Magoulas v Queen Mary University of London

In an indirect age-discrimination claim, justification is assessed objectively. The tribunal must balance the discriminatory effect of the provision, criterion or practice against the employer’s reasonable business needs. The employer bears the burden of establishing justification, but it need not in every case adduce evidence that it considered every less discriminatory alternative.

Whether alternatives require consideration depends on the facts. A tribunal may conclude, after a lengthy and careful restructuring and consultation process, that no viable alternative existed. There is no general duty on either the employer or the tribunal to investigate unspecified or merely asserted alternatives. The tribunal may assess proportionality using the evidence and common sense.

The Claimant, a university researcher aged 53 when his redundancy took effect, brought claims for unfair dismissal and indirect age discrimination. The Employment Tribunal dismissed both claims in a decision sent to the parties on 19 March 2014.

The indirect discrimination claim concerned eligibility criteria for Early Career Research Fellow posts. The Tribunal found that the criterion requiring applicants not to have been independent researchers before 1 August 2009 was a PCP which particularly disadvantaged older researchers. It nevertheless held that the PCP was justified by the aims of increasing the Respondent’s research profile and reducing costs.

On appeal, the Claimant argued that the Respondent had failed to prove proportionality because it had not given evidence of less discriminatory alternatives, and that the Tribunal should itself have considered manifest alternatives.

1. Appeal dismissed. The Employment Tribunal had correctly directed itself on indirect discrimination and proportionality under Equality Act 2010. It knew that the PCP prevented few, if any, older researchers from obtaining Early Career Research Fellow posts. Its finding of particular disadvantage therefore formed part of the proportionality assessment, even though it was not repeated verbatim in the paragraph recording justification.

2. Justification required an objective balance between the discriminatory effect of the PCP and the Respondent’s reasonable business needs. The burden of proving the defence was on the Respondent. It had discharged that burden on the evidence before the Tribunal. The Tribunal was entitled to assess the evidence sensibly and by applying common sense.

3. There is no general rule that an employer can establish justification only by adducing evidence that it considered alternatives to the PCP. Nor is there a general duty on an Employment Tribunal to search for alternatives where the parties have not identified them. Whether either matter is required depends on the facts of the individual case.

4. Here, the compulsory redundancy followed a lengthy, careful restructuring, consultation and selection process. The suggested measures, including pay reductions, lay-offs, reduced hours and flexible working, had not been advanced during that process. There was no evidence that affected employees would have accepted them, and they could not have been imposed unilaterally. The Tribunal was entitled to conclude that no viable alternative had existed and that the suggested alternative PCP was unworkably vague.

5. The EAT declined to follow obiter observations in Naeem concerning “manifest alternatives”. The authority did not establish a general duty requiring the Tribunal to investigate such alternatives. The finding that the dismissal was not unfair, being contingent on the absence of unlawful age discrimination, consequently stood. Permission to appeal to the Court of Appeal was refused.

• Employment Appeal Tribunal: appeal dismissed; permission to appeal to the Court of Appeal refused.
• Employment Tribunal, East London: decision sent on 19 March 2014 dismissing the claims for unfair dismissal and indirect age discrimination.