said that the ruling would help
employers to deal with suspected workplace discrimination.
"This decision is consistent with previous decisions examining
other areas of discrimination," said Ben Doherty, an employment law
specialist at Pinsent Masons, the law firm behind OUT-LAW.COM. "If
the decision had gone the other way it may have made it more
difficult for employers to take action against employees they
suspected of ageist, sexist or racist behaviour. Support for the
idea that taking action against ageism is itself ageist would not
have been good for employers or employees."
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