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Tuesday, 6 May 2014
Age Discrimination: Interesting Case
Thanks to Ed McFarlane of Deminos HR for preparing this case summary
The EAT (Langstaff P) has handed down judgment in the case of Clements v Lloyds Bank, which concerned the interaction of discrimination and constructive unfair dismissal.
The Claimant, in his 50s, was Head of Business Continuity for the
Respondent. His manager told him in a discussion over performance in
January 2012, 'You're not 25 any more'. The manager consistently denied
making the remark. The employment tribunal found that the remark was
made, and it was an act of age discrimination, but it did not form part
of the conduct that led to the Claimant (successfully) claiming
constructive dismissal on his resignation in July 2012. The Claimant
appealed against the Tribunal's finding that his constructive dismissal
was not caused by age discrimination, and lost.
Whilst the 'age' remark was discriminatory, it was found not to be a
material cause of the repudiatory breach of contract. The EAT noted that
the ET had concluded that the resignation was not due to discrimination
in any real causative sense, but how the Respondent went about trying
to move the Claimant from his job because of his performance. The EAT
asked whether a Claimant who resigns in response to a course of conduct
that amounts to a repudiatory breach of contract can legitimately be
said to have resigned in response to some aspects of that conduct, but
not other aspects of it, even if those other aspects of conduct also
amounted to a repudiatory breach, and held that the answer is that it
depends on the facts found in their context.
The EAT rejected a further ground of appeal to the effect that as the
manager's evidence on the remark was not accepted, he should have been
regarded as a liar, so his other evidence should have been treated with
greater caution and the ET should have found conscious discrimination on
the manager's part, the EAT noted that "it is always likely to be too
cavalier an approach for a fact-finder to reject all of that which a
witness says merely because on one point he is thought clearly to be
telling an untruth."
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Daniel Barnett is a barrister at Outer Temple Chambers, with over 15 years' experience defending companies facing employment tribunal claims and associated commercial disputes. He is listed as a leading employment barrister in the ‘Legal 500′, and described in the Times Law Supplement as having “carved out a strong reputation”.
Daniel regularly advises and represents large and small businesses in discrimination claims, TUPE problems, team moves, removal of confidential business information, and unfair dismissal disputes. He has been appointed as employment law advisor to Acas since 2004, and is the author or co-author of seven legal textbooks.