Woodcock v Cumbria Primary Care Trust

It is incorrect to treat s.98A(2) of the Employment Rights Act 1996 as capable of curing a breach that gives rise to "automatic" unfair dismissal under s.98A(1).

Cost considerations are admissible when justifying age-based measures, but an employer relying upon them must show proportionality. A “cost plus” approach (cost considered with other factors) is orthodox; however the Tribunal expressed doubt whether cost could never by itself suffice.

Procedural safeguards such as consultation remain important but may, in narrow and particular circumstances, yield to proportionality-based justification.

This is an appeal from an Employment Tribunal at Carlisle which dismissed claims for unfair dismissal and age discrimination after redundancy and reorganisation. The employee had been unsuccessful in selection for a successor chief executive post and was kept in temporary roles before being given twelve months' notice shortly before an age-critical birthday.

The Tribunal found the dismissal fair on the basis that following the statutory procedure would have made no difference. It also found that the timing of the notice, though age-related, was justified. The employer concedes the Tribunal erred on unfair dismissal but defends the age discrimination finding. The central questions are (1) whether the Tribunal was wrong to refuse an automatic unfair dismissal finding under s.98A(1); and (2) whether the timing of dismissal was objectively justified under the Employment Equality (Age) Regulations 2006.

1. Employment Appeal Tribunal: Appeal from the Employment Tribunal at Carlisle; judgment delivered 12 November 2010; neutral citation [2010] UKEAT 0489_09_1211.
2. Employment Tribunal (Carlisle): First instance hearing May 2009; judgment and reasons dated 12 August 2009; decision dismissed the unfair dismissal and age discrimination claims (subject to points now overturned by the EAT).