Miss Koh joined Sainsbury’s in 1985. She was a loyal and committed worker, even going so far as to time her personal grocery shopping to help meet store targets.
In April 2006, Miss Koh moved to the store’s struggling Crystal Palace branch in South London to work as a duty manager. Initially, she got on well with the store manager, Mr Coates, who was very complimentary of her. However, in 2007, as Mr Coates came under increasing pressure to meet targets, he became very critical of Miss Koh’s performance. Miss Koh was extremely upset by these comments.
In her mid-year review, Mr Coates again stated that Miss Koh was a poor performer. He referred to her age (she was aged 51 at the time) and asked whether, in light of her age, she might want to do an easier job such as an administrative post. He suggested that as she had only a few years left to retirement that at her age she should think about doing something less responsible, stressful and demanding. The inference was that she was old and ‘past it’. By the end of July 2007, she was signed off work with stress and depression. At the same time she raised a grievance alleging bullying and discrimination.
Miss Koh returned to work in October 2007. She attended meetings to discuss her grievance, but it was apparent that those individuals hearing the grievance were biased and unwilling to listen to Miss Koh’s concerns. In the meantime, Mr Coates’ treatment of Miss Koh continued and, following a meeting in which he was particularly critical and hostile towards her, she resigned.
Miss Koh brought Tribunal proceedings claiming, amongst other things, unfair constructive dismissal and direct age discrimination.
Sainsbury’s accepted Mr Coates had made the age related remarks but said they were not discriminatory as they were not said with malice. The Tribunal rejected this and found that the comments plainly constituted direct age discrimination as that they linked age with unsatisfactory performance and suitability to perform her job without justification.
The Tribunal went on to find that the performance management by Mr Coates was “oppressive and intimidatory” and that Miss Koh was entitled to resign because of it. As the discriminatory comments contributed to her decision to resign, they found that Miss Koh’s had not only been constructively unfairly dismissed but that this dismissal amounted to age discrimination. This led to Miss Koh being awarded uncapped damages of £129,848.21 which included an injury to feelings award of £7500.