In James v Gina Shoes Ltd and others, the EAT held that ageist remarks made by a managing director to an employee during a performance management process and subsequently during a grievance meeting, clearly established a prima facie case of age discrimination.

In an alleged discrimination case it is for the claimant, under the burden of proof provisions, to show on the balance of probabilities, facts from which a tribunal could conclude, in the absence of an adequate explanation, that the employer has committed an act of discrimination.

In this case the managing director (MD) was unhappy with Mr James’ performance. During the performance management process the MD asked Mr James whether it was his age that caused him not to be able to work to their expectations. He also said that if Mr James was younger, it might be possible to train him. Having been upset by the remarks, Mr James resigned and during a subsequent grievance meeting, the MD used words to the effect that, “You can’t teach an old dog new tricks.”

A tribunal decided there was not sufficient evidence to make out a prima facie case of age discrimination as it was highly likely that the MD’s comments were “fleeting thoughts” which did not influence Mr James’ treatment and there was nothing else to suggest discrimination. The EAT upheld Mr James’ appeal. The MD’s remarks plainly raised a prima facie case of discrimination and it was immaterial that there was “nothing else” that demonstrated age was a factor in his employment or its termination.