Amid the news coverage heralding the introduction of the age discrimination regulations, concerns were expressed that some employers would take the deliberate course of dismissing older workers before 1 October 2006, the commencement date for the regulations, simply to avoid the rights those workers would otherwise have acquired. In one of the first cases under the new regulations to reach the employment tribunal, a woman has won her job back.
Ann Southcott, a 67-year-old clerical worker in the therapy department of Treliske Hospital in Truro (operated by the Royal Cornwall NHS Trust), claimed her employer had discriminated against her by dismissing her on 30 September 2006, one day before the age regulations came into force. Had the regulations applied to her, she would have been entitled to 11 months’ notice pay on the termination of her employment instead of the 11 weeks that she received. The trust said that it dismissed Southcott and about 30 other employees to help cover a £32m overspend.
The tribunal did not make a final adjudication on the claim. Instead, the trust agreed to reinstate Southcott with back pay. However, this was not before the tribunal indicated that it was at least arguable that the age discrimination regulations applied to Southcott’s case even though her dismissal took place before 1 October 2006.
The basis for the argument that the regulations applied was a European case called Mangold v Helm (Personnel Today, 21 March 2006), which was decided on 22 November 2005. The rights under the age discrimination regulations are derived from an EC directive formulated in 2000. The European Court of Justice (ECJ) held that a German worker could rely on the directive in the absence of German national legislation implementing those rights. Remarkably, though, the ECJ came to this conclusion despite the fact that Germany, like the UK, had until December 2006 to implement the directive.
It is perhaps not surprising that Southcott’s case, which was backed by public sector union Unison, was compromised at an early stage as a resolution of the issue of whether the age discrimination regulations applied may well have involved protracted legal argument in both the domestic and European courts.
A further limitation on the usefulness of the case concerns the remote chance of similar claims arising in the future. The usual time limit for bringing a claim under the regulations is three months from the date of the act complained of. So there is little likelihood of fresh claims relying on the same argument. Remember, though, that the three-month time limit may be extended for a further three months as long as an employee has raised a grievance in the primary time limit period. This means there may still be cases where the time limit does not expire until the end of the month.
- Southcott’s case is one of the first under the age discrimination regulations to reach the employment tribunal.
- The employment tribunal said it was arguable that a claim could be made for age discrimination before 1 October 2006.
- Employers who dismissed workers before 1 October 2006 to avoid the regulations should be wary.
- Claims can still be made up until the end of April 2007 if an employee has raised an earlier grievance.
Smair Soor is an employment barrister at Seven Bedford Row