Facts
Mr Beck was a German 42 year old employed as Head of Marketing at CIBC. In March 2008 his line managers presented a restructuring proposal to CIBC management outlining a plan to reduce the marketing team headcount by 9 people. Mr Beck was one of the individuals they proposed be made redundant. This restructuring proposal also set out an intention to start a recruitment exercise to rebuild the marketing team straight away. Shortly after this proposal was circulated, Mr Beck and other members of his team were informed that they were at risk of redundancy.
In April 2008 (during Mr Beck’s redundancy consultation period) his line manager sent a memo to senior management within CIBC setting out the remit for the recruitment assignment aimed at rebuilding the marketing team. This referred to the recruitment of a “Head of European Derivates Marketing” as a “key priority” and listed the desired attributes, which included “seeking younger, entrepreneurial profile (not a headline profile rain maker)”.
Ultimately, Mr Beck’s employment was terminated by reason of redundancy in May 2008. Mr Beck claimed that he had been unfairly dismissed, as well as discriminated against on the grounds of race and age.
Decision
Mr Beck succeeded with his unfair dismissal claim but not his race claim.
For his claim of age discrimination, Mr Beck relied on the recruitment brief for his successor, which specified the search for a “younger” candidate. He asserted that one of his line managers, Mr Risler (who was in his mid-thirties), did not appreciate an older Head of Marketing (at 42) who was prepared to challenge and push back on instructions given by him. Therefore, he claimed that Mr Risler wanted to replace him with someone younger and less likely to challenge his authority.
Mr Beck gave evidence that he met all of the desired attributes listed in the recruitment brief, except the requirement to be “younger”. This evidence was uncontested. Although no appointment was ultimately made as a result of this recruitment exercise, this did not matter. The question was what influenced the decision to dismiss at the time of dismissal (rather than what actually happened in relation to the recruitment exercise).
The Tribunal considered it inherently unlikely that a manager in his mid-thirties at an investment bank would try to dismiss a 42 year old report in order to recruit someone over whom he could “pull rank”, who would not stand up to him. However, the use of the word “younger” in the recruitment brief did call for an explanation, especially in light of evidence given by the Head of HR that she had advised the word was inappropriate. Despite her advice, the word “younger” remained in several subsequent drafts of the brief. In the Tribunal’s view, this was enough to shift the burden of the proof to CIBC to show that it was “more probable than not” that Mr Beck’s dismissal was not “substantially influenced by his age”.
Mr Risler had not been called to give evidence. The Tribunal noted that the fact they had not heard from him made it difficult to assess whether he was influenced by Mr Beck’s age in relation to decision to dismiss. On the basis of the evidence given, the Tribunal found CIBC’s explanation for the use of the word “younger” unconvincing. Accordingly, CIBC failed to discharge the burden of proof and Mr Beck succeeded with his claim of age discrimination.
A copy of the judgment in this case is available here.
Beck v Canadian Imperial Bank of Commerce ET/2328832/08