Appeal No. UKEAT/0234/08/RN
	                    UKEAT/0235/08/RN
                                                                                                              UKEAT/0236/08/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
                                                                                                    On 22 October 2008

Before
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
MRS C BAELZ
THE HONOURABLE LORD MORRIS OF HANDSWORTH OJ 

LIVE NATION (VENUES) UK LTD	APPELLANT

MR G HUSSAIN	RESPONDENT

MR S MURTAGH                                                                                                          APPELLANT

MR G HUSSAIN                                                                                                         RESPONDENT						RESPONDENT

MR B NEWMAN 								            APPELLANT

MR G HUSSAIN								        RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant Live Nation (Venues) UK Ltd	MRS HILARY WINSTONE
(of Counsel)
Instructed by:
Messrs Hammonds LLP
Solicitors
7 Devonshire Square
Cutler Gardens
LONDON
EC2M 2YH	
For the Appellant Mr S Murtagh	MRS WINSTONE	
For the Appellant Mr B Newman	MRS WINSTONE	
For the Respondent Mr G Hussain	The Respondent in Person	

SUMMARY

AGE DISCRIMINATION
UNFAIR DISMISSAL:  Compensation

It was conceded that the claimant had been automatically unfairly dismissed for failure to comply with the statutory dismissal procedures.  The Tribunal also found that he had been subject to age discrimination.  
The employers raised various grounds of appeal.  The EAT held that those directed towards the Tribunal’s assessment of remedy disclosed no error of law, save that no allowance had been given for pay in lieu made by the employer and credit had to be given for that.   However the EAT held that the Tribunal had erred in its approach to age discrimination.  In the circumstances, the only proper inference was that there was no evidence of such discrimination.  
The appeal therefore succeeded in part. 

  

THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

1.	This is an appeal against the decision of the Employment Tribunal which awarded compensation for unfair dismissal in excess of £35,000 against the company, and compensation for age discrimination against all three appellants, being two senior managers and the company who were vicariously liable for their acts. Claims of racial discrimination, and for money due to the claimant, were dismissed. 

2.	As far as the unfair dismissal claim was concerned, the employers conceded that there had been an automatically unfair dismissal for failure to comply with the statutory dismissal procedures. The issue for the Tribunal with respect to that complaint was therefore limited to the question of remedy.  In particular, it was whether compensation should be reduced to reflect the chance that dismissal would have occurred even had proper procedures occurred, or for contributory fault.  The company now appeals against the unfair dismissal finding, and all the appellants appeal against the finding of age discrimination.

The background.
3.	Mr Hussain (who we shall call the claimant) is of Iraqi ethnic origin and was born on 
1 July 1955. He was employed by the appellant company. They own the Hippodrome Theatre in Bristol, which is a long-established commercial theatre. The claimant was employed as front of house manager. He had commenced employment at the Hippodrome on 8 December 1980, and been promoted to that post on 3 December 1984. He still held the post at the date of his dismissal on 2 May 2007.

4.	The Tribunal was impressed by a whole range of witnesses who spoke in glowing terms of the claimant. Indeed the Tribunal observed that it had:
 “never seen such a wide ranging selection of witnesses who were willing to attend to heap praise on a claimant. The level and range of this support has quite properly influenced us in assessing the evidence of the respondent’s witnesses.”

5.	The background leading to the dismissal involved the claimant’s relationship with the general manager, Tracey Keight, and the assistant manager, Jenny Hawke. Ms Keate arrived at the theatre in October 2003 and became General Manager in May 2004. The Tribunal recounted a number of difficulties between her and the claimant. He made a number of complaints about the way in which she had managed him. 

6.	It is not necessary to recount the various incidents which the Tribunal found demonstrated a lack of support and consultation by Ms Keight, but it is plain that Ms Keight became highly critical of the claimant.  In 2005 she gave him an adverse review. She assessed him as somebody who only “meets expectations”, as compared with “achieving or exceeding them”.  “Meeting expectations” meant that coaching and training might be needed to ensure that all the requirements of the post were achieved. This contrasted with the senior manager’s comments in his report for the year in question, which were very positive.

