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Age Discrimination: Interesting Case

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 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."