The claimant was 60 years of age. He had a successful career working as a Marketing Director for the PGA European Tour, the well-known entity administering professional golf tournaments in Europe. Following the appointment of a new CEO, a view was formed that the claimant was not performing well and he was invited to a meeting to discuss the possibility of retirement, something he did not wish to do. He subsequently received a letter of dismissal stating that he was being dismissed because his role was to be merged with a wider commercial role and that his experience and skill-set were no longer suitable. No disciplinary procedure was followed.

The claimant brought proceedings alleging unfair dismissal and age discrimination. The respondent conceded the dismissal was unfair, therefore the tribunal sought to determine whether the reason for dismissal was on grounds of the claimant's age.

The tribunal rejected the claim of age discrimination. It accepted the explanation given by the respondent with regards capability and performance, in that the respondent did not consider the claimant was capable of fulfilling the role.

On appeal, the claimant argued the tribunal’s reasons were inadequate and failed to comply with the requirements of Rule 62(5) of the Employment Tribunal Rules 2013. The claimant also argued the tribunal made a material misdirection of law by failing to consider comparators; that it failed to take account of relevant matters and that it misdirected itself in accepting the respondent's explanation for dismissal without properly scrutinising whether the failure to provide a fair procedure masked the real reason for dismissal, namely the claimant's age.

The EAT held the tribunal was entitled to reach the conclusion that it did, notwithstanding the fact that there might have been other evidence supportive of a contrary view of the claimant's performance. Applying Meek v City of Birmingham District Council [1987] IRLR 250 the tribunal adequately explained why it reached the conclusions that it did and its rationale was discernible. The tribunal accepted the CEO’s explanation that the reason for "seeking to position the departure as retirement" and eschewing the disciplinary procedure was that his seniority and length of service required his departure to be handled respectfully. The appeal was dismissed.

To readers in NI the outcome of this case may come as a surprise. In NI it is likely the case would have resulted in an automatically unfair dismissal with an uplift in award given the statutory dismissal procedures applicable here would not have been followed.

The tribunal in this case accepted the reason for dismissal was a potentially fair one (capability) and not an unlawful one (on grounds of age). The tribunal had to determine whether the respondent failed to follow correct procedures in order to protect the employee’s dignity, a risky strategy to take.
http://www.bailii.org/uk/cases/UKEAT/2018/0157_17_0602.html

A subsequent decision on remedy in this case is available here.