Woodcock v Cumbria Primary Care Trust

Direct age discrimination is justified where it is a proportionate means of achieving a legitimate aim. An employer cannot justify discriminatory treatment solely because eliminating it would increase costs. Dismissing a genuinely redundant employee is, however, a legitimate aim. That aim does not cease to be legitimate because dismissal saves costs, and the employer may legitimately consider an additional cost arising from the timing of dismissal.

Proportionality requires an objective balance between the discriminatory effect on the employee and the employer’s needs. Exceptionally, giving redundancy notice before consultation may be proportionate where consultation would have achieved nothing, the employee retains ample opportunity for consultation during notice, and delaying notice would incur a disproportionate liability.

The appellant’s senior NHS post disappeared during a reorganisation. The respondent eventually gave him 12 months’ redundancy notice without first holding its planned formal consultation. The timing ensured that his employment ended before he became entitled to substantially enhanced early-retirement benefits at age 50.

The employment tribunal found direct age-based treatment but held that it was justified under regulation 3(1) of the Employment Equality (Age) Regulations 2006. The Employment Appeal Tribunal dismissed the appeal on that issue, although it allowed a separate unfair-dismissal appeal.

The central question was whether giving notice when the respondent did, principally to avoid the additional pension cost while implementing a genuine redundancy, was a proportionate means of achieving a legitimate aim.

1. Appeal dismissed. Rimer LJ, with whom Ryder J and Arden LJ agreed, held that the employment tribunal had made no error of law in finding the direct age-based treatment objectively justified.
2. An employer cannot justify discriminatory treatment solely on the ground that eliminating it would involve increased costs. Cost saving or avoidance, without more, does not constitute a legitimate aim. The court accepted the employer strand of the European authorities as explained in Cross and others v British Airways plc [2005] IRLR 423.
3. The treatment was not correctly characterised as a bare attempt to save money. The notice genuinely implemented an established decision to terminate redundant employment. Dismissing a redundant employee was a legitimate aim and did not cease to be legitimate because it avoided continuing employment costs. It was also legitimate to consider the substantial additional pension liability which would arise from delaying dismissal. The employee had no right or reasonable expectation of receiving that windfall.
4. Proportionality required an objective balance between the discriminatory effect of the treatment and the employer’s needs. In the very particular circumstances, the balance favoured the employer. The redundancy was inevitable, the process had already been prolonged for the employee’s benefit, and the further delay had arisen through a chapter of accidents. Although serving notice first deprived him in theory of prior consultation, the tribunal was entitled to find that consultation would have achieved nothing. No suitable post of the seniority he would accept was available.
5. Consultation could continue throughout the unusually long notice period. The notice expressly preserved efforts to secure suitable alternative employment. The procedural corner-cutting therefore deprived the employee of nothing of practical value.
6. The employer’s mistaken subjective belief that the employee had deliberately delayed consultation did not defeat justification. The governing assessment was objective, and there was no basis for finding that events would have differed absent the mistake.
7. The perversity challenge also failed. Such a challenge required an overwhelming case that no reasonable tribunal, properly considering the evidence and law, could have reached the findings challenged. The material supplied to the court came nowhere near that threshold.

1. Court of Appeal (Civil Division): Dismissed the appeal from the Employment Appeal Tribunal concerning age discrimination: [2012] EWCA Civ 330.
2. Employment Appeal Tribunal: Dismissed the appeal concerning age discrimination. It allowed the separate unfair-dismissal appeal because the statutory dismissal procedure had not been followed. No neutral citation is stated in the judgment.
3. Carlisle Employment Tribunal: Dismissed both claims. It found the dismissal fair and the prima facie age-based treatment justified. The Employment Appeal Tribunal later reversed the unfair-dismissal determination but upheld the age-discrimination determination.