This is a case under the Employment Equality (Age) Regulations 2006 (EEAR), which provide protection against discrimination on grounds of age. Regulation 3(1)(a) provides that A directly discriminates against B, if A treats B less favourably than it treats or would treat others on grounds of B’s age and if it cannot be shown that the treatment was a proportionate means of achieving a legitimate aim.
Miss Wilkinson was employed by Springwell Engineering as an office administrator from 3 January 2007 to 16 March 2007. She did not have a formal interview and took over the role from her aunt. There was a period of overlap with her aunt during which she received some instruction on her duties.
She was informed in February 2007 that she was doing 90% of her duties and that she would need to improve her work rate over the next few months. At the same time Springwell asked another, older, administrator, Mrs Spence, to cover some of Wilkinson’s work.
On 16 March 2007 Springwell terminated Wilkinson’s employment without notice and asked her to leave the premises immediately. Wilkinson alleged that she was told she was “too young for the job”. At the time of her dismissal Wilkinson was 18.
Springwell was sent a pre-claim letter and an age discrimination questionnaire which it declined to answer. Wilkinson complained to an employment tribunal that the reason for her dismissal was because of her age. Springwell claimed that the reason for Wilkinson’s dismissal was capability.
The tribunal upheld Wilkinson’s claim and made a declaration of age discrimination, noting that there was a lack of any “orthodox procedure” in either recruiting Wilkinson or terminating her employment.
The tribunal was clearly unimpressed with the evidence put forward by Springwell and did not accept that there was evidence to support its contention that the reason for the dismissal was capability. It found that Springwell had assumed a relationship between experience and age on the one hand and lack of experience and incapability on the other. This was a stereotypical assumption to the prejudice of Wilkinson. It concluded that age was the predominant reason for the decision to dismiss.
It was also unimpressed with Springwell’s failure to reply to the pre-claim letter and age discrimination questionnaire.
In addition to an award of compensation, the tribunal made an award of £5,000 for injury to feelings using the guidance set out in the Chief constable of West Yorkshire v Vento case. It awarded two weeks’ pay for failure to provide a full statement of particulars of employment and applied an uplift of 50% for the failure to follow any procedure before dismissal.
It also made an order under the EEAR that Springwell provide a reference that is true and not misleading, confirming that the dismissal was in breach of the age regulations and a remedy had been ordered and fulfilled.
This case is interesting as it highlights the danger of stereotypical assumptions about experience, age and capability.
It also shows the risk to employers of not following any procedures in relation to either recruitment or dismissal, or having any sustainable evidence to back up their position on capability -particularly when this is coupled with a complete failure to respond to a complaint of discrimination pre-proceedings and an age discrimination questionnaire.
Jo Hilliard, managing associate, Addleshaw Goddard