7.	The adverse report had an effect on the bonus paid to the claimant. He was, as the Tribunal found, understandably incensed by it. He did not, however, appeal the report and so it stood. However, the claimant sent an email to Ms Keight criticising her management style in handling the issue and commenting that it was “indicative of the low score as a venue manager you received in the last staff opinion survey”. Ms Keight referred to that as an extremely offensive email. The Tribunal did not agree, and considered it to be an understandable response to an unjustified slur on his abilities.

8.	During 2005 Ms Keight remained concerned about the claimant’s performance, and she was in close touch with Mr Newman, the company’s Human Resources Manager, based in London. They decided to monitor the claimant’s performance more closely. 

9.	From 2 February 2006 to the end of April 2006 Ms Keight was off sick. Jenny Hawke was appointed deputy manager and was thrust into the position of acting general manager. Senior management decided that she should carry out the report for 2005, which also involved setting the objectives for 2006. A provisional assessment had to be carried out because that was going to be the basis for determining staff bonuses. 

10.	Ms Hawke carried out that assessment, and marked the claimant as unsatisfactory, meaning that overall he had failed to meet expectations. She did not, however, at that stage meet with the claimant; she simply left a note in his pigeon hole telling him he would not receive a bonus because of his unsatisfactory rating.

11.	The claimant went to see Ms Hawke. She said he was extremely aggressive, and said to her “How dare you make this judgment on me? I work so hard.” The Tribunal commented that they considered Ms Hawke’s conduct in relation to this PDR to be “outrageous”. She had not even consulted other senior managers before making her report.

12.	The company sought to justify the rating on the basis that the measures carried out to fulfil the objectives for 2005 set out in the report for that year had not been fulfilled. The Tribunal analysed those objectives and noted that they only bore on certain elements of the job role. 

13.	Following Ms Keight’s return there was a meeting with the claimant on 31 May 2006. She had by then approved the provisional annual report produced by Ms Hawke. 

14.	The Tribunal observed that Ms Keight and Ms Hawke continued to complain to senior management about certain conduct issues concerning the claimant, although they were never the subject of any disciplinary action. 

15.	On 3 October 2006 Mr Murtagh, the Divisional Manager based in London, visited the theatre and he attended the claimant’s briefing of staff before the performance. He was apparently highly critical of this before the Tribunal, but although he had listed 17 points in his observations to the claimant following his visit, he had emphasised that these should not be taken as “criticism in any way, shape or form”. 

16.	On 28 March 2007 the claimant was about to go on holiday. Shortly before that, at about 
 6.00 p.m., Ms Keight handed him an envelope with a letter signed by Ms Hawke summoning him to a disciplinary hearing with Ms Hawke. It was alleged that he had not been in the theatre when he was rota’d to be there. The claimant went to see Ms Keight. There is a dispute as to precisely what occurred at that interview. He says he expressed his dismay and displeasure, and Ms Keight’s evidence was that he had acted in a much more aggressive and excitable manner.

17.	Ms Keight complained to Mr Newman and Mr Murtagh about this conduct, and they considered it was sufficiently serious to suspend the claimant. They did so by letter of 6 April. He was summoned to a meeting on 12 April with Mr Newman and Mr Murtagh. Mr Newman said that this was done because he was deeply affected by Ms Keight’s call to him. She was sobbing down the telephone and was very upset. He had accepted Ms Keight’s version of events and had not asked the claimant about the incident prior to suspending him.  Mr Newman considered the claimant’s conduct to be a serious act of gross misconduct which was physically threatening.  His view was that the claimant had been “running rings around management for years” - a description which the Tribunal considered to be “somewhat hysterical.”

18.	When the claimant attended the meeting on 12 April he told the managers that he wished to be represented by a trade union official. He was told that the union representative could not be present because it was not a disciplinary meeting and he was also told that he was going to be dismissed and the employers wished him to sign a compromise agreement for £6,000. When pressed, the employers stated that the reason was bullying. When confirming his dismissal in writing they stated that “We deemed you to be beyond our management control.”

19.	The claimant appealed against the dismissal and alleged that it involved race and age discrimination. The appeal was heard by a Ms Grey, who made it plain however that there was no question of reinstatement or re-engagement, but if there had been discrimination then it may affect the amount of compensation offered. There had been various discussions about what compensation might be paid. The appeal was unsuccessful, and he lodged his tribunal claim.

