A read of the EAT judgment in Live Nation (Venues) UK Ltd v Hussain ought to be compulsory for anyone about to embark on an employment dispute
Sometimes the bare recital of the facts of an employment case is enough to make it foreseeable that no-one will emerge happily. Throw in some “blatant and deliberate flouting” of dismissal procedures on the part of the employer. Mix with allegations of age discrimination, a hint of racial discrimination and a touch of alleged sexism. By the appeal, once “a whole series of grounds” of appeal had been dismissed, including grounds directed towards the way in which the Tribunal dealt with the evidence, the Employment Appeal Tribunal was left with arguments over the compensation and a challenge to the Tribunal’s finding of age discrimination.
The case is Live Nation (Venues) UK Ltd v Hussain. Mr Hussain had worked for the company for 26 years, and was popular and had had good reviews for his work over all that time until a younger, female manager, with a female assistant, was put in charge of him. The manager gave Mr Hussain the first adverse review he had ever had, followed by a zero bonus. He became rather upset. Disciplinary procedures followed, described by the EAT, in an apparent attempt to mitigate the Tribunal’s harsh findings, as “inept and unjust” and “ham-fisted”, and as having “caused immense grief to an employee of twenty six years’ service without even giving him the elementary opportunity to defend himself.”. Dismissal followed, and a hearing at which, according the Tribunal, the employer engaged in “character assassination”.
The compensation argument comprised several points – whether a payment in lieu of notice should have been deducted from the compensation (it should), whether the Tribunal concluded correctly that there was no contributory fault by the employee (it was justified in concluding that there was none) and as to how long it might take the employee to find new work. As to the latter point, The EAT felt it right to take account of the fact that the employee needed time to take stock after 26 years in the same job. A tribunal’s discretion in respect of mitigation, the EAT said, is very wide and it is necessary to find that it was perverse in order to overturn it.
The age discrimination point arose because of the suggestion that Mr Hussain found it difficult to be managed by young female staff members. The employers therefore suspected him of ageism and sexism – “the unsubstantiated belief that the claimant was using age to his advantage and that he was too old to change his ways” as the EAT put it. If the employer forms such a suspicion, even if that influences the decision to dismiss, is it thereby discriminating against the employee on grounds of age or sex?
The EAT concluded that such a position would mean that “no employer could safely deal with a suspected discriminator for fear that they would be found to be discriminating”. It concluded that the Tribunal had no good basis for the inference that there may have been discrimination on grounds of age, and found that this part of the appeal should succeed.
The case should really be compulsory reading for employers and employees who find themselves heading for a showdown. Whatever the rights and wrongs of the original falling out between Mr Hussain and his immediate manager, the whole thing went quickly beyond the control of anyone involved – the senior managers’ contribution may have been ham-fisted and inept, but they clearly had to do something.
There is no easy generic answer any more than there was an easy resolution to the actual problem in this case, and there is no suggestion that anything the lawyers on either side might have done differently would have made a difference. What began as a personality clash turned into a major battle on several fronts, and presumably left none of the participants happy. A quick skim of the upshot might help promote early mediation or an employment compromise agreement in future cases.
If you want to discuss any employment issue, including unfair dismissal or discrimination and whether as an employer or employee, please contact Andrew Penfold or Felix Appelbe on 020 7242 7000.
