STAGE MANAGEMENT

Live Nations (Venue) UK Ltd v Hussain

The law says it is direct discrimination for an employer to treat one person less favourably than another because of their age. In Live Nations (Venue) UK Ltd v Hussain, the Employment Appeal Tribunal (EAT) said that just because an employer suspects an employee of ageism does not mean tribunals can infer that the dismissal was due to their age (although it might make it unfair).

Basic facts

Mr Hussain had worked at the Hippodrome Theatre in Bristol from 1980 where he had been generally considered a good employee until the appointment of a new general manager, Tracey Keight, in early 2004.

She gave him an adverse appraisal review in 2005, following which he sent her an e-mail criticising her management style. She continued to monitor his performance closely throughout 2005.

Ms Keight was off sick for a few months during early 2006 and her deputy – Jenny Hawke – took over. She carried out his next appraisal, marking him unsatisfactory and left him a note in his pigeonhole telling him the outcome. He then went to see Ms Hawke who said he was extremely aggressive towards her.

In March 2007, Mr Hussain was asked to attend a disciplinary hearing because he had allegedly failed to turn up for work when he should have been there. He went to see Ms Keight who complained to senior management that he was very aggressive towards her, as a result of which he was suspended.

He was asked to a meeting with two senior managers and was subsequently dismissed in May 2007 for bullying. His appeal was unsuccessful and he lodged a tribunal claim for age discrimination, among other things.

Tribunal decision

And the tribunal agreed with him. It said that the senior managers had dismissed him at least partly because they believed he found it difficult being managed by two younger female members of staff.

It also said they were influenced by an unsubstantiated belief that Mr Hussain was using his age to his advantage and was too old to change his ways. They would not, decided the tribunal, have taken the same approach to a younger man.

Accordingly the tribunal found the company and the two managers who dismissed him guilty of age discrimination. The employers conceded that the dismissal was automatically unfair but appealed against the finding of age discrimination.

EAT decision

The EAT agreed with them. It said that just because the managers thought Mr Hussain was guilty of ageism and sexism did not mean that he had therefore been dismissed for ageism and sexism.

In the same way, it would be “absurd” to suggest that Mr Hussain was dismissed because of his sex just because the managers suspected that he was adopting a sexist attitude with respect to Ms Keight and Ms Hawke.

It accepted that “an unjustified or unreasoned belief” that someone has sexist or ageist tendencies might render a dismissal unfair, but would not justify an inference that they had been dismissed by reason of their sex or age. Otherwise, “no employer could safely deal with a suspected discriminator for fear that they would be found to be discriminating”.

The reference to him being “too old to change” could, in an appropriate case, provide some basis for inferring age discrimination, but in this case there was no evidence to justify that conclusion.

It concluded that the two managers genuinely believed (whether rightly or wrongly) that he would not “change in his attitudes”, but there was no evidence for inferring that either of them assumed that he could not or would not change simply because he was too old to do so. “That was mere speculation”.