In the case Lockwood v DWP the EAT considered, if a Civil Service voluntary severance scheme pays older leavers more than younger leavers, is that unlawful direct discrimination on grounds of age?
As reported in Daniel Barnett’s Employment Law Bulletin it would appear not and the EAT turned down the Claimant's appeal against a fact-based employment tribunal judgement.
The Claimant joined the Civil Service at 18 and took voluntary severance nearly eight years later. Her severance payment was about 61% of that of a colleague aged over 35 with the same service. The employment tribunal rejected her complaint of age discrimination, holding that her comparator was not properly comparable, noting the greater comparative difficulties that older workers face on losing work, and further that the Respondent's policy of higher payments for older leavers to provide financial security was objectively justified on the facts.
UNFAIR DISMISSAL RIGHTS TO APPLY TO THOSE SACKED FOR THEIR POLITICAL BELIEFS
19 FEBRUARY 2013
The case of Redfern - United Kingdom was heard by the European Court of Human Rights (ECHR) last November who ruled the UK doesn’t have sufficient protection to allow an employee dismissed on the grounds of their political beliefs to seek unfair dismissal. The case as detailed below doesn’t say all dismissals are unfair and not justified in some cases, but that the UK needs to offer the opportunity for the employee to challenge. Facts – The applicant was a private-sector bus driver responsible for transporting people with disabilities, the majority of whom were Asian in origin. Remaining in this position, he was also elected to the position of local councillor with the British National Party. At the time, the party’s membership only extended to white nationals. Consequently, the applicant was summarily dismissed from his job out of concern for the anxiety it would cause among passengers. Under domestic law at the time, as the applicant had been employed for under a year, a claim for unfair dismissal could only be brought where the dismissal had been based on grounds of pregnancy, race, sex or religion. Unable to argue discrimination based on political affiliation, the applicant brought an unsuccessful claim of racial discrimination in the domestic courts. Law – Article 11 read in light of Article 10: The Court reasserted that, in some instances, there is a positive obligation on national authorities to intervene in the relationships between private individuals to secure effective enjoyment of the right to freedom of association. Taking into account that no complaints had previously been made against the applicant and that, at the age of 56, he would find further employment difficult to obtain, the Court accepted that his dismissal was capable of striking at the very substance of his Article 11 rights. Had there not been a one-year qualifying period for unfair dismissal claims, the applicant could have pursued an appropriate remedy. The principal question before the Court was therefore whether the qualifying period was reasonable and appropriate in protecting the applicant’s Article 11 rights. The Court accepted that the economic grounds put forward for justifying the qualifying period - European Court of Human Rights / Information Note no. 157 – November 2012 22 Article 11 – Article 12 bolstering the domestic labour market by preventing new employees from bringing unfair dismissal claims – were, in principle, reasonable and appropriate. However, considering the importance of political parties for the proper functioning of democracy, the Court concluded that, in the absence of judicial safeguards, a legal system which allows dismissal from employment solely on account of the employee’s membership of a political party carries with it the potential for abuse. The State was therefore under a positive obligation to provide the applicant the opportunity to challenge his dismissal. This is not to
CIPP Policy News Journal
12/04/2013, Page 78 of 362
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