It is well established that if salary costs are used as a significant factor in a redundancy exercise, employers may face claims of age discrimination. At first glance, this seems surprising. Why can’t a struggling company seek to cut its more expensive staff? The problem is that the senior better paid staff tend to be older than staff who are paid less.
As the European Court put it: “budgetary considerations cannot justify discrimination”. Perhaps a fairer method is to allow all staff to apply for the reduced number of lower paid jobs that remain.
But employees should not think that it is easy to win claims of indirect discrimination. Tribunals will not just say: “To dismiss higher paid senior staff is discrimination” as they would a proposal to dismiss all part time workers. It is not ‘judicially noted’ that higher paid staff are necessarily older staff. For this reason, as with all claims of indirect discrimination, the employee needs to get their facts and statistics in order for the tribunal.
The Employment Appeal Tribunal (EAT) has held in the case of Bethnal Green and Shoreditch Education Trust v Dippenaarthat a rumour that senior teachers were to be replaced by more junior cheaper ones was not sufficient evidence. Although the claimant gave witness evidence, the EAT said: “The treatment of the Claimant in her individual circumstances cannot be used to show that others in identical circumstances were or would be subject to a similar and particular disadvantage."
Perhaps the best bit of the EAT’s judgment is a ruling that has the potential to defeat any age discrimination claim: “One of the difficulties of a claim of age discrimination is that no-one remains the same age from one day to the next.”