Facts

Ms Wyllie was recruited on a 12 month fixed term contract as an HR Support Manager in October 2017. At some point around six months after she started, Ms Iley (Ms Wyllie’s manager), asked Ms Wyllie her age. Ms Wyllie said she was 59. Ms Iley responded by saying “I thought you were younger than me.”

In July 2018, Ms Iley resigned. She told Ms Wyllie that she would be leaving in October 2018 and that Ms Hardwick was managing the recruitment process. Ms Hardwick contacted a Ms Thorley about the role. Unbeknownst to Ms Hardwick, a job advert was placed on the Gower Furniture website telling people to “come and join our young and energetic team”. Despite the wording of the advert, half of the team were over the age of 45 and the oldest employee was 79. Ms Thorley accepted the position in July 2018. In August 2018, Ms Iley told Ms Wyllie that there was a new HR manager who was younger than Ms Iley. Ms Thorley, who was 37, became Ms Wyllie’s manager.

Ms Wyllie submitted a grievance complaining that she had not been informed of the vacancy for Ms Iley’s position and had not been considered for the role because of her age. The grievance was investigated and then dismissed. In August 2018 Ms Iley informed Ms Wyllie that her fixed term contract was to terminate earlier than expected as the project which she was working on was coming to a close.

Ms Wyllie brought a claim of direct age discrimination.

Decision

The Employment Tribunal (ET) had to consider whether Gower Furniture had discriminated against Ms Wyllie, according to her age, in not considering her for the permanent HR manager role.

The ET found that there would have been  facts from which age discrimination could be inferred had Ms Iley been involved in the recruitment and appointment of her successor. This was because of the two occasions on which Ms Iley had referred to Ms Wyllie’s age. The ET found no evidence that Ms Iley had influenced the company’s search and/or the eventual decision as to who to offer the position to. .

The ET was satisfied that beyond the language of the advertisement there was no evidence of age discrimination. Both Ms Hardwick and another member of the team had previously worked with Ms Thorley; the ET was satisfied that it was this that was “the determining feature”. The ET was forced to conclude that, in the absence of any other evidence, the decision to not offer the role to Ms Wyllie was in no way influenced by her age.

The burden of proof did not shift and Ms Wyllie’s claim was dismissed.

The full judgment is available here.

Ms I Wyllie v Gower Furniture Ltd: 1811060/2018