Appeal No. UKEAT/0216/10/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5th November 2010 
	   Judgment handed down on 10th February 2011

Before
THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
MR. D. BLEIMAN
MR. I. EZEKIEL

MR ROBERT BURGESS	APPELLANT

BEAR STEARNS INTERNATIONAL LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR. BRUCE GARDINER 
MRS. LEANNE TARGETT–PARKER 
(of Counsel)
Acting Pro Bono	
For the Respondent	MR. BRUCE CARR
(One of Her Majesty’s Counsel)
Instructed by:
Messrs Beachcroft LLP
100 Fetter Lane
London
EC4A 1BN	

SUMMARY

UNFAIR DISMISSAL – Polkey reduction
AGE DISCRIMINATION

Claimant dismissed for redundancy – Claims of unfair dismissal, and of age discrimination on basis that he was selected because he was oldest candidate in the redundancy pool – Unfair dismissal conceded prior to hearing – Tribunal makes finding that Claimant would probably not have been dismissed if a fair procedure had been followed – Age discrimination claim dismissed.

Held:

(1)	Finding as to chance of non-selection flawed and should not bind Tribunal at remedy hearing

(2)	No evidence to support a claim of age discrimination and Tribunal right to dismiss it.

THE HONOURABLE MR JUSTICE UNDERHILL

INTRODUCTION

1.	The Claimant was employed by the Respondent as a salesman in its Prime Brokerage Team.  He was dismissed for redundancy in October 2007, with the dismissal taking effect from 26 January 2008.  He brought proceedings for unfair dismissal and age discrimination.  His claim was heard by an Employment Tribunal sitting at the East London Hearing Centre, chaired by Employment Judge Ferris, over eight days in the course of 2009.  Shortly before the hearing the Respondent’s solicitors made a formal concession that the Claimant had been unfairly dismissed “on procedural grounds”, but this left the age discrimination claim and some aspects – we consider below precisely which aspects – of the unfair dismissal claim requiring determination.  

2.	The Judgment and Reasons were sent to the parties on 19 January 2010.  The Tribunal made a finding of unfair dismissal but it dismissed the claim of age discrimination.  It directed a hearing to consider the issue of remedy as regards the unfair dismissal claim. 

3.	The Claimant has appealed against the dismissal of the age discrimination claim.  On the sift I directed an Appellant-only preliminary hearing.  However, the Respondent in its Answer raised a cross-appeal challenging a finding in the Reasons which appears to determine one of the remedy issues: we explain this more fully below.  Accordingly it too became entitled to be heard at the preliminary hearing.  The result is that both parties were before us.  In the circumstances it seemed wasteful and unnecessary to treat the hearing as preliminary, and both parties agreed that it should proceed as a full hearing.  Counsel – Mr. Bruce Carr QC for the Respondent and Mr. Bruce Gardiner for the Claimant (leading Mrs. Leanne Targett-Parker) – have co-operated admirably in tailoring their submissions to the half day available.  

4.	We should note that Mr. Gardiner did not appear before the Employment Tribunal, and Mr. Carr only did so in the later stages of the hearing.

5.	Before considering specifically the appeal and the cross-appeal, we need to set out the Tribunal’s findings as to the handling of the Appellant’s redundancy, which form the basis of the consideration of both claims.  Having done so, it will be more convenient to take the cross-appeal first.

THE TRIBUNAL’S FINDINGS

6.	By way of preliminary we should set out a dramatis personae.  The Head of the Prime Brokerage Team was James Shekerdemian.  He reported to Paul Brannan, the Head of European Prime Brokerage Services.  The other sales staff in the team in autumn 2007 who had “Director” status were the Claimant himself, Cyrille Delval and Sally Casley.  Mr. Delval was a “Principal Managing Director”; the Claimant a “Managing Director” tout court; and Ms. Casley an “Associate Director”.  Messrs Brannan and Shekerdemian and Ms. Casley had all joined the Respondent from Lehmann Brothers only a few months previously.

