Case No: A2/2011/1149 
Neutral Citation Number: [2012] EWCA Civ 571
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(MR JUSTICE BEAN)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday 30th March 2012

Before:

LORD JUSTICE PILL
LADY JUSTICE HALLETT
and
LORD JUSTICE PATTEN
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Between:

	Community Law Clinic Solicitors Limited & Others	
Appellants	
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Mr S Methuen	

Respondent	

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(DAR Transcript of 
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Mr Michael Paulin (instructed by Lyons Davidson Solicitors) appeared on behalf of the Appellants.

Mr Tom Coghlin (instructed by Leigh Day & Co) appeared on behalf of the Respondent.
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Judgment

Lord Justice Pill:

1.	This is an appeal against a judgment of the Employment Appeal Tribunal (“the EAT”), Bean J sitting alone on 8 April 2011, whereby he declined to strike out an age discrimination claim made by Mr S Methuen, the respondent, against Community Law Clinic Solicitors Ltd (“the appellants”).  At the same time the judge did strike out claims for race and sex discrimination, allowing an appeal in that respect against the decision of an employment tribunal sitting in Watford, Employment Judge Hodgson, on 14 October 2010.

2.	Permission to appeal has been granted by Moses LJ at an oral hearing following refusal by Sir Richard Buxton on a consideration of the papers.  In his judgment Moses LJ set out the essential facts: 

"This is a very sad case, where a 52-year-old solicitor lost his job too quickly with the Community Law Clinic Solicitors Limited so that he cannot bring a claim for unfair dismissal. He says that there are allegations that he was dismissed because he was not getting in enough work at the Family Department are wrong and false.  But in the absence of being able to bring a claim for unfair dismissal, he brought claims for race, gender and age discrimination.  The Employment Tribunal judge, Employment Judge Hodgson, refused to strike out the claims for discrimination of the three types, and the solicitors appealed to Bean J in an interlocutory appeal under the Employment Appeal Tribunal."

3.	Bean J struck out the race and gender claims.  Moses LJ, in paragraph 3, went on to say:

"…after some hesitation [Bean J] took a different view in relation to age discrimination. He said that the basis upon which the Employment Judge had allowed that claim to go forward was, as Bean J put it, very close to the line but just on the right side of the line."

4.	Having cited the employment judge's conclusion, Moses LJ stated: 

"He [that is Bean J] therefore concluded that the matter depended on findings of fact."

5.	Moses LJ then referred to the performance question and added: 

"But the logically prior question was: was there anything on the basis of which the inference could be drawn that there had been age discrimination? […] 

5. In my view […] I can find no basis rationally to distinguish between the three different claims."

6.	Moses LJ referred to the House of Lords decision in Anyanwu v South Bank University HL  [2001] ICR 391 and to the decision of this court in Madarassy v Nomura  International Plc [2007 ] ICR 867.   He stated: 

"It would be quite wrong as a matter of principle, it seems to me, that claimants should be allowed to pursue hopeless cases merely because there are many discrimination cases which are sensitive to the facts, and the whole area requires sensitivity, delicacy and therefore caution before access is deprived to the tribunals on an interlocutory basis."

7.	Dealing with age discrimination, it was stated in the Particulars of Claim attached to ET1 that the claimant asserts that the reason for the difference was his age, given the fact that the claimant's replacement, Sharlene Campbell, was a far younger candidate who would be completing three years professional qualification experience (“PQE”) by January 2010, “therefore” permitting the respondent to pay her lesser wages, which the claimant reliably understands to be within the region of £22,000 and £23,000 per annum as compared with what the claimant had received.

8.	I interpose the point fairly made by Mr Paulin, on behalf of the appellants, that by using the word "therefore" the respondent might appear to be defeating his own claim based on age discrimination, because he refers to "lesser wages" as the cause but I would not be prepared to strike out this claim on a pleading basis, and indeed points are made in relation to the way the appellants have put their case.  There is no doubt that the age discrimination point was taken before the employment tribunal.

9.	The significance of three years’ PQE is that it entitles the solicitor to accreditation on the Law Society's Family Law panel.  As a prospective employee that would put her in a better position than had she not completed the three years, but any improved status she achieved by the lapse of three years is not material to the issue before the court.  In their response (ET3) to the claim, the appellants relied on the respondent's performance.  They claimed that he failed to obtain new clients, and that had led to a reminder that he needed to take a "proactive approach"; concern was expressed to him about poor financial performance and lack of development of the family department for which he was responsible.  Detailed particulars were given.  It was stated that it was the respondent's failure to deal with previous concerns, coupled with the financial loss suffered by the firm due to his failure to develop the department adequately, that was the reason for his contract being terminated as it was, with two months’ notice.  As Moses LJ pointed out, he had not served sufficiently long to be able to bring any claim for unfair dismissal.

10.	The age discrimination claim against the appellants is considered in ET3 in a single paragraph following those to which I have referred.  However, it is denied that the claimant was subjected to discrimination on the grounds of his age as alleged; the claimant was dismissed for some other substantial reason, namely that the respondent's family department was running at a loss and could not afford to employ the claimant on his current salary.  Furthermore, the claimant had failed to obtain referrals and to generate business, which was part of his role.  The claimant did not therefore suffer less favourable treatment for a reason connected to his age.  

