The facts

Ms Thompson was employed as a PA by Bombardier Transportation UK Limited (“Bombardier”). 

Bombardier was faced with a redundancy situation in early 2011.  It was decided that PAs would form one selection pool (separate from administrative staff) and assessment criteria were set in order to reduce the number of PAs from thirteen to eight.  Two PAs resigned prior to assessment and two took voluntary redundancy, leaving one to be made redundant.

Mr Shaw and another employee assessed Ms Thompson (independently of each other) and scores were verified by Ms Morgan (HR business partner). She scored 67.  A younger PA in the HR department, J, scored 37 but this was adjusted to 78 by Ms Morgan to reflect performance in PA-related tasks only.  J was pregnant and paid less than Ms Thompson. 

PAs scoring below 78 were to get at risk letters. Another PA, G, scored 75 but received no letter.

During consultation meetings with Mr Shaw and Ms Morgan, Ms Thompson was told she had been marked down in one category based on her performance when carrying out a role in the administration department.  Mr Shaw eventually increased her score in one category. Ms Morgan told her that to be safe she would need to score more than one additional point when in fact one additional point could have put her score above G and level with J.

Ms Thompson’s employment was terminated (she was aged 59).  She decided not to appeal; she felt disparaged and was being treated for depression.  She brought a claim of unfair dismissal against Bombardier, and claims of age discrimination and harassment against Bombardier, Ms Morgan and Mr Shaw as individuals.

The Employment Tribunal decision

The Employment Tribunal upheld Ms Thompson claim of age discrimination against Ms Morgan and Bombardier.  During the verification stage Ms Morgan’s treatment of J was different to her treatment of Ms Thompson.  Ms Morgan adjusted J’s score because others were assessing her on factors other than her work as a PA. However, Ms Thompson was marked down due to her non-PA work in the administration department.  Ms Morgan, as verifier, knew the two employees were being treated differently but did nothing to equalise the position.

The Employment Tribunal also referred to the fact Ms Morgan did not send an at risk letter to G and that she told Ms Thompson she needed to increase her score by more than one to be safe which was untrue.  The only other PA aged over 50 in the process had scored 95 and was deemed exceptional.  The Employment Tribunal was therefore able to draw inferences of age discrimination from the difference in treatment. This was enough to shift the burden of proof.  Ms Morgan was unable to provide a credible, non-discriminatory explanation for Ms Thompson’s treatment and, accordingly, Ms Thompson’s claim against her was upheld.

The Employment Tribunal found that Mr Shaw had scored Ms Thompson harshly but was not satisfied that this was because of her age and therefore dismissed this claim. Similarly, the Employment Tribunal was not satisfied that acts Ms Thompson complained of constituted harassment and this claim was also dismissed.

The judgment is available here.

Ms C Thompson v (1) Bombardier Transportation UK Limited, (2) Ms Marion Morgan and (3) Mr Jon Shaw, Nottingham Employment Tribunal, case number 2603778/2011