Facts

In November 1990, Mr Dove began employment as a Sales Representative with Brown & Newirth Ltd (“B&N”). In mid 2011 a new Sales Director was appointed: Mr Ball. Mr Ball hired Mr Thomas, a new Sales Representative. Mr Thomas was in his early 30s, whereas Mr Dove was in his late 50s. Mr Thomas began referring to Mr Dove as “Gramps”.

In December 2013, Mr Ball raised performance concerns with Mr Dove. Mr Ball also raised some concerns from clients that Mr Dove was not the “right person” to develop their business. Over 2014 and 2015, more concerns from clients were raised. Lots of Mr Dove’s clients moved to Mr Thomas.

In March 2015, Mr Ball met with Mr Dove. This conversation was expressly stated to be outside of the performance development programme that began in December 2013. Mr Ball quoted from clients that they wanted “a fresh approach” and “modern day development”. Mr Dove was dismissed for some other substantial reason.

Mr Dove brought claims for unfair dismissal and direct age discrimination in relation to his dismissal, and a further age discrimination claim in relation to being called “gramps”.

Decision

The ET upheld Mr Dove’s claims.

The ET first considered the burden of proof provisions. It looked at whether there were facts from which it could be concluded that there had been less favourable treatment because of age. The ET referred to the fact that many of Mr Dove’s clients were transferred to Mr Thomas, and that mr Thomas was considerably younger than Mr Dove. The ET considered that this, alongside the references by clients to Mr Dove’s “old fashioned” and “traditional” approach, were sufficient to shift the burden of proof.

The ET then looked at B&N’s explanation for the less favourable treatment. The ET was not satisfied with it. The ET said that B&N had not sufficiently questioned the comments from clients, and B&N had adopted these attitudes when deciding what steps it should take in relation to Mr Dove and his dismissal. B&N had put forward no justification defence; the ET therefore upheld Mr Dove’s age discrimination claim in relation to his dismissal.

In relation to the “gramps” comments, the ET stated that these were “banter” and were not intended to be discriminatory. The ET stated that a comment like this if made once or twice might not cause offence, but could cause real detriment if used more often. The ET accepted that these words amounted to less favourable treatment as they would not have been used in relation to an employee aged younger than 5-60 years old. The ET held that Mr Dove had found these words to be disrespectful and hurtful, and it therefore upheld his age discrimination claim.

The ET also upheld Mr Dove’s unfair dismissal claim.

The ET awarded Mr Dove a total of £63,390.95.

The judgment is available here.

Mr A Dove v Brown & Newirth Limited, case number 3301905/2015, Watford Employment Tribunal, 2 December 2015