Kelly v PGA European Tour, Court of Appeal - United Kingdom Employment Appeal Tribunal, February 06, 2018, [2018] UKEAT 0157_17_0602

Resolution Date:February 06, 2018
Issuing Organization:United Kingdom Employment Appeal Tribunal
Actores:Kelly v PGA European Tour
 
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Copyright 2018

Appeal No. UKEAT/0157/17/JOJ

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 10 November 2017

Judgment handed down on 6 February 2018

Before

THE HONOURABLE MR JUSTICE CHOUDHURY

(SITTING ALONE)

MR S KELLY APPELLANT

PGA EUROPEAN TOUR RESPONDENT

Transcript of Proceedings

JUDGMENT

UKEAT/0157/17/JOJ

APPEARANCES

UKEAT/0157/17/JOJ

SUMMARY

UNFAIR DISMISSAL

The Tribunal did not err in concluding that the reason for the Claimant's dismissal was not age and gave adequate reasons for its decision.

THE HONOURABLE MR JUSTICE CHOUDHURY

Introduction

  1. The principal issue in this appeal is whether the Tribunal gave adequate reasons for its decision that the Claimant was not dismissed for reasons to do with his age.

    Factual Background

  2. The Claimant was born in 1955. At the date of his dismissal he was 60 years old. The Claimant commenced employment with the Respondent, the well-known entity administering professional tournament golf in Europe, in 1989. His position at that stage was Marketing Director. The Claimant's position by the time of his dismissal in 2015 was that of Group Marketing Director. In that capacity, he had responsibility for expanding the Respondent's commercial partnerships. It would appear that the Claimant did this with considerable success throughout much of his employment.

  3. For much of the Claimant's employment, the CEO of the Respondent was Mr George O'Grady. However, in 2014, Mr O'Grady confirmed that he was standing down as CEO. In April 2015, the Respondent announced that Mr Keith Pelley would succeed Mr O'Grady as CEO. Mr Pelley commenced as CEO of the Respondent from 3 August 2015.

  4. Mr Pelley immediately set about conducting a review of the Respondent's operations. He was concerned by what he saw. The Tribunal said as follows:

    ``17. After starting employment in August 2015 Mr Pelley states that he saw very quickly that ... there was no clarity in the commercial vision; that there had been no proper evaluation of the Tour's commercial assets; that there were no proper creative or marketing presentations; and that there was no pro-active strategy for growth in the void categories. Mr Pelley held one hour long meetings with 54 different employees across the business, all of whom he asked the same 9 questions. At these meetings Mr Pelley listened, individuals had the opportunity to offer full and frank feedback in confidence. In these early conversations with the claimant's team and other colleagues Mr Pelley received negative feedback about the commercial team: that the team had no proper direction or leadership; that there was a lack of commercial initiatives; that the team was rudderless; that the claimant was ... not seen as a strong performer or a good team leader. Mr Pelley also received negative feedback from board members and from members of my [sic] senior leadership team about the claimant. From his own observations of working with the claimant Mr Pelley formed the view that the claimant was lacking confidence, wasted a considerable amount of time on fruitless projects or ventures in which he had a personal interest, had no vision, no current marketing knowledge and his team were not behind him. Mr Pelley says he was concerned that: at almost two thirds of the way through the year, the respondent was £1.9m behind budget on sponsorship and marketing; that there had been minimal new business development in the year to date; and that there was no plan to address the shortfall. Mr Pelley considered that the claimant was ``struggling with the change of management and the pace of change which I was expecting of my senior management team.''''

  5. There were further matters which were said to have affected Mr Pelley's view of the Claimant. Suffice it to say that within two months of commencing Mr Pelley formed the view that the Claimant was not performing well and considered that he should be dismissed. Mr Pelley had a meeting with the Claimant to see if terms could be agreed for his departure. That meeting was held on 8 October 2016. The Tribunal describes it as follows:

    ``26. A meeting was arranged for the 8 October 2016. Mr Pelley opened by saying that he would like the claimant to consider retiring at the end of the year, continuing his relationship with the respondent by being a consultant on the Morocco project. Mr Pelley said that it would give the claimant the opportunity to do other things and offer a respectful way to leave the business. The meeting concluded with the claimant agreeing to consider the position.''

