This is an appeal by Mr James, the claimant, against the decision of a Tribunal which found that Mr James had contributed to his dismissal by 40% and that there had been no unlawful age discrimination.

The Respondent manufactures high-end shoes. The Claimant commenced employment as Production Manager in April 2006 aged 58 years. He had previous experience in the industry, but not in high quality, expensive ladies' shoes, which the Respondent produced. The Respondent experienced a reduction in orders as a result of the global recession in 2009.

On 22 July one of the respondents shadowed the Claimant on the factory floor, checking on his management style. That day the Claimant went off work with what his general practitioner characterised as work-related stress. On 27 July a meeting took place at which the respondent asked rhetorically whether it was the Claimant's age that caused him not to be able to work to their expectations. He also said that if the Claimant was younger, it might be possible to train him. On 7 August the Claimant met with the respondents while still off sick. He expressed an unhappiness with the reference made to his age at the meeting on 27 July. After that meeting the Claimant tendered his resignation in writing, received by the Respondent on 10 August.

On 6 October a grievance meeting took place. During that meeting, the respondent said words to the effect that, “You can't teach an old dog new tricks.” The court held that the appeal against the contribution finding succeeded on the basis that the Tribunal did not clearly find the claimant guilty of culpable or blameworthy conduct.

In relation to the age discrimination issue, the Tribunal directed themselves to previous case law: “The determination of cases such as this requires a staged process. We first have to make findings of primary fact and to determine whether those could lead us to draw an inference that the Respondent treated the Claimant differently because of his age.” The Tribunal then reminded themselves that if the Claimant passes stage 1 of the test in Igen v Wong [2005], then it is for the Respondent to provide a credible, non-discriminatory explanation or reason for the difference in treatment. In the absence of such an explanation, the Tribunal must conclude that the less favourable treatment occurred because of the Claimant's age.

The Court found that the reference to age in both instances, on 27 July and 6 October, plainly raises a prima facie case of discrimination such as to pass the Igen stage 1 hurdle. Further, they held that there was “nothing else” that demonstrated age was a factor in his employment or its termination. The fact that the second remark, on 6 October, post dated termination of the employment does not prevent this state of affairs from amounting to detrimental treatment, thus completing the statutory tort. In these circumstances, the challenge by the Claimant to the rejection of his age discrimination complaint also succeeded. The Court held that the question of contribution should return to the Tribunal for reconsideration, after hearing submissions from both parties and applying the correct test as identified above, as should the age discrimination complaint for determination of the Igen stage 2 question: has the Respondent shown a wholly non discriminatory explanation for the respondent‟s remarks unconnected with the Claimant's age? The Court also added that if it be found that the 27 July remark was an act of age discrimination, a further question will arise as to whether that was a significant factor in the Claimant‟s decision to resign in circumstances amounting to constructive dismissal, and the effect that that has on remedy.

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