20.	The Tribunal were not impressed by the company’s witnesses. Although ostensibly the dismissal was for an act of gross misconduct, the respondent’s witnesses had trawled back many years in an attempt to raise incidents discrediting the claimant. The Tribunal considered that it amounted to character assassination of the claimant. They observed that many previous managers had given glowing references of the claimant which were quite inconsistent with the company’s allegation that the claimant was unwilling to be managed and that he was deliberately obstructive. The Tribunal considered that senior managers, Mr Newman and Mr Murtagh, had merely accepted at face value the descriptions of the claimant’s conduct given by Ms Keight and Ms Hawke.

21.	The Tribunal then reached certain conclusions in respect of the claims made. First, having noted that the unfair dismissal had been conceded because of the procedural failings, they considered the question of contributory fault. They referred to the case of Nelson v BBC No. 2 [1979] IRLR 346 and reminded themselves of the three criteria which have to be considered when the Tribunal is assessing whether conduct should be treated as contributory. These criteria are whether the conduct on the part of the claimant was culpable or blameworthy in the sense that it was foolish or perverse or unreasonable; whether the conduct contributed to the dismissal; and whether it was just and equitable to reduce the compensation.

22.	The only potentially culpable conduct arose from the meeting with Ms Keight where the claimant was alleged to have been particularly aggressive. The Tribunal noted that there was no allegation of any verbal threat, physical assault, or obscene language, and they concluded that the most aggressive thing that the claimant was alleged to have done was to “stand up and wag 
his finger”. They then said this (para 59): 
“We do not wish to be seen to condone insubordination or mature managers losing their tempers, but on balance we have come to the conclusion that his conduct was not blameworthy or, if it was, any blameworthiness is so overtaken by the conduct of the respondents as to make it not just and equitable to make any deduction.”

23.	 They also considered that had proper procedures been complied with, an informal warning was at most the only sanction which could properly have been imposed. Accordingly, there was no proper basis for reducing the compensation on the grounds that dismissal may have occurred even had a fair procedure been adopted.

24.	They then considered the claims of race and age discrimination. They rejected the race claim and it is not necessary to say anything more about it. They then turned to the question of age discrimination. They noted that Mr Murtagh’s view, following a meeting that he had had with the claimant in late November 2006, was that the tensions created between the claimant and Ms Keight and Ms Hawke respectively were the result of the fact that he found it difficult being managed by two younger female members of staff. 

25.	The Tribunal concluded that there was no evidence to justify this conclusion. The Tribunal said this:
“These comments seem to indicate that Mr Murtagh and Mr Newman were influenced by an unsubstantiated belief that the claimant was using his age to his advantage and that he was too old to change his ways. This leads us to think that this could well have been a significant factor in the decision to dismiss him. This is evidence and not mere supposition. Accordingly, the burden of proof shifts to the respondents.”

26.	The reference to the burden of proof shifting is to the well established two-stage process which tribunals typically apply when considering questions of direct discrimination. The principles were established in the well known case of Igen v Wong [2005] EWCA Civ 142. At the first stage the tribunal has to consider whether the evidence, absent any explanation from the employer, would be sufficient to justify an inference of discrimination on the relevant grounds. If it is sufficient then the second stage arises and the tribunal has to consider whether the employer has satisfied them that the prohibited ground was not, in fact, the reason for dismissal. 

27.	Having concluded that the burden did shift for the reasons summarised above, the Tribunal then turned to look at the explanation for the dismissal. They explained their conclusions as follows (para 70): 
“We therefore have to look at the explanation for dismissal. We find that explanation totally unsatisfactory. We can understand that the respondents may have realised how well respected and loved he was and wanted to avoid a backlash against their decisions. However, we find their decision to act so totally against all the normal process and procedure baffling and we have come to the conclusion that they have failed to satisfy us that they would have taken the same approach to a younger man.”

28.	Accordingly, they found that both the company and the two managers who made the decision to dismiss, namely Mr Newman and Mr Murtagh, were all guilty of age discrimination. The Tribunal found that neither Ms Keight nor Ms Hawke could be said to have acted in the manner they did because of the claimant’s age.

