The reason of age?

In two recent cases under the Employment Equality (Age) Regulations 2006, the tribunal had to answer the question: was the claimant’s dismissal for a potentially fair reason, or was it in fact discriminatory on the grounds of age?

Youth in issue

In Wilkinson v Springwell Engineering ET/2507420/07 the employer argued that 18-year-old Ms Wilkinson had been dismissed from her office administrator job not because of her youth but on the grounds of capability.

Ms Wilkinson had taken over the role from her aunt, who gave her some basic instruction. A few weeks into employment, concerns were raised about her workrate and an administrator from another office was brought in to help out. She was older and perceived to have more experience by the respondents. A further month on, Ms Wilkinson’s employment was terminated. She claimed she was told she was too young, an accusation denied by the respondents.

The tribunal found that the respondents did indeed equate experience and age, and conversely linked a lack of experience with incapability – stereotypical assumptions to Ms Wilkinson’s prejudice.

The respondents’ case was further hampered by Ms Wilkinson’s consistent evidence throughout, while their witnesses achieved “nowhere near the same degree of consistency”. On the crucial question of what was said on termination, the tribunal preferred the claimant’s evidence.

The tribunal readily found a prima facie case of discrimination. This shifted the burden of proof to the respondents, whose argument that capability was the real reason for dismissal was rejected as no concrete evidence of poor performance had been submitted. 

Ms Wilkinson was awarded more than a year’s loss of earnings, plus £5,000 injury to feelings, an additional two weeks’ salary for not being given a full statement of employment particulars – and a 50% uplift for failure to follow the statutory dismissal procedures. Finally, the tribunal made a recommendation – an under-utilised provision – that the respondents provide a “truthful and not misleading” reference whenever requested to do so by a prospective employer, to state expressly that she was dismissed in breach of the Age Regulations.  

Managers liable

While Wilkinson considered capability as the potentially fair reason, Hussain v Live Nation (Venues) UK ET/1401186/2007 considered conduct. The claimant, aged 51, had been front-of-house manager at the Hippodrome Theatre for 22 years. After a new general manager (GM) and assistant were appointed, various instances of work conflict ensued. Among other things, Mr Hussain alleged he was marked down in appraisals, and undermined when a front-of-house reorganisation was implemented in his absence on holiday.

In March 2007 Mr Hussain was summoned to a disciplinary hearing for an incident in autumn 2006. In his words, he made his way to GM’s office and expressed his “dismay and displeasure” at his treatment. She claimed he stood above her at the edge of her desk, waving his finger at her and waving his arms around. Mr Hussain was suspended and subsequently dismissed for bullying and harassment.

When considering whether a prima facie case of age discrimination was made out, the tribunal were swayed by a file note by the divisional manager which said: “it became increasingly obvious to me that his main issue was being managed by two younger members of management”. At tribunal both the divisional manager and the HR manager emphasised the age difference between Mr Hussain and the GM.

The tribunal held there was enough to shift the burden of proof to the respondents, then rejected out of hand the suggestion that conduct was the reason for dismissal and held that the approach taken would not have been applied to a younger man. The age discrimination claim was upheld not only against the employer but also the divisional and HR managers, with £7,000 of the total £42,000-plus award being made jointly and severally against those three respondents.

Some useful points

• Consider the merits of naming individuals as respondents where it is alleged they are responsible for the discrimination in question;
• Explore the full range of claims available to your client: e.g. often forgotten are those re failure to give a written statement of employment particulars, or to comply with the right to be accompanied;
• As part of the remedy sought, consider seeking a recommendation where this will obviate or reduce the adverse effect of the discrimination to your client.

If acting for a respondent:

• Explain to clients the risks of not following the statutory dispute resolution procedures, regardless of the length of service of the employee in question;
• Plead a reasonable steps defence if one can be made out, then ensure evidence is led and submissions made on the point.

Whichever party you act for:

• Test the evidence of your witnesses thoroughly before going into a hearing, cross-examining them yourself to see how their testimony will stand up under pressure!