Mr D Hughes v Whitmans Laboratories Ltd: 1302766/2023
EMPLOYMENT TRIBUNALS
Case No 1302766/2023
Between
Mr. David Hughes andClaimantWhitmans Laboratories Limited SITTING AT: Birmingham Employment TribunalRespondent
Before
Employment Judge G SmartDate 5 October 2024
JUDGMENT
On hearing for the Claimant and Mr. Dando (Solicitor) for the Respondent:[1]The Claimant’s claims of detriment and harassment under sections 39 and 40 Equality Act 2010 are not well founded and are dismissed because: 1.1. there was no direct discrimination because of the Claimant’s age under s13 Equality Act 2010; and 1.2. there was no age related harassment under s26 Equality Act 2010. The Claimant has requested written reasons within the time limits required by the Tribunal rules.
REASONS
[1]The issues were discussed at a previous case management hearing before Judge Kenward.[2]Those issues were discussed again before us and both parties agreed they were the correct issues to determine.[3]The only additions to them were that the Claimant was bringing these claims under the applicant paragraphs of sections 39 and 40 of the Equality Act 2010. Case Number: 1302766/2023 2[4]The issues to be determined therefore were as follows: Direct Age Discrimination 4.1. As at 10 February 2023, the Claimant was 68 years of age. He compares himself with people in a younger age group. 4.2. Did the Respondent decide not to progress a job application made by the Claimant? 4.3. Did this treatment of the Claimant amount to less favourable treatment because of the Claimant’s age? 4.4. If it was, was the treatment a proportionate means of achieving a legitimate aim? 4.5. If it wasn’t did the treatment amount to a detriment under section 39 (1) (c)? Harassment 4.6. Did the Respondent treat the Claimant in any of the following ways? 4.6.1. During a meeting on Friday 7 February 2023, Ms Sharon Gollan: 4.6.1.1. mentioned to the Claimant that she was retiring and being forced to leave due to age; 4.6.1.2. queried if the Claimant had the stamina for the job during the Respondent’s “rush hour”; 4.6.1.3. ridiculed the Claimant for applying for the role. 4.6.1.4. Suggested that she would never allow the Claimant to work next to young production operatives. 4.6.2. Following the meeting on 7 February 2023, the Respondent provided false negative feedback. 4.6.3. If so, was that unwanted conduct? 4.6.4. Did it relate to age? 4.6.5. Did the conduct have the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant? 4.6.6. If not, did it have that effect when considering the Claimants perception, the other circumstances of the case and whether it was reasonable for the conduct to have that effect. Case Number: 1302766/2023 3 4.6.7. It was not in dispute that the Claimant had applied for employment and therefore satisfied section 40 (1) (b) of the Equality Act 2010 to bring his harassment claim. Preliminary issues at the hearing[5]The parties were asked if there were any preliminary issues at the start of the hearing.[6]Both parties confirmed there were none.[7]After the Tribunal asked the question, neither party nor any of the witnesses needed any adjustments at the hearing. The Claimant as a litigant in person[8]The Claimant was a litigant in person. When asked whether he had any experience in the Tribunal, he stated that he did and fully understood the process and procedure likely to be followed. When asked how well he knew the procedures on a scale of one to ten he said “ten”.[9]None the less, he was not legally trained or represented and we therefore took steps to level the playing field of the hearing by explaining the law and any procedure in more detail than we would do with a represented party. We also didn’t have the same expectations of questioning technique with him as we did for Mr. Dando.[10]We considered the provisions of the equal treatment bench book in all our procedural decisions reminding ourselves that, when offering assistance, it was not for us to run the Claimant’s case for him or put forward any positive case on his behalf. Issues of politeness and alleged misconduct[11]On a few occasions, the Claimant referred to an Indian male applicant in evidence as “Mr. India” or “Mr. Mumbai”. The Judge directed the Claimant and everyone else that this was impolite and the comparator applicant would be referred to as the Indian applicant or by his alleged name Mr. Abbott which were more factually accurate bearing in mind the applicant’s identity and gender were in dispute.[12]On at least three occasions, the Claimant accused Make UK, the organisation representing the Respondent, and indeed Mr. Dando himself, of being in cahoots with the Respondent in fabricating documents, being dishonest and accused Mr. Dando specifically of deliberately misleading the Tribunal.[13]We asked for evidence to support any of these accusations. We were taken to none. Our unanimous view was that we would not therefore entertain or hear any unsupported complaints about Mr. Dando or Make UK. Case Number: 1302766/2023 4[14]When the above issues were first aired on day one, to his credit, the Claimant withdrew allegations against Mr. Dando directly, accepting that he only had sight of the case in the ten days prior to the hearing. However, the allegations were made again in submissions on day two and the Claimant was reminded of what was expected of him.