The intricacies of dismissal and discrimination

01 December 2021

Nicola Mullineux, senior employment specialist for Peninsula, discusses three court cases that centred on issues surrounding dismissal and discrimination

Pitcher v The Chancellor Masters and Scholars of The University of Oxford and Another and The Chancellor, Masters and Scholars of The University of Oxford v Ewart

The employment appeal tribunal (EAT) has upheld contrasting decisions on the effect of the same employer’s compulsory retirement age (CRA) on different people.

Implementing a CRA may be lawful and won’t amount to age discrimination when used correctly. The EAT found in Pitcher v University of Oxford and University of Oxford v Ewart that having a pre-set retirement age was a proportionate means of achieving three legitimate aims – to support inter-generational fairness, for succession planning and to promote equality and diversity. The employer justified retirement age prevented delaying the creation of vacancies, so a younger, more diverse cohort of candidates could be considered for senior academic roles. However, it’s important to understand that this must be applied fairly to ensure there is no risk of discrimination claims.

In these cases, two Oxford University professors were subject to the CRA of 68. Both Professor Pitcher and Professor Ewart, raised claims to the employment tribunal (ET) that the CRA resulted in their unfair dismissal and direct age discrimination.

In separate tribunal hearings, an ET decided that Pitcher was not unfairly dismissed nor discriminated against because of his age. However, the operation of the same CRA was found to be discriminatory towards Ewart and led to his unfair dismissal. The EAT then declared that both decisions on the discrimination angle should stand.

When an employer is accused of direct age discrimination, the law gives them the opportunity to objectively justify their practice. To do this, the employer must point to the legitimate aim of the practice and show that there was no less discriminatory way of achieving that aim. This second element, the ‘proportionality’ test, will be entirely dependent on the specific circumstances and must be supported by robust evidence.

It was held that the University had legitimate aims, for example, succession planning. In Pitcher’s case, a survey of retirees was relied upon, which had indicated that a quarter of those surveyed would have remained in position for a further three years if it had not been for the operation of the CRA. It was not, therefore, perverse of the ET to find that the current turnover rate would have been significantly lower if the CRA was not in place.

In contrast, in Ewart’s case, the rate of vacancies that the CRA created was trivial at 2 – 4%; it was not sufficient to outweigh the severe discriminatory impact of the CRA.

The EAT’s decision shows that it is possible for different ETs to come to contrasting decisions on the same topic, but with neither being incorrect. Decisions will be heavily evidence based, and each ET was entitled to come to the decision it did.

Ultimately, Oxford University can continue with its CRA policy, however, it is also said to be reviewing its approaches to determine whether this is the best solution moving forwards. Professor Ewart confirmed that his tribunal claim was solely about establishing the right to work and allowing him and his colleagues to continue with their important research, instead of being forced into retirement. Implementing flexible working arrangements, including phased retirement plans, allows employees to continue their work whilst nurturing new talent into senior roles on a part-time basis. This may provide a win-win situation for all involved.

Organisations can adopt a similar approach to compulsory retirement if they wish, so long as they are able to objectively justify the reasons for doing so and be able to evidence it as a proportionate means of achieving a legitimate aim.

Gwynedd Council v Barratt and Another

The Court of Appeal (CA) has upheld a decision that a group of claimants were unfairly dismissed by a local authority when the school they worked in closed and they were unsuccessful in applying for positions at a new school in the same location.

The claimants in this case were teachers who were employed to work at a school. The respondent, a local authority, implemented a reorganisation which involved the closure of this school and opening a new school in its place. All staff of the old school were informed they would have their existing contracts terminated and that they would need to apply for roles in the new school. However, the claimants were later interviewed and were unsuccessful.

They went on to bring an unfair dismissal claim against the local authority, arguing that they had been made redundant and had not been provided the opportunity to consult about the redundancy via representatives as per usual procedure. They also submitted that they should have been able to appeal against the decision made to dismiss them. In making these arguments, they relied upon Regulation 17 of the Staffing of Maintained Schools (Wales) Regulations 2006, which outlined that, when staff are being dismissed, the governing body must provide them the opportunity to make representations during the dismissal, and to appeal. The respondent local authority countered by claiming the claimants suffered no disadvantage by not being able to appeal against the decision. This was because the appeal would have made no difference as the school they previously worked for had closed. Due to this closure, the claimants had been made redundant and fully compensated through redundancy pay.

The ET upheld their claim. They found that, although there was a redundancy due to the closure of the first school, they rejected the respondent’s argument that the dismissal was inevitable. The tribunal concluded that the respondent had chosen to circumvent established redundancy procedures and, therefore, provided no opportunity for meaningful or effective consultation. The tribunal went on to comment about the failure to permit an appeal, finding that this had been substantially and procedurally unfair. As the right to appeal any dismissal was now, in their words, so ingrained in employment practices and included in relevant guidelines, it was rare that it would not happen and therefore denying it fell outside of the band of reasonable responses.

The EAT dismissed an appeal and the claim progressed to CA. Again, it was dismissed and the unfair dismissal judgment upheld. The CA noted “[when it comes to redundancy] the absence of any appeal or review procedure does not of itself make the dismissal unfair — that is to say, if the original selection for redundancy was in accordance with a fair procedure the absence of an appeal is not fatal to the employer’s defence.”

However, it was equally noted that “an appeal is a fundamental part of the dismissing process. It affords the employer another opportunity to look at the dismissal and it offers the employees the opportunity to show that the employer’s reason for dismissing them could not be treated as reasonable”.

Follows v Nationwide Building Society

An ET has decided, for the first time, that indirect discrimination can occur even when the employee to whom the provision, criterion or practice has been applied does not have the relevant characteristic but someone they associate with does, and this has the result of disadvantaging the employee.

Under the Equality Act, section.19 (1), indirect discrimination is defined as:

“A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.”

This contrasts with the law on direct discrimination, which does not explicitly require the individual bringing the claim to hold the protected characteristic

This requirement is also not seen in the European Union (EU) directives from which this law is derived, and indirect associative discrimination has been found in European Court of Justice case law (Chez Razpredelenie Bulgaria AD v Komisia Za Zashtita OT Diskriminatsia).

Follows worked as a senior lending manager, based at home due to her caring responsibilities for her disabled mother. She did this for seven years, attending the office a couple of days a week.

When the employer took the decision to reduce the number of senior lending managers, it decided all of those who were left must be based at the office, due to a change in the nature of the work and the need for staff supervision.

During consultation for redundancy, Follows made it clear she could not do this, for the reasons above. She, along with a colleague who was also home based (and wanted to remain so), were eventually dismissed as redundant.

As the interpretation of the law by ETs and EATs remains subject to EU law (including case law), the court had to read section 19 of the Equality Act in line with the EU requirements, reading into it therefore that ‘relevant characteristic of B’s’ could also be that of an associate of B’s. This, therefore, opened up the possibility of indirect associative discrimination, and this claim was successful as it was found reasonable steps had not been taken to avoid a disadvantage being applied to Follows.

As an ET decision, it should be remembered that this is not going to be binding on other courts. Surprisingly, despite the law in this area being in place for quite some time, this is the first time that a claim for indirect associative discrimination has been upheld

Nevertheless, employers would do well to take heed of this finding, as they take steps to get staff back into the office. Taking steps to manage the return carefully and discussing individual circumstances with staff to tackle any difficulties they may have in returning, will help employers provide a more robust defence should this claim come their way.