29.	The Tribunal finally observed that there had been a blatant and deliberate flouting of the procedures, and that in the circumstances, the compensation should be increased by 40%, and that decision has not been challenged. 

30.	Finally, the Tribunal turned to assess the amount of compensation.  In carrying out that exercise, the Tribunal noted that the claimant’s wife ran a restaurant, but they were not prepared to treat the fact that he may have been able to take a fuller part in that business following his dismissal to be relevant to the question of compensation. They noted that following his dismissal there was no evidence that the takings had increased or that the claimant had been put on the payroll. 

31.	They also considered that although the claimant, on his own admission, had taken no significant steps to obtain alternative employment immediately after the dismissal, he had acted reasonably in mitigating his loss.  They summarised their conclusions on this point as follows (paras 81 and 82): 
“We do not accept that he has unreasonably failed to mitigate his damages by failing to find alternative employment. We are satisfied that having received a letter to the effect that he was being dismissed for bullying would make it difficult for him to find other employment and that he has found it difficult to come to terms with the loss of his job.
However, the claimant is certainly still employable. He plainly has many influential friends. Furthermore his earnings at the Hippodrome were low for the responsibility of the job. Doing the best we can, we think that he will obtain comparable employment in six months from the date of the hearing. He has not been in receipt of statutory benefits.”

32.	Finally, with regard to injury to feelings arising from the act of discrimination, they assessed that as £5,000., being the border line between the lower and the middle band, as laid down by the Court of Appeal in the guidelines set out in Chief Constable of West Yorkshire v Vento No. 2 [2003] IRLR 102. 

Grounds of Appeal.
33.	There are a whole series of grounds relied upon in the Notice of Appeal. Many of them are in our view misconceived because they are directed at various findings of the Tribunal which were merely by way of background and do not in fact bear upon its conclusion.   They are the kinds of points that would be relevant if the fairness of the dismissal itself were under challenge, but it is not.  The employers have conceded, as they were bound to do, that the dismissal was automatically unfair, and the grounds of appeal must therefore be directed to the remedy and the finding of age discrimination.  

34.	In addition, some of the grounds of appeal are directed towards the way in which the Tribunal dealt with the evidence.  However, we do not have the employment judge’s notes.  An application was made very late in the day for them, but I refused it because it would almost certainly have meant postponing the case.  In any event, again they bear principally on aspects of the case which were peripheral to the Tribunal’s key findings. 

35.	In fairness, Mrs Winstone, counsel for the appellants, who argued the case before us succinctly and attractively, did not develop a number of the arguments originally raised in the grounds of appeal precisely because they did not go the substance of the Tribunal’s rulings.  Her main complaint was that the Tribunal spent unnecessary time dealing with a whole series of background matters, and made unnecessary and unjustified findings with respect to them, which coloured their approach to the issues they did have to decide.  

36.	Given the concession that the dismissal was unfair, we agree that it was not strictly necessary to explore some of these matters in the detail which the Tribunal did.  But nor was it an error of law for them to have done so, particularly since many of these incidents were introduced into the hearing by the employers themselves and in a manner which the Tribunal described as “character assassination.”. No doubt the Tribunal felt it should put the record straight.

37.	One general ground of appeal which was advanced orally was this.  It is said that the Tribunal acted perversely in having regard to general character witnesses when assessing the reliability of the evidence of the respondent’s witnesses. 

38.	We reject this contention. It is plainly open to a tribunal to say that they have heard so much overwhelming evidence about the satisfactory behaviour of an employee, that it justifies them looking with a particularly critical eye at allegations of misbehaviour which appear, from these references, to be quite out of character. There was nothing perverse in the Tribunal having regard to this evidence. Mrs Winstone says that the Tribunal gave too much weight to these 
character witnesses; but we are not in a position to assess that, and in any event the weight to be attached to the evidence is a matter for the Tribunal.

39.	Whilst we do not intend to deal with the grounds relating to peripheral or background issues, in fairness to the appellants, it is right to say that we do think that having regard to the evidence identified by the Tribunal, some of the criticisms of management appear to have been somewhat harsh.  In particular, the finding that the two senior management were “without taking any responsibility, looking for an opportunity to get rid of the claimant” is difficult to understand.  They did take responsibility for the decision to dismiss.  

