Mrs Gay (born 4 October 1953) was employed by Sophos as Vice President of its Europe Middle East and Africa division (“EMEA”). She was a very competent senior executive and one of the top five earners at the firm: Her compensation package was over £260,000.

Following the acquisition by Sophos of a German company called Utimaco, Sophos restructured in September 2008 and created a new region covering Germany, Austria and Switzerland ("DACH") which was carved out of EMEA.

Financial results in October 2008 showed that sales had been poor and Sophos decided that redundancies would be necessary. Further restructurings were carried out and two new regions were created: one covering Northern Europe (including DACH), the Middle East and Africa; and another covering Southern Europe. Two managers who had previously covered DACH and France, Spain and Portugal were appointed as Vice Presidents for the new regions. They were aged 50 and 40 respectively.

A separate position of Vice President for the UK was also created. The appointee to this role was substantially younger than Mrs Gay.

Sophos abolished Mrs Gay’s role and did not consider her for the role of Vice President in any of the new regions. Sophos had proceeded on the basis that Mrs Gay’s redundancy would inevitably lead to her dismissal and had assumed that she would not be interested in these positions which were more junior to the role she had had. Mrs Gay was dismissed in July 2009.

Mrs Gay brought proceedings in the Employment Tribunal for various claims including age discrimination (both direct discrimination and victimisation).

Mrs Gay’s age discrimination case was that her age was a significant factor in Sophos’s failure to offer her any alternative employment. Sophos was, she suggested, not interested in finding another role for a senior manager in her mid-50s since they regarded her (consciously or subconsciously) as someone who was coming to the end of working life.

Sophos conceded liability for unfair dismissal and breach of collective consultation obligations and Mrs Gay was awarded £66,200 (the maximum that could be awarded at that time) and £60,972.30 respectively for these claims. The remaining claims, including her age discrimination claims, were dismissed.

The Employment Tribunal had dismissed Mrs Gay’s age discrimination claims because it found that the decision not to consider her for the alternative roles was not because of her age (or because she had made an age discrimination complaint) but was for other reasons, primarily that Sophos did not believe she would be interested in a more junior position.

Mrs Gay appealed to the EAT against the dismissal of her age discrimination claims.

The EAT’s decision

The EAT dealt with Mrs Gay’s appeal against the dismissal of both her direct age discrimination claim and her victimisation claim together. The appeal centred around the Employment Tribunal’s alleged failure to properly apply the reverse burden of proof as required by Reg. 37 of the Employment Equality (Age) Regulations 2006 (now repealed, but the same reverse burden of proof provisions are substantively repeated in the Equality Act 2010).

The EAT concluded that the Employment Tribunal had made a finding that Mrs Gay’s age was not a factor in her treatment. Given this, Mrs Gay had not made it past the first hurdle as she had not shown a prima facie case and, in any event, Sophos had shown that the treatment was for another reason other than age. The EAT ruled that the Employment Tribunal had properly applied the law and that the real issue for it to decide is whether the Employment Tribunal’s findings were adequately reasoned.

The EAT analysed the Employment Tribunal’s decision making and stated whilst the treatment of Mrs Gay was unfair, as Sophos had admitted, unfairness alone is not a sufficient ground to draw an inference of discrimination. The Employment Tribunal’s findings were adequately reasoned.

Accordingly, her appeals were dismissed.

The judgment is available here.

Mrs A Gay v Sophos Plc, 14 June 2011, UKEAT/0452/10/LA