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.