The claimant, an Asian man aged 54 when he was dismissed, was dismissed after employment lasting just 5 months because he had failed to meet targets. He was replaced by a younger Afro-Caribbean woman who was paid very much less than the claimant. The claimant claimed that he had been dismissed on the grounds of his age, sex and race. The respondent denied all these claims, saying that he had been dismissed because the department was running at a loss and could not afford to employ the claimant on his current salary. At a pre-trial review, the Tribunal decided that the case had little prospect of success, but it had crossed the threshold of possibility and was not a case that was bound to fail. The respondent appealed.

On the sex and race issues, the EAT disagreed with the ET, saying that it could not be the law that, where an employee is dismissed for whatever reason and is replaced by someone whose protected characteristics are not exactly the same as the claimant, can get a discrimination case to trial simply by asserting that the replacement employee is different. On the age discrimination claim, the EAT agreed with the ET that the claim was very close to the line but just on the right side.

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Appeal No. UKEAT/0024/11/LA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 8 April 2011

Before

THE HONOURABLE MR JUSTICE BEAN (SITTING ALONE)

COMMUNITY LAW CLINIC SOLICITORS LTD & ORS (APPELLANTS)

MR S METHUEN (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellants
MR M PAULIN (of Counsel)

Instructed by:
Lyons Davidson Solicitors
Park House
87 Burlington Road
New Malden
Surrey
KT3 4QP

For the Respondent
MS S BROWNE (of Counsel)

Instructed by:
Messrs Asghar & Co Solicitors
112/114 The Broadway
Southall
Middlesex
UB1 1QF

PRACTICE AND PROCEDURE – Striking-out/dismissal

AGE DISCRIMINATION

A Claimant does not establish an inference of discrimination simply by showing that he has been dismissed and replaced by someone whose protected characteristics are different from his own. Since the Claimant had done no more than that in respect of the allegations of sex and race discrimination, the Employment Judge should have struck them out. However, the complaint of age discrimination was sufficiently arguable to be tried on the merits by the Employment Tribunal, and the Judge's refusal to strike that claim out would be upheld.

1. This is an appeal from a decision of Employment Judge Hodgson at a pre-trial review declining to strike out the Claimant's claims for discrimination on the grounds of age, race and sex as having no reasonable prospect of success.

1. The Claimant, Mr Methuen, started work for the Respondent firm of solicitors in January 2009 at the age of 53. He was to be head of family law at a salary in the region of £38,000 per year. The appointment, sadly, was not a success. At a meeting at the end of April 2009 he was told that the billing of his department was unsatisfactory and he had failed to meet targets. At a further meeting on 31 July of the same year he was told that he personally had only billed £760 worth of work against a target of £28,500 and that the department had billed only £2,408 against a target of £38,928. He was given notice to terminate his employment. It ended on 2 September 2009. He therefore did not on any view have the necessary length of service to claim unfair dismissal.

1. The reason given by the employer in its Notice of Appearance was as follows, paragraph 20:

"It is denied that the Claimant was subjected to discrimination on the grounds of his age, as alleged or at all. 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 for the First Respondent, which was part of the Claimant's role. The Claimant did not, therefore, suffer less favourable treatment for a reason connected to his age."

1. It is not altogether clear to what extent the second and third sentences of this paragraph are in dispute. The Claimant alleges that the figures he was given at the July meeting were untrue and misrepresented the correct position as to billing. Employment Judge Hodgson described this allegation as weak and unparticularised and I agree. But a slightly different point is that the Claimant alleged that the billing figures, that is amounts in respect of which invoices had been sent to the clients with a demand for payment, unfairly ignored his and his department's work in progress. He also alleges that it was recognised from the start on both sides that the family department was to be built up from scratch and that one could not expect immediate success in rendering the department profitable. One must bear in mind that this is not an unfair dismissal claim and so the question of whether the employer's attitude in terminating the Claimant's employment did or did not amount to unfair dismissal is academic.

