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Sacking suspected ageist not ageism, EAT rules

Appeal tribunal finds for management

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If an employer dismisses an employee on suspicion of age discrimination, that in itself is not age discrimination, an Employment Appeals Tribunal (EAT) has ruled.

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."

Copyright © 2008, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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