Veitch Penny LLP - Exeter | Crediton, Devon

Case

Newey –v- Sainsbury’s Supermarkets Ltd
Employment Tribunal

Issues

(1) Age discrimination
(2) Retirement
(3) Capability

Facts

Mr Newey had been a longstanding employee for Sainsbury’s. He was born in 1955. He was a manager working under Ms Rees who was regional operations manager and responsible for his store.

There were no issues with Mr Newey’s work in 2004, but by spring 2005 he had been moved to another store due to issues between him and some of his staff. His time at the store was a successful one and he was awarded a number of bonuses. However, in November 2006 he had a performance assessment and he received two negative scores from Ms Rees. He disagreed with those scores and the relationship between the two managers became difficult. Ms Rees’ concerns over his performance led to further assessments, refresher training, a disciplinary hearing and a reduced bonus.

Mr Newey raised a grievance in August 2007 about the manner in which he was being managed. The outcome of the grievance was a recommendation that Ms Rees conduct weekly meetings with Mr Newey. After one such meeting Ms Rees was reassigned as maternity cover, her area subsequently being taken over by Mr Barlow. He found Mr Newey to be underperforming.

When Ms Rees returned to her original role in June 2008 it was decided that she would meet with Mr Newey. Mr Newey alleged that at this meeting Ms Rees asked him when he was going to retire. He also alleged that in an appeal meeting taking place in March 2009 the manager hearing the appeal, Mr Chason said “you are 54 years old and if I was you I would be retiring”.

The grievance about the way he had been treated was subsequently rejected and he resigned, bringing a claim of constructive dismissal and age discrimination.

Decision

Mr Newey’s constructive dismissal claim was dismissed. However, his age discrimination claim was successful.

Comments

In respect of his constructive dismissal claim, it was held that the effect of the treatment he had received had not destroyed the relationship of trust and confidence between the parties. It found that he had failed to achieve the targets placed upon him which his employer was entitled to act upon.

However, in relation to his age discrimination claim, on two occasions, his managers had suggested that he should retire as an alternative to completing the capability procedure. The Tribunal simply did not believe that a manager who was not entitled to take early retirement would be treated in that manner. Sainsbury’s had argued that its treatment of Mr Newey was not on grounds of age, but on grounds of poor performance. The Tribunal rejected this decision, stating that that could have been a valid defence if the company had had a general policy of encouraging all underperforming managers to resign. There were no grounds to believe that the comments were made in order to better manage the workforce. They simply wanted to resolve the issues caused by his poor performance.