1. The Respondent manufactures high end shoes. It is a family run company; the directors are Attila, Aydin and Altan Kurdash. Attila is the Managing Director, Aydin is responsible for sales and marketing, and Altan for producing new designs for shoes. The Claimant commenced employment as Production Manager in April 2006. He was then aged 58 years. He had previous experience in the industry, but not in high quality, expensive ladies' shoes, which the Respondent produced.

1. The Respondent experienced a reduction in orders as a result of the global recession in 2009. The history of the Claimant's employment from early 2009 is fully set out in the Tribunal's Reasons; we shall not repeat it. It seems that Attila was not happy with the Claimant's performance and made his views clear. On 22 July Aydin shadowed the Claimant on the factory floor, checking on his management style. That day the Claimant went off work with what his general practitioner characterised as work related stress.

1. On 27 July a meeting took place at which Attila asked rhetorically whether it was the Claimant's age that caused him not to be able to work to their expectations. He also said that if the Claimant was younger, it might be possible to train him. The Claimant, so the Tribunal found (paragraph 48), was quite upset by these comments.

1. On 7 August the Claimant met with Attila and Altan at the Respondent's offices while still off sick. He expressed an unhappiness with the reference made to his age at the meeting on 27 July. After that meeting the Claimant tendered his resignation in writing, received by the Respondent on 10 August.

1. On 6 October a grievance meeting took place. During that meeting Attila said words to the effect that, "You can't teach an old dog new tricks" (paragraph 58).

1. The Tribunal directed themselves correctly as to the law of constructive dismissal (paragraphs 77 85) and age discrimination (paragraph 86). There is no express self-direction as to the Polkey principle, nor in relation to contributory conduct (see the Employment Rights Act 1996 section 122(2) ("Basic Award") and section 123(6) ("Compensatory Award")).

1. The complaint of constructive dismissal was upheld on the basis of a breach of the implied term of trust and confidence. The final straw, the Tribunal found, was Aydin's treatment of the Claimant on 22 July; the dismissal was unfair. However, in addition to the unchallenged Polkey finding (see paragraphs 111 112) the Tribunal made a deduction of 40 per cent, applied, it appears, to the compensatory award element only and not the basic award, for reasons given at paragraph 107, where they say this:

"107. However, the Tribunal's judgment is that the Claimant has contributed significantly to the situation which arose. The Claimant did not, as we have already stated, put forward suggestions as to the way forward, how to improve quality, or how to improve production. Being an experienced Production Manager it was a reasonable expectation of the Respondent that he would be able to come up with ideas as to how production could be improved. It was agreed by all parties that the company was in a difficult position being the last remaining company producing handmade shoes in the country of this quality and therefore all parties would have needed to work together to continue to produce a product of such high quality that the market position could be retained. The Claimant having not bought into the issue of quality did not co-operate with the Respondent in working to this or making suggestions that would assist with this."

1. As to age discrimination, we should set out in particular the Tribunal's reasoning at paragraphs 90 and 95:

"90. It is against that background that we assessed the comments reportedly made by Attila at the meeting on 27 July and in October. It is our Judgment that it is likely that those were taken out of context. The second quote could be said to demonstrate a belief or to raise a query as to whether the Claimant's age made a difference to his performance or at least to the Respondent's attitude towards it. However, although we are unable to say exactly what was said, the statement made by Attila on 6 October was made after the Claimant had already resigned.

[…]

95. It is our judgment that the statements made by Attila do not, on their own, make a prima facie case of age discrimination. There is nothing else that demonstrates that the Claimant's age was a factor in his employment or in the termination of his employment. The burden of proof does not shift to the Respondent. The complaint of age discrimination fails and is hereby dismissed. The Tribunal made no finding of anything that flowed from those statements and they are most likely to have been Attila's fleeting thoughts on the matter in that moment but not something that influenced the way that he or any of the other Directors treated the Claimant."

