Manager selected for redundancy because of his age

Since the age discrimination legislation came into force last year, there have been relatively few reported cases to give employers guidance as to the way in which the new laws will be interpreted. However, one recent case is helpful in indicating the ways in which an Employment Tribunal will draw inferences of age discrimination.

In Court v Dennis Publishing Ltd (London Central Employment Tribunal 31/7/07), Mr Court carried out the role of Promotions Director and was responsible for creative solutions (a form of advertising) within one division of the company. In order to increase profits and reduce costs, the company decided to create a centralised team for selling creative solutions across all four divisions. For this purpose, the company invited another employee to head the new team and made Mr Court redundant.

Mr Court brought a claim for unfair dismissal and age discrimination. The Employment Tribunal dealt first with his unfair dismissal claim and concluded that his dismissal was automatically unfair, due to the company’s failure to follow the statutory dismissal procedure. The dismissal was also unfair under the ordinary principles of fairness. Although there was a genuine redundancy situation, the company had failed to consult with Mr Court or to carry out a proper selection process.

The tribunal then considered Mr Court’s claim for age discrimination. In order to succeed in his claim, Mr Court had to show that in dismissing him, the company had treated him less favourably than it treated or would have treated other persons on the ground of his age. In the tribunal’s view, there were a number of factors from which an inference of age discrimination could be drawn.

Firstly, one slightly unusual factor the tribunal took into account was the fact that the owner of the company had written a book singing the praises of younger employees. In his book, the company’s owner had written, “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”. This had been read by the managers responsible for Mr Court’s dismissal and gave rise to a general culture within the company that younger, cheaper employees were preferable to older, more expensive staff.

Secondly, the tribunal took into account the fact that the other employees in the creative solutions team were all at least 20 years younger than Mr Court. In this respect, the tribunal noted that age discrimination is unlikely to be proven simply because of a difference in age and a difference in treatment. However, this was a situation where there was an imbalance of numbers. Taking by way of analogy a claim of sex discrimination, if there is one male and one female applicant for a post, the failure of one of them to be appointed cannot create an inference of sex discrimination. But if there are five female candidates and only one male and the male is appointed, then a tribunal could draw an inference of discrimination. The same reasoning applied here.

Thirdly, the employee who was appointed to head the new team was 22 years younger than Mr Court. This reinforced the tribunal’s view regarding the company’s culture. The company did not have any explanation to rebut the inferences of age discrimination, therefore Mr Court succeeded in his claim.

Employees often have very little direct evidence of discrimination when bringing a claim, therefore the power of the tribunal to draw inferences can be decisive. Although the mere fact of having a predominantly young workforce will not in itself be sufficient to raise an inference of discrimination, the tribunal may well draw such an inference where other factors are present. In this case the employer was unable to offer any explanation for the discriminatory treatment. However, employers should remember that even if they cannot offer a non age-related explanation, they may still be able to justify any discriminatory treatment if they can show that the less favourable treatment was a proportionate means of achieving a legitimate aim.


Read the other articles in this newsletter:

Third party pressure to dismiss
Smoking dismissal was fair
Failure to adapt grievance procedure gives rise to constructive dismissal claim
Q&A – Constructive dismissal


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