Employment Appeal Tribunal
The appellant employee (W) appealed against an employment tribunal's decision that the respondent employer (C) had not unfairly dismissed him or discriminated against him on the ground of age. W was a manager within the NHS whose post disappeared when a number of primary care trusts were merged. He applied unsuccessfully for one of the new management positions. After a delay of several months, during which W undertook various temporary projects, C invited him to a redundancy consultation meeting, but it realised that if it delayed for a few days, he would still be an employee on his 50th birthday and thus entitled to take early retirement. As that would massively increase the cost of his redundancy to C, it decided to give him notice before the meeting. It was thus in breach of the disciplinary and dismissal procedure prescribed by Employment Act 2002 Sch.2, but the tribunal found that his dismissal was fair under the Employment Rights Act 1996 Pt X s.98A(2) because he would have been dismissed for redundancy anyway and so the application of the correct procedure would have made no difference. The tribunal also found that W's age had been the reason for his dismissal without proper consultation, but that that prima facie discrimination was justified because it had the legitimate aim of bringing about his dismissal for redundancy and avoiding additional costs which would arise from the windfall for W of being able to take early redundancy in the final days of his notice period; it also found that C's action had been proportionate to that aim.
HELD: (1) Once it was accepted that C had not followed the statutory procedure, the tribunal should have made a finding of automatic unfair dismissal pursuant to s.98A(1). The tribunal's reasoning was plainly wrong as it incorrectly assumed that the effect of s.98A(2) was to disapply s.98A(1) where the failure to comply with the statutory procedure would have made no difference to the outcome. However, s.98A(2) had no application in a case of automatic unfair dismissal under s.98A(1), Alexander v Bridgen Enterprises Ltd (2006) ICR 1277 EAT applied. Therefore, W was unfairly dismissed (see paras 22-23 of judgment). (2) The instant case was not one where the only justification advanced for C's decision to give notice before the meeting was the perceived cost of deferring it. Given that W had known for a long time that he had not been selected for a successor post, he could have had no legitimate expectation that he would have reached 50 before his notice expired. For him to have still been in employment on his 50th birthday would have been a windfall. The prevention of that windfall benefit, and the avoidance of the corresponding loss to C, was a legitimate aim going beyond the mere wish to reduce costs, Loxley v BAE Systems Land Systems (Munitions & Ordnance) Ltd (2008) ICR 1348 EAT applied (para.33). The tribunal had been entitled to find in the very particular circumstances of the instant case that it had been justifiable for C to accelerate the final giving of notice if doing so would prevent it incurring a disproportionate liability in pension costs. C had only become vulnerable to that potential liability because the redundancy process had been extended, to W's benefit, for far longer than he had been entitled to expect. Therefore, W was not subjected to age discrimination (para.37).
Appeal allowed in part
EMPLOYMENT, AGE DISCRIMINATION, AUTOMATICALLY UNFAIR DISMISSAL, DISMISSAL AND DISCIPLINARY PROCEDURES.
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