In Newey v Sainsbury’s Supermarkets Ltd, a tribunal found that remarks designed to encourage a 54 year old manager to consider taking retirement as an alternative to proceeding through the capability procedures amounted to direct age discrimination.

Sometimes employers are tempted to try and ‘persuade’ an employee to leave rather than face going through disciplinary procedures. One of the risks associated with this approach has been highlighted in Mr Newey’s case. He was a 54 year old store manager whose performance was subject to criticism at a time when Sainsbury’s allowed early retirement from age 50.

Mr Newey satisfied the tribunal that on two occasions, two different managers suggested that he should consider early retirement as an alternative to proceeding through the capability procedures. When comparing the treatment Mr Newey received with that of a store manager underperforming in the same way who could not take early retirement, the tribunal decided that such a person would not have been encouraged to retire. Mr Newey had therefore established a prima facie case that the treatment was on the grounds of age, since only persons over 50 at the relevant time were eligible for early retirement.

The burden of proof shifted to Sainsbury’s. They contended that Mr Newey’s treatment was because of his poor performance, and not because of his age. The tribunal rejected this argument. The employer had not produced any evidence that its policy was to encourage managers under age 50 to resign in circumstances where they were not performing. This led to a clear inference that Mr Newey had suffered direct discrimination on grounds of his age.