In this case the Employment Appeal Tribunal held that the Tribunal had been wrong in finding that an employee had been subjected to age discrimination. The EAT found that the managers’ dismissal of the employee, based on their belief that he held ageist views (in that he did not like being managed by younger employees), did not justify an inference that the employee had been dismissed by reason of his age. The EAT also found that while a reference to an employee being “too old to change” could, in some cases, provide the basis for inferring age discrimination, there was no evidence in this case to justify that conclusion.
Facts
Mr Hussain was born in July 1955 and worked as front of house manager at the Hippodrome Theatre in Bristol, which was owned by Live Nation. The Claimant had worked at the theatre since December 1980.
In 2003 and 2004 respectively, a new general manager and a new assistant manager joined Live Nation. The new managers and Mr Hussain proceeded to have a very difficult working relationship.
In 2005 the general manager gave Mr Hussain an adverse review which affected the bonus paid to Mr Hussain. In light of this, Mr Hussain emailed the general manager criticising her management style. In 2006, the assistant general manager carried out Mr Hussain's assessment, concluding that he did not meet expectations and that he therefore would not receive a bonus.
On 28 March 2007, Mr Hussain was given a letter summoning him to a disciplinary meeting, to discuss allegations that he had not been at the theatre when he was place on the rota to be there. Mr Hussain then went to see the general manager to discuss this and an altercation occurred, although what exactly happened is unclear.
As a result of this, Mr Hussain was suspended and on 12 April 2007 he was summoned to a further meeting with the Live Nation's Divisional Manager and the HR Manager. At this meeting the HR Manager stated that Mr Hussain had been “running rings around management for a years”, a view which the Tribunal considered to be “somewhat hysterical”. Mr Hussain was then dismissed for gross misconduct. When pressed, Mr Hussain was told that the reason for his dismissal was bullying. In his dismissal letter, it stated that “we deemed you to be beyond management control”. Mr Hussain appealed against his dismissal, alleging that it involved both race and age discrimination. The appeal was dismissed and Mr Hussain brought Tribunal proceedings.
ET decision
The Tribunal clearly had considerable sympathy for Mr Hussain. Whilst the Tribunal rejected his claims of race discrimination, they concluded that both the Divisional Manager and the HR Manager were influenced by the unsubstantiated belief that Mr Hussain was using his age to his advantage and that he was too old to change his ways.
The Tribunal then concluded that this had been a significant factor in their decision to dismiss him and that therefore the burden of proof, in establishing age discrimination, shifted to Mr Hussain. In looking then at Live Nation's explanation for the dismissal, the Tribunal found that Live Nation had failed to satisfy them that it would have taken the same approach with a younger man and therefore Live Nation, the Divisional Manager and the HR Manager were all guilty of age discrimination.
EAT decision
Live Nation appealed to the EAT, claiming that the Tribunal had erred in finding that there was evidence to properly infer that there had been discrimination on grounds of age. The EAT agreed that it cannot be right that because a senior manager suspects that an employee is ageist, he is thereby discriminating against the employee on grounds of age, if and when dismissal occurs. The EAT noted that whilst an unjustified or unreasoned suspicion of ageism may render the dismissal unfair, it does not justify an inference that the employee had been dismissed by reason of his age. Indeed, to find otherwise would mean that no employer could safely dismiss a suspected discriminator for fear of being found to be discriminating themselves.
In relation to the Tribunal’s finding that the Divisional Manager and the HR Manager considered Mr Hussain “too old to change”, the EAT held that in an appropriate case this could provide the basis for inferring age discrimination. However, in this case there was no evidential basis for inferring that either the Divisional Manager or the HR Manager assumed that Mr Hussain could not change – this was supposition on the part of the Tribunal.
Live Nation (Venues) and others -v- Mr G Hussain [2008] UKEAT 0234_08_2210