Facts

Mr Walsh worked in a leisure centre for Tewkesbury Borough Council (“the Council”). If Mr Walsh’s employment continued beyond December 2009 (when he would be 50 years old), he was to become entitled to take early retirement with an annual pension of £11,456.56 and a lump sum of £31,095.02. If his employment terminated before this date, he would not become entitled to this.

In November 2008, Mr Walsh and other leisure centre staff were informed of proposals to transfer the leisure centres from the Council’s control to local schools. The staff were warned that there would be redundancies and, in March 2009, Mr Walsh applied for voluntary redundancy. Mr Walsh was invited to a meeting with the interim Chief Executive in April 2009 and they discussed extending Mr Walsh’s employment to March 2010 (the end of the restructuring process).

After that meeting, the interim Chief Executive met with the HR consultant supervising the restructuring and asked him to consider if there was a need to extend Mr Walsh’s post. The HR Consultant calculated a pension strain on the Council of £90,536 by extending his employment to March 2010, but did not look into the business case for extending Mr Walsh’s position.

The Council decided not to extend Mr Walsh’s position and his employment terminated on in September 2009. Mr Walsh submitted claims to the Employment Tribunal for direct age discrimination and unfair dismissal.

The Employment Tribunal’s decision

Mr Walsh argued that if he not been three months short of his 50th birthday and in line for a pension, his post would have been extended until March 2010. The Tribunal upheld his claims and held that age was the reason why his position was not extended.

The Tribunal was able to infer that the pension strain costs were relevant to the decision not to extend Mr Walsh’s position. The Tribunal inferred this from the chronology of events that took place, the fact that the redundancy exercise was a very costs driven process and the absence of an evaluation of the business case for extending Mr Walsh’s position.

In relation to justification, the Tribunal held that the Council had failed to show that the decision against extending Mr Walsh’s employment was anything other than costs driven, and, according to the decision in Cross, costs alone cannot justify discrimination. Therefore, there was no legitimate aim behind the Council’s actions. The Tribunal then went further and said that even if there had been, the Council’s actions would not have been proportionate given the very significant detriment caused to Mr Walsh.

The judgment is available here.

Mr Christopher Walsh -v- Tewkesbury Borough Council, Bristol Employment Tribunal Case number 1404614/2009