Case Number 2507420/07

Key Facts

A teenage employee’s employment was terminated because she was too young for the job. This had been explicitly made clear by her employer when terminating. The employer’s case was that the employee was dismissed for lack of capability. The Tribunal found that, even if the employer had not explicitly told the employee that age was the reason for the dismissal (it foolishly had done so) - and the employer’s reason of capability was accepted as the reason for dismissal, the employer’s view on her performance was nevertheless founded upon a discriminatory presumption that lack of capability and youth go hand in hand. In such situation the Tribunal found that age was in any event a predominant reason for dismissal.

As per the other strands of discrimination legislation, the Tribunal have to apply the correct tests and found that the Claimant had established primary facts from which it could be concluded that the company on the grounds of her age did treat her less favourably than it would have treated others. The burden of proof then swung to the company to show that age was not the reason for dismissal. It was unable to show that pure capability (unrelated to assumptions about age) was the reason to dismiss.

Comment

The case is interesting as it is clear that an employer cannot justify different treatment between younger and older employees and that assumptions about capability of young employees cannot be taken too lightly. It is likely of course that if strong evidence had been put forward about lack of capability, then the employer’s case may have been different and may potentially have succeeded.

The case also is a warning to employers that in many circumstances, even with employees with less than a year’s service, it can be safest to follow statutory procedures under the Employment Act 2002. In this situation the employer did not do so, relying on the fact that the dismissed employer did not have the correct length of service, however because the age discrimination complaint succeeded, the lack of adherence to a statutory dismissal procedure meant that her compensation was increased by 50%.