The EAT has, in Live Nations (Venues) UK Ltd v Hussain, given some guidance as to conduct which may justify a finding of age discrimination:
- an employer that genuinely believes employee 'A' is guilty of age discrimination against employee 'B', and dismisses employee 'A' for that reason, cannot be said to be discriminating against employee 'A' on the grounds of his or her age
- an unjustified or unreasoned belief that an employee has ageist tendencies may render a dismissal unfair, but it does not justify an inference that the reason for the dismissal is the employee's age
- if an employee's dismissal for suspected ageism justified an inference of age discrimination by the employer, it might restrict an employer in dealing with a suspected discriminator for fear that they would be found to be discriminating
- reference to an employee being 'too old to change' could, in an appropriate case, provide some basis for inferring age discrimination.
[Thanks to Sian Reeves, pupil barrister at 1 Temple Gardens, for summarising this case]