The Employment Appeal Tribunal upheld an Employment Tribunal’s decision that a 42-year-old banker had suffered unlawful age discrimination because of a bank's use of the word "younger".


For a full summary of the facts, see our summary

The appeal

CIBC appealed the Employment Tribunal’s decision that Mr Beck had suffered age discrimination.  CIBC appealed on six grounds and argued that the Employment Tribunal had erred in coming to this conclusion. 

CIBC’s main ground of appeal was that the Employment Tribunal was wrong to conclude that the recruitment brief (which contained the offending “younger” description) was sufficient to reverse the burden of proof.  CIBC argued that the Tribunal erred in law by failing to follow the guidance of EAT and Court of Appeal in The Law Society -v- Bahl.  Had it properly directed itself it would have been bound to conclude that its own findings of facts stood in direct contradiction to the age discrimination claim as formulated and advanced by the Claimant.

The EAT decision

The Employment Appeal Tribunal rejected this argument.  The EAT said that the fact that the ET had made findings consistent with a non-discriminatory explanation did not prevent the burden of proof from reversing.

The EAT accepted that the ET had had regard to the totality of the evidence before concluding that the briefing document was so potent that it served to shift the burden. The ET had followed the correct approach and had meticulously gone through Mr Meloche’s reasons for his view that the Claimant was "simply not right", before concluding that Mr Meloche's evidence was not genuine and that he was rationalising after the event.  The ET was not obliged to conclude that the burden of proof had been discharged by the selection of a shortlist in which many of the candidates were older than Mr Beck. 

The EAT also rejected CIBC’s other five grounds of appeal.

Mr Beck had cross-appealed on a solely legal issue concerning the calculation of a protective award under the Trade Union and Labour Relations Consolidation Act 1992, but his appeal was also dismissed. 

The judgment is available here.

CIBC -v- Beck [2010] UKEAT 0141_10_2408