11.	Nor were further particulars of defence to an age discrimination claim introduced in the appellants’ detailed reply to a questionnaire, though much more was said about the respondent's lack of business success.  Thus it was not submitted, cumulatively or in the alternative, that even if the alleged unsatisfactory performance was not the reason for the dismissal, the dismissal was not age-related within the meaning of the Act because it was due to the respondent costing more and that cost was unrelated to age.  That is the point now taken on the appellant's behalf.  Asked why the appellants had dismissed the respondent, Mr Paulin replied that it was because he was better qualified than Miss Campbell and cost more to employ.  The difference in age between him and Ms Campbell was incidental and coincidental.  Mr Paulin relied on the statement of Mummery LJ in The Chief Constable of West Yorkshire Police and Another v Homer [2010] EWCA Civil 419, at paragraph 49: 

"This case should make it absolutely clear that what is prohibited is not perceived unfairness as such but proven unjustified age discrimination. That is defined as either direct and overt by reference to treatment on the ground of age or indirect and covert in the form of a particular disadvantage resulting from the application of an apparently neutral provision impacting disparately on age." 

12.	It was suggested that the factor of age in this case, as put by the appellants, comes within the category of incidental.  It is submitted that Miss Campbell being a junior lawyer employable for less money was quite a different factor from her age, as compared with the respondent's.  For the respondent Mr Coghlin disputes that proposition, claiming that there is a link in this context between age, salary levels and experience.  Unlike alleged discrimination on the ground of race and sex there is often a relationship between them.  Because Ms Campbell has less experience she could be paid less, but that is related to her age.  It has not been suggested that the respondent was offered the job if he would accept the same salary as that offered to Ms Campbell.  Questions of PQE, pay and age, he submitted, are intimately bound up with each other.  That distinguishes an age discrimination claim from claims based on race and sex, where there is no such link.  

13.	I do not consider the issue of the relationship between age, experience and salary to be an easy one, and we have not been referred to authority dealing specifically with it.  Homer was a different case, where there was a requirement for employees to hold a degree before being eligible for a top band of pay.  Because he was 61 the claimant was not able to obtain a degree.  That, it was held, while a consequence of his age, was not age discrimination.  The claimant in that case was seeking more favourable treatment on account of his age.  The absence of a degree should be made good by his age.  The present case is one of over-qualification and not under-qualification.  

14.	It was strongly put to the court that cost was a material factor in the decision taken, for present purposes in which the court is obliged to take the respondent's claim at its face value.  That also included the claim that he had brought in more money for the firm than they were admitting, and that Ms Campbell was constantly introduced or spoken of as the respondent's work replacement.  

15.	Approaching the strike out application as we must, and as the tribunal did, an arguable legal point, in my view, arises for decision and it is potentially an important legal point (paragraph 13 above).  The employment tribunal carefully considered the evidence before it and its conclusions are stated at 5.26: 

"5.26. I have reservations concerning whether the claimant can show he has been unfairly assessed having regard to the documentation and submissions I have received. I particularly have reservations about it because the claimant has failed to particularise what is said to be the unfair treatment and this despite the fact that clearly the claimant states that he has already investigated it. The failure to set out before this tribunal the alleged basis of the unreasonable assessment leaves me to doubt the strength of that allegation. However I cannot simply accept at this stage that the respondent is bound to be able to establish that the claimant's performance was inadequate. Further, even if the respondent could establish general inadequacy on the part of the claimant, I take the view that it is not bound to follow that it was such poor performance that was the reason for dismissal. There must be at least some mileage in the c1aimant's general assertion that there was good work in progress and, by implication, the department was building. The significance of this can only be understood following evidence establishing the agreement between the parties and their business dealings. It follows I cannot conclude that the respondent's reason will necessarily be accepted. 
5.27. In the circumstances and having regard to all these matters, I do believe that this is a case which crosses the threshold of possibility. It is not a case that is bound to fail. I do conclude that it is a case which is fact sensitive and that it should be heard.”  

Bean J, before whom the legal point now ventilated does not appear to have been taken in any detail, cited paragraph 5.26 and said that he agreed with it.  

16.	The legal point should not in my view be considered in the absence of fuller consideration of the evidence and adequate findings of fact.  Having regard in particular to the way the case has hitherto (particularly before the employment tribunal) been argued by the appellants, there has been no sufficient examination of the evidence and the factors in play in the appellant's decision to dismiss, insofar as the age discrimination claim is concerned.  There is room for further evidence on the issues of age, experience and qualification.  Apart from the matters which were canvassed before the tribunal and on the basis that the tribunal itself, with its expertise, could consider that further factual inquiry was required, in my judgment only on a fuller examination of the facts can the legal point of some significance, to which I have referred, sensibly be resolved.  I agree with Hallett LJ’s comment. 

17.	I would dismiss this appeal.

Lady Justice Hallett: 

18.	For the reasons given by Pill LJ, I too would dismiss the appeal.  However, I would do so reluctantly, because I share the reservations expressed by Employment Judge Hodgson, Bean J and Moses LJ as to the respondent's chances of success.

Lord Justice Patten: 

19.	I agree with both judgments.  

Order:  Appeal dismissed