1. On 10 August 2009 Sharlene Campbell started work at the firm. She was, at least in part, a replacement for the Claimant. It is not in dispute that she was an Afro-Caribbean woman, far younger than the Claimant, although I have not been told her exact age, and was a solicitor with less than three years post-qualification experience at the time of joining. She was to be paid between £22,000 and £23,000 a year, substantially less than Mr Methuen had been earning. There is a dispute as to whether the nature of her work was truly comparable to that of the Claimant, quite apart from his greater seniority. The Respondents say that she was to spend 50 per cent of her time on immigration work whereas the Claimant, although he might have been asked to do the odd immigration case, was employed for his skills as a family specialist. The Employment Judge held he could not resolve this matter at the pre-trial review stage and nor can I on this appeal. It is, in any event, a self-contained point.

1. The Employment Judge thus had to consider an allegation by the Claimant that his dismissal and replacement by Sharlene Campbell constituted discrimination on the grounds of age and race and sex. The Employment Judge said at 5.12 onwards:

"5.12. Firstly, I should consider the reason given by the respondent. The respondent says that there was a failure to meet targets. That itself appears to be a strong allegation. This allegation refers to apparently credible evidence. There is some objection to that evidence. Part of the objection is unclear and part relates to the failure to include work in progress. There is a weaker, unparticularised objection which refers to misrepresentation of what the claimant actually billed. Nevertheless, if work in progress is ignored, on the face of it the respondent may be able to assert a business decision for dismissal based on poor performance and there would appear to be evidence in support of that assertion.

5.13. There is, therefore, a potential defence which it is alleged is not tainted by discrimination.

5.14. I should consider the alleged comparator. I do have doubts as to whether she is a true comparator. However, the position is not clear-cut. It is suggested that because she undertook immigration work that she is not a true comparator. I have some doubts about that particular distinction. Even on the respondent's own case there was some indication that the claimant ought to be doing immigration work and I think that the boundary between the claimant and the comparator is not as clear-cut as the respondent would suggest. Her circumstances may be helpful in determining how a hypothetical comparator would have been treated.

5.15. As regards supervision, again this is fact-sensitive. There has been some indication before me today that, in fact, the comparator was trying to get the necessary qualification by January 2010 which may have led to her being able to supervise. I simply do not know for sure but there may be facts which are capable of dispute in relation to that.

5.16. The central allegation is one that the age claim is misconceived. The basis for this is that the claimant refers to the three years' post-qualification experience of the alleged comparator. The respondent states that the length of post-qualification experience tells us nothing of the question of age.

5.17. I do not accept this argument. It is true that a post-qualification experience may or may not say something about age. In this case the claimant seeks to compare his treatment with a much younger individual. The reference to post qualification experience is a description of a facet of that person and no more. The complaint revolves around her age and the fact that she is paid less. The claimant does not seek to separate the comparator's age, experience and pay. The reference to post qualification experience is tagged on to the assertion that the comparator is in fact younger and therefore has less post-qualification experience. The key to the way the claimant puts his case is the fact that the comparator is younger; it is not put on the basis of a post-qualification experience as far as I can see.

5.18. Post-qualification experience may or may not be relevant to the claimant's treatment. At this stage it is not possible to say. In all cases, the tribunal may need to decide what the reason is for the alleged treatment. I bear in mind that it is rare for any respondent to admit discrimination even to itself. If post-qualification experience proves to be an important part of the respondent's reason, this may be nothing other than shorthand for age itself. I simply do not know. What I can say is that the findings a tribunal may make are fact sensitive.

5.19. When considering post qualification experience, it is clear to me that the predominant allegation relates to the comparator's age. Therefore, I cannot accept the basic allegation that the case is misconceived.

5.20. I am more troubled by the reference to sex and race discrimination. Clearly, the alleged comparator is of a different sex and it appears probably of a different race. There has also been some suggestion before me today that there the claimant may put his claim as discrimination on grounds of religion. That is not at this stage pursued. I am concerned by the fact that the claims of sex and race and sex discrimination seem to arise out of the age claim in the sense that the basis is not clearly delineated in the claim form. Further it is perhaps surprising that there is no questionnaire relating to either sex or race discrimination. This may suggest the need for some explanation. However, there is no obligation to serve such questionnaires.

5.21. On the other hand, it is clear that there is a possible comparator who is of a different sex and apparently of a different race. Therefore, it may be at least arguable that the claimant can say that there is a potential comparator who can provide at least evidence of the treatment of a hypothetical comparator. It can be alleged that she has been treated differently and that there is a difference in age, sex and race. If there is a difference in age, sex and race and a difference in treatment the c1aimant must then point to some fact from which the discrimination could be in erred. If he can do this then the respondent will have to prove its reason.

