Mr James began working as a Production Manager for Gina Shoes Ltd in April 2006. He was 58 years old.

In 2009, as a result of the recession, Gina Shoes Ltd experienced a reduction in orders. One of the company directors, Mr Kurdash, became dissatisfied with Mr James’ performance.

In July, Mr Kurdash and Mr James met to discuss Mr James’ performance. At the meeting, Mr Kurdash asked Mr James whether his poor performance was caused by his age, adding that if he had been younger, it might have been possible to train him. Mr James, who was quite upset by these comments, resigned in August. In October, a grievance meeting took place, Mr Kurdash made a second remark about Mr James’s age and said words to the effect of “you can’t teach an old dog new tricks.”

Mr James brought a claim of unfair dismissal and age discrimination.

The Employment Tribunal upheld Mr James’s unfair dismissal claim (but held that he would have been dismissed anyway after 6 months due to his contributory conduct) and dismissed his age discrimination claim. The Employment Tribunal disregarded Mr Kurdash’s second remark about Mr James’s age because it had been made after Mr James’ resignation. It held that Mr Kurdash’s remarks had probably been taken out of context and that there was nothing other than those comments to suggest that Gina Shoes Ltd’s treatment of Mr James had been a result of age discrimination.

Mr James appealed to the EAT on both on contributory conduct and age discrimination.


The EAT allowed Mr James’s appeal on both counts.

The EAT found that the fact that Mr Kurdash’s second remark came after Mr James’s resignation did not mean that it could not amount to detrimental treatment. The two occasions on which Mr Kurdash had commented on Mr James’s age clearly suggested that there was a prima facie case of age discrimination; it was immaterial that there was “nothing else” that demonstrated that age was a factor in the treatment of Mr James. This was enough to shift the burden of proof to Gina Shoes Ltd. It fell to them to provide a credible, non-discriminatory explanation for their treatment of Mr James, but Gina Shoes Ltd had failed to provide one.

In relation to the unfair dismissal claim, the EAT found that the Employment Tribunal had erred as it had considered the question of contributory conduct despite the fact that it had not been raised prior to its judgment.

THe judgment is available here.

James v Gina Shoes Limited UKEAT/0384/11/DM