Canadian Imperial Bank of Commerce v Beck
In discrimination claims, the burden of proof can pass from the claimant to the appellant in certain circumstances, requiring them to prove they did not discriminate against the claimant. In Canadian Imperial Bank of Commerce v Beck, the Employment Appeal Tribunal (EAT) said that the use of the word “younger” in a recruitment briefing document was enough to reverse the burden of proof, as the word had been retained despite advice that it was inappropriate.
Basic facts
Mr Beck worked for the bank as head of marketing from January 2007 to November 2008 when he was made redundant at the age of 42.
In March 2008 Mr Meloche, the global head of marketing, put forward a re-structuring plan which included proposals to make Mr Beck redundant and to upgrade the marketing team.
These proposals were based very much on the views of Mr Risler, head of London equities, who did not get on with Mr Beck.
When drawing up a brief for the recruitment agency, Mr Meloche said the bank would be looking for someone with a “younger, entrepreneurial profile”. Ms Marshall, head of HR Europe, said it would be inappropriate to search for a “younger” candidate and advised him to remove the requirement. Mr Meloche said that “younger” referred not to age but to someone less “senior” who would be less expensive and kept it in the briefing.
Mr Beck claimed age discrimination, among other things.
Tribunal decision
The tribunal agreed with him. It took the view that the bank needed to explain its use of the word “younger” in the briefing, particularly as it had been told not to use it. That was enough for the burden of proof to pass to the bank to show it had not discriminated against Mr Beck on the ground of age.
Having listened to its explanations, the tribunal decided that Mr Meloche had been influenced heavily by Mr Risler’s antipathy towards Mr Beck when he decided to make the latter redundant. It also found his explanation of the word “younger” unconvincing. If it meant “less senior”, said the tribunal, the document should have said so.
It concluded that Mr Beck fitted the brief drawn up for the ‘replacement’ job apart from being “younger” and although the successful candidate was 38 (and another favoured candidate had been 50), the tribunal held that that was irrelevant as different individuals had been involved in that decision. The tribunal was concerned with the treatment which Mr Beck has been subjected to and with the motivation of those different individuals who took the decision to dismiss him.
EAT decision
The EAT dismissed the bank’s appeal.
It said that the fact that the bank had deliberately included the word “younger” in the briefing document “constituted such a flagrant instance of potential age discrimination that the Tribunal was entitled to conclude that the Claimant, by placing this document before the Tribunal had proved facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the Respondent was responsible for a discriminatory act on the grounds of age”.
The EAT said that the tribunal had gone through the reasons given in evidence by Mr Meloche for his view that the Claimant was "simply not right" and it concluded that Mr Meloche's evidence was not genuine and that he was rationalising after the event.
Nor was it relevant that other favoured candidates were of a similar age. The tribunal had taken this into account but had asked itself the right question - what influenced the decision to dismiss at the time of dismissal? Having asked that question, it was entitled to conclude that subsequent events were not enough to discharge the burden of proof, and that, on the balance of probability, Mr Beck’s dismissal was influenced by his age.