Employment solicitor Richard White considers a case where a younger worker brought a claim for age discrimination, and succeeded.
The Employment Equality (Age) Regulations 2006 protect both young and old from age discrimination, but most of the tribunal claims so far have been brought by older workers. The first fully contested decision involving a younger worker has now been reported.
Wilkinson v Springwell Engineering Limited:
The case involved an 18-year-old office worker, Miss Wilkinson, who started work with a small engineering company in Newcastle on 3 January 2007. She had been introduced to the role by her aunt, who had been undertaking the role previously and who overlapped with her for a short period to give her some basic training in the new role. Miss Wilkinson was placed on a three-month probationary period.
In February 2007, Miss Wilkinson was advised that she was only doing 90% of her role and was asked to improve her work rate over the next few months. The company also asked Miss Spence, the administrator from another office, to cover the work that Miss Wilkinson was not carrying out. Miss Spence was older than Miss Wilkinson.
On 16 March 2007, Miss Wilkinson was dismissed by her line manager. Miss Wilkinson alleged that the reason given to her for her dismissal was that she was too young and the company required an older person with more experience. She was told to leave the premises immediately and was not given the right to appeal the decision.
The employer refused to reply to a pre-action letter and an age discrimination questionnaire.
Miss Wilkinson could not bring a claim for unfair dismissal because she did not have the 12 months employment required for unfair dismissal claims. However, there is no minimum service requirement for a claim for age discrimination so she brought a claim under the Age Regulations which provide that "A directly discriminates against B if it treats B less favourably than it treats or would treat C on the grounds of B's age". Therefore if an employer takes action against an employee on the grounds of their age (at any age) then they will be held to have unlawfully discriminated on the grounds of age.
In this case, the employer argued that the reason for the claimant's dismissal was poor performance but had no evidence to back up their allegations that she was no good at her job and made no attempt to deal with the performance issues. Other factors seized on by the tribunal were that the employer did not follow the statutory dismissal procedure and ignored a written complaint of discrimination and an age discrimination questionnaire.
In those circumstances the tribunal found that Miss Wilkinson had established primary facts from which the tribunal could conclude that her dismissal must have been by reason of age, and the employer had failed to establish that age was not the real reason for dismissal. Miss Wilkinson therefore succeeded with her claim of discrimination.
The tribunal awarded Miss Wilkinson loss of earnings to the date of the hearing and future losses of 26 weeks, together with an award of £5,000 for injury to feelings. They also awarded her two weeks' salary for the employer's failure to supply a written statement of particulars of employment. The tribunal then ordered a 50% uplift on the total compensation due to the employer's failure to follow the statutory dismissal procedure. The total compensation awarded exceeded £16,000.
In addition to compensation, the tribunal also invoked regulation 38(1)(c) of the Age Regulations and ordered the employer to provide a "truthful and not misleading" reference for Miss Wilkinson, which did not indicate that she was dismissed on capability grounds.
Dismissing for age is discriminatory. Dismissing someone because they do not have the experience required for the job may not be, and the result in this case may well have been different if, instead of peremptorily dismissing the claimant, the employer had explained to Miss Wilkinson what it expected from her and the ways in which her performance fell short of the standard required in the role.
Another lesson from this decision is the risk attached to dismissing even short service employees without complying with the minimal requirements of the statutory dismissal procedure. Employers should have procedures in place for managing and dismissing all employees, even probationers.
Employers should also be warned against the risks of ignoring (or failing to adequately respond) to a discrimination questionnaire, which can lead to inferences of discrimination being drawn by the tribunal.
For further advice on this topic, please contact Richard White, specialist employment solicitor at Withy King, on 01225 352 921 or email: [email protected]