May be justifiable on grounds of cost alone

In Woodcock v Cumbria Primary Care the EAT considered the case of a claimant who had been given notice of redundancy prior to a scheduled formal consultation meeting. One of the reasons given for this by the employer was that it wanted the notice to expire (and thus the employment to terminate) before the claimants' 50th birthday, at which point he would have become entitled to extra benefits on redundancy.

He claimed that this was age discrimination. He argued that in a case of redundancy, consultation before notice was given was an absolute right and a failure to consult could not be justified. He also argued that the employer had purported to justify its actions on the basis of cost alone, and that this was not permissible.

The EAT agreed that the timing of the dismissal was age discrimination but, on the facts of this particular case, decided that the discrimination was justified. Following the re-organisation which had resulted in the claimant's post becoming redundant, he had been moved into a temporary role for some time and had already been given a far longer period of continued employment before notice of termination than he was legitimately entitled to expect. He had no legitimate expectation at the time the redundancy situation arose that his employment would continue beyond his 50th birthday. The employer's defence succeeded.

Point to note

  • The EAT confirmed that the leading case of Cross v BA says that, in such a case, the employer cannot rely solely on considerations of cost to justify age discrimination. There must be other justification and this was certainly the case here. However, the President of the EAT, in giving this judgment, also said that it seemed to him that an employer should be able to justify a measure producing a discriminatory impact simply on the basis that the cost of avoiding the impact, or rectifying it, would be disproportionately high.