Employment Flash -26th August 2010

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Using "younger" in a recruitment briefing leads on to failure before the ET; object lesson in what not to do if you wish to dismiss and avoid a successful discrimination claim...

Canadian Imperial Bank of Commerce v Beck [2010] UKEAT 0141 10 RN

Amongst other claims, B's claim for age discrimination succeeded before the ET and CIBC appealed. B was treated less favourably on grounds of his age by being dismissed and/or not being considered for an alternative role for which CIBC were recruiting.

B was employed from 15.6.07 - 8.5.08 as MD to CIBC's debt capital market and was 42 at the date of dismissal. B reported to R who was in his mid-30's. They didn't get on. Following a re-structuring CIBC decided to downsize B's part of the business but wished to 'upgrade' that part as well. B was dismissed by reason of redundancy, a reason that the ET rejected.

CIBC provided a brief to recruitment consultants  for a head of its derivatives team at this time, including: "Seeking younger, entrepeneurial profile (not a headline profile rain maker)". B fitted the bill save for "younger". The brief was referred to CIBC's HR; HR thought the term "younger" inappropriate. M informed HR that "younger" did not refer to age but to someone being less "senior". On interview M identified a candidate that he would have hired on the spot but he was too expensive and "tough to close"; the candidate was 50 years old, but he was also a headline rain maker.

The age discrimination claim was joined by amendment 6 months into the proceedings when CIBC disclosed the recruitment briefing after a great deal of resistance. The ET initially thought it inherently unlikely that R would want to dismiss someone 6 years older just to recruit someone over whom he could pull rank and who would not stand up to him (B's belief as to the reasons for R's actions). The word "younger" called for an explanation, particularly as it had been used despite the advice from HR. The use of that word alone shifted the burden of proof to CIBC. R did not give evidence. The evidence suggested R and M had taken against B and there was no obvious explanation for this. M's view of B was based on R's views anyway. M proved to be an unimpressive witness and his conclusion that B was not right for the job were not convincing. Similarly the explanation for the use of "younger" was also unconvincing. If "less senior" was what was meant, that's what the brief should have said. Elsewhere in the brief "senior" was used in relation to marketers which did not support the contention that CIBC were looking for a less senior head of marketing. B fitted the bill apart from being younger. The insistence that B was genuinely redundant and unwillingness to disclose the recruitment brief undermined CIBC's credibility. The fact that CIBC were willing to consider candidates who did not fit the brief and that an employer's expectations may change in the light of what is available was not enough to discharge the burden of proof.

CIBC maintained on appeal that in concluding the evidence overwhelmingly suggested R and M felt B and his team were not of high quality and had decided to upgrade the team the ET had a non-discriminatory reason for B's treatment and should have dismissed the claim, reliance being placed on The Law Society v Bahl [2003] IRLR 640. The EAT rejected this and the CIBC's supplemental arguments. The ET were obliged to consider whether in forming their views, R and M were significantly influenced by B's age having regard to the stark terms of the person specification. The person specification gave the clearest possible indication of potential age discrimination, it would have been an error of law not to probe the explanation given by CIBC for their treatment of B. R did not give evidence; M had predominantly relied on R; redundancy had been the reason put forward but was unsustainable; disclosure of the recruitment briefing was late and had been resisted. B had raised a prima facie case and it is enough for the ET to say that they were not persuaded that CIBC's explanation was right rather than reject it, and that it was reasonable to go no further than say the burden of proof had not been discharged (applying the principle from Pothecary Witham Weld v Bullimore [2010] IRLR 572).