  6. Terms could not be agreed. The Claimant made it clear that he did he did not wish to ``retire''. Mr Pelley then proceeded to dismiss the Claimant with effect from 30 October 2015. He did so without following any disciplinary procedure. The dismissal letter stated that the Claimant was being dismissed because his role was to be merged with a wider commercial role and that his experience and skill set were not suited to such a wider role.

  7. The Claimant considered that the reason for his dismissal was due to his age and the fact that Mr Pelley had no place for a 60-year-old in the new structure at the Respondent.

  8. The Claimant brought proceedings alleging unfair dismissal and age discrimination. By the time of the hearing before the Reading Employment Tribunal, the Respondent had conceded that the dismissal was unfair. Therefore, the only issue before the Tribunal was whether the reason for dismissal was to do with the Claimant's age.

    The Tribunal's Judgment

  9. The Tribunal rejected the claim of age discrimination. It accepted the explanation given by Mr Pelley for the Claimant's dismissal, which was that he did not consider the Claimant was capable of fulfilling the role that Mr Pelley wished him to perform. The key conclusions of the Tribunal are explained at paragraph 44 onwards of the Reasons. Given the nature of the grounds of appeal, which are set out below, it is helpful to set out these paragraphs in full:

    ``44. The claimant argues that Mr Pelley eschewed a formal disciplinary process because of the claimant's seniority and length of service; that he did this because he wanted to prevail upon him to retire; that when the claimant refused to retire Mr Pelley dismissed him. These matters are accepted by the respondent. The claimant contends that this is a case where the claimant has therefore established that there is evidence from which we could conclude that the claimant was discriminated against on the grounds of his age and that the respondent is required to show that the claimant's age was not the reason for his dismissal.

  10. The explanation given by Mr Pelley for the claimant's dismissal is that Mr Pelley did not consider that the claimant was capable of fulfilling the role he wished him to perform going forward. The reference to retirement was not any indication of the reason why his employment was terminated but a matter of positioning it as retirement for presentation only; to preserve the claimant's dignity by avoiding people knowing that he had been dismissed. If this explanation is correct the respondent has proved that there was no contravention of the Equality Act 2010.

  11. We note the respondent's argument that the claimant has failed to discharge the burden of showing that there are facts from which we could conclude that there was discrimination on the grounds of the claimant's age. However, we accept that the claimant has proved facts from which we could conclude that there was discrimination on the grounds of his age and so we look to the respondent for a reason for the treatment that was not age.

  12. The explanation given by Mr Pelley for the claimant's dismissal is that Mr Pelley did not consider that the claimant was capable of fulfilling the role he wished to perform going forward. The reference to retirement was not any indication of the reason why his employment was terminated but a matter of positioning it as retirement for presentation only; to preserve the claimant's dignity by avoiding people knowing that he had been dismissed.

  13. It is said by the claimant that the comment about retirement is a basis for concluding that there was discrimination on the grounds of age: the concept of retirement in an employment context is based on age. The respondent states that in this case the use of the word retirement was a matter of presentation or positioning the claimant's departure from the respondent. We accept that there is credible evidence before us that the use of the word retirement was in the context of explaining the claimant's departure to the other employees and the outside world. Mr Pelley simply saw retirement as a convenient and uncomplicated way of explaining the claimant's departure from his employment we are satisfied that it was not the reason for the claimant's departure from the respondent's employment.

  14. In arriving at this conclusion we take into account that there was reference made to the claimant's length of service and senior position as being factors for seeking to position his departure from the respondent's employment as retirement. We accept the explanation given by Mr Pelley that the thrust of which was these factors were matters that require the claimant's departure to be handled respectfully. We do not accept that they are an indication that the claimant's age was a reason for the decision to end his employment.

  15. We do not consider that the evidence shows that there was discrimination against people of any particular age by the respondent. There were persons employed by the respondent in the claimant's age group who did not lose their employment but retained it because Mr Pelley thought they performed well.

  16. The claimant has sought to rely on the use of the phrase ``a diverse group of millennials and established experienced employees'' by Mr Pelley in a presentation he made as part of the recruitment...

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