EAT AGE DISCRIMINATION
PRACTICE AND PROCEDURE – Striking-out
Appeal against refusal of Employment Judge to strike out three heads of an age discrimination claim; cross-appeal against striking-out of fourth.
(1) Judge wrong not to strike out claim of discriminatory selection of redundancy when claim was prima facie implausible and there were no facts indicative of such discrimination.
(2) Judge wrong not to strike out claim based on a difference of age profile between those made redundant before and after the date of introduction of less generous terms as to payment of bonus to dismissed employees – A change of this character did not constitute a ‘provision criterion or practice’.
(3) Judge right not to strike out a claim that the length of service element in the Appellants’ redundancy payment scheme was discriminatory.
(4) Judge right to strike out claim that requirement that Respondent sign a compromise agreement as a condition of entitlement to enhanced redundancy pay was age-discriminatory.
Underhill J concluded that the practice of requiring a compromise agreement in return for an enhanced redundancy payment involved a legitimate interest in achieving finality: ‘Further, it seems to me . . that even if a case of discriminatory impact could be made out the requirement could plainly be justified. Employers have a legitimate interest in achieving finality as regards all issues arising out of the dismissal of an employee. Offering a further payment to achieve a binding compromise of all such issues is plainly a proportionate means of achieving that aim. Its proportionality is unassailable because the choice always remains with the employee: if he thinks it is a bad deal he need not take the offer. He will of course, by definition, have access to legal advice. The fallacy in the Claimant’s case is that it overlooks the fact that he otherwise has no right to this payment: although it may be described as an enhanced redundancy payment, it is in fact a payment offered to redundant employees in return for a full and final settlement of all claims. It is of course for that reason that the contention that the payment could be made while [accepting] the right to advance outstanding claims makes no sense.’
Judges:
Underhill P J
Citations:
[2009] UKEAT 0266 – 09 – 0111
Links:
Citing:
Cited – Enderby v Frenchay Health Authority and Another ECJ 27-Oct-1993
Discrimination – Shifting Burden of Proof
(Preliminary Ruling) A woman was employed as a speech therapist by the health authority. She complained of sex discrimination saying that at her level of seniority within the NHS, members of her profession which was overwhelmingly a female . .
Cited by:
Cited – Garratt v Mirror Group Newspapers Ltd CA 13-Apr-2011
The claimant had been employed by the defendant. They made him redundant. He claimed and enhanced payment saying that his emloyment was covered by a collective agreement, but when he refused to sign a compromise agreement, the company paid him only . .
Lists of cited by and citing cases may be incomplete.
Employment, Discrimination
Updated: 07 August 2022; Ref: scu.381632