[15]We also confirmed that, if the Claimant thought Mr Dando had made a mistake with dates or any other information, then we would listen to those issues because, like the panel, Mr Dando was only human. However, we weren’t taken to any material suggesting any mistakes were made by Mr. Dando.[16]We confirm we saw zero evidence of any misconduct by Make UK or Mr. Dando personally. He was at all times, despite these serious unsupported allegations, professional, calm and objective.[17]On one occasion during submissions, the Claimant referred to the Respondent’s witness, Ms Gollan, as words to the effect of “that old woman” and also suggested, despite adducing no evidence of this, that she may have made poor decisions because she was upset, tired or had a headache.[18]We directed the Claimant and everyone else away from making irrelevant and/or unsupported personal remarks about Ms Gollan or anyone else.
The evidence
[19]We heard evidence from the Claimant, Ms Sharon Gollan (Executive Manager for Quality) and Miss Hannah Phillips (Internal Recruiter and HRIS specialist).[20]We also had an agreed bundle of 143 pages.[21]The Claimant submitted three statements in email form, by the time of the hearing.[22]The Respondent did not object to those and we read and took all three statements into account.[23]Both parties submitted written skeleton arguments, which we also took into account at submissions stage.
Background
[24]The Claimant presented his claim to the Employment Tribunal on 8 March 2023.[25]The Claimant commenced ACAS conciliation before presenting his claim.[26]All acts of discrimination were alleged to have taken place on or after 7 February 2023 and were therefore all in time. Case Number: 1302766/2023 5[27]There were no other jurisdictional issues.[28]The Respondent defended all claims and presented its ET3 response in time.
Findings of fact
[29]The Respondent is part of the manufacturing arm of the Estee Lauder group of companies, which is a well known worldwide cosmetics brand.[30]In February 2023, the Respondent commenced recruiting for a Senior Manager, Quality Operations within its quality team via a recruitment company, First People Recruitment Limited.[31]The Respondent received around 24 applications for the role.[32]The Respondent’s recruitment process would commence with the CV’s being reviewed against the minimum criteria for applying for the role such as qualifications and experience, to filter out any applications without the minimum requirements.[33]After this, the applications surviving this initial sift by HR would then be sent to the manager hiring for the position to create a short list. In this case, the person shortlisting was Ms Gollan.[34]Nine people were shortlisted for what is known as a stage one connect call.[35]The stage one connect call was an opportunity for the applicant and the manager to meet each other, ask any initial questions that they had about the job role or about the Respondent and the workplace, and to see whether the applicant had the personality and people skills approach to their management style and decision making, that fitted with the Respondent’s ethos.[36]Any applicants that appeared not to fit with the Respondent’s ethos, or the required approach to collaborative working and empathetic decision-making, were not progressed to stage two of the interview process.[37]Stage two of the interview process was a more formal, traditional interview in the form of question and answer sessions that were more formally noted down.[38]None of the candidates provided any information about their dates of birth or their age.[39]However, given some of the employment histories, it would have been possible for the Respondent to at least guess at the age of some of the individuals with a reasonable degree of accuracy.[40]Of course, by the time the stage one video call happened, Ms Gollan would have been able to more accurately assess how old the applicants were, because she would have seen them on the video call. Case Number: 1302766/2023 6[41]In our view, it would have been obvious to Ms Gollan that the Claimant was over 60 years of age. Consequently, we do not accept one of the factual points put forward by the Respondent that Ms Gollan did not know at least the age group of the Claimant namely him being over 60.[42]Of the 9 applicants that went through to a stage one interview, two people did not attend the interview.[43]Of the seven remaining, only three were taken through to stage two interview.[44]Of those, none were offered the position because none of them met the required standard.[45]Eventually, the Respondent decided that the position was not financially viable and it was, therefore, never filled and the role was then deleted from the Respondents corporate structure.