In February 2016, the Claimants were employed in the Restaurant and Bar of the Mayfair Hotel. Ms Pinto (40) and Mr Wojsa (32) were employed as Restaurant and Bar Team Leaders, and Mr Jouhari (50) and Mr Wojdylo (34) as Bar Service Assistants. The restaurant was refurbished and rebranded on a number of occasions to create a more “modern” and “trendy” image.
By mid-April, twelve existing employees, which included the four claimants, were identified as not required to be retained in the rebranded restaurant, although there were still a need for more than twelve waiters and bartenders. The twelve employees were subsequently dismissed, with the four Claimants not signing the settlement agreements.
The Claimants complained of unfair dismissal, wrongful dismissal and age discrimination. Specifically, they argued that they were seen as not fitting into the rebranded restaurant and bar as they were perceived as being “too old”. London Mayfair Hotel conceded that the Claimants had been unfairly and wrongfully dismissed and, therefore, the only complaint that the Tribunal had to determine was the complaint of direct age discrimination.
The Tribunal investigated whether the creation of a more “modern” and “trendy” restaurant translated into a policy of employing waiting and bar-staff who were under the age of thirty. The Tribunal was unable to determine why the London Mayfair Hotel decided not to retain those twelve employees in the restaurant after the rebranding because, despite the London Mayfair Hotel asserting that the twelve did not have the skill set required for roles going forward, there was no evidence of how the waiting and the bartending skills needed to serve the new menu were different from those that had been previously required.
However, this alone was not enough to shift the burden of proof. The Tribunal considered the cases of each of the Claimants individually and concluded that a prima facie case of age discrimination had not been established, and therefore, the burden of proof did not shift to the London Mayfair Hotel. The claims therefore failed.
The Tribunal said that, whatever failings there were in respect of the dismissal process, or in the selection of the employees who were not going to be retained, London Mayfair Hotel has applied these failings equally, and many of all the twelve individuals who were selected were under the age of thirty.
The Tribunal held that there was no discrimination against the Claimants based on their age because post-rebranding there were five employees who were aged between thirty and thirty-five, which showed the modern restaurant design did not equate to employing younger staff.
Mr M Jouhari and Others v London Mayfair Hotel Ltd, 27 February 2017, case number 2207752/2016