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Thursday, March 1, 2012

Discrimination at Work - Terminating an employee citing age !!

A few months ago, had posted about a suit involving the Coffee Company Starbuck reportedly for firing a barista in El Paso, Texas for a stool or small stepladder to perform her job, Starbucks denied the request and fired her that same day, claiming that she could be a danger to customers and workers.   Discrimination at work place is a lengthy chapter and it is not as if such incidents do not occur in other parts of the World but might not come to light either due to the affected individuals being too meek, the filing of suit and establishing it too tedious or no stronger laws in this regard. 

In any workplace, it is not uncommon for people to nurse feeling that they are discriminated and are always at the receiving end whilst some peers always have them easy – whilst one has to struggle for even ordinary benefits, there could be cases of people constantly getting higher rewards – one might feel.  More so, when you are in a Private company and lot depends on how strong your boss is or how much his/her  assessment makes or mars your career and reward. 

By definition, Employment discrimination (or workplace discrimination) is discrimination in hiring, promotion, job assignment, termination, and compensation. It includes various types of harassment.  Even where Law prohibits it, there could subtler forms of bias.  Laws often prohibit discrimination on the basis of : race, colour, ethnicity, Nation, sex or gender, religion, creed, political affiliation, language, citizenship and more…  In US, there exist stringent  Federal Laws prohibiting job discrimination -     Title VII of the Civil Rights Act of 1964 (Title VII)  prohibits employment discrimination based on race, color, religion, sex, or national origin;  there is also the Equal Pay act of 1963 and the Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are 40 years of age or older;

Such laws prohibit discrimination in any aspect of employment including – hiring and firing, compensation, classification,  transfer,  promotion, use of company facilities, fringe benefits and the like. 

Here is something of interest from the decision of Employment Appeal Tribunal, London.    In the impugned case, a person was dismissed at the age of 58 – the claimant resigned after the respondent made it clear they were not happy with his performance. A reference was made about his age which upset the claimant. Another comment about his age was made at a grievance meeting which took place after his resignation. The ET found that the claimant had been constructively unfairly dismissed but reduced his compensatory award by 40% because the claimant had contributed significantly to the situation which had arisen on the basis that he had not put forward suggestions as to the way forward, or how to improve quality or production. The ET also said that the comments relating to age had been taken out of context and did not, on their own, make a prima facie case of age discrimination. The claimant appealed against both aspects of the judgment.  The appeal was allowed on both the points at the Employment Appeal Tribunal.  In the instant case, EAT considered the issue of whether negative remarks which were made by a managing director to an employee regarding his age gave rise to a ‘prima facie’ case of discrimination.  

The claimant was a production manager in the company manufacturing shoes.  Interestingly, his employment had begun in 2006 when he was 58 and 3 years later, one the directors was not satisfied with his performance and had a meeting with him in which several comments were made focusing on his age.  It reportedly included whether it was his age that caused him to underperform.  Following the incident, the employee resigned and then brought claim  for constructive dismissal and age discrimination.  Employment Tribunal upheld  the constructive dismissal claim on the basis that there had been a breach of trust and confidence but found that a prima facie case of age discrimination had not been established on the basis that other than the managing director’s comments, which the Tribunal felt had been taken out of context and held that  there was no other evidence to indicate that discrimination had occurred.  Then came the appeal before the EAT. 

The EAT was of the view that the remarks made by the managing director in this case were sufficient to establish a prima facie case of discrimination which meant that the first stage of the test had been satisfied. Accordingly, the EAT remitted the case back to the Tribunal for re-consideration of the age discrimination aspect of the case.  However, the issue was not decided at EAT but was remitted back it to the Employment Tribunal to be heard by the same Employment Tribunal, if practicable, for reconsideration of both the issues of contributory conduct and unlawful age discrimination.

I live in an apartment, having 3 blocks and close to 60 flats – the servant maid who collects garbage door-to-door has not been performing at all and we thought that perhaps it is her age which is inhibiting her execution and needs to be kept out of employment, as she is no longer fit and agile to perform this job.  May be terminating her job citing her age needs a revisit after reading this !!

With regards – S. Sampathkumar

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