[46]No one was ever offered the position. The Claimant’s stage one interview[47]It was common ground that neither the Claimant nor Ms Gollan had ever met or interacted in any way before the application process. The position was the same for Miss Phillips.[48]Despite the date of the interview being agreed before Judge Kenward as 7 February 2023, the parties are mistaken in that fact. The interview occurred on 9 February 2023.[49]We say this because there are emails in the bundle that state there was a scheduling conflict with the interview scheduled for 7 February 2023 and also that this was an interview that Miss Phillips was also able to attend.[50]Further emails show the interview was then rearranged for 9 February 2023.[51]Miss Phillips did not attend the interview, which adds further support to the 7 February 2023 date being misconceived on both sides.[52]We therefore considered the case about the interview as of 9 February 2023, which took place via a Teams video call.[53]Those present at the interview were the Claimant and Ms Gollan. Noone else attended.[54]Other than the Claimant and Respondent agreeing that the interview took place, it was a stage one interview and the only people in attendance were the Claimant and Ms Gollan, that is where the common ground about the interview ceases.[55]Ms Gollan described the interview as being a fairly standard interview where Case Number: 1302766/2023 7 she discussed the role, its requirements, a general overview of the working arrangements and patterns of the shop floor manufacturing and packaging process and staff. This included that the Respondent aspired towards a zero defect approach and that current weaknesses in the workforce appeared to be a shift changeover. Ms Gollan said she discussed the fact that quality seemed to dip when staff were finishing their shift or just commencing it.[56]She then described the Claimant as discussing aspects of his past roles, the fact that he had an auditing background, worked for companies such as Biosynex and Rolls Royce and said he understood all parts of the jigsaw for this type of operation.[57]By the end of the interview, Ms Gollan thought the Claimant was not a good fit with the Respondent because she considered the way he described himself and his approach to be patronising/superior, rigid, not visionary, not engaging or empowering and basically dictatorial in style. She said he was good to speak to but simply didn’t have a personality fit with the Respondent.[58]Ms Gollan took general bullet point style notes of every interview which were handwritten and in the bundle.[59]Ms Gollan is still employed by the Respondent, which becomes relevant later.[60]Ms Gollan denies that any of the Claimant’s allegations of harassment happened at all or were discussed in any way at all. She also does not recognise the description of the manufacturing lines as the Claimant describes them.[61]The Claimant described the interview very differently.[62]He alleged that Ms Gollan had informed him that there was a workforce in the manufacturing of products who were predominantly of 16 – 18 years of age and described the manufacturing process as basically being akin to an underage sweat shop (our interpretation of his evidence, not his precise words).[63]In support of this allegation the Claimant provided a document that appeared to be an answer to an unidentified online query, allegedly about Estee Lauder. The query appears to have been a query about the age of the workforce at the Respondent and the answer given by the app was “Probably from 16/18 onwards”.[64]We are not persuaded this document proves anything. First, the date of the question being asked was 7 November 2018 some 4 years before these events. We have no idea where the information came from, what app this information has come from or whether the information has come from a reputable or accurate source. The Claimant said it was from Indeed, but nothing in the document itself supports that.[65]The Claimant said he was asked, at the interview, how he would implement safety strategies on the shop floor including what he would do if a child worker Case Number: 1302766/2023 8 was behaving dangerously by not wearing eye protection when using chemicals in the manufacturing process. The Claimant described the chemicals as likely to be caustic or acidic in nature. He explained that when he said he would simply tell the child to put their goggles on, and would train all the staff and instruct them according to the safety rules that needed to be adhered to, he claims Ms Gollan took offence and that is why she felt the Claimant was dictatorial.[66]He says the fact the Respondent has this alleged underage workforce was disgraceful and by the end of the call, Ms Gollan had informed him that she would not ever let the Claimant near to any of “her girls”. The Claimant interpreted this to mean that he was akin to a “dirty old man” who was unsafe to be around female children, which he found highly offensive.[67]He said that this is why he alleged that Ms Gollan had “trashed him” at the interview.