In the case of Sturmey v Weymouth and Portland Borough Council, it is being considered whether a genuine redundancy dismissal can amount to age discrimination due to its timing and whether bringing the date of a redundancy forward to avoid significant pension costs can be justified. Sturmey was dismissed on the grounds of redundancy as part of a reorganisation, which took effect just a few days before her 55th birthday. If she had been aged 55 or over she would have been entitled to an immediate pension. Sturmey argued that the timing of her dismissal amounted to unlawful age discrimination.
The previous tribunal dismissed her discrimination claim, holding that her age had nothing to do with the dismissal and a younger person in comparable circumstances would also have been dismissed.
The tribunal also stated that even if age was a factor in the timing of the dismissal, saving the Council and its taxpayers significant sums was sufficient justification for the dismissal.
The EAT took a different view and upheld her appeal. It held that the tribunal had not referred in its decision to evidence which demonstrated that the timing of the decision was of significance to the employer, which indicated that Sturney may have been dismissed earlier than would otherwise have been the case. The EAT also pointed out that this case did not lay down a general principle that skipping over a redundancy process because of an employee’s age will always be justified as a proportionate means of achieving a legitimate aim.
The case was remitted to a fresh tribunal panel.
ECJ judgement on Collective Consultation 1 May 2015
A much anticipated judgement from the European Court of Justice (ECJ) has been handed down that should restore the headcount process when considering the need for collective consultation.
The European Court of Justice has handed down a judgement on the cases Union of Shop, Distributive and Allied Workers (USDAW) and B. Wilson v WW Realisation 1 Ltd (in liquidation), Ethel Austin Ltd and Secretary of State for Business, Innovation and Skills that takes us one step closer to reversing the EAT decision requiring employers to collectively consult whenever an employer proposes 20 or more redundancy dismissals in 90 days or less across its business, regardless of how many redundancies are proposed at any single establishment
This judgement follows the announcement in February from the Advocate General who released an Opinion saying that the EAT’s decision in Woolworths was wrong.
With thanks to Daniel Barnett’s employment law bulletin, for the following alert of the latest summary from the Court of Justice of the European Union.
“ECJ: Collective Consultation - Woolworths Decision The European Court of Justice has handed down its judgment in the Woolworths and Ethel Austin cases. The full text is not online yet, but the court's official summary is. The ECJ held that 'establishment', in the collective redundancy legislation, refers to an individual workplace (or, more accurately, the entity to which the workers made redundant are assigned to carry out their duties), not to the employer as a whole. So when establishing headcount to see whether an employer needs to engage in collective consultation (required when contemplating 20+ redundancies in a period of 90 days), Woolworths was right to count each store as a separate 'establishment'. This, in turn, meant that it did not need to engage in collective consultation with staff who worked in a store with a headcount of less than 20. The ECJ has formally referred the case back to the Court of Appeal, but the Court of Appeal's decision is now likely to be a formality - i.e. reversing the decision of the EAT in the summer of 2013 which set the employment law world afire.” This brings us one step closer to returning to a pre-Woolworths position of consultation obligations being triggered on an establishment by establishment basis which would significantly lighten the burden on organisations who would no longer have to try to keep track of all redundancies proposed across the whole business. Previous summary on this subject is available at news .
CIPP Policy News Journal
25/04/2016, Page 66 of 453
Made with FlippingBook - Online magazine maker