40.	Moreover, in so far as this observation may carry the implication that they were seeking to set the claimant up and were dismissing him for some concealed motive quite unrelated to the complaints they received, we think it wholly unwarranted by the evidence.  Mr Newman and Mr Murtagh may have been wrong to have relied so heavily on the reports from local management, and their handling of the process was inept and unjust.  They have caused immense grief to an employee of twenty six years’ service without even giving him the elementary opportunity to defend himself. The Tribunal understandably took a dim view of this, as we do. However, it was not suggested that Ms Keight and Ms Hawke were all part of some conspiracy to have the claimant dismissed.  It is plain that there were very real tensions between the local management and the claimant, and that something had to be done about it.  We accept that Mr Newman and Mr Murtagh were at least genuinely seeking to resolve the difficulties, albeit in a totally ham fisted way, and the evidence, and indeed the findings of the Tribunal, support that conclusion.

41.	 We turn to the grounds which do bear upon the Tribunal’s findings.  These can be considered under two headings, namely grounds directed against the remedy, and grounds directed at the finding of age discrimination. 

Remedy.
42.	First, it is alleged that the Tribunal erred in failing to find any contributory fault. The criticism here is the finding by the Tribunal that it was not just and equitable to make any deduction because any blameworthiness by the claimant was overtaken by the conduct of the respondent. 

43.	In our judgment, that submission cannot be sustained.  The Tribunal had to consider to what extent the dismissal was caused by the blameworthy conduct of the employee. They in fact concluded that on balance his conduct was not blameworthy, although that issue clearly exercised their minds. They then made the alternative finding that in any event any blameworthy conduct was overtaken by the conduct of the respondents so that it was not just and equitable to make any reduction. 

44.	We accept the submission of Mrs Winstone that the second basis for the decision is unsustainable.  If there was blameworthy conduct then it is an error of law to say that it was not just and equitable to reduce compensation because the employer’s behaviour was so unacceptable.  The focus must be on the conduct of the employee alone: see the observations of the Court of Appeal in Parker Foundry Ltd v Slack [1992] IRLR 11, who also cited with apparent approval some dicta of May J in Allders International v Parkins [1981] IRLR 68 specifically to the effect that in assessing this issue, the behaviour of the employer is immaterial.  However, since this is a secondary reason, that error does not affect the conclusion overall. In our judgement, the Tribunal’s conclusion that there was no blameworthy conduct justifies the Tribunal’s approach, unless that finding was perverse.  

45.	That leads to a related ground of appeal, namely that the finding was indeed perverse. Mrs Winstone contends that the Tribunal has made two fundamental errors. First, it has failed to have regard to the whole of the conduct which was involved in the final incident. Not only had the claimant conducted himself improperly at the meeting with Ms Keight, but in addition, he had sent an email to Ms Hawke stating that he would not attend a disciplinary interview conducted by her. That was a distinct act of subordination which ought to have been considered as part of the overall contributory fault. 

46.	Second, and in any event, the Tribunal minimised the nature of his conduct at the meeting with Ms Keight by describing it as no more than finger wagging. Mrs Winstone submits that this is a travesty of the evidence. Ms Keight had described much more threatening and intimidating conduct and it was not really challenged in any significant way by the claimant, save that he made certain denials. The Tribunal noted that there was no allegation of any threat, assault or use of bad language but the fact that there was no criminal conduct of this kind alleged did not justify a conclusion that this was not blameworthy conduct at all.

47.	We do not think that this criticism can be sustained. The Tribunal did expressly have regard to the need to ensure that there was no improper insubordination. It is not enough that we can raise an eyebrow at the conclusion reached by the Tribunal. In order to show that the decision is perverse we have to be satisfied that, to use the language of Lord Justice Mummery in the case of Yeboah v Crofton [2002] IRLR 634, there is “overwhelming evidence” that no reasonable tribunal could reach that decision. We do not think that the conclusion can be said to fall into that category. 

48.	As far as the evidence is concerned, as we have said, we do not know precisely what evidence was put before the Tribunal. In addition, it is fair to point out that the Tribunal also noted that following the meeting where the alleged intimidation took place, Ms Keight did herself at the end of that day put her head round his door to wish the claimant a good holiday. The Tribunal do not expressly refer to that evidence when reaching their conclusion on contributory fault but we think it is fair to assume they would have had it in mind when assessing the gravity of his conduct. 

