News

An Employment Tribunal has found that a 42 year old bank employee was discriminated against on the grounds of his age when his employer sought to replace him with someone 'younger' – a term used by his employer in an internal recruitment brief.

Implications

This employment tribunal decision demonstrates that employers need to be mindful of the language they use in internal documentation regarding recruitment, and not just job vacancies advertised externally. Such documents can prove decisive should an age discrimination claim be brought.

The employer's defence was further undermined by their continued insistence that Mr Beck was genuinely redundant when the evidence suggested otherwise. This demonstrates the dangers of labelling a dismissal for other reasons, for example poor performance, as 'redundancy'.

Details

In Beck v Canadian Imperial Bank of Commerce (CIBC), Mr Beck was head of marketing at the London office of CIBC. Following the bank's 'restructuring' Mr Beck was informed that he was at risk of redundancy. He was then told to leave the office.

Despite Mr Beck informing his employer that he would consider alternative positions, even if this involved a demotion or relocation outside the UK, CIBC did not inform him that they were recruiting a 'Head of European Derivatives Marketing'. CIBC's recruitment briefing for this position described a number of required attributes, including "younger, entrepreneurial profile". This briefing was also sent to CIBC's recruitment consultants, despite a warning from the human resources department that the term 'younger' was inappropriate. As a number of others were being made redundant at the same time as Mr Beck, CIBC gave him a letter purporting to comply with the statutory requirements for collective redundancy consultation. Mr Beck did not meet CIBC again before his dismissal for redundancy was confirmed.

Following his dismissal Mr Beck brought a number of claims to an Employment Tribunal including age discrimination, unfair dismissal and breach of the collective redundancy consultation obligations.

In respect of Mr Beck's claim of age discrimination the Employment Tribunal stated that the use of the word 'younger' in CIBC's recruitment brief shifted the burden of proof to CIBC to show that Mr Beck's dismissal was not influenced by his age. The Employment Tribunal therefore looked to CIBC for an explanation. CIBC's claim that younger meant 'less experienced' was rejected by the Employment Tribunal who found this explanation 'unconvincing'. In their view, if younger really meant less experienced then this wording could have easily been used instead in the recruitment brief. Although in the end CIBC shortlisted candidates in their 40's, the Tribunal ruled that this was not relevant. The issue before the Tribunal was what influenced the decision to dismiss Mr Beck at the time of his dismissal and noted that employers' expectations in a recruitment exercise may change in light of what is available.

In respect of Mr Beck's claim of unfair dismissal, the Employment Tribunal found that his role was not genuinely redundant. In reality CIBC planned to replace Mr Beck with someone else with the same key skills. In the Employment Tribunal's view CIBC's continued insistence that Mr Beck was redundant "seriously undermined" their credibility and they ruled that Mr Beck's dismissal was unfair. The Employment Tribunal also commented that the redundancy procedure adopted by CIBC was 'hopelessly unfair'. There was no evidence that CIBC had applied a selection criteria to Mr Beck and there was no genuine consultation with any of the employees dismissed as redundant. Furthermore CIBC made no effort to redeploy Mr Beck and his appeal against his selection for redundancy was a sham.

The Employment Tribunal also upheld Mr Beck's claim that CIBC had breached its collective redundancy consultation obligations. In this regard, their statutory letter to Mr Beck was designed to give no real information and was not meaningful. CIBC's breaches were wholesale and deliberate and the Employment Tribunal awarded Mr Beck the maximum protective award of 90 days' pay.