The claimant in Brunel University v Killen was head of conferences in the University's residential catering and conferences department.  As a result of a restructuring, the head of conferences role was widened.  Underneath that role, five posts at a lower grade were created, including deputy head of conferencing.  The University's policy on reorganisations was to "assimilate" (the employee slotted into the new post) where the new job was "substantially similar" to the old and to ringfence where there were sufficient elements in common to give the employee an opportunity to be considered for the new post (usually by a selection process).

In this case the management concluded that neither the expanded head of conferences role nor the new deputy head of conferencing position was substantially similar to the claimant's previous role, so she could not be assimilated to either.  They did consider that there were sufficient similarities with the deputy role that she could be ringfenced for that post.  She was interviewed but the post went to a younger, male candidate.  The claimant was dismissed, purportedly for redundancy. The Employment Tribunal decided that there had been no redundancy, but the restructuring constituted "some other substantial reason" (SOSR) for dismissal.  But the Tribunal went on to find that the claimant had been unfairly dismissed and, in addition, she had been less favourably treated because of her age. 

The EAT agreed that there was no redundancy.  The Tribunal had correctly focussed not on the particular work being done by the claimant but on the requirements of the business for work of the kind she was doing.  Far from diminishing, the number of employees had increased. 

The EAT also did not have a problem with the assessment that the dismissal was for SOSR, but concluded that assessment of fairness was flawed and sent it back to a tribunal.  On the age discrimination issue, the EAT overturned the Tribunal.  The EAT agreed that the appointment needed an explanation from the employer; it was more than simply a case of a difference in age and a difference in treatment, as she was of a higher grade than the appointee and impliedly better qualified.  However, the Tribunal had accepted that the appointment to the available post depended on interview, and that the man appointed had performed better than the claimant, and for that reason had apparently rejected a claim of discrimination on the grounds of sex.  Given that, there was no adequate basis for concluding that there had been age discrimination.