Ageism and the Hazards of Referring to Seniority or Length of Service

References to ‘seniority’ or ‘length of service’ can all too easily be read as impermissible references to an employee’s age, a point which was made by one case in which a sporting body narrowly defeated its former group marketing director’s claim that his dismissal was infected by ageism (Kelly v PGA European Tour).

Mr Kelly commenced employment with PGA European Tour, the organisation which operates the three leading men’s professional golf tours in Europe, in 1989 and was 60 years old at the time of his dismissal. This occurred following the body’s appointment of a new chief executive officer (CEO) who had been critical of his performance. The CEO had, without success, urged retirement upon him as a dignified means of managing his departure and had eschewed putting him through a formal disciplinary process because of his senior position and his many years of service to the organisation.

Advertisements placed in search of a successor to Mr Kelly had stated that PGA European Tour was looking for ‘energised’ and ‘vibrant’ candidates and, in a presentation, the CEO had said that the body’s aim was to establish ‘a diverse group of millennials and established experienced employees’. In those circumstances, after Mr Kelly launched proceedings, an Employment Tribunal (ET) found that he had established an arguable case of age discrimination and the burden of proving otherwise was shifted onto his former employer.

In ultimately rejecting Mr Kelly’s claim, however, the ET accepted that the CEO had wished to handle his departure respectfully and that the CEO’s comments did not reveal a preoccupation with age. The real reason for his dismissal was the CEO’s view that he had not bought into his ideas on the way forward for the organisation and was unable to embrace the changes he wished to introduce.

In rejecting Mr Kelly’s challenge to that ruling, the Employment Appeal Tribunal found that the ET had not erred in law in concluding that the reason for his dismissal was not age and had given adequate reasons for its decision.