5.22. I note that the claimant fails to set out clear allegations of fact, over and above the simple distinction between age, sex and race, on which the tribunal could find that there is discrimination in this case.

…

5.24. Against this, however, there is some indication that there may be evidence of unfair treatment in relation to the way the c1aimant has been assessed. If the claimant can establish unfair treatment that may found the basis of fact from which it may be possible to infer unlawful discrimination. The burden would then shift to the respondent to establish its reason.

5.25. I cannot say that the claimant is bound to fail in the sense he will not be able to point to some fact which could lead to the burden shifting. I think there is some prospect of him being able to point to some relevant fact. If the claimant could go so far as to shift the burden it is right in my view that the respondent's explanation and reason should be tested.

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.

5.28. However, I do have reservations as to the claimant's prospect of success. I cannot say that there is no reasonable prospect of success. However on the basis of the case put before to me today, I conclude that there is little reasonable prospect of success. I take that view because firstly the claimant points primarily to a difference in age, race and sex and a difference in treatment. That in itself is not sufficient for the claimant to succeed. He must point to some fact from which discrimination could be inferred if the burden is to shift to the respondent to establish its reason for the treatment. To the extent that the claimant pointed to any facts in his submissions, he pointed only to the matters raised at page 2 of the questionnaire. I have noted from the claim form that there are arguments put forward in relation to his performance. However, for the reasons I have given, those arguments in relation to his performance are inherently weak. Whilst I cannot discount the possibility of the claimant pointing to facts arising out of cross examination which may turn the burden, the basic claim that he was unreasonably assessed at present appears to be weak. It follows that his prospects of pointing to facts from which it could be concluded there was discrimination is, in my view, weak and limited. Therefore, I take the view that the case has little prospect of success and, therefore, it is one where a deposit order may be made."

1. It can be seen therefore that the Employment Judge drew a distinction, as indeed the rules draw a distinction, between the case having little prospect of success and the case having no reasonable prospect of success. Rule 20 allows a deposit order to be made where a case has little reasonable prospect of success. I doubt whether there is any distinction between little prospect of success and little reasonable prospect of success. The Employment Judge considered that the case was sufficiently weak to justify a deposit order but not sufficiently weak for him to be able to say that there was no reasonable prospect of success.

1. The law on this subject was not really in dispute between Mr Paulin for the employers and Ms Browne for the Claimant, both of whom had also appeared before the Employment Judge. The leading case is the decision of the House of Lords in Anyanwu v South Bank University and South Bank Student Union [2001] ICR 391 HL and in particular the observations of Lord Steyn at paragraph 24 and Lord Hope of Craighead at paragraphs 37 and 39. Lord Steyn, after referring to the fact that the House of Lords hearing was the fourth in a series of appeals, went on to refer to:

"24. ... the importance of not striking out such claims as an abuse of the process except in the most obvious and plainest cases. Discrimination cases are generally fact-sensitive, and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest."

1. Lord Hope said:

"37. If I had reached the view that nothing that the university is alleged to have done could as a matter of ordinary language be said to have aided the students' union to dismiss the appellants, I would not have been in favour of allowing the appeal. I would have been reluctant to strike out these claims, on the view that discrimination issues of the kind which have been raised in this case should as a general rule be decided only after hearing the evidence. The questions of law that have to be determined are often highly fact-sensitive. The risk of injustice is minimised if the answers to these questions are deferred until all the facts are out. The tribunal can then base its decision on its findings of fact rather than on assumptions as to what the claimant may be able to establish if given an opportunity to lead evidence

39. ... Nevertheless, I would have held that the claim should be struck out if I had been persuaded that it had no reasonable prospect of succeeding at trial. The time and resources of the employment tribunals ought not to be taken up by having to hear evidence in cases that are bound to fail."

1. These passages have in the ensuing ten years been regarded as having almost iconic status. It should be noted however that the test under what is now rule 18(7)(b) is not whether, as Lord Steyn appears to have thought, the claim is an abuse of the process but whether, as Lord Hope was plainly aware, the claim has or does not have any reasonable prospect of succeeding at trial. It is common ground between Mr Paulin and Ms Browne that the case of Anyanwu does not impose an absolute bar on the striking out of discrimination cases but that the power to strike out must be exercised with caution and also that the force of their Lordships' observations about the need for caution in exercising the power will, as Underhill J, currently President of this Tribunal, observed in ABN Amro Management Services Ltd & Anor v Hogben [2009] UKEAT/0266/09/DM, inevitably vary depending on the nature of the particular issue.

