EAT AGE DISCRIMINATION
UNFAIR DISMISSAL – Polkey deduction
Council employee seconded to registered social landlord – Secondment comes to an end, so that he is formally redundant – Employee aged 49 and would be entitled to an early retirement pension if retained in employment to age 50 – Council fails to find him alternative employment or to permit an extension of the secondment, notwithstanding an offer by organisation to which he is seconded to fund his continued employment to age 50
Tribunal finds Council liable for unfair dismissal and age discrimination, on basis that:
(a) Council made insufficient effort to redeploy the Claimant; and
(b) it was motivated by a wish to avoid the additional costs of him taking early retirement at age 50.
Tribunal also holds, as regards remedy, that it has ‘little doubt’ that if Claimant had not been treated unfairly and discriminated against he would have been found alternative employment.
On the Council’s appeals against the finding of age discrimination and as regards remedy.
Held: (1) that, while the Council was justified in refusing to continue the Claimant’s secondment for the purpose of allowing him to reach age 50 and then take early retirement (which would indeed have been unlawful – Eastbourne Borough Council v. Foster [2002] ICR 234, and Hinckley and Bosworth Borough Council v. Shaw [2000] LGR 9 referred to), to take into account his impending entitlement to a pension in the application of its redundancy and redeployment policy constituted age discrimination (no defence of justification being advanced); and that the Tribunal was entitled on the evidence to conclude that the Council had done so;
(2) that the Tribunal was entitled on the evidence to find as a practical certainty that the Claimant would, but for the matters complained of, have been found alternative employment and that the use of the phrase ‘little doubt’ did not mean that it was obliged to make a discount for the chance that he might not have done so.
Underhill J P
[2009] UKEAT 0441 – 08 – 1009
Bailii
Employment Equality (Age) Regulations 2006, Employment Rights Act 1996 98A
England and Wales
Citing:
Cited – Polkey v A E Dayton Services Limited HL 19-Nov-1987
Mr Polkey was employed as a driver. The company decided to replace four van drivers with two van salesmen and a representative. Mr Polkey and two other van drivers were made redundant. Without warning, he was called in and informed that he had been . .
Cited – Shamoon v Chief Constable of the Royal Ulster Constabulary HL 27-Feb-2003
The applicant was a chief inspector of police. She had been prevented from carrying out appraisals of other senior staff, and complained of sex discrimination.
Held: The claimant’s appeal failed. The tribunal had taken a two stage approach. It . .
Cited – Eastbourne Borough Council v James Foster CA 11-Jul-2001
An employee’s job ceased, but he continued to be employed by the same employer on different tasks, but the new arrangement was void as ultra vires. The question arose as to whether his employment had been terminated at the time of the change in such . .
Cited – London Borough of Islington v Ladele EAT 19-Dec-2008
EAT RELIGION OR BELIEF DISCRIMINATION
The claimant was a Registrar who, amongst other things, registered marriages. When the Civil Partnerships Act came into force, she refused to participate in registering . .
Cited – Strathclyde Regional Council v Zafar; Zafar v Glasgow City Council HL 16-Oct-1997
The absence of any other explanation for the unfair dismissal of a black worker, does not of itself and inescapably lead to finding of race bias, or racial discrimination. He had been dismissed following complaints of sexual harassment, later found . .
Cited – Hinckley and Bosworth Borough Council v Shaw QBD 2000
Two senior and long term employees of the Council proposed voluntary early redundancy. After discussions, their contracts were varied with enhanced pay so that they would also have enhanced pensions and redundancy payments. Such enhancing agreements . .
Lists of cited by and citing cases may be incomplete.
Employment, Discrimination
Updated: 09 November 2021; Ref: scu.374686