In James v Gina Shoes Ltd, the EAT held that a Tribunal should have found that there was a prima facie case of age discrimination for the employer to answer where a managing director had made derogatory ageist remarks to an employee in performance management meetings.

The director had asked the claimant whether it was his age that meant he could not meet expectations and commented that if he were younger it might be possible to train him.  After the employee had resigned, comments along the same lines were made at a grievance meeting.

The Tribunal decided that the employee had been unfairly dismissed on the basis of a breach of trust and confidence but held that there was insufficient evidence to make out a prima facie case of age discrimination; the comments had been "taken out of context".  This meant that the potentially difficult burden of proof of showing a wholly non-discriminatory explanation for the comments had not passed to the employer.

The EAT overturned this part of the decision; the remarks about age plainly gave rise to a prima facie case of discrimination.