An Employment Tribunal must reconsider its decision that a rushed redundancy process was not direct age discrimination.
Facts
In 2019, Gentoo decided to restructure but did not follow its usual policy of obtaining board approval in order to hurry through the process. Mr Cook was selected for redundancy. He would have become entitled to an enhanced pension if he was made redundant after turning 55, which would have required Gentoo to make a payment into the Local Government Pension Scheme of approximately £80,000. Gentoo held an initial consultation meeting with Mr Cook, following which he was signed off work with stress. Mr Cook did not attend a second consultation meeting and was dismissed without notice on 16 May 2019. He would have reached the age of 55 on 11 August 2019.
The ET found that Mr Cook’s dismissal was unfair, but he would still have been dismissed before he reached 55 if a fair procedure had been followed. The ET also decided that the curtailment of the redundancy process to avoid Mr Cook obtaining an enhanced pension was not direct age discrimination. They said he had not identified an appropriate comparator, and in any event this was a proportionate means of achieving a legitimate aim.
Mr Cook appealed against the decision that Gentoo had not subjected him to direct age discrimination.
Decision
The Employment Appeal Tribunal (EAT) found that the ET had not analysed Gentoo’s justification correctly.
The EAT said that the ET had made a number of errors. They had not considered the specific nature of justification in a direct age discrimination claim, and in particular they did not consider the need for “social policy” objectives or refer to the leading case of Seldon v Clarkson Wright & Jakes. They did not consider the fact this involved departing from Gentoo’s usual policies, or how the regulator would view this. They also did not refer to the case of Woodcock v Cumbria Primary Care Trust, which dealt with a similar situation. They did not consider the discriminatory impact on Mr Cook in relation to both the unfair procedure and his loss of an enhanced pension, and did not explain why they saw the enhanced pension as a “windfall”.
Most importantly, the ET did not carry out the detailed analysis required in cases about justification of direct age discrimination. The EAT said that they failed to carefully balance the gravity of the discriminatory effect of the dismissal in breach of Gentoo’s procedures against the legitimate aims of Gentoo, and did not consider whether early dismissal was appropriate and reasonably necessary to achieve that aim.
As there could be more than one answer if this was considered properly, the case was remitted to a new ET to decide this point.
The judgment is available here.
Mr K Cook v Gentoo Group Limited [2023] EAT 12, 15 February 2023