In general terms, in discrimination claims if an employee can show a 'prima facie' case of discrimination – in effect that something has occurred which looks like discrimination unless there is a proper explanation for it – the burden of proof shifts to the employer who then has to disprove that discrimination occurred.
In James v Gina Shoes Ltd and others, at first instance the Tribunal held that the observation that "you can't teach an old dog new tricks" made by a manager during a performance management process was a "throw-away" comment which was not sufficient to constitute a 'prima facie' case of direct age discrimination as there was no other evidence to suggest any age discrimination.
On appeal, the EAT held that it was immaterial that there was nothing else to suggest age discrimination – such a comment was sufficient to shift the burden of proof onto the employer to prove that the employee had not been treated less favourably on the grounds of their age. This case shows the danger of making a "throw away" comment.
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