7.	After reciting some introductory matters the Tribunal at para. 4 of the Reasons sets out the terms of the Respondent’s concession.  The key passage reads as follows:  

“… Our client concedes that your dismissal on the grounds of redundancy was unfair on procedural grounds.  The principal bases for this concession are lack of full consultation with you on the rationale for redundancy; the at risk pool which had been determined, the selection criteria adopted and the fact that you were not given the right to appeal against the decision to dismiss by reason of redundancy.  

To be clear our client does not accept that your dismissal was substantively unfair, it maintains that there was a genuine redundancy situation and that head count was being reduced across many areas of the business in light of the financial climate and the well publicised difficulties facing Bear Stearns during the relevant time period.  Further our client does not accept that your dismissal for redundancy was discriminatory on the grounds of age or that any procedural failings were because of or in any way related to your age or age group.  

In light of this concession it is our view that this should limit the issues in dispute.  The Employment Tribunal will not have to conduct a detailed assessment of the merits of your unfair dismissal claim for which our client concedes liability on procedural grounds.  The remaining legal issue for the Employment Tribunal to determine will be your allegations of age discrimination about which no concession is made by our client.”

(It should be noted that the concession was of “ordinary” unfair dismissal under section 98 of the Employment Rights Act 1996.  Section 98A (1) was not in play because the dismissal occurred at a time when the collective redundancy obligations had been triggered.)

8.	At para. 5 of the Reasons the Tribunal “finds”, uncontroversially, that redundancy is an admissible reason for dismissal and goes on to paraphrase the basis on which the Respondent had nevertheless acknowledged procedural unfairness.

9.	The Tribunal then says, at para. 6: 

“We asked ourselves the question what would have happened if the redundancy procedure had been fair: would the Claimant have been dismissed for redundancy?”

In the remaining paragraphs addressed to the unfair dismissal claim (paras. 7-57) it proceeds, as we understand it, to seek to answer that question.  It does not, however, spell out why the question arises.  The omission may be understandable because it seems from the closing submissions below that the parties themselves simply proceeded on the basis that the question had to be answered without offering any further analysis.  At first blush the obvious reason is that it needed to be answered because of section 98A (2), which provides (in short) that an employer is not liable for unfair dismissal on the basis of a procedural failure, if, on the balance of probabilities, that failure did not affect the outcome.  But we cannot see that section 98A (2) was relevant here, because the Respondent had unequivocally conceded liability for unfair dismissal.  The reference to “unfair on procedural grounds” in the first paragraph quoted at para. 7 above could, by itself, be read as leaving the section 98A (2) issue open, but the explicit reference in paragraph 3 to conceding “liability” puts the matter beyond doubt.  Mr. Carr did not challenge this analysis.  Perhaps the Respondent should have made a more limited concession; but it did not do so, and that is now water under the bridge.  On that basis the only relevance of the Tribunal’s question could be to the issue of the remedy (though it is not clear that it appreciated that that was the case: see para. 20 below).  

10.	After identifying at para. 7 of the Reasons the witnesses from whom it had heard the Tribunal proceeded to its findings of fact.  Paras. 8-20 deal with the Claimant’s appraisals and performance review in mid-2007.  They are seriously critical of the Respondent, but we need not set out the criticisms here.  

11.	Paras. 21 ff. are not purely narrative but are structured by reference to the questions which the Tribunal believed it had to answer.  We will consider them question-by-question.

