“Younger” establishes prima
facie age discrimination
 

In
Canadian Imperial Bank of Commerce v Beck, the EAT held that the inclusion of
the word “younger” in the specification for a person to replace a
dismissed 42 year old amounted to the clearest possible evidence of potential
age discrimination, thereby shifting the burden of proof to the employer who
failed to prove that discrimination had not occurred.

Mr Beck
was made redundant at the age of 42 from his post as Head of Marketing,
following a decision made by Mr Meloche, who described Mr Beck and his team as
“simply not right” that there was a need to rebuild. A new position
as Head of European Derivatives Marketing was created. The person specification
included the words “seeking younger, entrepreneurial profile (not a
headline profile rainmaker)”. The EAT upheld the tribunal’s decision that
his dismissal was unfair, as the redundancy was a sham and that Mr Beck had
been the victim of age discrimination.

Looking at the
totality of the evidence: (i) the underlying reason for Mr Beck’s dismissal was
that Mr Meloche regarded him as “not right for the business”; (ii)
contrary to the express advice of HR, the word “younger” had been used
in the person specification for the new role; and (iii) Mr Meloche’s
explanation that the word “younger” meant “less senior”
and, hence, less expensive, was unconvincing in the circumstances. The word
“younger” constituted the “clearest possible evidence of a prima
facie case of age discrimination and the bank failed to prove that
discrimination had not occurred.