In the recent case of James v Gina Shoes Ltd and others UKEAT/0384/11 the EAT has given  consideration to the issue of whether negative remarks which were made by a managing director to an employee regarding his age gave rise to a ‘prima facie’ case of discrimination.

The Claimant, Mr James, was employed as a Production Manager by the Respondent who manufactured shoes. He commenced employment with the Respondent in April 2006 when he was aged 58. During 2009, one of the Company’s Directors was not satisfied with the Claimant’s performance and undertook a meeting with him during which several comments were made which focussed upon Mr James’ age. These included asking whether it was Mr James’ age that caused him to underperform and remarks to the effect that if he was younger then the Company would have been able to train him. Following this incident, the Claimant resigned from the Company and brought claims for constructive dismissal and age discrimination.

The case was initially heard by the Employment Tribunal which upheld Mr James’ constructive dismissal claim on the basis that there had been a breach of trust and confidence but found that a prima facie case of age discrimination had not been established on the basis that other than the managing director’s comments (which the Tribunal noted had probably been ‘taken out of context’), there was no other evidence to indicate that discrimination had occurred.

The EAT allowed the Claimant’s appeal on the age discrimination point, re-stating the test to be applied in such cases.

Firstly, the Tribunal must make ‘findings of primary fact and…determine whether those could lead [the Tribunal] to draw an inference that the Respondent treated the Claimant differently because of his age.’ Once this stage of the test has been satisfied, it is then for the Respondent to provide a credible, non-discriminatory explanation for the difference in treatment: in the absence of such an explanation, the Tribunal will be bound to conclude that the less favourable treatment in question occurred as a result of the Claimant’s age.

The EAT was of the view that the remarks made by the managing director in this case were sufficient to establish a prima facie case of discrimination which meant that the first stage of the test had been satisfied. Accordingly, the EAT remitted the case back to the Tribunal for re-consideration of the age discrimination aspect of the case.

I think that this case is of interest for 2 reasons:-

  1. it demonstrates that an employer can be left requiring to prove that discrimination did not take place in circumstances where the Tribunal has decided that, on the face of it, discrimination may have taken place. This underlines the importance of a clear paper trail showing the real (hopefully non-discriminatory!) reason why a decision or course of action was taken.
  2. it also underlines the importance of training being given to managers at all levels in respect of discrimination law. Equality training is very likely to assist in preventing inappropriate and unlawful remarks being made in the first place.