Facts
Mr Skipper began working for BP in 1988 and progressed to the position of Assistant General Counsel Exploration & Production Europe and Vice-President Legal.
In 2007, BP began a reorganisation of their in-house legal function in order to improve competitiveness and streamline management.
In April 2010, there was an explosion on BP’s Deepwater Horizon rig in the USA. BP assigned employees to Houston to deal with the aftermath and three new roles were created as a result of the disaster. Mr Skipper, then aged 54, applied for two of these new roles in October 2010, but was told in November 2010 that he been unsuccessful. The successful applicants were Mr Drew, aged 42, and Mr McKim, aged 49.
In December 2010, Mr Skipper was offered a promotion to the post of General Counsel for Azerbaijan but he turned it down. Meanwhile, the result of BP’s reorganisation led Mr Skipper’s responsibilities for Major Projects and Procurement and Supply Chain Management to be removed from his role. Mr McKim became his new line manager.
During an appraisal process, BP rated Mr Skipper as ‘Exceeds Expectations’ rating, but in January 2011 a decision was taken to downgrade him to ‘Meets Expectations’. Mr Skipper raised objections to this and although there was further discussion, the rating was later confirmed in March 2011.
Mr Skipper remained in employment with BP but brought four claims of age discrimination relating to:
the rejection of his applications for two positions and appointing younger candidates;
the subsequent reduction of his role and responsibilities;
the use of a flawed recruitment system; and
the downgrading of his appraisal rating.
Decision
Mr Skipper argued that BP had developed an “ageist culture” in the UK after Tony Hayward took over as CEO in 2007. He referred to the following as evidence of this:
age demographics showing US lawyers were often older than UK lawyers and the fact that Mr Skipper was the oldest UK based senior lawyer;
BP’s usage of the phrase “Next Generation” to mean an employee with the best expectations rating and most potential;
Mr Skipper’s long-term potential being assessed as “n/a” in his appraisal;
BP’s various failures to comply with the Equality and Human Rights Commission’s Code of Practice; and,
BP’s failure to answer the Equality Act questionnaire on time.
This shifted the burden of proof to BP so that it was required to show that, on a balance of probabilities, it had not discriminated.
BP claimed that Mr Skipper’s claims had not been brought within the three month time limit. The Employment Tribunal held that only Mr Skipper’s fourth allegation was in time, but that it was just and equitable to extend the time limit for his other claims. In coming to this decision, the Employment Tribunal referred to the delays in dealing with the Mr Skipper’s grievance, the lack of prejudice that BP would be exposed to as a result and the fact that the earlier acts could have been part of a desire, campaign or policy to treat Mr Skipper unfavourably due to his age.
The Employment Tribunal found that BP had not discriminated.
The Employment Tribunal held that the reduction in role was due to the restructure and was not part of any desire, campaign or policy to cause detriment to Mr Skipper. In fact, he had been offered promotions and a retention bonus to stay on for the next three years after the reduction.
The Employment Tribunal found that recruitment of senior lawyers was carried out globally and both US and UK senior lawyers reported to the same person. BP was able to show clear evidence of other senior lawyers being promoted who were roughly the same age or older than Mr Skipper.
Mr Skipper’s application was considered seriously. In addition to using the services of two specialist external consultants (who provided some negative feedback on Mr Skipper), the hiring manager also took into account the views of other BP managers. He was unaware of Mr Skipper’s age and did not seek it out. Other managers were similarly unaware of Mr Skipper’s age when giving feedback for his appraisal.
The Employment Tribunal found that BP could have done better when using the grid rating system. In particular, the Employment Tribunal held that the lack of transparency about telling employees about their ‘potential’ rating was flawed.
As of March 2012, Mr Skipper continues to work for BP.
The judgment is available here.
Mr J Skipper v BP plc, Employment Tribunal case number 2202035/2011