Facts

Dr Magoulas began working for Queen Mary University of London (“QMUL”) on 1 April 2000 as a Non-Clinical Lecturer in the Department of Neurosurgery. Due to funding issues, QMUL needed to make redundancies. Dr Magoulas was placed at risk.

At the same time QMUL had advertised for 20 Early Career Researchers (“ECR”) in a bid to boost its income through research.  QMUL said that the ECR posts were not open to those who had not been independent researchers before 1 August 2009. Dr Magoulas did not meet the criteria for appointment to the ECR role as he had not been an independent researcher prior to this date.

On 10 August 2012 Dr Magoulas was dismissed by reason of redundancy.  He brought a claim of indirect age discrimination in relation to the ECR posts. He argued that the selection criteria disproportionately favoured the younger people because of the 1 August 2009 date. QMUL’s data showed that successful candidates had an average age of 36.5 years.

Dr Magoulas also brought a claim of unfair dismissal in relation to the procedure followed during his selection for redundancy.

ET decision

The ET dismissed Dr Magoulas’s claim of indirect age discrimination in relation to the ECR posts. 

The ET accepted that the requirements of the ECR posts was a Provision, Criterion or Practice (“PCP”) that put Dr Magoulas’s age group at a particular disadvantage compared with the younger researchers.  Dr Magoulas did not meet it because he had been a researcher for many years before 2009. The ET found that the cut-off date disproportionality favoured younger applicants.  This was supported by QMUL’s data that successful candidates were an average age of 36.5 years. 

However, the ET was satisfied by QMUL’s justification defence.  QMUL had a legitimate aim: to encourage the appointment of new researchers and to generate new ideas. Applying the cut-off date was a proportionate means of achieving this aim because ECRs were funded by the State rather than by QMUL and were, therefore, cost neutral to QMUL and might possibly even contribute to their income.

The ET dismissed Dr Magoulas’s unfair dismissal claim on the basis that there was a “redundancy situation”, the choice of performance criteria was within a band of reasonable responses and therefore the dismissal was not unfair.

Dr Magoulas appealed the decision in relation to the indirect age discrimination claim.

EAT decision: age discrimination

Dr Magoulas made two main challenges against the ET’s decision:

1.      The ET did not properly consider the impact of the PCP on the disadvantaged group (i.e. those at risk of redundancy).

The EAT rejected this.

The EAT stated that the impact of the PCP was obvious in that few, if any, members of that group could have been appointed as an ECR. The EAT found that the ET had been well aware of this as it “knew precisely what the discriminatory effect of the PCP was and that that was what it was required to weigh against the justification advanced by the employer.”

2.     The ET did not properly consider proportionality when assessing justification

The EAT rejected this.

Dr Magoulas sought to argue that QMUL had a duty to put forward evidence about less discriminatory or less onerous alternatives. He claimed that, as QMUL had not done so, they are unable to justify their PCP. Dr Magoulas also made a related argument that there was a duty on the ET to consider manifest alternatives to the PCP, that there were manifest alternatives here (that he identified and suggested to the EAT), and that therefore the ET erred in law by failing to consider those.

The EAT did not accept Dr Magoulas’s argument that an alternative existed since employees also had to take voluntary redundancy in order to make the necessary savings which were far more than the cost of Dr Magoulas’s salary.

The EAT said employers do not have to look into all alternatives in every case. The EAT stated that there could be such a burden in some cases, but it must depend on the facts. In this case, neither the law nor the facts required such a duty to be imposed.

EAT decision: unfair dismissal

Dr Magoulas brought a further third argument that, if the EAT found either of the above two grounds were well-founded, it would have “infected” the process in relation to his redundancy. The EAT found that, on the facts, the dismissal of Dr Magoulas was the culmination of a long and careful process of restructuring that had involved a long and careful consultation process.  It was therefore inconceivable that, if there had been any viable alternative at all to the compulsory redundancy of Dr Magoulas, then this would not have emerged during the redundancy process.

The EAT found that the ET had not erred in relation to the first two grounds of appeal and therefore its decision in regard to the unfair dismissal was “not flawed by any error of law”. For these reasons, the EAT dismissed Dr Magoulas’s appeal.

The EAT refused permission to make any appeal to the Court of Appeal.

The judgment is available here.

Magoulas v Queen Mary University of London (Age Discrimination) [2016] UKEAT 0244_15_2901 (29 January 2016)

Jake Dutton was counsel in this case for Dr Magoulas. Whilst acting for Dr Magoulas, Jake Dutton was also battling cancer and he continued his practice throughout his illness. Shortly after the judgment was given, Jake Dutton died.

A justgiving page has since been set up in his memory: https://www.justgiving.com/fundraising/Carmel-Dennehy2