[68]He alleged that the stage one interview was essentially for the management at the Respondent to check and see if the applicant was a model in terms of looks and age and whether they drove range rovers or not. He alleged they had a view that only those people who looked right, agreed with the fact that the manufacturing process should employ only those people who were of 16 – 18 years of age because they were cheap, or applicants who wouldn’t tell anyone about the thousands of 16 – 18 year old children working for them and/or who drove range rovers, would get second interviews or job offers.[69]In comparing himself to others for his age discrimination complaint, the Claimant said that one fellow applicant who he had been in touch with via his “Indian contacts”, was 40 years of age, male, Indian and called Mr. Abbott from Mumbai.[70]The Claimant said that he was more qualified than this other younger applicant. In fact, the Claimant described himself as being the most qualified person in the UK for this job role and, despite that fact, the lesser qualified “Mr. Abbott” got a second interview.[71]Having looked at the application and considered all the evidence, we are not persuaded that Mr. Abbott exists or ever existed. There is a CV in the bundle that Ms Gollan describes as being an internal female applicant of Asian heritage who applied for the position and is around 40 years of age, although Ms Gollan did not know her precise age.[72]The Respondent argued that because one of the places in this applicant’s CV was Abbott India Limited, this is where the name Mr. Abbott has come from. We accept that submission. There is no evidence that Mr. Abbott existed or does exist. The Claimant must be confused about that.[73]In addition, Ms Gollan decided to put this candidate through for a second interview, because she was an internal candidate and therefore already had the necessary ethos and approach to management she was looking for in the Case Number: 1302766/2023 9 candidates.[74]Either way, by being an internal candidate, the female applicant was in circumstances materially different to the Claimant.[75]At the hearing the Claimant alleged that Ms Gollan was malevolent towards him, as shown by not progressing his application to stage two.[76]The Claimant also alleged that Ms Gollan had indicated at the interview that she doubted he had the stamina, because of his age, to keep up with the “rush hour” where the child labour force would allegedly need to load the vans with completed batches of products ready to be despatched.[77]On the other hand, the Claimant alleged in his ET1 that Ms Gollan described the Claimant’s approach as “fabulous”, which contradicts how the interview was now being described in evidence before us. He also alleged that Ms Gollan informed him at the interview that he had a “passion for quality”.[78]The Claimant’s position had also changed, about one of the allegations of harassment, by the time he described it to us at the hearing. Initially, he had indicated that Ms Gollan had said she was retiring soon and had been forced out because of her age. In evidence before us, the Claimant said Ms Gollan had not informed him that she had been forced to retire, but that she was leaving and that the Claimant would be her replacement.[79]The Claimant also says he took a note of the interview. It is very brief and only includes three lines. This says “Sharon”, “Fabulous” and “I project passion for…”, which is cut off in our version of the bundle. However he described this as saying passion for quality in oral evidence which fits with the other emails he sent to others at the time describing how he felt the interview went.[80]After the interview, on 10 February 2023, the Claimant sent a message to the recruitment company stating the feedback given to him by Ms Gollan at the interview. It says: “Good morning Stephanie 1 The feedback from Sharon to me in interview was1.1 Fabulous1.2 You have come across very clearly in your passion for quality 2 From my side I focused on the ISO 22716 which is the standards for cosmetic manufacturing and then we went down to granular detail on vitamin C on collagen in night creams”[81]It is significant that none of the contemporaneous notes of either Ms Gollan or the Claimant mention anything close to resembling a manufacturing process run by 16 – 18 year olds, health and safety issues being discussed or any derogatory remarks on either side. Case Number: 1302766/2023 10[82]The remarks Ms Gollan made were her professional views, not offensive remarks or designed to insult.