Facts

Dr Lees worked for Imperial College. After 28 years continuous service, her employment became at risk of redundancy. Dr Lees was offered alternative employment, but refused and claimed that such alternative employment was not suitable. There was no work for Dr Lees to perform under her existing contract as Joint Assistant Director of the CTEU. In the absence of formal notice of redundancy under that contract, Dr Lees resigned.

Dr Lees brought proceedings for unfair dismissal and direct age discrimination. She argued that a hypothetical comparator aged under 50 would not have been treated the same way. Dr Lees was aged over 50 and, had she been made formally redundant, she would have been entitled to draw an enhanced pension before the age of 60 and this would have to be funded by Imperial College. Dr Lees argued that such a comparator would have received an appropriate redundancy payment and that Imperial College’s decision making was influenced by the additional “pension strain” that would be involved.

The ET rejected Dr Lees unfair dismissal and age discrimination claims. Dr Lees appealed to the EAT.

Decision

The EAT upheld the appeal.

In a discrimination claim, the ET should first look at whether the Claimant has shown fact from which discrimination could be inferred. Then, if it finds that there are such facts, it is for the Respondent to show that discrimination did not occur. This is usually referred to as the shifting burden of proof.

The EAT found the ET’s reasoning in relation to the shifting burden of proof in this case to be flawed. The EAT found that the ET had failed to take into account whether pension strain consideration influenced the behaviour in any material way.

Despite this, the ET had found that the burden of proof had shifted, but had been discharged because “there was no compelling reason to infer discrimination”. The EAT found that the ET’s reasoning in relation to this was erroneous. Once the burden of proof has shifted, it is for the Respondent (in this case, Imperial College) to show that there has been no discrimination. That the ET considered there to be no compelling reason to infer discrimination is irrelevant: once the burden had shifted, then unless the Respondent in a discrimination claim is able to show that discrimination did not occur, the ET must uphold the claim.

For these reasons, the Eat upheld the appeal in relation to the age discrimination claim.

The EAT also upheld the unfair dismissal claim and, satisfied that the ET would be competent to reassess the case after having receiving EAT’s guidance, remitted the case back to the same ET for rehearing.

The judgment is available here.

Lees v Imperial College Of Science Technology And Medicine (Redundancy) [2016] UKEAT 0288_15_1401 (14 January 2016)