Facts

Mr Cameron was employed as an Internal Sales Engineer at LEM Europe, a company that produces Mr electrical measurement equipment. Mr Carter was the UK Sales Manager. Despite being less qualified and lacking the same levels of skills as Mr Carter, Mr Cameron covered his position whilst Mr Carter was off sick with illness for around a year.

Ms White also worked in the UK office but had different responsibilities to both Mr Carter and Mr Cameron. Ms White called Mr Cameron “Dad” and her children would refer to him as “Grandad” and “Grandpa” when they visited the office.

LEM Europe was performing poorly in Western Europe. LEM Europe decided that redundancies were necessary in the UK office. Mr Cameron was selected for redundancy and Mr Carter was given power to make him redundant. Mr Cameron received enhanced notice pay and an additional two weeks salary to ‘short-circuit’ the consultation that should have taken place. Mr Cameron signed a letter confirming the redundancy terms. At the time of his dismissal Mr Cameron was 59 years of age and Mr Carter was 55.

Mr Cameron brought a claim of direct age discrimination, alleging that he was dismissed due to his age and proximity to retirement.

Decision

The Employment Tribunal (ET) found that there were no facts from which any inference of unlawful age discrimination could arise and therefore the burden of proof had not shifted. Although the dismissal was procedurally unfair, the decision to dismiss was totally unconnected with Mr Cameron’s age.

There were two reasons why the “Dad” and “Grandpa” comments did not shift the burden of proof. Firstly, these comments had not been brought up by Mr Cameron in the initial ground of claim and had only been mentioned at the main hearing. Secondly, and perhaps most importantly, Ms White had no influence on the decision making process regarding Mr Cameron’s redundancy. 

The ET then went further and held that even if the burden of proof had shifted, there was still sufficient evidence for LEM Europe to show that the decision was untainted by age. Mr Cameron, Mr Carter, and Ms White’s positions were incomparable. LEM Europe was under no obligation to consider Mr Carter and Ms White in the same pool of potential redundancies, and so the redundancy decision could not be said to be motivated by age.

Mr Cameron sought to compare himself with himself when he was made redundant in 2009 following a fair redundancy procedure. The ET held that the circumstances in 2009 were completely different to those in 2018 and therefore the situation of Mr Cameron did not resemble that of the comparator in all material respects except age. There was no evidential basis on which the ET could find that LEM Europe would have treated a hypothetical comparator who was in the same position as Mr Cameron but younger more favourably on age grounds.

The judgment is available here

Mr. A Cameron v LEM Europe GmbH, Branch UK: 2410407/2018