[83]The feedback provided to the recruiter from the Respondent was very different. This was contained in an email of 26 February 2023 via Ms Phillips from HR. It said: “I've finally had the opportunity to catch up with Sharon following her connects for the senior manager, QA operations position here at Whitman. Unfortunately, we have decided not to progress with his application for the role, David didn't demonstrate values that would fit in here at Whitman & ELC. The focus of the conversation was “I would tell”, rather than collaborating with the business-wide stakeholders and we feel it's important that the QA operations team empowers other departments to focus on quality, rather than dictate it. Sharon did mention that David was a good person to speak to however we don't feel he's the right fit for the role. Please pass on our thanks to David for his time to speak with Sharon, and also for your support on this role…”[84]The contact Miss Phillips referred to above, was an email with the feedback of all 7 people actually interviewed at stage 1. In this email, Ms Gollan says the following about the Claimant: “not progressing would not fit into ELC culture”.[85]We believe there must have been a verbal conversation between Miss Phillips and Ms Gollan that resulted in the email Miss Phillips sent because of its increased detail compared to the above email.[86]We also mention here that, after the proceedings were commenced, the Respondent asked its HR team to produce a list of every job role in it with the ages of the postholders in those job roles. The ages of the postholders for those roles range from 20 – 73 with the eldest two employees working on the assembly line. No employees working for the Respondent were below 20 years of age according to the evidence we were referred to.[87]The Claimant makes a number of allegations about the Respondent, Ms Gollan and Miss Phillips.[88]He alleges that all three have fabricated everything in the bundle and the only genuine document that they have supplied for the bundle is the CV of “Mr. Abbott”. Everything else he alleges is a fabrication designed to defend the Tribunal proceedings.[89]We are not persuaded that the Respondent or any identified individual working with or for the Respondent has fabricated any document.[90]We say this because the dates of the emails about feedback date from before the ET1 was presented and before the ACAS conciliation commencement date of 2 March 2023. There is also no evidence we would expect to see or hear Case Number: 1302766/2023 11 about fabrication. There are no documents where two versions exist. There are no unexplained factual discrepancies in any of the documents. We have not detected any dishonesty from anyone in the Respondent who gave evidence. They came across as straight forward witnesses.[91]We conclude that, whilst, having heard his evidence, it appeared that Mr Hughes believed the interview went in the way he indicated, we unanimously find that Ms Gollan’s version of events is much more plausible.[92]We say this for the following reasons: 92.1. The notes of Ms Gollan and all supporting documentation provided by the Respondent are far more realistic than the Claimant’s version of events. 92.2. In his evidence, the Claimant said when questioned that the reason he hadn’t noted down the offensive things allegedly said by Ms Gollan or the fact that in his view children were working for the Respondent, was because he didn’t think those things were “relevant”. That is an incredible statement and if he was as offended, as he now alleges, we have no doubt the Claimant would have written such things down and stated so at the time rather than waiting for the feedback from the interview before alleging how offended he was. 92.3. The evidence given by the Claimant, in general, was far-fetched and had little or no support in any other evidential way. There is no evidence supporting the Respondent having a child workforce on its manufacturing lines. There is no supporting evidence of any of the documents being fabricated in any way whatsoever. 92.4. The Claimant’s case is contradictory. On the one hand he said Ms Gollan described him as fabulous and passionate about quality at the interview, yet on the other, he says she informed him she would not feel comfortable in him being left alone with girls and that she trashed him. This does not make sense. 92.5. We are also not persuaded that Ms Gollan has retired or even intended to retire. She still works for the Respondent, which disproves the Claimant’s account. 92.6. The Claimant also made far-fetched allegations, again entirely without any other supporting evidence, that the stage one interview was simply to see whether a person was good looking, young or supportive enough of the child labour approach to get a stage two interview. This is not plausible based upon what we have seen and heard and we do not believe the Respondent had that approach. 92.7. The Claimant described Ms Gollan as malevolent towards him, despite him accepting that he only met her for 30 minutes at the interview and never before it. We do not believe there was any malevolence in any decisions the Respondent made. There is simply no motive for anyone in Case Number: 1302766/2023 12 the interview process to have felt that way about the Claimant. 92.8. Even the solicitor and firm representing the Respondent were not spared serious and unsupported far-fetched allegations of falsifying evidence, lying and misleading the Tribunal. 