December 2009
In a recent case relating to age discrimination and redeployment, the Claimant was employed by a council but on a secondment with a social landlord. At the end of the secondment the Claimant was to be described as "unassimilated" at the council -that is he did not have a position. The Claimant was entitled to early retirement if he remained in employment for a further nine months. The landlord agreed to provide further funding to keep the Claimant in employment up to the date on which he could retire early. The council did not accept the landlords offer commenting to the landlord - "if you are going to pay his salary then you can pay his bloody pension when he is 50. If he goes now we do save the pension".
The Claimant pursed claims of unfair dismissal and age discrimination. He succeeded, not unsurprisingly, with his unfair dismissal claim in which the Tribunal held that the council had made inadequate attempts to redeploy the Claimant elsewhere within the council. The age discrimination claim was more interesting. The Claimant alleged that both the refusal to redeploy him and/or extend his secondment amounted to unlawful discrimination on the grounds of his age. The Tribunal found that it was the Claimant's age which motivated their decision to dismiss thus it was unlawful discrimination (the council having not sought to objectively justify the discrimination).
At the Employment Appeal Tribunal ( EAT ) it was found that the council could not have lawfully extended the secondment on the grounds so as to enable the Claimant to retire early and as such the decision to agree to that extension could not constitute unlawful discrimination. However, the EAT said that the Tribunal could take in to account the reasons given by the council for not extending the secondment when considering the councils general approach to the redeployment of the Claimant and their motivations in not redeploying him.
At the EAT the council sought to argue that age was not the motivation it was to save the cost of the pension. The EAT rejected this contention as entitlements under pension schemes where inherently dependent upon ascertaining a certain age.
This serves to remind employers that they need to be careful when taking decisions to dismiss or not to dismiss employees so as to save the cost of age related benefits whether that be pensions and or ill health retirement schemes!
For further information relating to age discrimination, or any other employment law matter, please contact Andrew Moore, 0800 083 0815.
Andrew Moore has been working as an employment law specialist since 2000 and has conducted over 100 hearings appearing in many Employment Tribunals across England, Scotland and Wales. He has acted on behalf of claimants and businesses from the very small to the large national organisations.