Age Discrimination and ‘proportionate means of achieving a legitimate aim’

Finally the Court of Appeal decision of Woodcock –v- Cumbria Care Trust [2012] EWCA Civ 330

The facts:

Some of my readers will recall that this was an appeal by Mr Woodcock in respect to his age discrimination claim. The Trust dismissed Mr Woodcock on the grounds of redundancy when he was just short of his 49th birthday giving him 12 months notice without a consultation period. The Trust’s reasons for not following the correct redundancy procedure was that had they done so Mr Woodcock would have reached 50 when he was given the notice, this would have entitled him to an early retirement with an enhanced pension. The timing of the notice deprived him of the benefit.

The benefit Mr Woodcock would have attained could only have been achieved at a substantial additional cost to the Trust; and the Trust’s aim in its timing of the notice was to achieve a dismissal on redundancy grounds that would save such additional cost.

The issue

The issue was whether the Trust’s discriminatory treatment of Mr Woodcock was ‘a proportionate means of achieving legitimate aim’. If the answer was in the positive then Mr Woodcock would not have suffered any age discrimination. Both the Employment Tribunal (ET) and Employment Appeals Tribunal (EAT) held that it was and Mr Woodcock appealed.

Mr Woodcock also appealed the finding of unfair dismissal on the basis that he was not provided with a fair and proper consultation.

This case related to direct age discrimination, unlike other forms of discrimination ‘direct age discrimination’ can be objectively justified.

The Court of Appeals Finding:

From the facts, the Court of Appeal found that save for a 'chapter of accidents', the initial consultation meeting would have been held long before Mr Woodcock's 49th birthday so that he would ordinarily have been given notice long before any prospect of the enhanced pension arose.  This was found to have satisfied the 'costs plus' test that had been established in
Cross v British Airways [2005] IRLR423.  As such, the treatment was justified therefore the discrimination claim (along with an unfair dismissal claim) was dismissed.

In light of this decision it seems that future cases raising issues of costs will turn on substantive questions or proportionality rather than whether the employers behaviour was properly to be characterised as cost or costs plus.

This case will prove detrimental for police officers and other public workers, facing compulsory retirement.

The case looked at some interesting issues so if you are going through a similar process make you get legal advice, contact me for a free consultation on 0113 350 4030.

Are interns workers?

It seems that businesses should be very careful in the type of work that they delegate to interns as a recent tribunal (Ms Keri Hudson –v- TPG Web publishing Ltd (TPG) [2011]) held that due to the nature of the work carried out by the claimant she was a ‘worker’ therefore entitled to receive the national minimum wage.

The tribunal in this case heard how the claimant undertook editorial responsibilities without payment.

In the absence of an employment contact the tribunal were satisfied that there was an implied contractual duty on the basis the company had previously discussed remuneration with the claimant and the duties she carried out were of value to the company.

The moral of the case is take legal advice when considering hiring interns.

Statutory Maternity Pay (SMP) - what are the rules?

I think everyone gets confused about maternity and entitlements. So I thought a quick guide to help everyone understand their rights would be useful. Whether you are an employer or employee if after reading this guidance note you are still confused then please do make contact and I will try and place you on the correct path.

Who is entitled to SMP?

Employees qualify for SMP if they satisfy the:

(1) The continuous employment rule:

- This means an employee must be employed by the same employer continuously for at least 26 weeks into the 15th week before the week the baby is due (the qualifying week).

- Exceptions can be made if the baby is born premature.

When can a break amount to being continuous employment? 

When an employee:
- Is absent (for periods of 26 consecutive weeks or less) because of sickness, injury, pregnancy or childbirth;
- Has taken a period of statutory maternity leave, adoption leave, paternity leave or parental leave (in which case, that period counts towards the period of continuous employment);
- Did not take maternity leave but were not working because they had a break to give birth; they worked for the employer before and after the break, and the break is not more than 26 weeks;
- Has temporarily ceased because the employer was unable to offer the employee any work;
- Is away in circumstances in which, by arrangement or custom, is regarded as continuing for some purposes (for example, teachers employed on term-by-term contracts with the same or associated employers);
- Was unfairly dismissed and, after action under the Employment Rights Act 1996, were reinstated (or would have been, but for their pregnancy) and have refunded any redundancy or equivalent payment received from the employer upon dismissal;
- Is away because of a stoppage of work during an industrial dispute. A strike does not break continuity of employment, but the weeks or part weeks of a strike do not count towards the 26 weeks of employment.
Agency workers:
- Workers employed by an agency, in each of the 26 weeks into the qualifying week, satisfy the continuous employment rule providing they did some work during any week.
- There may be complete weeks when the employee did no work for the agency. This does not necessarily mean that the employee’s continuity of employment is broken.

What happens if someone’s employment stops work during or after the qualifying week?

If an employee’s employment ends during or after the qualifying week they can still qualify for SMP from your former employer.

Change of employer

If an employee changes jobs during her pregnancy, she is unlikely to be able to meet the continuous employment rule unless:
- TUPE applies;
- An Act of Parliament, one corporate body takes over from another as their employer;
- There is a change in the partners, personal representative or trustees who employ them;
- They move from one employer to another at a time when the two employers are associated employers, that is if one is a company of which the other (directly or indirectly) has control, or if both are companies of which a third person (directly or indirectly) has control;
- The employee is a teacher in a school maintained by a local education authority, and the employee moves to another school maintained by the same authority.

(2) The Earnings Rule

To qualify for SMP the employee’s average gross weekly earning must be at least£97 per week for the tax year 2010/2011 and £102 a week for the tax year 2011/2012.

As a general rule, the employee’s earnings will be averaged over a period of at least 8 weeks up to and including the last pay day before the end of the qualifying week. This period is called the 'relevant period' (but this may vary depending on how the employee’s salary is paid).

What if the employee’s employment contract ends?

If an employee satisfies both the continuous employment rule and earning rule the employer must pay SMP even if their contract ends at any time after the start of the qualifying period the employer must pay SMP.

How much SMP do employee’s get?

- The first six weeks are paid at 90% of the employee’s average gross weekly earnings with no upper limit and
- For the remaining 33 weeks at the lower of either the standard rate of £128.73, or 90% of your average gross weekly earnings.

Is there anything else that employees must do to qualify for SMP?

YES they must:

- Tell their employer when they want their SMP to start and
- Provide medical evidence of the date the baby is due

Can employers subjectively choose who they like for newly created roles during a redundancy process?

The recent decision by the EAT in Samsung Electronics v Monte D'Cruz [2012] is authorisation that employers can ‘appoint the best person for the job’ and this could mean that no one from the selection pool is chosen for the role.

In this case Samsung re-organised their print division. The Claimant was one of three Heads of Department whose role was being merged into one. He unsuccessfully applied for the merged post. He then unsuccessful applied for a more junior role which came about due to the restructure. An external candidate was eventually appointed.

This decision may mean that in certain re-organisation situations if external candidates are the best people to perform the role then the dismissal may not be unfair.

This post is not legal advice and should not be used as such if you are a commercial business and are in a similar predicament please ensure that you contact me on 0113 350 4030 or another legally qualified professional before you make any decisions. I look forward to hearing from you.

Birmingham NEC Dental Exhibition

I am at the Birmingham NEC Dental Exhibition with Seesaw Dental Consultancy - if you are in the area come and see us at stand L4 http://www.thedentistryshow.co.uk/full-exhibitor-list/!