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You're not 25 any more - but is it discriminatory to remind you of that fact?

Every so often (OK, in my case really quite often) a judgment comes along that on the face of it, you find it hard to understand.  Tell me if you think I’m being slow - but let’s look at the facts in the EAT’s recent decision in Clements v Lloyds Banking plc and then see if you agree:

  • Mr Clements was in his fifties. There were apparently concerns about his performance in his role;
  • His manager suggested he move to a different role within the bank, commenting twice in the conversation that ‘you’re not 25 any more’.
  • He assumed he was being told he was too old for the job and that a younger employee would be appointed in his stead (though in fact, someone near his own age ultimately took over from him).]
  • He brought a grievance (unsuccessfully) and then resigned, subsequently claiming age discrimination and constructive dismissal.

On those bald facts, it is hard to see how the bank would escape liability - it is well established that an act of discrimination will almost always constitute a breach of trust and confidence entitling an employee to resign and claim constructive dismissal.  Equally, we all know that resigning in response to a ‘last straw’ breach can give grounds for a successful argument based on cumulative breach of contract.  So how come the bank avoided an age discrimination finding against it?

Much comes down to the employment tribunal’s findings of fact, with which the EAT was unable to interfere.  The tribunal did conclude that the claimant had been constructively dismissed following a cumulative course of conduct by the bank, the last straw being the timing and manner in which he was told about his replacement’s appointment.  It also accepted that Mr Clements had twice been subjected to a detriment as a result of the discriminatory comments made to him (the manager denied making the comments but the tribunal concluded it was ‘distinctly more likely that he had indeed made the disputed remarks than that he had not’).  But, interestingly, it concluded that the comment was made to try to persuade him to move on, not because his manager wished to put a younger person in the role.  Crucially, it did not accept that the dismissal was caused to any material extent by the discriminatory act - or to put it another way, the fact that age discriminatory remarks were made was not enough to taint the dismissal with discrimination.  No age-related treatment contributed to the dismissal.

Unsurprisingly, Mr Clements appealed, arguing perversity (at least initially) and an error of law. He raised various points around the tribunal’s approach to the evidence and queried how the discriminatory comment could possibly be isolated from the conduct which led to the dismissal.  He also said, not unreasonably, on the face of it, that the question was not whether the manager had had a discriminatory motive in removing him from the role, but rather whether - objectively speaking - that comment had led to a breach of trust and confidence.

The EAT dismissed his appeal.  They found it was open to the tribunal (notwithstanding their concerns about the veracity of parts of his evidence) to conclude that the manager had not been motivated by age discrimination.  Further, they had found and been entitled to find that the discriminatory comment had neither caused nor tainted the dismissal.  Instead, it was the articulation of the wish for Mr Clements to move jobs because of under-performance which had, as a matter of fact, damaged trust and confidence.  Finally, it was reasonable for the tribunal to conclude that the discriminatory comments were not material in the overall course of conduct.

Having just written out those facts, I still remain baffled by the judgment.  The EAT appears to be aware of the discomfort in its findings, with the judge saying ‘although there was discrimination, and although I would be inclined myself to think that viewed alone and objectively it might have been a repudiatory breach, by the time of the resignation, far more had happened’.  The overall course of conduct does not, therefore, appear to revive the discrimination argument.  Equally, the way that the tribunal focussed on the manager’s motives for the move remains mysterious - I can see little wrong with the submission on Mr Clements’ part that the test is an objective one (ie, was there a repudiatory breach) rather than, what was the motive for his manager’s actions?

It is a testament to the clarity of reasoning of the President of the EAT that when one reads the judgment as a whole, there is an inherent, albeit on occasion uncomfortable, logic to the conclusion. The basic question posed of the EAT by the claimant was whether an employee who resigns because of a course of conduct which the tribunal is satisfied cumulatively amounts to a breach of the implied term of trust and confidence, and which is therefore necessarily repudiatory can legitimately be said to have resigned in response to some aspects of that conduct, but not to other aspects (which viewed in isolation or cumulatively would also be a breach).  This basically depends upon the material facts found by the Tribunal and in this case, because of the care taken by the tribunal in the way it reached its conclusions on the facts, it was impossible for the EAT to overturn the decision. This was, as the President said, not a case in which the Tribunal wilfully ignored an obviously contributing act of discrimination as causing the resignation.  In order to decide that the discrimination was not the cause of the resignation, the Tribunal had to be satisfied, on the facts that it was in no material part such a cause.  It thought long and hard about that matter and explained its reasoning with care. 

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