In this case the Employment Appeal Tribunal (EAT) held that a tribunal had been wrong not to find a prima facie case of age discrimination where a director had made a number of derogatory ageist remarks in the context of managing an employee's performance.

Facts

Mr James, 58 at the time of the case, worked as a production manager at the employer's shoe factory which specialised in high quality ladies' shoes. The managing director was not happy with James' performance and made this clear to him. After a day of being 'shadowed' by the sales and marketing director who was checking on Mr James' management style, James took sick leave with work-related stress. At a meeting the following week the managing director asked Mr James rhetorically whether it was his age that caused his failure to meet their expectations. He also said that if Mr James was younger, it might be possible to train him. James was quite upset by these comments, and later resigned. At a subsequent grievance meeting the managing director said to James words to the effect that ‘you can't teach an old dog new tricks’.

Mr James brought constructive unfair dismissal and age discrimination claims. The tribunal upheld the unfair dismissal claim on the basis of breach of trust and confidence. However, it held that there was insufficient evidence for the tribunal to determine whether, on the facts, they could draw an inference that the employer had treated him differently because of his age ie there was no prima facie case of age discrimination.  It found it ‘highly likely’ that the managing director's remarks had been ‘taken out of context’, and were ‘fleeting thoughts on the matter in that moment but not something that influenced the way in which he or any of the other directors treated the claimant’. Since there was ‘nothing else’ to suggest discrimination, there was no prima facie case and the burden of proof did not shift to the employer.

EAT decision

On appeal, the EAT overturned this aspect of the decision. The remarks about age ‘plainly raise... a prima facie case of discrimination’ and it was immaterial that there was ‘nothing else’ to suggest discrimination. The case was remitted to the same tribunal.

Comment

Given the serious nature of the comments made by the original tribunal, it seems surprising that it was unable to make out a prima facie case. The ruling suggests that ageist (or other discriminatory) remarks by a manager will require a non-discriminatory explanation from the employer even where there is nothing else to suggest discrimination.