49.	As to the email sent to Ms Hawke that the claimant would not attend a disciplinary hearing with her, that did not appear to figure significantly in the reasons for the dismissal.  Moreover, as Mr Hussain pointed out to us, it was only a refusal to appear before Ms Hawke, not other members of management. The Tribunal may have considered that in the circumstances this was not a factor of any significant weight. 

50.	As we have said, the issue is not whether we would have considered the incident to be in the nature of a minor management issue, which is how the Tribunal perceived it, but whether that was a finding which the Tribunal could reach. We have concluded, not without some hesitation, that they were entitled to reach that view and that we should not interfere.

51.	The Tribunal is further criticised with respect to the finding on contributory fault, and indeed with respect to its conclusion that there should be no Polkey reduction, for concluding that at most the conduct leading to the dismissal warranted an informal warning. It is said that this involved substituting the Tribunal’s view for that of the employer as to the appropriate sanction which is inconsistent with the band of reasonable responses test which Tribunals ought to adopt when dealing with issues of this kind, as emphasised in such cases as British Home Stores v Burchell [1980] ICR 303, EAT and Iceland Frozen Foods v Jones [1982] IRLR 439.   

52.	That criticism is misconceived. When it comes to contributory fault, the Tribunal has to look at the extent to which any blameworthy conduct actually contributed to the dismissal. It is not a question of whether a reasonable employer believed that it did. It has to look at the matter objectively and make its own assessment, and the range of reasonable responses test is not apposite. 

53.	Similarly, the Polkey analysis requires the Tribunal to decide whether the claimant would have been fairly dismissed even had proper procedures been complied with.  The Tribunal has made it plain that he would not. They could simply have said that and did not have to volunteer their own assessment that he should have been subject to no more than an informal warning, but it was not an error of law for them to make that observation and quite understandable in the circumstances.

54.	The other grounds relating to remedy are directed at the finding of the Tribunal that the claimant had acted reasonably in seeking to mitigate his loss.  It is submitted that this was a perverse finding, given the Tribunal’s specific observations that the claimant was “certainly employable” and “has influential friends”.  .Furthermore, the Tribunal stated in terms that the claimant had admitted that he had not yet started looking seriously for a job, and he ought to have done so.  The Tribunal ought to have concluded that he could and should have taken proper steps actively to mitigate his loss prior to the hearing before the Tribunal. 

55.	Again, the point was put attractively, but in the end we reject it. An employee must take reasonable steps to mitigate his loss, but it is not necessarily unreasonable for an employee who is suddenly faced with dismissal after twenty six years to take stock of his situation and consider what steps he should take thereafter. He told us, as he had told the Tribunal, that he was severely damaged and distressed by the experience, and we have no doubt that was true. Mrs Winstone accepts that if the Tribunal has simply said that their best estimate was that the claimant would not get a job for some twelve to eighteen months then she could not have challenged it.  We think this was in essence what the Tribunal was saying, albeit not as clearly as they might have done.  

56.	This was perhaps a generous finding in the claimant’s favour, but the discretion given to tribunals to deal with the question of mitigation of damages is very wide.  As has frequently been stated, questions of mitigation are essentially questions of fact.  We do not think it can be said that the findings of the Tribunal were perverse so as to justify our interfering with this aspect of their decision either.

57.	Finally, we deal with a ground that must succeed, namely that the claimant was paid the sum of £3553. by way of a payment in lieu of notice.  It appears that the Tribunal simply overlooked that in making the calculation.  In the normal way we would have been tempted to send this point back to the Tribunal, but Mr Hussain does not dispute that he did receive this sum and it would add delay and cost to remit the matter for the Tribunal to have to deal with what should be a simple mathematical adjustment.  Credit must be given for this sum, and as we understand the relevant statutory provisions (namely section 118(1)(b) and 124A of the Employment Rights Act 1996) this must be done before the 40% increase is made in the compensatory award.  To that extent, this part of the appeal succeeds.

