Imperial College Healthcare NHS Trust & Anor v N Matar

An employer may commit direct age discrimination where it makes age-related assumptions about an older worker’s likely willingness to accept a junior role, retire, or seek professional registration, and those assumptions cause less favourable treatment. The protected characteristic need not be the sole cause.

In applying the burden of proof under the Equality Act 2010, a tribunal may require cogent evidence showing that the treatment was in no sense because of age. A comparison with an actual worker may also be probative of a hypothetical comparator where material differences do not explain the treatment.

Compensation for past discrimination losses may reflect the employment relationship that would in fact have continued, even if the parties would mistakenly have performed services under an ultra vires arrangement. The result must not offend public policy.

The claimant had worked for an NHS Trust as a Locum Consultant for several years without being on the specialist register, contrary to the NHS Appointment of Consultants Regulations 1996. He intended to retire at 60. When the regulatory issue was discovered, he was subject to a clinical investigation and practice restriction. A younger Locum Consultant, Mr Hakky, was given support, reassurance and an opportunity to continue Consultant duties while seeking specialist registration.

The Employment Tribunal upheld claims of constructive unfair dismissal, wrongful dismissal and, in part, direct age discrimination. At remedy, it awarded past pecuniary loss on the basis that the claimant would have accepted an extended Locum Consultant arrangement until retirement, although that arrangement would have been ultra vires under the 1996 Regulations.

The respondents appealed the liability findings under section 13 of the Equality Act 2010 and the compensatory award.

1. Both appeals were dismissed. The EAT held that the ET had made an error in treating the claimant’s circumstances as comparable with Mr Hakky’s before late December 2017. During that period, the continuing investigation and justified practice restriction were material circumstances which the respondents had actually treated as relevant. That error defeated only the finding on issue (ee), and did not undermine the remaining liability findings.

2. From December 2017 and January 2018, the ET was entitled to find that the differences between the claimant and Mr Hakky were no longer material. There was no clinical reason for the claimant’s continued restriction. Both faced the same regulatory problem, yet the respondents supported Mr Hakky to retain his duties, status and pay and to seek registration, while they did not afford corresponding support to the claimant.

3. The ET had correctly applied section 13 and the burden of proof under section 136 of the Equality Act 2010. It did not equate merely unreasonable treatment with discrimination, nor treat the case as one in which an age criterion was automatically decisive. It permissibly found that the respondents had made assumptions related to the claimant’s age, retirement plans and response to a junior role; they failed to provide cogent evidence that the disparate treatment was in no sense because of age.

4. On remedy, the governing aim was to place the claimant, so far as reasonable, in the position he would have occupied absent the discrimination. The ET had found that the Trust would in fact have continued the employment relationship until the claimant’s intended retirement, while he performed Locum Consultant duties under an arrangement ultra vires under the 1996 Regulations.

5. That finding did not bar compensation for past pecuniary loss. Unlike a case in which the employee could not lawfully work at all, the Trust could lawfully employ the claimant in another capacity. Following Eastbourne Borough Council v Foster, the reality of services that would have been performed could be recognised without giving legal effect to the invalid arrangement. Neither party would have known the arrangement was unlawful, and denying compensation would neither advance public policy nor be proportionate.

• Employment Appeal Tribunal: The respondents’ appeals against the London Central Employment Tribunal’s liability judgment, sent on 7 May 2021, and remedy judgment, sent on 4 January 2022, were dismissed.
• Employment Tribunal: The tribunal upheld constructive unfair dismissal, wrongful dismissal and part of the direct age-discrimination claim. It awarded past pecuniary loss under the Equality Act 2010.