92.9. No evidence has been presented to us to dislodge Ms Gallon’s view of the Claimant at interview as being an incorrect one. 92.10. Only the Claimant and Ms Gollan were present and, either way, Ms Gollan is entitled to her view so long as it is not an unlawful one to have. 92.11. We believe the reason why Ms Gollan rejected the Claimant was because, to her, the Claimant came across as patronising, uncollaborative in his approach and was dictatorial in his management style.[93]Consequently, we believe Ms Gollan’s version of events about what happened at the interview. None of the allegations of harassment actually happened and therefore they fail on the facts.[94]This means the only remaining claim is the direct discrimination complaint where the Claimant was not offered employment by the Respondent, and he says that was because of his age. The Law Burden of proof
The Law
[95]Section 136 of the Act provides as follows: “(1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court [which includes employment Tribunals] could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision”[96]Direct evidence of discrimination is rare and Tribunals frequently have to consider whether it is possible to infer unlawful conduct from all the material facts. This has led to the adoption of a two-stage test, the workings of which were described in the annex to the Court of Appeal’s judgment in Wong v Igen Ltd (formerly Leeds Careers Guidance) [2005] ICR 931, updating and modifying the guidance that had been given by the Employment Appeal Tribunal in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] ICR 1205. Case Number: 1302766/2023 13[97]The Claimant bears the initial burden of proof.[98]At the first stage, the Tribunal does not have to reach a definitive determination that there are facts which would lead it to the conclusion that there was an unlawful act. Instead, it is looking at the primary facts to see what inferences of secondary fact could be drawn from them.[99]As was held in Madarassy v Nomura International plc [2007] IRLR 246, “could conclude” refers to what a reasonable Tribunal could properly conclude from all of the evidence before it, including evidence as to whether the acts complained of occurred at all. In considering what inferences or conclusions can thus be drawn, the Tribunal must assume that there is no adequate explanation for those facts.[100]If the burden of proof moves to the Respondent, it is then for it to prove that it did not commit, or as the case may be, is not to be treated as having committed, the allegedly discriminatory act.[101]To discharge that burden it is necessary for the Respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the prohibited ground. That would require that the explanation is adequate to discharge the burden of proof on the balance of probabilities, for which a Tribunal would normally expect cogent evidence.[102]All of the above having been said, the courts have warned Tribunals against getting bogged down in issues related to the burden of proof – Hewage v Grampian Health Board [2012] ICR 1054.[103]In some cases, it may be appropriate for the Tribunal simply to focus on the reason given by the employer and if it is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, in the absence of a satisfactory explanation, would have been capable of amounting to a prima facie case of discrimination Laing v Manchester City Council UKEAT/0128/06/DA. Direct discrimination[104]The Equality Act 2010 defines direct discrimination as where relevant: “13. Direct discrimination (1)A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. (2)If the protected characteristic is age, A does not discriminate against B if A can show A’s treatment of B to be a proportionate means of achieving a legitimate aim. (3)… (4)… Case Number: 1302766/2023 14 (5)… (6)… (7)… (8)…”[105]The Employment Appeal Tribunal summarised the proper approach to the facts in cases under the Act in Talbot v Costain Oil, Gas & Process Ltd and others [2017] I.C.R. D11: “(1) It is very unusual to find direct evidence of discrimination; (2) Normally the Tribunal's decision will depend on what inference it is proper to draw from all the relevant surrounding circumstances, which will often include conduct by the alleged discriminator before and after the unfavourable treatment in question; (3) It is essential that the Tribunal makes findings about any "primary facts" which are in issue so that it can take them into account as part of the relevant circumstances; (4) The Tribunal's assessment of the parties and their witnesses when they give evidence forms an important part of the process of inference; (5) Assessing the evidence of the alleged discriminator when giving an explanation for any treatment involves an assessment not only of credibility but also reliability, and involves testing the evidence by reference to objective facts and documents, possible motives and the overall probabilities; and, where there are a number of allegations of discrimination involving one personality, conclusions about that personality are obviously going to be relevant in relation to all the allegations; (6) The Tribunal must have regard to the totality of the relevant circumstances and give proper consideration to factors which point towards discrimination in deciding what inference to draw in relation to any particular unfavourable treatment; (7) If it is necessary to resort to the burden of proof in this context, section 136 of the Equality Act 2010 provides in effect that where it would be proper to draw an inference of discrimination in the absence of "any other explanation" the burden lies on the alleged discriminator to prove there was no discrimination.”