12.	At para. 21 the Tribunal addresses whether there was at the material time – that is, in autumn 2007 – a redundancy situation.   It begins by recording that the Claimant had conceded that there was; but it goes on to note a “tension” between that concession and some of the evidence which it had heard, and as discussed below (see para. 13), there is a later observation which likewise appears to challenge whether there was in truth a redundancy situation.  But at the end of para. 21 the Tribunal explicitly accepts that “in autumn 2007 … there was a genuine need to cut costs”, and in context that appears to mean by shedding staff.  The clear thrust of the Reasons as a whole is that the Tribunal did proceed – as it was in truth bound to in the light of the concession made – on the basis that there was indeed a redundancy situation affecting the Claimant.  To be more accurate (since it must always be recalled that the term “redundancy situation” is no more than a shorthand), the Tribunal proceeded on the basis that the Respondent genuinely perceived a need to reduce the number of staff (and, to anticipate, senior sales staff in the Prime Brokerage Team).  This is not surprising in view of its acceptance elsewhere, though no details are given, that this was “the most difficult time in the history of Prime Brokerage trading” (para. 48).  

13.	At paras. 22-28 the Tribunal considers the appropriate “pool” for redundancy.  The Respondent had regarded the pool as consisting simply of the Claimant and Mr. Delval, but the Tribunal finds that it should have included Mr. Shekerdemian and Ms. Casley as well.  The (prima facie surprising) inclusion of Mr. Shekerdemian, notwithstanding that he was the head of the team and accordingly had managerial responsibilities in relation to it, is on the basis that Mr. Brannan had described him as a one of the “sales people”.  Ms. Casley’s inclusion is less surprising, since she was a Director, and the Tribunal does not at this point seek to explain it, though it does so at later stage in the Reasons (see para. 15 below).  At para. 24 the Tribunal records that Mr. Brannan gave evidence that “the business did not require two senior sales staff”.  It observes that “there was no evidence as to why two senior sales staff were not required” and goes on to point out that there had been two recent hires, i.e. Mr. Shekerdemian and Ms. Casley.  Mr. Carr submitted that this was an inappropriate observation since its only point could be to cast doubt on whether there was really a redundancy situation, which had already been conceded: in any event, if the Tribunal was going to reject Mr. Brannan’s evidence about what he judged at the time (the need for redundancies being otherwise a matter for the management to decide) it was obliged to do so explicitly and with reasons.  We see force in that submission, but it seems to us that this was a momentary (though admittedly rather disturbing) loss of focus by the Tribunal: as we have already held, its central reasoning proceeds on the basis that there was indeed a redundancy situation.

14.	At paras. 29-51 the Tribunal considers the Respondent’s justification for selecting the Claimant rather than Mr. Delval.  It examines in particular the selection criteria which Mr. Brannan claimed had been applied and what Mr. Shekerdemian, who appears to have been the primary decision-taker, described as his “key considerations”.  It found that those criteria/considerations, so far as they could be applied at all, tended to point to Mr. Delval as the more obvious candidate for redundancy; but they were in any event not wholly fair and certainly not fairly applied.  We need not set out the details.  Overall, the Tribunal was highly critical of the Respondent’s management generally, which it described as having an unhelpful and negative attitude to the Claimant, lacking focus, and being self-interested and inadequately trained (para. 42).  It was particularly critical of Mr. Shekerdemian, who was described as “rude and unhelpful” (para. 49).

15.	At para. 52 the Tribunal apparently concludes this section of the Reasons, as follows:

“Overall we were unimpressed with these purported reasons for selection for redundancy and with the assessment purportedly in pursuance of those criteria.  In answer to the question:  had the Respondent shown on balance of probabilities that the Claimant would have been dismissed if a fair procedure had been used, we answer firmly, no.” 

That paragraph starts as a comment on the particular issue of the redundancy selection process; but the second sentence explicitly answers the general question which the Tribunal set itself at para. 6 (see para. 9 above) and therefore incorporates also its views about who should have been in the pool (see para. 13 above, and also para. 16 below).  