(1) Contributory conduct

1. Mr Petts takes two separate but interlinked points. The first is a natural justice point. Although in considering the case in chambers the Tribunal plainly discussed and adjudicated on the issue of contribution, it was not a point raised by the parties, particularly the Respondent, in argument, nor raised by the Tribunal at any stage before Judgment was given. That is clear from the Tribunal Chairman and members' comments supplied in answer to the Burns/Barke question, which I put at paragraph 2 of my order dated 4 November 2011. We accept Mr Petts' submission that that amounts to a material procedural irregularity; see the observations of HHJ Burke QC in Swallow Security Services v Millicent EAT/0297/08/JOJ, 19 March 2009, at paragraph 27, where he said this:

"[…] in any case before the Tribunal in which the facts are such that a finding of contributory fault may appropriately be made, the Tribunal are bound to consider the issue, raise it with the parties, and decide whether there has or has not been contributory fault and whether a deduction for contribution should be made."

and the observation by HHJ Serota QC in Albion Hotel (Freshwater) Ltd v Silva and Ors [2002] IRLR 200 at paragraph 34, where he said this:

"In our opinion the right to a fair hearing requires notice of all material matters of fact and law to be given to the parties, if the Employment Tribunal wishes to make determinations on points not argued by the parties."

1. Further, it is not clear from the Tribunal's reasoning, particularly at paragraph 107, that they find the Claimant guilty of culpable or blameworthy conduct; see Nelson v BBC (No. 2) [1980] ICR 110 CA. That is the test to be applied. It must not be confused, particularly in a case of lack of capability, with the Polkey question permissibly raised and answered by the Tribunal in this case.

1. It follows on both these grounds that the appeal against the contribution finding succeeds.

(2) Age discrimination

1. The Tribunal correctly direct themselves as to the law at paragraph 86, and in particular said at sub paragraph (iv):

"The determination of cases such as this requires a staged process. We first have to make findings of primary fact and to determine whether those could lead us to draw an inference that the Respondent treated the Claimant differently because of his age."

1. The Tribunal then remind themselves that if the Claimant passes stage 1 of the test in Igen v Wong [2005] IRLR 258, then it is for the Respondent to provide a credible, non discriminatory explanation or reason for the difference in treatment. In the absence of such an explanation the Tribunal must conclude that the less favourable treatment occurred because of the Claimant's age.

1. In expressing their conclusions, it appears to us:

(i) That Tribunal appear to have found (paragraph 90) that the remark by Attila on 6 October raised a prima facie case of age discrimination, but then rejected that position at paragraph 95.

(ii) The reference to age in both instances, on 27 July and 6 October, plainly raises a prima facie case of discrimination such as to pass the Igen stage 1 hurdle. We accept Mr Petts' submission based on the words used by Attila. Further, it is in our judgment immaterial that there was "nothing else" that demonstrated age was a factor in his employment or its termination.

(iii) The fact that the second remark, on 6 October, post dated termination of the employment does not prevent this state of affairs from amounting to detrimental treatment, thus completing the statutory tort.

1. In these circumstances, the challenge by the Claimant to the rejection of his age discrimination complaint also succeeds.

1. Mr Petts invites us to (a) make a finding of unlawful discrimination in respect of both 27 July and 6 October remarks, and (b) to conclude that there was here no culpable or blameworthy conduct such as to justify a finding of contribution for the purpose of section 123(6) of the Employment Rights Act and to remit the matter for reassessment of remedy on that basis. We are not prepared to go that far. Instead, we prefer the approach of Mr Buckle, which is that if we allow the appeal, as we do, the question of contribution should return to the Tribunal for reconsideration, after hearing submissions from both parties and applying the correct test as identified above, as should the age discrimination complaint for determination of the Igen stage 2 question: has the Respondent shown a wholly non discriminatory explanation for Attila's remarks unconnected with the Claimant's age?

1. We should add that we agree with Mr Petts that if it be found that the 27 July remark was an act of age discrimination, a further question will arise as to whether that was a significant factor in the Claimant's decision to resign in circumstances amounting to constructive dismissal, and the effect that that has on remedy.

1. Finally, an issue arises to whether the case should go back to the same or a different Tribunal. Having reminded ourselves of the factors identified by Burton P in Sinclair Roche & Temperley v Heard [2004] IRLR 763, paragraph 46, a decision to which Mr Bleiman was a party, we have concluded that the case should return if practicable to the same Employment Tribunal chaired by Employment Judge Jones for reconsideration of both the issues of contributory conduct and unlawful age discrimination.