It was neither direct nor indirect age discrimination when two part-time partial retires had their posts deleted.

Facts

Ms Craig and Ms Richardson were 56 years old and worked part-time for the HMRC. Ms Craig worked just under 30 hours a week over four days and Ms Richardson worked 21 hours a week over three days.

Both Ms Craig and Ms Richardson worked in relatively senior positions in the company with Ms Craig acting as Ms Richardson’s line manager during the time in respect of the case.

In January 2017 Mark Willis and Irene Loh were appointed to oversee the Making Tax Digital for Business Programme.

On 1 March 2017 Irene Loh arranged for an “awayday” which took place in Newcastle. Ms Craig alleged that during this awayday Irene Loh stated that part-time working was a problem for her. Another colleague of Ms Craig affirmed that part-time working was discussed but denies that anything negative was said about it.

After a company-wide reprioritisation exercised was carried out, a new model was devised for the Making Tax Digital for Business Programme. In this new structure it was decided that four posts would be removed including both that of Ms Craig and Ms Richardson.

On 16 May 2017, after hearing about her potential redeployment, Ms Craig had a telephone call with Mark Willis and Irene Loh during which Ms Craig alleges that Irene Loh said “she needed people who worked Monday to Friday and beyond.”

On 26 May 2017 Theresa Middleton (director of the Making Tax Digital for Business Programme) replied to an email regarding the redeployment of workers whose roles had been removed in which she stated “we are already maxed out with folk doing a range of different patterns.”

Both Ms Craig and Ms Richardson were offered the chance to apply to various roles within the company but neither was accepted in any of these new roles.    

On 13 April 2018 Ms Richardson was dismissed after failing to maintain acceptable attendance. Ms Craig remains employed by the HMRC having been provided with a number of temporary posts.

Decision

The Employment Tribunal dismissed both the claims of direct and indirect discrimination.

Direct age discrimination

The Tribunal found that the evidence of Mark Willis and Irene Loh was clear and credible.

The Tribunal judged that the reason for the removal of the roles was not due to the age of the employees working those positions, but the fact that these roles did not suit the Making Tax Digital for Business Programme.

There were no facts from which age discrimination could be inferred and, as such, the burden of proof did not shift. The claim was therefore dismissed.

Indirect age discrimination

To satisfy the Tribunal that there was indirect discrimination, Ms Craig and Ms Richardson needed to show that there was a provision, criterion or practice (PCP) which put persons over the age of 56 years old at a particular disadvantage, and that the PCP was not a proportionate means of achieving a legitimate aim.

The alleged PCP in this case was either requiring employees to work full time and/or replacing part time employees with full time employees.

The Tribunal did not find any evidence of such a PCP existing. It made the following findings:

  • With regards to the remarks alleged to have been said by Irene Loh during the awayday on 1 March 2017 (that part-time working was a problem) the Tribunal believed the evidence of Irene Loh, over that of Ms Craig, as her evidence was corroborated by a co-worker.

  • With regards to the remarks alleged by Ms Craig to have been said by Irene Loh during the telephone call on 16 May (that she needed people who worked Monday to Friday 9-5 and beyond) the Tribunal once again believed the evidence of Irene Loh. In this instance the other parties to the call also gave “clear and credible” evidence that no such wording was used.

  • The email from Theresa Middleton stating “we are already maxed out with folk doing a range of different patters” was said to have been overly interpreted by Ms Craig to fit into her already existent ideas of discrimination. The Tribunal found that this evidence alone could not fully establish an inference of a bias against part-time working.    

Because no PCP could be identified, the claim failed. It was dismissed by the Tribunal.

The judgment is available here.

Ms C Craig and Ms S Richardson v The Commissioners for HMRC: 2501090/2017 and 2405123/2017

Comment