Posted on 19/03/2013 by Phil Hall
In the case of James v Gina Shoes Limited and Others the Employment Appeal Tribunal (EAT) has held that a Tribunal was wrong not to find “prima facie” (i.e. on the face of it) age discrimination where a managing director made derogatory and ageist remarks to an employee.
Mr James was employed as a production manager at the Respondent’s shoe factory. The managing director had performance related concerns about Mr James and arranged for him to be monitored and his management style reviewed. Mr James subsequently went on sick leave with stress.
During a meeting the following week, the managing director asked Mr James whether it was his age that caused him not to be able to meet the company’s expectations. The managing director also asked whether, if Mr James was younger, the company would have been able to train him.
Upset by these comments, Mr James resigned raising a grievance. During the grievance hearing that followed, the managing director used words to the effect of “you can’t teach an old dog new tricks”.
Mr James brought claims for constructive unfair dismissal and age discrimination. At first instance, the Tribunal found that the implied duty of mutual trust and confidence had been breached and upheld Mr James’ claim for unfair dismissal.
However, in relation to the age discrimination claim, the Tribunal found that the comments made by the Respondent’s managing director had been taken out of context and were not something which influenced the way in which the managing director, or indeed any of the directors of the company, had treated Mr James.
As such, the Tribunal found that there was insufficient evidence to establish a case of age discrimination.
Mr James appealed the Tribunal’s decision and the EAT overturned the Tribunal’s findings in relation to age discrimination. The EAT held that the remarks about Mr James’ age “plainly raised a prima facie case of discrimination”.
It was immaterial that there was “nothing else” to suggest discrimination.
The case shows the importance of ensuring that your managers are trained to avoid reference to age when discussing performance concerns.
This case is a useful reminder of the care that should be taken by managers dealing with performance related issues in relation to employees of any age:
Source: Brabners Chaffe Street is a Limited Liability Partnership http://www.brabnerschaffestreet.com/
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