Mr Gimson worked for the Telegraph Media Group (“TMG”) for a number of years and in a number of different roles, though the legal nature of the relationship between the parties was uncertain. In 2006 he took up the role of Parliamentary Sketch writer for the Daily Telegraph.
In September 2011, Mr Gimson was approached by TMG to become a leader-writer. Mr Gimson made it clear that he did not wish to move from his current role to become a leader-writer. Various further attempts were made to persuade Mr Gimson to accept this offer, all of which were unsuccessful. When it became clear that Mr Gimson would not accept the leader-writer role, his contract was terminated.
Mr Gimson, aged 53 at that time, was replaced by a man in his thirties. Mr Gimson brought claims of unfair dismissal, breach of contract and direct age discrimination against TMG.
The Employment Tribunal decision
The Employment Tribunal dismissed Mr Gimson’s unfair dismissal and breach of contract claims and held that he was not employed under a contract of employment.
However, Mr Gimson was found to be working under a contract personally to provide services and, as a result, the Tribunal held that the protection provided by the Equality Act 2010 would apply to him.
The Tribunal considered a number of facts argued in support of Mr Gimson’s claim of age discrimination which included:
- despite numerous requests, Mr Gimson was never given an explanation for removing him from writing the Parliamentary Sketch;
- there were inconsistencies in the explanations provided by TMG and between those explanations and TMG’s responses to Mr Gimson’s discrimination questionnaire;
- a statement was made to Mr Gimson by a Deputy Editor at TMG to the effect that a replacement for the sketch-writer position had not been considered, this was later shown to be disingenuous; and
- Mr Gimson was replaced by someone who was younger than him.
The Tribunal considered these facts but rejected his age discrimination claim.
The Tribunal said that if straight-forward age discrimination had been at play, TMG would simply have removed Mr Gimson from his sketch-writing position rather than offering him an alternative role. The Tribunal then went further and considered whether there was perhaps a feeling within TMG that the sketch-writer role should have a younger style, but it found no evidence of this. TMG was able to give examples of journalists being replaced by older individuals, with a number who were well past the normal retirement age.
As Mr Gimson was unable to show a prima facie case of age discrimination, the burden of proof did not shift to TMG. Without needing to consider any further explanation from TMG, the facts were not capable of supporting an inference of unlawful discrimination and so Mr Gimson’s age discrimination claim failed.
Mr A J Gimons v Telegraph Media Group Ltd, London Central Employment Tribunal, 18 July 2012, case number 2200711/2012