Facts

Mrs Ali worked for Virgin Active as a Junior Activities Manager for eleven years before her resignation. Mrs Ali started running the crèche from 9 October 2006 and was stated to be an excellent crèche manager who worked well with children and parents.

As a manager, Mrs Ali had commercial responsibilities alongside running the crèche. This included selling memberships and retaining current members. The performance of managers was tracked by a management audit tool known as a ‘health check’. In October 2016 a health check was carried out which gave Mrs Ali’s team an overall score of 76%, but a commercial performance score of 47%. That same month Mr Forster started as a new General Manager but he did not rush to judgment about Mrs Ali’s scores as he was aware of her reputation as an excellent crèche manager.

During this time, Virgin Active was undergoing a large national restructuring which included the expansion of Mrs Ali’s club. The expanded facilities meant that Mrs Ali would need to ‘step up to the plate’ to ensure more memberships were sold and members retained.

The next health check took place on 8 March 2017 and saw Mrs Ali receive a commercial performance score of 44.44%. On 13 March, a meeting took place with Mrs Ali followed by three one-to-one sessions to check on her progress. At one session, Mr Forster raised the possibility of Mrs Ali taking on the supervisor role to which she took offence.

On 14 April, Mrs Ali handed in her letter of resignation, claiming it was ‘better to resign than be sacked’. Mr Forster responded asking to discuss the issues instead of her resigning, but Mrs Ali did not respond and the resignation stood.

Mrs Ali claimed that the reason behind Virgin Active’s behaviour in forcing her to resign was due to her age and that she was harassed by being subjected to various management actions because of her age.

Mrs Ali was 53 at the time of her resignation.

Decision

The Tribunal rejected her claims of age-related constructive unfair dismissal and age-related harassment.

The Tribunal noted that other Junior Activities Managers were also subjected to health checks, with many performing to a good standard on the commercial side. Mrs Ali requested statistics of the ages of other managers, but despite there being a low number of over 40s, this did not equate to discrimination or harassment because of her age, as there were many explanations for why other managers were not over 40.

In relation to the harassment claim, there was also no evidence of phrases used in relation to Mrs Ali that indicated age bias. As such, the Tribunal concluded that Virgin Active had not treated Mrs Ali less favourably because of her age, nor could it be said that they engaged in conduct which had the purpose or effect of violating Mrs Ali’s dignity.

The Tribunal said that this was ‘a very sad case’ because Mrs Ali was obviously very good at parts of her job. But there was clearly an issue with Mrs Ali’s commercial performance, which meant it was not unreasonable for Virgin Active to raise these points.

The judgment is available here.

Mrs M Ali v Virgin Active Limited, 1 February 2018, Case Number: 2206652/2017