Older Employee Told He Has Been Around `As long as Pontius Pilate′; Wins Age Discrimination Claim

In the case of Finch v Clegg Gifford & Co Ltd and S Bellamy, an older employer won an age discrimination case following offensive comments made. The ET found the comments made did amount to age discrimination and justified the Claimants’ resignation.

The Facts in Mr D Finch v Clegg Gifford & Co Ltd and S Bellamy

Mr D Finch (the “Claimant”) had worked in the insurance industry for many years, in a company called Tradex. Thereafter, he was transferred over with other members of his division to Clegg Gifford & Co Ltd (the “First Respondent”), via TUPE in November 2017.

He was based in Romford as a credit controller, with the job of chasing bad debts. The Claimant suffered from a range of serious health conditions. These included type 2 diabetes, blood deficiency because of anaemia, heart disease, and angina. His ailments made him feel drowsy and sometimes caused him to fall asleep.

The Claimant argued during the course of his employment that:

  • he was subject to harassment and victimisation because of his age;
  • his dismissal amounted to a form of constructive discrimination;
  • he had been constructively dismissed.

On a number of occasions in early 2020, Mrs Shirley Ann Bellamy (the “Second Respondent”) asked the Claimant, “are you planning a nap this afternoon” or “are you going to fall asleep”.

On 19 March 2020, the Claimant discussed his plans for a holiday in Cyprus around September and October. In a subsequent email, the Claimant stated that the response he recalled was “you should take the vacation now, otherwise you may not be around in September or October”.

The government instigated the first lockdown for coronavirus in March 2020. The Claimant was refused the use of a laptop to work from home which he was upset about. Subsequently, on 7 April 2020, the Claimant was put on furlough leave.

The First Respondent emailed all staff, on 27 May 2020. The email said there had been a dramatic downturn in the sale of new cars and second-hand cars. This impacted on the core area of the insurance business in the motor trade.

On 17 July 2020, the Second Respondent wrote to the Claimant, without any prior consultation, and enclosed a settlement agreement. He was informed that he has the right to seek independent legal advice on the terms if required.

On 21 July 2020, the Claimant wrote to the Second Respondent. He said she put the incorrect starting date for him in the redundancy letter, to which she replied:

“Thanks for your acknowledgement Dave, you have received the maximum amount of statutory redundancy pay and we know you have been around since Pontius was a Pilate… We will amend the necessary information and get this over to you.

 All the best Shirley”

 On 20 August 2020, the Claimant’s solicitors wrote a letter to the First Respondent. The letter set out all of the allegations of age discrimination under the Equality Act 2010. The letter also mentioned unfair dismissal but this claim was later dropped.  His solicitors writing on his behalf made clear he was rejecting the settlement agreement offer.

On 23 September 2020, the Second Respondent responded by email stating:

 “Further to our correspondence addressed to your Solicitor dated 15th September 2020, we have not received a response from ELS solicitor nor yourself. We regret to say you are leaving us with no alternative than to withdraw the severance agreement offered to you originally in July 2020 and request you return to the office on 1 October 2020 to fulfil your employment contract. Whilst it is appreciated that the Govt. furlough scheme currently runs up until the end of October, we do not wish to avail ourselves of this facility. Will you please confirm that you will be attending the office on 1 October 2020 so we may put the necessary arrangements in place.

Kind regards Shirley Bellamy.”

 On 25 September 2020, shortly after receiving this letter, the Claimant resigned.

The Decision of the Employment Tribunal

The tribunal ruled in favour of the Claimant in his claims for harassment and victimisation under the Equality Act. They also found that he had been constructively unfairly dismissed.

They found that the acts of discrimination because of his age were cumulatively enough to justify the Claimant in resigning. Thus, he was right in treating himself as constructively dismissed because of the age discrimination he endured.

The cumulative effect of the actions, including failure to provide the Claimant with a laptop for homeworking during the lockdown, the handling of the settlement agreement, and age discrimination fundamentally undermine the implied trust and confidence between him and his employer.

The letter from the Second Respondent was seen as “forcing his hand”. Therefore, it represented an act of victimisation in attempting to pressurize him into returning to work, if he turned down the offer of a settlement agreement. This put the Claimant in a position where he felt compelled to resign. This was seen as constructive unfair dismissal under section 95 of the Employment Rights Act 1996.

Our Lawyer’s Comment on This Case

Steve Norton, a lawyer at Redmans, comments on the case – “This case adds to a growing list of cases where insensitive comments on age made by managers or staff are dressed up as banter. These can come back to bite employers, resulting in them facing costly claims in employment tribunals.  

A lesson is to ensure staff and managers are given adequate training to avoid insensitive or derogatory comments on age (including the other protected characteristics) and avoid unnecessary tribunal claims

The decision of the Employment Tribunal can be found here