Employment Tribunal made error in rejecting a claimant’s claim for direct age discrimination.
In the case of Cook v Gentoo Group Ltd, the Claimant’s role was identified as being at risk of redundancy as part of a broader restructure. Per the Respondent’s own policy, such a restructure required approval at board level. However, a decision was taken to forgo board approval to hurry through the Claimant’s redundancy to avoid the claimant becoming entitled to an enhanced pension, which he would be entitled to if he was made redundant after he was 55 years of age. Were he to be made redundant after reaching 55 years of age, the Respondent would be required to make a payment into the local government pension scheme of around £80,000.
In a subsequent rushed redundancy process, conducted by the Respondent to avoid them having to pay the extra £80,000, the Claimant was informed he was going to be made redundant on 3 May 2019. Two further consultation meetings were arranged for 8 and 13 May 2019 respectively but the Claimant did not attend as he had been signed off by his GP for stress. The Claimant was dismissed without notice on 16 May 2019.
The Claimant brought claims at the Employment Tribunal (ET) for unfair dismissal and age discrimination. The ET upheld the Claimant’s claim for Unfair Dismissal, stating that the speed at which the respondent conducted the redundancy process was unfair and that the respondent had made no conscientious attempt to seek alternative employment for the Claimant.
However, the ET said the Respondent’s curtailment of the redundancy process, and their failure to obtain board approval for the deletion of his post, so as to avoid the Claimant obtaining an enhanced pension payment, did not constitute direct age discrimination.
In reaching this decision, the ET held that the actual comparators identified by the Claimant were inappropriate. Moreover the ET held that in any event, they would have found the detriment to be a proportionate means of achieving a legitimate aim. However, the ET did not identify the legitimate aim or why the treatment of the Claimant was a proportionate means of achieving that legitimate aim.
The Claimant appealed the rejection of the age discrimination claim and on appeal, the Employment Appeals Tribunal (EAT) found flaws in the ET’s decision-making, including that the ET did not set out the reasons why it found the Respondent’s actions to be a proportionate means of achieving a legitimate aim. The EAT remitted the case to a new tribunal for reconsideration.
This case is a reminder of the complex legal principles to be considered by a Tribunal when determining a claim of direct age discrimination, which unlike other types of discrimination can be justified.
This blog was written by Kate Lea, Senior Solicitor at didlaw
