Wednesday, 1 September 2010

Employer seeking ‘younger’ replacement guilty of age discrimination

In a recent decision of the Employment Appeal Tribunal (EAT), an employer who had included the word ‘younger’ in a person specification drafted for the purpose of replacing an employee, was found to have committed an act of age discrimination and had unfairly dismissed that employee.

The claimant in this case, Mr Beck, was employed as head of marketing by the Canadian Imperial Bank of Commerce. The Bank was not happy with his performance and dismissed him for redundancy, at the age of 42. An employment agency was instructed to recruit a replacement, and the Bank’s person specification for this purpose stated that it was “seeking younger, entrepreneurial profile”.

Mr Beck’s claim for unfair dismissal was upheld. The tribunal was satisfied that the Bank did not have a potentially fair reason for his dismissal. The tribunal also upheld Mr Beck’s claim for age discrimination.

The Bank’s appeal to the EAT has now been dismissed. The tribunal had noted that the word “younger” had been included in several drafts of the person specification, against the express advice of the Bank’s head of HR. The EAT agreed that the use of this word constituted the “clearest possible evidence of potential age discrimination”. The Bank attempted to argue that “younger” did not refer to age but referred to a less “senior” individual who would be less expensive, but the EAT was not convinced by this argument.

Tina Maxey, an employment solicitor at Steeles Law commented: “This case provides a good illustration of the approach taken by employment tribunals to the use of overtly ‘ageist’ language in recruitment materials.

"The Bank attempted to disprove the allegation of age discrimination by pointing out that one of the preferred candidates was 50 years old, and the person eventually appointed was 38 years old – just four years younger than the claimant (who had himself been appointed at the age of 41). Both the tribunal and the EAT gave this argument short shrift in light of the wording used in the person specification.”

She added: “The case also demonstrates that employers should take the advice of their own HR experts!”

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