Facts

Mr Matar had been employed as a Locum Consultant by Imperial College Healthcare NHS Trust for a number of years when it was realised in 2017 that this was in breach of NHS regulations because he was not on the specialist register.  He was in his late 50s at the time and intended to retire when he reached 60 in May 2019.

Mr Matar succeeded in a claim for direct age discrimination due to the way the NHS Trust had dealt with his situation.  The Employment Tribunal (ET) found they had failed to provide him with the same support and encouragement to seek specialist registration as it had for another younger Locum Consultant working in the same division. Instead, the NHS Trust proactively investigated the costs of terminating Mr Matar’s employment.  The NHS Trust had explained that they had treated him like this because they did not consider he would accept a lower status position and because he was close to his intended retirement.  The ET found that these were age-related assumptions.

The NHS Trust appealed against this decision.

Decision

The Employment Appeal Tribunal upheld the ET’s decision.

They found that the ET had correctly applied the burden of proof in discrimination cases, and had been entitled to conclude that it was for the NHS Trust to show that the reasons for Mr Matar’s less favourable treatment were in no sense whatsoever because of age.  Although there were initially reasons for a difference in treatment between Mr Matar and the younger consultant (as Mr Matar’s practice was restricted), these were no longer material by the end of 2017. 

It was clear that the ET was satisfied that the reasons for the treatment were because of age, and they had permissibly found that Mr Matar’s employer had made assumptions about his response to the regulatory issue that were related to his age.

 The judgment can be found here.

Imperial College Healthcare NHS Trust & Anor v Matar [2023] EAT 1, 24 January 2023