1. In Chief Constable of West Yorkshire Police v Homer [2009] ICR 223, for example, the claimant's case was struck out on the grounds that it was illogical. Even if all that the claimant alleged was correct his case could not logically lead to a decision in his favour. His case was that the introduction, following a revision of grading arrangements among the legal advisers to the West Yorkshire Police Force, of a requirement that anyone applying for the highest pay grade should have a law degree was discriminatory against the claimant who was aged 61 and did not have a law degree because, the claimant argued, by the time he obtained a law degree, if he started studying at the time of the rule change, he would be on the point of retirement. This Tribunal, reversing the decision of the Employment Tribunal, held that Mr Homer was not being discriminated against on the grounds of age. All employees without degrees were being treated the same irrespective of their age. The fact that Mr Homer was close to retirement and would not in practice benefit from higher pay for long compared with a younger employee was the inevitable consequence of age not a consequence of discrimination.

1. In ABN Amro v Hogben itself the claimant's post became redundant. He was considered for three other posts but in each case someone else got the job. The preferred candidates were respectively a few years older than Mr Hogben, a few months older than him and a few years younger than him. On appeal to this Tribunal, the President held that his prospects of success were no more than fanciful and struck out the age discrimination claim.

1. In the present case the high point of Mr Paulin's argument is the observation of the Employment Judge at paragraph 5.22 that:

"I note that the Claimant fails to set out clear allegations of fact, over and above the simple distinction between age, sex and race (as between Sharlene Campbell and the Claimant) on which the tribunal could find that there is discrimination in this case."

1. It cannot be the law that where an employee is dismissed for whatever reason, whether health, capability or conduct, and is replaced by someone whose protected characteristics are not exactly the same the claimant can get a discrimination case to trial simply by asserting that the replacement employee is different. It is therefore not sufficient, in my judgment, for Mr Methuen to say, "I am a man of Asian ethnic origin. At the time of my dismissal I was 54 years old. Therefore, unless I am replaced by a man of Asian ethnic origin who is 54 years old or very close to it indeed there is a prima facie case of discrimination and the burden shifts to the employer to rebut it". On that basis no discrimination case could ever be struck out.

1. That position, based on mere assertion, applies in the present case to the allegations of race and sex discrimination. I have searched the Employment Judge's decision in vain for any finding of anything more than the assertion in those two respects. Ms Browne realistically did not seek to defend that aspect of the judgment below and accordingly the race and sex discrimination claims should be struck out as having no reasonable prospect of success.

1. However, I have come to the conclusion, after some hesitation, that the Employment Judge was entitled to reach the conclusion which he did on age discrimination. The Claimant was dismissed on grounds of performance and replaced by someone markedly younger and less experienced than himself. In the second half of paragraph 5.26, the judge says this:

"I cannot simply accept at this stage that the Respondent is bound to be able to establish that the Claimant's performance was inadequate ... There must be at least some mileage in the Claimant'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 [for dismissal] will necessarily be accepted."

1. Like the Employment Judge, I consider the age discrimination claim is very close to the line but I agree with his finding that it is just on the right side of the line. The age discrimination claim should therefore be remitted for a full hearing.

1. I wish to add this. As discrimination cases go, the facts of this one seem to me to lie in a small compass. It should not require a welter of evidence for the relatively narrow issues in this case to be resolved. Particularly if the parties have the advantage of being represented by Ms Browne and Mr Paulin, for whose succinct and forceful submissions I am very grateful, I see no reason why the case could not be heard in two days or perhaps at the very outside three days. Appropriate directions can no doubt be given by the Tribunal.

1. It may be of interest to the profession to note that after the Anyanwu case was restored for a merits hearing by the House of Lords that hearing lasted 49 working days, the claimants failed on all points and an appeal to this appeal tribunal was dismissed in a judgment reported on BAILII on 20 November 2003. Nothing approaching that should be allowed to happen in the present litigation.

1. There was a cross-appeal against the deposit order. That is dismissed on withdrawal.