Age discrimination did not taint constructive unfair dismissal

Clements v Lloyds Banking PLC [EAT] | 2014

Mr C was employed by Lloyds as Head of Business Continuity. Mr C reported to Mr S.

On 5 January 2012 Mr S discussed with Mr C concerns about his recent performance and suggested that he should move to a different role within Lloyds. Mr C alleged, during the discussion, Mr S twice said ‘you’re not 25 anymore’. Following this conversation Mr C unsuccessfully raised a grievance and Mr B, someone close to Mr C’s age, was appointed as Head of Business Continuity. Mr C resigned on 12 July 2012, giving notice.

Mr C brought claims of age discrimination and constructive unfair dismissal.

The employment tribunal found:

• the comments ‘You’re not 25 anymore’ were direct age discrimination. They would not have been made had Mr C been younger and they were detrimental.
• that Mr C had been constructively and unfairly dismissed, in part because of Mr S’s approach to the discussion with Mr C.
• that the discriminatory comments were ‘trivial (not material) in the cumulative course of conduct’ leading to Mr C’s resignation and had not contributed to (or tainted) the constructive unfair dismissal. The dismissal itself was not, therefore, discriminatory.

The EAT agreed.

This is a rare case where discrimination took place but was found not to have contributed to the dismissal.

It will be comforting to employers that some acts of discrimination can be so trivial that they will not, by themselves or as part of a course of conduct, render a dismissal discriminatory. The significance for both Lloyds and Mr C was that the compensatory award was capped at the statutory maximum (then £72,300). Had the discrimination been found to have contributed to the dismissal, the award would have been uncapped.