Richard White, specialist employment solicitor at Withy King, considers some recent cases on age discrimination.

It has been nearly 18 months since the introduction of the Employment Equality (Age) Regulations 2006, which render unlawful any discrimination against employees on the grounds of their age.

As with most new legislation, it takes a while for people to become aware of their rights and for claims to filter through the tribunal process. However, there have now been several cases on the issue of age discrimination, from which lessons can be learned.

The facts:

• The case of Martin v SS Photay Associates involved a cleaner (Mrs Martin) who was dismissed because she had apparently become a ‘health and safety risk’ to the business. She had just turned 70 and the employer decided that this was too old. Mrs Martin was therefore dismissed by the employer, with no fair procedure being followed. Instead, the employer simply left a letter in her cleaning cupboard confirming the termination of her employment. The employment tribunal decided that this amounted to direct discrimination on the grounds of Mrs Martin’s age and awarded her damages of £1,500 for injury to feelings.
• In the case of Thomas v Eight Members Club and Killip, an employment tribunal awarded £1,500 in damages for injury to feelings to an employee who had been discriminated against on the grounds of her age. The employee had been told that she was too young to perform her job and dismissed in breach of contract. The tribunal also applied a 10 per cent uplift to the awards for injury to feelings and breach of contract, on account of the employer’s failure to follow a statutory dismissal and disciplinary procedure.
• In the case of Court v Dennis Publishing Limited, the employer directly discriminated against a 55-year-old senior employee on the ground of his age when it selected him for redundancy. A number of factors led the tribunal to draw an inference of discrimination, including a general culture within the company that younger, cheaper employees were preferable to older, more expensive staff, and a failure to consider for redundancy any other employees, who all happened to be at least 20 years younger than the claimant.

  In particular, the culture of age discrimination was enhanced by a book that was written by the owner of the business, which was given to staff. The book ‘How To Get Rich’ written in 2006 (and which made it to the WH Smith bestseller list) stated that ‘by the time talent is in its late forties or early fifties, it will have become very, very expensive’ and that it was ‘unwise to leave senior employees in any job too long’.

  The Tribunal acknowledged that Felix Dennis (the author) had not played an active part in either the restructuring or in the claimant’s dismissal. Nevertheless, the philosophy of the book, which had been read by the managers who had dismissed the claimant, had infected the culture within the company. Claims of unfair dismissal and breach of contract also succeeded.

Comment:

The moral of the story is that it is possible to discriminate against workers on the grounds of their age, whether they are young or old. Employers should always give careful consideration to the reason for treating employees in a particular way. It may be that an employer has a legitimate reason for dismissing an employee. However, if the reason for the dismissal is not made clear, then it will be open to employees to argue that age was either the sole reason for the treatment, or was at least a contributory factor.

Treating people less favourably on the grounds of their age will constitute age discrimination unless the employer can objectively justify the treatment, which will often prove difficult.

For further information on the above please contact Richard White at richard.white@withyking.co.uk