The claimant, who was aged 63 at the material time, commenced employment with the respondent and made allegations that he had been discriminated against since the start of his employment and that certain comments had been made against him which were discriminatory on the grounds of his age. The tribunal also had to decide the issues of whether the claimant was subjected to harassment and victimisation. The tribunal was satisfied that the claimant did not prove facts from which the tribunal could conclude in the absence of an adequate explanation that discrimination has occurred on the grounds of age. 

The tribunal set out that the ‘two-stage test’ of direct discrimination recognised in Igen v Wong [2006] IRLR 258 need not always be followed and that on the present facts it was sufficient to analyse the reason given by the employer for the claimant’s treatment and decide whether it disclosed no discrimination. 

There was also clear deference to Lord Justice Girvan’s pronouncement in Stephen William Nelson v Newry and Mourne District Council [2009] NICA 24 that ‘the whole context of the surrounding evidence’ should be kept in mind. All the claims were dismissed.

PRACTICAL LESSONS

Under the ‘direct discrimination’ heading, the tribunal overtly considered the claimant’s incapability of carrying out his tasks and was sympathetic to the respondent’s frustration with his work. The tribunal considered the claimant’s struggles alongside the issue of age discrimination as it made it more likely that he was treated like he was because of his own incompetence as opposed to his age. In other words, a sufficient alternative explanation existed to explain the claimant’s treatment i.e. that he was ‘out of his depth’ according to the tribunal.