Mrs Killen (aged 57) worked as Head of Conference for Brunel University (“the University”). As a result of changes to the management structure, Mrs Killen’s role was made redundant. She applied for one of the new roles that were created as a result of the restructure but was unsuccessful. Mr Lindsay (aged 38) was appointed. Mrs Killen was therefore dismissed.

Mrs Killen brought claims of unfair dismissal and age discrimination. The Employment Tribunal (“ET”) upheld these complaints. The University appealed to the Employment Appeal Tribunal (“EAT”).

EAT’s decision

The EAT referred to the ET’s conclusions. The EAT was concerned with the ET’s finding that the burden of proof had shifted.

The EAT made a general statement that the burden of proof can shift simply by showing that, of two applicants for a post, the unsuccessful applicant possessing a protected characteristic was better qualified than the successful applicant who did not share the same protected characteristic.

In this case, the ET had relied on this reason as shifting the burden of proof, but also referred to two other reasons which are unrelated to age discrimination. The EAT held that the ET’s reasoning must therefore have been flawed as it cannot be said how much weight was applied to the one valid reason, and how much to the two invalid reasons.

Moreover, and assuming that the burden of proof did shift, the EAT found that there were further difficulties. The EAT found that the University had given an explanation which would have been accepted but for flaws in the ET’s reasoning, and this explanation had no relationship to age.

For these reasons, the EAT upheld the appeal and found in favour of the University. The age discrimination decision was overturned.

A copy of the judgment is available here.

Brunel University v Mrs Sheila Killen [2014] UKEAT/0403/13/BA, 14 March 2014