Facts

Mr Stephenson worked in the HR department of Northumberland County Council (“the Council”). He was put at risk of redundancy and sought suitable alternative positions within the Council.

Positions were banded from 1-12, with higher bands being more senior. Mr Stephenson submitted a preference for a band 10 position, with a second-choice preference for one at band 9. He was not chosen for either role and his role was subsequently made redundant.

Mr Stephenson complained that he had not been considered for more junior roles. He argued that there were a number of band 7 vacancies to which he should have been appointed.

The Council operated a pay protection policy whereby an employee, upon accepting a role 1 or 2 bands below their previous position they would receive the salary of the lower band plus a 15% rate of their previous position. This would not have applied to Mr Stephenson had he been appointed to any band 7 position.

The Council then re-advertised the posts as Band 6 positions which included phrasing such as “entry level HR roles”, “newly qualified HR professionals”, and “launch your career in public sector people management.”

He originally brought a claim of indirect age discrimination alleging that he was selected for redundancy and dismissed due to the fact that in less than 2 years he would be able to access his Local Government Pension Scheme. This allegation was withdrawn and replaced with another indirect age discrimination claim; Mr Stephenson alleged that his position was replaced with one designed to encourage younger persons to apply.

Decision

The Tribunal dismissed his claim.

Because the role advertised was a band 6 role, several pay grades beneath Mr Stephenson, he would not have been entitled to any pay protection. In light of this, the Tribunal found that it was “highly unlikely” Mr Stephenson would have applied for the role.

This was coupled by the fact that he was not even aware of the advertisement for the role until he issued Tribunal Proceedings. Although section 39 of the Equality Act states that an employer cannot discriminate against a person in the course of their offer of employment, case law makes clear that any claimant must be able to demonstrate a “detriment” to claim discrimination.

The Tribunal referred to the case law in Keane v Investigo and Berry v Recruitment Revolution. These cases say that, even if an advertisement appears discriminatory, a claim of age discrimination will not be well founded unless it dissuades an individual with a genuine interest from applying. Someone who was not interested in applying has not suffered any detriment so cannot be said to be the victim of discrimination.

The judgment is available here.

Mr C Stephenson and Mrs S Kirk v Northumberland County Council: 2500613/2017 and 2500617/2017