[106]If the protected characteristic is age, then the Respondent can put forward a defence of justification if it can prove that the treatment complained about was a proportionate means of achieving a legitimate aim.[107]There are two aspects to direct discrimination that must be considered by the Tribunal. One is less favourable treatment and the other is the reason for the treatment complained about with the associated causal link between the two. Case Number: 1302766/2023 15[108]Unreasonable behaviour should not give rise to an inference of discrimination Strathclyde Regional Council v. Zafar [1997] UKHL 54 it is usually an irrelevant factor. However, it has been held by the EAT that unreasonable behaviour can go to the credibility of a witness who is trying to argue that their motives were not motivated by the characteristic in question Law Society v Bahl [2003] IRLR 640 EAT.[109]In the same way that less favourable treatment does not mean unreasonable treatment, it also does not mean detrimental treatment or unfavourable treatment T-System Ltd v Lewis UKEAT/0042/15 (22 May 2015, unreported) or simply different treatment Shmidt v Austicks Bookshops Limited [1977] IRLR 360 EAT. There must be a comparison either actually or hypothetically that shows less favourable treatment.[110]Whether less favourable treatment is proven requires a comparison to a suitable comparator. There is a general requirement that there be no material difference between the people being compared either actually or hypothetically. Section 23 Equality Act 2010 says where relevant: “23 Comparison by reference to circumstances (1)On a comparison of cases for the purposes of section 13, 14, or 19 there must be no material difference between the circumstances relating to each case. (2)… (3)… (4)…”[111]The comparators need not be identical Hewage v Grampian Health Board [2012] UKSC 37 because if every single aspect of a comparator was the same between the complainant and comparator, then the less favourable treatment could only be because of the protected characteristic, which would be make it almost impossible to defend a direct discrimination claim.[112]Following the case of Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11, it will often be appropriate to consider the reason for the treatment first and then decide whether that reason meant the treatment was less favourable. Therefore if the reason for the treatment was because of the protected characteristic, then it might be that the finding of less favourable treatment is inevitable.[113]Whether something is less favourable treatment is an objective test Burrett v West Birmingham Health Authority [1994] IRLR 7 EAT, but if a subjective view is being put forward as showing why the complainant says the treatment was less favourable, then such a view can be upheld as evidencing less favourable treatment so long as the view held was reasonable Birmingham City Council v Equal Opportunities Commission [1989] IRLR 173 HL.[114]When considering hypothetical comparators, it is necessary for evidence to be Case Number: 1302766/2023 16 put forward about how actual comparators who are in different but not wholly dissimilar situations have been treated to build the neighbourhood from which it can be determined how a hypothetical comparator in the same or similar circumstances would have been treated Vento v The Chief Constable of West Yorkshire [2001] IRLR 124 EAT.[115]In all cases, it is irrelevant whether the alleged discriminator has the same protected characteristic as the complainant s24 Equality Act 2010.[116]In addition, there is no legal causal link as such. Instead the Tribunal should focus on the “real reason” why the alleged discriminator subjected the complainant to the treatment they allege was direct discrimination Chief Constable of West Yorkshire Police v Khan [2001] UKHL 48, which is a subjective rather than legal test looking at the mental processes of the alleged discriminator.[117]Following R v The Governing Body of JFS and the Admissions Appeal Panel [2009] UKSC 15, the following approach should be taken: 117.1. Where it is self-evident that discrimination is taking place because there is reference made to the protected characteristic, it is not necessary to analyse the motives of the discriminator, they are irrelevant; 117.2. Where discrimination is not obvious, it is necessary to analyse the motivation of the alleged discriminator but only for determining whether the characteristic played any part in the alleged discriminatory behaviour; 117.3. In all other circumstances, motivation is irrelevant to a direct discrimination claim.