16.	At para. 53 the Tribunal addresses the position of Ms. Casley, though it is not entirely clear why it does so after, rather than before, reaching its conclusion at para. 52.  The paragraph reads: 

“Throughout our review of the fairness of the procedure for selection of the pool and the assessment criteria for selection from that pool, we were nagged by the question “why wasn’t Sally Casley in the pool? And why wouldn’t she have been selected if she had been in the pool”.  Sally Casley was an ex-Lehman’s long term colleague of Mr. Brannan and Mr. Shekerdemian.  She was a salesperson.  Ms. Casley earned more than Mr. Burgess and almost as much as Mr. Delval.  She had much weaker revenue generation than either the Claimant or Mr. Delval.  That reflects her recent arrival at the Respondent.  But it remained the position throughout 2008 and into 2009 even after the dismissal of Mr. Burgess and the re-distribution of clients once groomed and serviced by the Claimant.  She was the most recent person to join the Respondent’s sales team (if one excludes Geoff Pullen and Nancy King).  She was not appraised in August 2007, though the chief appraiser Mr. Shekerdemian knew her far better than he knew either the Claimant or Mr. Delval.  We found it very difficult to understand why she was not a lead candidate for redundancy in autumn 2007 or later.  In our judgment, and on balance of probabilities she escaped redundancy in autumn 2007 because she was an acquaintance of Mr. Brannan and Mr. Shekerdemian, and not for any good reason”.

17.	At para. 54 the Tribunal says: 

“In answer to the question: did the Respondent otherwise act reasonably, again, no, not in any respect.  The identification of the pool, the criteria for selection, the assessment pursuant to those selection criteria, the absence of consultation which might have been enlightening for the Respondent; in these respects too this was an unfair dismissal.”

The purpose of that paragraph is also not entirely clear: the Respondent had already conceded unfair dismissal.  It may be that it was intended to feed into, or reinforce, the conclusion expressed in para. 52 (see para. 15 above), i.e. that the Claimant would not have been (fairly) dismissed even if a fair procedure had been followed.  Or it may, with respect, be another instance of the Tribunal slightly losing focus.  In any event the finding is clear enough in its own terms.

18.	Para. 55 reads as follows: 

“The Respondent has failed to demonstrate to us on balance of probabilities that the Claimant would have been selected from the appropriate pool if a fair procedure had been employed.  That is the fault of the Respondent given the absence of contemporary documentation, the absence of structure in the decision-making process and the unconvincing accounts given by Mr Brannan and Mr. Shekerdemian of the way in which the redundancy decision was reached.”

This, so far as we can see, essentially repeats the finding at para. 52, though with some amplification.

19.	Paras. 56 and 57 read as follows: 

“56.  We note also that there were no dismissals from the Prime Brokerage team apart from Mr. Burgess all the way until April 2009 when Mr. Delval was dismissed.  Everyone in Prime Brokerage who was left after Mr. Burgess’ dismissal survived the redundancies in June 2008.  So in our analysis, in the alternative world where the Claimant was not made redundant in October 2007, he would still have been there at least until April 2009.

57.	  We note also that the opportunity for alternative employment was not looked at by the Respondent and never discussed with the Claimant.”

These paragraphs are self-explanatory, but again the question arises of what issue they go to.  Para. 56 can only, as we see it, go to remedy: it takes further the finding previously made that the Claimant would not have been dismissed in autumn 2007.  Para. 57 seems to be a final parting kick on the (non-)issue of liability.

THE CROSS-APPEAL

20.	The starting-point is to identify what the Respondent is appealing against.  The cross-appeal treats the Tribunal as having purported to find, for the purpose of a “Polkey exercise”, that no discount should be made from the Claimant’s compensation to reflect the chance that he might have been (fairly) dismissed for redundancy at or around the time that he was if a fair procedure had been followed.  It focuses in particular on para. 55 of the Reasons, which we have set out at para. 18 above; but, as we have said, essentially the same finding appears in para. 52 (see para. 15).  We are, however, far from sure whether that was what the Tribunal intended.  Unfortunately, as we have already noted, the Tribunal does not identify the purpose for which it is asking the question raised at para. 6 of the Reasons, but we strongly suspect that it was misled by the Respondent’s concession of “procedural” unfairness into thinking that that it had to determine the “section 98A (2) question”, although as explained at para. 9 above that was not the case.  That would explain why it expressly made its findings on the balance of probabilities: that would be the right approach for the purpose of section 98A (2), but the wrong approach for the purpose of a Polkey exercise.

