Back in 1997, a Mr Zafar sued Strathclyde Regional Council. He claimed in effect that the handling of his dismissal had been so botched that it transcended mere ineptitude and became malicious, i.e. that no-one could make so big a mess of the procedure without really putting their back into it. During what must have been a less than comfortable day for the Council, Strathclyde was able to persuade the then House of Lords that this was not the product of race discrimination, but of simple incompetence. Finding –no race discrimination.
Since Zafar, the use of managerial ignorance as a defence to discrimination claims has been understandably limited, but now it has blundered back into the spotlight in the Employment Appeal Tribunal. Mr Osoba was among the eldest of his peers and was selected for redundancy via an exercise which after a “substantial battering” in cross-examination the person carrying it out ultimately agreed was full of holes or, as the Employment Tribunal put it (not one for the Personnel Today Awards, this one) “shambolic and lacking in competence“. Osoba said that the combination of his age and the total Horlicks made of the selection exercise was sufficient to shift the burden of disproving his age discrimination claim to the employer, Hertfordshire Constabulary. There may be many reasons why mistakes are made – I was under pressure at the time, I was never trained in this process, I am really much less bright than my employer thinks – any or all of which could be prayed in aid by an employer in these circumstances, but the police used none of them. The officer’s only explanation for the coach-and-four which she had driven through the selection procedure was that she had done her best to follow the policy but had made mistakes in the process.
Osoba’s argument was that there had to be a reason why the process had been so bungled, and that as the Constabulary had not explained what that reason was, it had failed to discharge that burden of proof, so he should succeed.
In a terrible blow to conspiracy theorists everywhere, however, the Employment Appeal Tribunal decided that not every mistake has an explanation. Sometimes a mistake is just a mistake, a moment’s incompetence admitting of no explanation beyond that you made a mess of something and don’t really know why. Pressed to rule that the mistake needed an explanation, the EAT said that “There may simply be cases where there is nothing more to say, no further explanation than “Well, I got it wrong and I take responsibility for that“.
Music to the ears of under-trained line managers everywhere. But be warned – the defence that I did not discriminate but was just outstandingly inept has some serious limitations. In particular, it will not be a defence (may well even be an open door) to an unfair dismissal claim. It is significantly career-limiting for the HR or line manager charged with admitting (indeed, majoring upon) all those errors in a public forum. It is most unlikely to be believed more than once – to err may be human and to forgive, divine, but the Employment Tribunal will be less than forgiving if there is evidence that qualified line or HR management staff have made material mistakes on a serial basis. In addition, if there is any peripheral material around the facts from which the Tribunal could draw an inference against the employer, even the legal majesty of near-terminal incompetence may not be sufficient to prevent the burden of proof shifting to the employer or forestall a finding that you have failed to discharge it. The lesson would appear to be that if there has been some ghastly foul-up somewhere in the process, it will (despite this case) still be better to have some explanation for it, however embarrassing, than none at all.