Sturmey v The Weymouth And Portland Borough Council (Age Discrimination)

In an age-discrimination claim, an Employment Tribunal must give adequate reasons for its conclusion where material evidence suggests that the timing of dismissal was influenced by the employee’s age and pension entitlement. It must explain how it assessed that evidence, including potentially favourable treatment of comparators and the statutory burden of proof.

Where age-related treatment is said to be justified, the employer must justify the discriminatory treatment itself as a proportionate means of achieving a legitimate aim. A decision concerning exceptional facts does not establish that shortening a redundancy or redeployment process to avoid pension costs will generally be proportionate.

The Claimant was dismissed for redundancy shortly before her 55th birthday, when dismissal after that date would have entitled her to an immediate pension. She alleged that the timing of the dismissal was direct age discrimination.

The Southampton Employment Tribunal dismissed her claims for unfair dismissal and age discrimination. It found that a younger employee in comparable circumstances would also have been dismissed and, alternatively, that the timing was justified. In reaching the latter conclusion it relied on Woodcock v Cumbria PCT [2012] ICR 1126.

The appeal concerned whether the Tribunal had adequately addressed the evidence relating to the timing of dismissal and whether it had lawfully determined justification.

1. Appeal allowed. The Employment Tribunal addressed the correct legal question when it asked whether a younger person in comparable circumstances would also have been dismissed. Its conclusion was not open to challenge as perverse. The decisive error was the inadequacy of its reasons.

2. There was substantial material capable of indicating that the decision’s timing was influenced wholly or partly by the Claimant’s approaching pension age. That material included contemporaneous references to the deadline before her 55th birthday, the recruitment moratorium, and evidence that other employees had remained in the redeployment pool for longer periods. The Tribunal did not address that material or explain its findings about it. In a discrimination case, especially where the burden of proof under Equality Act 2010 section 136(2) may matter, reasons must grapple with material evidence of that kind.

3. If less favourable treatment because of age is established, the employer must justify that treatment under section 13(2), rather than redundancy generally. The Tribunal was required to determine for itself whether curtailing the process was a proportionate means of achieving a legitimate aim.

4. Woodcock did not supply a general rule that omitting stages of a redundancy or redeployment process to avoid pension costs is proportionate. Its conclusion depended on very particular circumstances, including an already resolved intention to dismiss and consultation that could have achieved nothing. The Tribunal therefore erred in treating it as decisive without making its own findings and proportionality assessment.

5. The age-discrimination claim was remitted to a freshly constituted Tribunal. Findings up to 2 May 2012 could stand, but the Tribunal had to hear and determine the subsequent discrimination issues afresh. The unfair-dismissal finding was not to be reopened unless unlawful age discrimination was established.

• Employment Appeal Tribunal: appeal allowed and the age-discrimination claim remitted for rehearing by a freshly constituted Employment Tribunal.

• Employment Tribunal, Southampton: judgment dated 11 November 2013 dismissed the Claimant’s claims for unfair dismissal and age discrimination.