21.	If we are right about the Tribunal’s intention, then the Respondent is grappling with a shadow.  But we are happy to make it clear that if the Tribunal was indeed purporting to exclude the possibility of a Polkey discount its reasoning was flawed, and should not be applied at the remedy hearing.  As we have already said, the relevant exercise requires the assessment of a chance and not a yes-or-no decision: that proposition is too well-established to require citation of authority.  

22.	However, that is not the end of the matter.  Even if it was addressing the wrong target, the Tribunal has nevertheless made a finding that the chance of the Claimant being made redundant in autumn 2007 was less than 50%; and that will, if it stands, limit the extent of any Polkey discount accordingly.  Mr. Carr submitted that that finding was flawed because the Tribunal had substituted its own view for that of the Respondent.  We agree that a tribunal conducting a Polkey exercise should be guided by its assessment, based on the available evidence, as to how the employer would have acted (subject always to the limits of reasonableness), rather than by its view of how it itself might have acted.  Mr. Carr made three specific points, which we will address in turn. 

23.	First, he challenged the Tribunal’s finding that Mr. Shekerdemian should have been in the redundancy pool.  He submitted that such a finding made no sense because the head of the team was plainly in a different position from the sales staff whom he managed.  We think that that submission is probably right, but we need go no further than to say that even if Mr. Shekerdemian could reasonably have been included in the pool the Respondent plainly did not believe he should be considered for redundancy, and we do not see how such a view could possibly be characterised as unreasonable.  We would add that even if Mr. Shekerdemian had been nominally included in the pool the chance that he, given his leadership role, would have been chosen for redundancy ahead of the Claimant – even assuming reasonable conduct by Mr. Brannan at all points – seems so low that it would not fall to be taken into account on a Polkey exercise. 

24.	Secondly, he made the same point in relation to Ms. Casley.  He pointed out that she had only recently joined the Respondent, with (on the evidence, though the Tribunal did not record this) a very big guaranteed bonus reflecting the high regard in which she was held, and that it would have made no sense to include her in the pool; and certainly it could not be said to be unreasonable not to have done so.  This point is not so straightforward.  If the recognised need was to lose “senior sales staff” one might expect at least all Directors to be considered as possible candidates for redundancy, and we can see why the Tribunal was puzzled that she was not even considered.  But it is one thing to say that she should have been considered and another to say, as the Tribunal appears to do at para. 53, that she was “a lead candidate for redundancy in autumn 2007 or later” – though in fact “or later” does not appear to be relevant.  Including her in the pool would only have materially reduced the Claimant’s chances of avoiding redundancy to the extent that there was a significant chance that she would have been selected if so included.  As to that question, the Tribunal noted that Ms. Casley had less revenue generation than the Claimant or Mr. Delval, but as it pointed out itself that was hardly surprising since she had only just joined; and its comment that that remained the case in 2008 and 2009 is irrelevant in considering whether she would have been selected for redundancy in autumn 2007.  We see the force of Mr. Carr’s argument that an employer who has made an expensive hire is unlikely to wish to make her redundant within three months.  If the Tribunal, in forming its view that if a fair procedure had been followed the Claimant would probably not have been selected for redundancy when he was, believed that Ms. Casley would probably have been dismissed in his stead, we have to say that no adequate reasons are given for that belief.  

25.	Thirdly, the Tribunal made a finding at para. 40 that the Claimant had in the most recent period generated more revenue than Mr. Delval.  That finding was based on spreadsheets showing revenue attribution which had been produced to it.  But Mr. Carr had in his closing submissions advanced detailed arguments to the effect that no relevant conclusions could be drawn from those spreadsheets.  The points there made are simply not addressed by the Tribunal.  In our view they should have been.

