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Giving 60-year-old option to retire rather than being dismissed was not discriminatory

Makbool Javaid

In Kelly v PGA European Tour, Kelly, aged 60, was the PGA’s Group Marketing Director with 28 years’ service.  The new CEO, Pelley, formed the view, reinforced by negative feedback from the board and senior managers, that K was not performing well and should be dismissed. P met with K to see if terms could be agreed for his departure. P said he would like K to consider retiring at the end of the year and continue as a consultant, thereby offering a respectful way to leave the business. Terms could not be agreed, and K was dismissed, without any procedure being followed. P claimed unfair dismissal (which the PGA conceded) and age discrimination, i.e. P had no place for a 60-year-old in the new PGA structure. The EAT agreed with the ET that the reason for K’s dismissal was not age. P dismissed K because he believed K was incapable of fulfilling the role required by the PGA. The reference to retirement was for presentation only, so as to handle K’s departure respectfully and preserve K’s dignity.

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