Tribunal rejects law firm’s second challenge to age discrimination ruling

Manchester employment tribunal: Application dismissed

An employment judge has refused a second application from a law firm to reconsider his decision to award an experienced property solicitor damages of £13,200 for age discrimination when he applied for a job with it.

Judge Langridge in Manchester said Cheshire-based McHale Legal was essentially trying to appeal the judgment, which was “not the function of a reconsideration”.

The tribunal originally ruled that the reason Raymond Levy was not offered a job at McHale – despite being the only person interviewed – was that “he was considered expensive and that this was indeed synonymous with his being an experienced and older solicitor”. He was 57 at the time of the interview.

Both applied for a reconsideration, with Mr Levy arguing that the damages should be higher, and McHale submitting that both the liability and remedy rulings were flawed. Judge Langridge rejected both.

McHale then made a further application for reconsideration. Even though it agreed with the tribunal that there should be finality in litigation and that attempts to re-argue points addressed at a final hearing should be avoided, that was what the law firm went on to do, the judge said.

“For the most part, the respondent’s written submissions added nothing to its previous application, nor indeed was any matter raised which had not been previously addressed at the liability and remedy hearings. No new relevant evidence has been identified and no new point of law has been referred to.

“A number of the respondent’s points reiterate its pleadings and evidence, and amount to a further attempt to have substantive findings of fact overturned. That is not the function of a reconsideration, which does not operate as an appeal mechanism.”

The judge emphasised that “we were entitled to draw the inference of discrimination based on evidence of the primary facts established by the claimant and the respondent’s explanations for its actions”.

The firm’s evidence was not “reliable or satisfactory”, he went on. “It was inconsistent and lacked coherence, and there were differences between the contemporaneous evidence of the decision not to offer the claimant a job, and the oral evidence presented after the fact.”

Partner Andrew McHale told the tribunal that, following the original ruling, he called one of Mr Levy’s former employers and that, as a result, he would not have appointed the solicitor.

Judge Langridge said: “This repeats a point already argued and rejected. Had the respondent conducted a fair and non-discriminatory recruitment exercise at the time, we would have expected it to contact those referees nominated by the claimant.

“For the purposes of the remedy judgment, we had to award compensation for loss based on tortious principles, putting the claimant in the position he would have been in if the unlawful discrimination had not occurred.”

He also rejected the firm’s complaint about the damages awarded for injured feelings and aggravated damages.

“Our award for injury to feelings was based on the claimant’s evidence of the harm caused by the decision not to offer him a job, including his hurt, anger and distress at the potential financial consequences for him.

“Aggravated damages were awarded by reference to the harm caused by virtue of the respondent’s conduct of the proceedings.

“It was clear from the evidence that the claimant found the threat to report him to the Solicitors Regulation Authority particularly distressing.

“Firstly, it was unwarranted and founded on the erroneous belief that the claimant had misled the tribunal at a preliminary hearing. More importantly, a report to the claimant’s professional regulator could have had career-damaging consequences and even if unfounded, such a report would likely cause serious distress over a prolonged period of time.”

He concluded that there was no reasonable prospect of the tribunal’s decision being revoked or varied and refused the application.

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