26.	Taking those points together, we accept Mr. Carr’s submission that the reasoning underlying the Tribunal’s finding that the Claimant would probably not have been dismissed when he was if a fair procedure had been followed is legally flawed.  When the Polkey issue falls for consideration at the remedy hearing – which both parties accepted should be before the same Tribunal - the Tribunal should not be bound by that finding and should consider afresh all points taken before them.  (We should note in passing that Mr. Gardiner and Ms. Targett-Parker in their written submissions suggested that this was a case of the King v Eaton type ([1998] IRLR 686), in which the evidence was too uncertain to permit any Polkey discount.  But that was not what the Tribunal decided; and King v Eaton is an authority now to be treated with some caution (see Software 2000 Ltd. v Andrews [2007] ICR 825, at paras. 47-53)). 

THE AGE DISCRIMINATION APPEAL

27.	It is not necessary for the purpose of the issues on this appeal to set out the substantive provisions of the Employment Equality (Age Regulations) 2006.  But we should note that reg. 37 contains provisions in relation to the burden of proof equivalent to those which are now familiar from the other anti-discrimination legislation: specifically, para. (2) provides that where a complainant “proves facts from which the tribunal could … conclude in the absence of an adequate explanation that the respondent [has committed an act of discrimination]” the tribunal shall uphold the complaint unless the respondent proves that he did not commit that act.

28.	The Claimant was born on 28 September 1967 and was accordingly aged forty at the date of his dismissal.  He alleged both direct and indirect discrimination, but only the former was pursued on this appeal.

29.	The Claimant’s case was, straightforwardly, that the decision to select him for redundancy rather than Mr. Delval or Ms. Casley was influenced by the fact that he was older than them.  He was older than Mr. Delval by just under three years and than Ms. Casley by just under six years.

30.	There was no evidence of any kind advanced specifically suggesting either that the relative ages of the Claimant, Mr. Delval and Ms. Casley had in fact been taken into account in the redundancy exercise in autumn 2007 or, more generally, that age differences of this degree were regarded as significant by the Respondent’s management in making decisions of this character.  There was no relevant statistical evidence. (For what is worth - which is not much without further detail - the Tribunal noted at para. 66 of the Reasons that most of the staff made redundant by the Respondent in 2007 and 2008 were younger than the Claimant.)  Most significantly, however, both Mr. Shekerdemian and Mr. Brannan gave evidence that they did not know whether the Claimant or Mr. Delval was the older; and the Tribunal expressly accepted that evidence (see para. 67 of the Reasons). 

31.	In those circumstances the Claimant’s case was, perforce, based wholly or mainly on reg. 37 – that is, on the burden of proof.  His case was that the age difference was sufficient to raise a prima facie case of age discrimination; and that since, as he argued and as the Tribunal indeed found, the reasons for selecting him rather than Mr. Delval or Ms. Casley were unsatisfactory the Respondent was unable to show a non-discriminatory reason.  

32.	As to that, the Tribunal acknowledged that the inadequacies of the Respondent’s case on selection created a difficulty; but it went on to find squarely, at para. 68: 

“In our judgment the reason why the Claimant was treated less favourably than Mr. Delval was because in the inadequate assessment process carried out by the Respondent, the Respondent’s managers persuaded themselves wrongly that Mr. Delval was the stronger candidate.  It had nothing to do with his age.”

As for Ms. Casley, it said, at paras. 69-70: 

“69.  The failure to include Ms. Casley in the pool for redundancies is not explained by her younger age.  It is better explained by the fact that Ms. Casley, Mr. Brannan and Mr. Shekerdemian had all worked at Lehman’s together until about April 2007, they were friends and there was mutual respect.  When the three of them transferred to the Respondent, they continued to support each other as old colleagues.  That was to the detriment initially of the Claimant and, over time, of Mr. Delval as well. 

