EAT Unfair Dismissal – AGE DISCRIMINATION
An ET found that a teacher, who because of her considerable experience was more expensive to employ than a new recruit, was managed out of her employment for that reason. The Tribunal held her to have been unfairly dismissed, and on the basis that her claim for age discrimination was of indirect discrimination on the ground of her age, upheld it. In doing so it did not clearly establish that there was a practice (it did not rely on provision or criterion) as contended, and thought that the statistical evidence put before it, though indicative of a PCP was insufficiently persuasive. It purported to apply the burden of proof; and did not consider whether those in the Claimant’s age group had suffered a similar and particular disadvantage by application of the practice. Since the findings of the Tribunal were insufficient to hold that there was a PCP, and if there were, there was no evidence that it caused others in the Claimant’s age group particular disadvantage, and since the burden of proof provisions could not properly be used to establish either the PCP or the disadvantage, since these were necessary primary findings of fact before the burden could be reversed, the decision as to age discrimination was quashed. An appeal, on grounds that the Tribunal was not entitled to hold that the Claimant had been unfairly dismissed, and one on the basis that it had been biased, were rejected. A further appeal was made against the Tribunal’s conclusion that it should uplift damages by 25% for breach of a relevant ACAS Code, and cross-appeal against its failure to gross-up awards both in respect of loss of earnings and injury to feelings. The appeal was dismissed since the Tribunal’s reasons displayed no error of law, as was the cross-appeal because the point had not been raised before the ET and discretion would not in the circumstances be exercised to permit it now to be raised for the first time.
Langstaff P
[2015] UKEAT 0064 – 15 – 2110
Bailii
England and Wales
Employment, Discrimination
Updated: 05 January 2022; Ref: scu.553731