[118]To sum up the current situation about causation in direct discrimination cases, Underhill LJ said in the case of CLFIS (UK) Limited v Reynolds [2015] IRLR 562: “As regards direct discrimination, it is now well-established that a person may be less favourably treated "on the grounds of" a protected characteristic either if the act complained of is inherently discriminatory (e.g. the imposition of an age limit) or if the characteristic in question influenced the "mental processes" of the putative discriminator, whether consciously or unconsciously, to any significant extent…”
Discussion and conclusions
[119]It was common ground the Claimant was rejected for a job at the Respondent.[120]Both parties seemed to focus at some point in their submissions on unfavourable treatment.[121]After Zafar, Lewis and Schmidt that is not the correct test when considering the first issue of whether direct discrimination has actually happened. The test Case Number: 1302766/2023 17 is less favourable treatment.[122]Issues of whether any proven prohibited discriminatory conduct amounted to detrimental treatment, which might include unfavourable treatment, is then considered later on, if that is necessary, when determining whether any prohibited conduct breached section 39.[123]By the hearing the comparator, relied upon by the Claimant, was the person he referred to as Mr. Abbott, but who the Respondent alleged was a female internal applicant.[124]That comparator was in circumstances materially different to the Claimant because she was an internal candidate. She, therefore, almost automatically passed the first stage interview because it was clear she already fitted into the values the Respondent looked for in its applicants. She had an advantage over the Claimant as internal candidates often do, but that’s life.[125]This meant that only hypothetical comparators were left to be considered as valid comparators.[126]We now move onto the reason for why Ms Gallon rejected the Claimant after his stage one interview.[127]We have considered Ms Gallon’s reasons put forward for why she rejected the Claimant for employment. She said the reason was because he appeared to be dictatorial, patronising, rigid and uncollaborative in his approach to guiding and working with others and therefore would not fit with the ethos of the Respondent or the group.[128]Following Governing Body of JFS, we do not see anything inherently discriminatory about any of those reasons. These descriptors could refer to a person of any age group applying for work.[129]When considering the guidance in Talbot, there is simply no evidence to suggest that age was a factor in any of the decisions the Respondent made at any time. There was nothing inherently discriminatory about Ms Gollan’s conduct or views of the Claimant either consciously or subconsciously. There was no age discriminatory motive. The Respondent has a full spectrum of ages working for it in all its roles.[130]Applying the guidance about mental processes in Reynolds, and considering the real reason why Ms Gallon made the decision she did after Khan, we find that Ms Gollan made the decision to reject the Claimant for the reasons she suggested, namely that the Claimant would not have fitted the ethos of the Respondent or its group.[131]We find Ms Gallon would have known the Claimant was above 60 years old. However, in our judgment this did not have any effect on her decision making. There is insufficient evidence to the contrary. Case Number: 1302766/2023 18[132]Even if we assumed that the burden of proof, mentioned in Igen above, had been shifted, after Hewage and Laing, the Respondent has proven its burden of showing that, in rejecting the Claimant and not progressing him to stage two interview, that decision was in no way whatsoever tainted by age or age discrimination.[133]Similarly, if we compared the Claimant to a hypothetical comparator from a younger age group, taking into account all the backdrop facts and circumstances as per Vento, including considering “Mr. Abbott” as being an evidential rather than actual comparator, and, if we consider the hypothetical younger applicant as behaving in a similar way as the Claimant did and giving similar interview answers as the Claimant did, we are unanimous that Ms Gollan would have rejected the hypothetical applicant too, for the same reasons as the Claimant.[134]Consequently, there was no less favourable treatment. The Claimant has not proven facts from which we could conclude that discrimination had taken place. Even if the Claimant had shifted the burden of proof, the Respondent has proven the reason why it behaved as it did was not a discriminatory reason and it has therefore committed no discrimination at all.[135]We do not need to consider the Respondent’s justification defence.[136]The Claimant’s claims therefore fail and they are dismissed in their entirety.