70.	 In our judgment, the reason why the Claimant was put in the pool for redundancy and Ms. Casley was not is that Ms. Casley was an old colleague of Mr. Brannan and Mr. Shekerdemian.  The Claimant was not treated less favourably than Ms. Casley because he was older than Ms. Casley but because 
he was not liked as well as they liked Ms. Casley”.

It summarised its conclusion at para. 74 as follows: 

“In our judgment, there was not enough evidence in this case for the Claimant to persuade us that he had proved facts from which we could conclude that the Respondent has, on the grounds of the Claimant’s age or even apparent age, treated the Claimant less favourably than others were/would have been treated.  We dismiss the claim for direct age discrimination.”

33.	We find that conclusion wholly unsurprising.  Indeed, as regards the comparison with Mr. Delval, it is hard to see how the Tribunal could have reached any other conclusion once it had accepted that the decision-takers did not know his and the Claimant’s relative ages.  But even without that evidence it is prima facie highly implausible that small age differences of the kind involved here would, without more, have any bearing on a decision of the kind with which we are here concerned.  The age difference between the Claimant and Ms. Casley was rather greater, but the reason found by the Tribunal for her being preferred to the Claimant is inherently far more plausible as an explanation for her retention.  In any case, whatever our own views, the findings in question are findings of fact and unassailable in this Tribunal unless perverse or based on a misdirection of law.

34.	The Notice of Appeal pleads five grounds of appeal, which we will consider in turn. 

35.	Ground 1.  In the course of its self-direction on the law, the Tribunal says, at para. 60 of the Reasons: 

“Once less favourable treatment is established on the ground of the Claimant’s age the burden of proof moves to the Respondent employer to prove that it did not commit or is not to be treated as committing the less favourable treatment.  The proof is on the balance of probabilities and cogent evidence will be required (Igen v Wong).”

That is plainly a wrong statement of the law, as Mr. Carr accepted.  Indeed, with all respect to the Tribunal, it does not even make sense, inasmuch as it appears to say that the burden on the respondent to disprove less favourable treatment only arises when the claimant has “established” it.  But a self-misdirection of this kind does not matter if it can be seen that in its actual reasoning the tribunal followed the correct path.  So far as the burden of proof is concerned, that path is now mapped out by Madarassy v Nomura International Plc [2007] ICR 867.  In this case it is clear from the other passages that we have quoted that the Tribunal took the correct approach.  Although it does not in terms apply the two-stage approach recommended (though not required) by the authorities it is clear (a) that it believed that there was in fact no sufficient indication of age discrimination to raise a prima facie case (see para. 74) and (b) that in any event it was satisfied that the explanation for both Mr. Delval and Ms. Casley being preferred to the Claimant had nothing to do with his age (see paras. 68-70).  In fact Mr. Carr was able to demonstrate that the offending misdirection was lifted word-for-word from Ms. Targett-Parker’s written closing submissions.  That might nevertheless not assist the Respondent if the Tribunal had in fact allowed itself to be misled – though the Appellant’s position in relying on a misdirection which it had itself propounded would be most unattractive – but the significance of the point is that it confirms that the Tribunal was not misled: this was a cut-and-paste exercise which did not reflect its actual thinking process.  (The episode does however illustrate how the current template for written reasons in the employment tribunals can sometimes cause problems by divorcing the tribunal’s statement of the law from its application to the issues in the case.  It also illustrates the perils of tribunals uncritically reproducing submissions served up to them by counsel.)  