Age Discrimination.
58.	We turn to the appeal relating to age discrimination. The submission here is that the Tribunal erred in finding that there was evidence from which it could properly infer, in line with stage 1 of the Igen test, that there may have been discrimination on grounds of age. The genuine suspicion of Mr Murtagh, recorded in the claimant’s file, and with which Mr Newman agreed was that the claimant found it difficult to be managed by younger female members of staff.  In other words, they suspected him of ageism and sexism. The appellant submits that it cannot be right to say that because a senior member of staff has these suspicions about an employee, even if they influence the decision to dismiss, he is thereby discriminating against the employee on grounds of sex or age, as the case may be, if and when the dismissal occurs. 

59.	We agree with that submission. Plainly, if an employer genuinely forms the view that an employee is guilty of racism or sexism and dismisses for that reason it provides no scintilla of evidence that the reason for the dismissal is sex or race as the case may be. That is so even if the employer’s perception is unjustified or misguided. In this case, for example, it would have been absurd to suggest that the claimant was dismissed by reason of his sex merely because the manager suspected that he was adopting sexist attitude with respect to these women. 

60.	The position is in principle no different in relation to ageism. An unjustified or unreasoned belief that the claimant himself has ageist tendencies may render a dismissal unfair, but it does not begin to justify an inference that he has been dismissed by reason of his age. We agree with Mrs Winstone that were it otherwise, no employer could safely deal with a suspected discriminator for fear that they would be found to be discriminating.

61.	In this case the Tribunal did not, however, infer discrimination solely on the basis of the suspicion.  They added that the two managers had been influenced by the unsubstantiated belief that the claimant was using age to his advantage and that he was too old to change his ways. It is not entirely clear to us what the Tribunal meant when they said he used age to his advantage, but it seems to us that that is saying no more than that they perceived him to have ageist tendencies.  As we have said, that would not provide any support for an inference that the dismissal was on grounds of age.
 
62.    The reference to him being “too old to change” could, in an appropriate case, provide some basis for inferring age discrimination. In this case, however, there was no evidence as such to justify that conclusion. The Tribunal stated in terms (in paragraph 59 set out in paragraph 26 above) - protesting too much, we think - that this was evidence and not mere supposition. 

63.	We respectfully disagree. The evidence that he would not change in his attitudes was supported by the genuine perception of management- whether rightly or wrongly is immaterial in this context- that he had for some time protested at his treatment at the hands of younger female managers. There was simply no evidential basis whatsoever for inferring that either Mr Newman or Mr Murtagh assumed that he could not or would not change simply because he was too old to do so.  That was mere speculation.

64.	We should add that in any event we have reservations about the way in which the Tribunal applied the second stage in Igen v Wong. They note (paragraph 70 of the decision, reproduced in paragraph 29 above) that the explanation given for the dismissal was unsatisfactory. They appear to have reached that conclusion because of the fundamental procedural failings. 

65.	However, the question is not whether the reason is unsatisfactory or unreasonable, but rather whether the employer satisfied them that there was a reason genuinely held by them, which caused them to dismiss the employee, and was not age. The Tribunal did not properly address that fundamental question. 

66.	We suspect that Mrs Winstone is correct to say that had they done so then they would necessarily have concluded that the reason was the conduct towards the two women. This is because the Tribunal, although very critical of the way in which the two senior management dealt with the evidence of misconduct, appear to have accepted that Mr Newman and Mr Murtagh were responding to complaints made by local management. They acted unfairly in failing to allow the claimant to deal with these matters, and the Tribunal found that they had grossly over-reacted in what was described as a somewhat hysterical manner to the information they were given. But the Tribunal nowhere suggested that they were not genuinely reacting to these complaints.

67.	Mr Hussain addressed us and put forward some evidence to support the view that in fact the company did seek to replace older staff by younger ones. However, we cannot hear such evidence in this Tribunal, and this was not the basis of the Tribunal decision.  Since the Tribunal relied on no additional evidence to justify the inference that there may be discrimination on grounds of age other than the factors we have identified, we find that this part of the appeal succeeds.

Disposal.
68.	We make allowance for the sum which the company had paid Mr Hussain, and reduce the compensation for unfair dismissal accordingly.  

69.       We uphold the appeal in relation to the finding of age discrimination, and substitute a finding that there was no such discrimination.