Mr Rivkin was born on 21 July 1948 and is a highly qualified engineer. He began employment with Mott MacDonald in 2005. In 2009 there was a redundancy exercise and he scored the lowest in his pool. Mr Rivkin’s CV and other details were forwarded to other departments to see if they had any suitable alternative employment for him. Mr Rivkin’s date of birth was detailed at the top of his CV.

Mr Thistlethwaite invited Mr Rivkin to interview for a position in the public sector team (PST). There was no specific vacancy available, but because of Mr Rivkin’s outstanding academic achievement and experience Mr Thistlethwaite sought to create a business case to hire Mr Rivkin into his team.

During the interview, Mr Thistlethwaite commented that Mr Rivkin “would still have a good ten years” ahead of him and that the main concern was how long it would take Mr Rivkin to adapt to the PST way of working.

Mr Thistlethwaite concluded that Mr Rivkin failed to demonstrate interpersonal skills, intuitive knowledge and basic knowledge of PST in his interview.  He said that Mr Rivkin lacked motivation and demonstrated an unwillingness to consider an alternative view.

No suitable alternative employment was found for Mr Rivkin and his employment came to an end.

Mr Rivkin subsequently brought a direct age discrimination claim and unfair dismissal claim.

ET decision

Mr Rivkin’s unfair dismissal claim was not upheld.

In relation to the age discrimination claim, the Employment Tribunal rejected the proposition that Mr Rivkin’s initial selection for redundancy had anything to do with his age.  The only issue, therefore, was whether his age had influenced Mr Thistlethwaite’s decision not to try to find an alternative role for him in PST. 

During his evidence, Mr Thistlethwaite suggested that he was not aware of Mr Rivkin’s age, but the Employment Tribunal found that Mr Thistlethwaite had lied in this evidence. In its opinion, he knew the Claimant’s age.  

The Employment Tribunal reasoned that because he had lied, the effect of regulation 37 of the Employment Equality (Age) Regulations 2006 - the reversal of burden of proof provision - was that it was obliged to reject his explanation. Accordingly, Mr Rivkin’s age discrimination claim was upheld.

Mott MacDonald appealed this decision to the EAT.

EAT decision

The EAT held that the Employment Tribunal had been wrong to find that Mr Thistlethwaite had lied. The EAT commented that a finding that a witness lied on oath is a serious one and not to be made lightly.

In his witness statement, all that Mr Thistlethwaite had suggested was that he was unaware of Mr Rivkin's precise age, but that he did have some idea of Mr Rivkin’s age from his appearance: early or mid-fifties. Although Mr Thistlethwaite had been given Mr Rivkin's exact age in the CV, Mr Thistlethwaite had provided the reasonable explanation that he was in the habit of skimming over the standard information at the top (such as the applicant's age) when reading CVs and going straight to the sections of the CV that related to qualifications. On this basis, his explanation was not implausible and the Employment Tribunal was wrong to find that Mr Thistlethwaite had lied.

The EAT went further and said that, even if the Employment Tribunal had been correct to find that Mr Thistlethwaite had lied, it had interpreted the law on the reversal of the burden of proof incorrectly.

This is a two stage test. For stage 1 to be fulfilled, facts must be shown from which an inference of discriminatory motivation could be drawn. The EAT said that the Employment Tribunal was entitled to find this stage to be met as there had been a discussion about Mr Rivkin’s age.

In stage 2, it is for the employer to provide an adequate non-discriminatory explanation of those facts. The EAT held that it was wrong to for the Employment Tribunal to insist that the lie meant that it was impossible to accept the explanation. The lie was a factor that should have been taken into account, but it did not preclude the Tribunal from considering the explanation.

The judgment is available here.