Woodcock v Cumbria Primary Care Trust

Where statutory dismissal procedures are not followed, a finding of automatic unfair dismissal under section 98A(1) of the Employment Rights Act 1996 cannot be avoided by applying section 98A(2), even if the employee would have been dismissed in any event.

Age-related timing may amount to direct age discrimination, but it can be justified where the employer pursues the legitimate aim of ending a genuine redundancy and avoiding an unanticipated pension liability. The justification inquiry is objective. In exceptional circumstances, the loss of a formal consultation meeting may be proportionate where the employee has already received the substance of consultation, the meeting would not have altered the outcome, and the notice period allows further consideration of alternative employment.

The appellant was Chief Executive of North Cumbria Primary Care Trusts. Following NHS reorganisation, his post disappeared and he was unsuccessful in obtaining a successor post. He remained in temporary work for almost a year and was then given twelve months’ notice of dismissal before a planned redundancy consultation meeting.

The timing was chosen because allowing notice to begin after his forthcoming forty-ninth birthday would have left him employed on his fiftieth birthday, potentially triggering substantially increased early-retirement costs. The Employment Tribunal dismissed claims of unfair dismissal and age discrimination. The appeal concerned the statutory-procedure finding and whether the timing of dismissal was objectively justified.

1. Unfair dismissal. The Trust accepted that the statutory dismissal procedure in Schedule 1 to the Employment Act 2002 had not been completed before notice was given. The Tribunal was therefore required to find automatic unfair dismissal under section 98A(1) of the Employment Rights Act 1996. Section 98A(2) did not apply because it was expressly subject to subsection (1), and could not cure the procedural breach merely because the result would have been the same. The appeal was allowed on this issue. No further remedy was required because the redundancy payment extinguished any basic and compensatory award.
2. Age discrimination. The Tribunal correctly treated the discriminatory act as the timing of the notice, rather than the redundancy dismissal itself. The timing was on grounds of age because it was selected to prevent the appellant reaching the age at which enhanced pension benefits might arise.
3. The Tribunal was entitled to find that the aim was legitimate. The case was not one of cost alone. The appellant’s post had disappeared, alternative employment had not been found, and he had already received an extended period before notice. Avoiding an unanticipated windfall benefit, and the corresponding liability, went beyond a mere wish to reduce costs. The EAT expressed doubt about the principled basis of the cost-plus rule in Cross v British Airways plc, but did not decide whether to depart from it.
4. In the particular circumstances, accelerating notice was proportionate. The appellant had received substantial informal consultation, had no legitimate expectation of remaining employed until his fiftieth birthday, and the formal meeting would not have produced suitable alternative employment. Consultation continued during the twelve-month notice period, during which the Trust remained obliged to consider alternative employment.
5. The Tribunal’s factual findings about the absence of suitable alternative employment and the appellant’s unwillingness to accept a post below Director level were not perverse. The appeal on age discrimination was dismissed.

• Employment Tribunal, Carlisle: dismissed the claims of unfair dismissal and age discrimination in a judgment sent to the parties on 12 August 2009.
• Employment Appeal Tribunal: substituted a finding of automatic unfair dismissal, but dismissed the appeal on age discrimination. No remission for remedy was sought.