36.	Ground 2.  At para. 65 of the Reasons the Tribunal makes this observation: 

“When one thinks of direct age discrimination one generally considers the necessary contrast in age to be one greater than the difference between, as in this case the Claimant and Mr. Delval (a difference of less than 3 years) or even the Claimant and Ms. Casley (a difference of about 6 years).  Of course there could be circumstances where a difference of a few months could be seen to be significant, for example, in a case where the cut off point for some promotion was set at 50 years and a person of 49 years and 11 months benefited from that but a person of 50 years and 1 month did not.  But in a case where the allegation is direct age discrimination, we believe that it would require compelling evidence to persuade a Tribunal that age or apparent age is the reason for the less favourable treatment of the Claimant.”

It is contended in the Notice of Appeal that, particularly in the final sentence, the Tribunal was there treating the burden of proof as remaining on the Claimant and/or setting an “impossibly high burden”.  There is nothing in this.  The Tribunal was merely making a common-sense observation, which is wholly consistent with reg. 37.  What facts are sufficient to get to “Igen stage 1” – or, as we prefer to say, following Mummery LJ in Madarassy, to raise a prima facie case – will vary according to the nature of the case alleged.  Some instances of alleged discrimination will be inherently implausible (say, against a football referee on the grounds that he is a man) and it will take a lot to prove even a prima facie case.  Some kinds of discrimination, by contrast, in some kinds of environment, are all too common, and it will not take much to shift the burden of proof.  In the case of age, we see nothing wrong in the observation that, generally speaking (of course, in particular contexts it may well be different), small differences of age between middle-aged executives are unlikely to influence decision-takers.  Indeed I made a very similar observation, in a not dissimilar context, in ABN AMRO Management Services Ltd. v Hogben (UKEAT/0266/09/DM): see at para. 15.  There will of necessity almost always be some difference of age – in one direction or the other - between a claimant and a potential comparator, and it is tempting for claimants in unfair dismissal cases where the statutory cap may come into play to seek to increase their compensation by playing the age card; tribunals are fully entitled to take into account their assessment of the real likelihood that an age difference of the kind in question would weigh with the employer and are well-placed to use their industrial experience to do so. 

37.	Ground 3.  This focuses on the same passage as ground 2.  The Tribunal is criticised for making “generalised assumptions”.  We do not accept that criticism.  Of course a tribunal’s judgment about what inferences to draw must be based on the facts and circumstances of the particular case before it; but for the reasons already given, and in the absence of any particular evidence about the environment in the Respondent’s business, what the Tribunal said is perfectly acceptable. 

38.	Ground 4.  The basic proposition advanced in this ground is that “the Tribunal adopted an erroneous approach to the drawing of inferences”.  It is developed at considerable length, but in truth it is no more than a challenge to the Tribunal’s findings of fact.  No “erroneous approach” is demonstrated, nor was Mr. Gardiner able to identify any in his oral submissions.  The essential point made, in various ways, is that the Tribunal should have drawn an inference of age discrimination by reason of its various criticisms of, and findings of unreasonable behaviour by, Mr. Brannan and Mr. Shekerdemian.  But it is of course axiomatic that mere unreasonable behaviour is not necessarily a sufficient basis for establishing even a prima facie case of discrimination.  There has to be some reason to suppose that the respondent was motivated by discriminatory considerations: here, as already discussed, there were none.  

39.	Ground 5.  The Claimant’s case here is that the evidence of a non-discriminatory explanation for his selection was insufficiently “cogent”.  That adjective is picked up from “step 3” of the Igen guidelines – see Igen Ltd. v Wong [2005] ICR 931, at p. 957 – where the Court of Appeal is dealing with the position at “stage 2”.  It observes that “a tribunal would normally expect cogent evidence to discharge that burden of proof”.  That is an unexceptionable observation, but it is not helpful, or indeed meaningful, to identify a separate “cogency requirement”.  The question for a tribunal at “stage 2” is ultimately simply whether the respondent has produced evidence which satisfies it that he was not motivated by the proscribed factor.  In fact, of course, in the present case the Tribunal was not satisfied that the Appellant had discharged the initial burden.

40.	For those reasons the appeal is dismissed.