The Facts

Mr Kerr began working for O’Hara Brothers Surfacing Ltd (“O’Hara”) in February 1998. His job involved surfacing roads and driveways. O’Hara placed employees in ‘gangs’ which were rostered for work.

Mr Kerr’s gang was rostered for work, but Mr Kerr was not informed of this. When he asked for an explanation, O’Hara informed him that he had not been rostered because he was too old. O’Hara had continued to employ additional younger employees and stated that these were required “to carry out heavy lifting”.

Mr Kerr brought a grievance about this and other allegedly ageist comments made in the workplace. During the investigation process, further ageist comments were made. After some delay, O’Hara did not uphold his grievance.

Mr Kerr resigned and brought claims of constructive unfair dismissal, direct age discrimination, harassment and victimisation.

The Decision

The Tribunal found in favour of Mr Kerr. It upheld his claims of direct age discrimination, harassment and victimisation. It also upheld his unfair dismissal claim.

The Tribunal found that the failure to roster Mr Kerr for work was direct age discrimination. The Tribunal rejected O’Hara’s case that they did not roster Mr Kerr as heavy lifting was required. It was not a proportionate means of achieving a legitimate aim and no risk assessment or discussion with Mr Kerr about their concerns had taken place.

The Tribunal found that the ageist comments amounted to unlawful harassment.  The Tribunal stated that the comments were disturbing as they were given as an explanation for not rostering him for work.

The Tribunal found that victimisation had occurred in the way Mr Kerr’s grievance was handled. This was shown by the O’Hara’s delay, inadequate investigation and irrational outcome. The Tribunal held that the reason the grievance was handled so poorly was because it was an allegation of discrimination which caused “avoidance, delay and obfuscation”.

The Tribunal awarded £13,200 (inclusive of a 10% uplift) in respect of the age discrimination claims. In addition, the Tribunal made a recommendation that O’Hara should implement systems of work rostering which allow for individual capability to be assessed, should raise equality awareness with their entire workforce and should provide equality training to all managers.

The Tribunal also upheld Mr Kerr’s constructive unfair dismissal claim. The very poor way in which his grievance was dealt with had seriously damaged the relationship and entitled Mr Kerr to resign and claim constructive dismissal. The Tribunal awarded Mr Kerr a total of £29,516.70 (inclusive of a 10% uplift) in respect of his unfair dismissal claim.

Click here for a copy of the judgment 

Kerr v O'Hara Brothers Surfacing Ltd, Watford Employment Tribunal (Employment Judge Lewis; A Scott, R Jewell), 14 January 2013