EAT AGE DISCRIMINATION
UNFAIR DISMISSAL – 2002 Act
Claimant’s post as Chief Executive of NHS Primary Care Trust disappears in reorganisation – Not selected for successor post – After twelve months working in temporary positions given twelve months’ notice of dismissal – Notice given prior to formal consultation meeting in order to ensure that notice expired prior to his 50th birthday, when he would have been entitled to take early retirement, with consequent substantially increased costs to the Trust – Claims of unfair dismissal and age discrimination – Tribunal holds (a) that dismissal fair, notwithstanding non-compliance with 2002 Act procedures, because Claimant would have been dismissed anyway; and (b) that although the timing of the giving of notice was on the grounds of Claimant’s age it was justified in all the circumstances, including the costs that would have been incurred if the Trust had to fund his early retirement.
HELD:
(1) Appeal allowed on unfair dismissal – If a decision was unfair by reference to s. 98A (1), s. 98A (2) has no application.
(2) Appeal dismissed on age discrimination – Tribunal had not decided the justification issue on the basis only of the cost to the Trust but had applied the ‘cost plus’ test in Cross v British Airways [2005] IRLR 423 – It had been entitled to take into account the fact that it was only because the Claimant had been kept in employment for almost twelve months from when his job disappeared, and had then been given a further twelve months’ notice, that the chance of his reaching the age of 50 arose; and that in those circumstances his becoming entitled to take early retirement would have been a ‘windfall’ – Although the timing of the notice had meant that his first formal consultation meeting was before rather than after notice was given, in the particular circumstances of the case that fact did not prevent the giving of notice being justified.
Doubt expressed as to whether Cross v British Airways was right to hold that ‘cost alone’ could never constitute objective justification.
Judges:
Underhill P J
Citations:
[2010] UKEAT 0489 – 09 – 1211
Links:
Cited by:
Appeal from – Woodcock v Cumbria Primary Care Trust CA 22-Mar-2012
The claimant appealed against rejection of his claim of age discrimination. the claimant complained that the trust had deliberately failed to comply with a requirement to consult before declaring him to be redundant, so that his employment would . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 26 August 2022; Ref: scu.425979