Posted by Gemma Ospedale, Partner
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Constructive dismissal not caused by age discriminatory comment
In Clements v Lloyds Banking Plc and others, the EAT has upheld a Tribunal decision that an employee was constructively dismissed when his manager told him he wished to move him from his role and announce a new incumbent into the role. Despite being in his fifties, his manager’s age discriminatory comment “you’re not 25 anymore” was not found to be a substantial part of the repudiatory conduct in response to which the employee resigned.
The Claimant resigned giving 3 months notice claiming that he had been constructively dismissed on the basis that his manager has made age discriminatory comments to him in seeking to remove him from his role and replace him with someone younger. The manager had had discussions with the Claimant regarding performance concerns and suggested he should move to a different role in the bank, making two comments to the effect that “you’re not 25 any more”. The Claimant thought that they wanted to replace him with a younger person – but in fact someone close to the age of the Claimant took over the role in the end.
While the Tribunal, upheld in the EAT, found that the Claimant has been constructively dismissed, and that he had been subjected to a detriment regarding the age discriminatory comment, it held that the comment was made more in the context of trying to persuade the Claimant to move to a different role than wishing to replace him with younger (which in the end did not happen as his replacement was someone of a similar age). It held that the age discriminatory remarks were not enough to taint the dismissal with discrimination because his constructive dismissal was not caused to any material extent by the fact of the comments, but more that his manager expressed a desire to remove him from his role and replace him. Even in his resignation letter, the Claimant indicated that he did not consider the age related comments to be a major cause of his resignation.
This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.
For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.
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