Case round-up: London Borough of Tower Hamlets v Wooster

The Employment Appeal Tribunal (EAT) upheld an Employment Tribunal’s decision that Mr Wooster had been unlawfully discriminated against on the grounds of age by being made redundant at 49 to save the costs of an early retirement pension that he would have received if he left work after he was 50.

Wooster began working for the London Borough of Tower Hamlets in 1973, and following promotion and a restructuring was seconded to East End Homes (EEH), a provider of social housing. In October 2006, Wooster was informed by the council that the secondment would be ending and was encouraged to apply for voluntary redundancy, despite an offer from EEH to extend the secondment.

Wooster was advised by the council’s pension office that if his employment was terminated after his 50th birthday, he would be entitled to an immediate early retirement pension (under the Local Government Pension Scheme), which was not subject to actuarial reduction. If, however, he left before his 50th birthday, he would have to wait until at least the age of 60 before he was entitled to receive a pension, which represented a significant cost saving to the council. Wooster reluctantly accepted voluntary redundancy and his employment ended on 29 December 2006 – six months before his 50th birthday. He then claimed unfair dismissal and age discrimination.

The council appealed against the tribunal’s findings of age discrimination and the remedy of re-deploying Wooster to a new post, but not unfair dismissal.

The EAT dismissed the appeal, holding that there had been adequate material on which to draw the inference that the council’s decision not to redeploy Wooster or extend his employment was driven by wanting to end his employment before he reached 50. When rejecting EEH’s offer to extend Wooster’s secondment, the council had said: “If he goes now we do save the pension.” The EAT accepted the council’s argument that to extend the secondment would have been ultra vires and therefore unlawful, but upheld the age discrimination complaint because its failure to redeploy Wooster amounted to less favourable treatment on the grounds of his age.

R (On the application of G) v Governors of X SchoolThe High Court held that in the exceptional circumstances of this case, the employee should have been allowed legal representation in his internal disciplinary hearing. He was a teaching assistant accused of having an inappropriate relationship with a child. A dismissal on these grounds could have meant that he was banned from working with children and ended his career. The appeal was heard by the Court of Appeal on 6 October 2009 and judgment is expected shortly.

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 Key points

• The EAT noted that there may be circumstances where such a dismissal might be justified. Clarification is required from future case law.
• It would have been unlawful for the council to deliberately extend Wooster’s employment until he passed 50 so any decision to refuse such a proposal would be justifiable. But his pension entitlement was a pivotal factor in the council’s decision.

What you should do

• Bear in mind age factors such as employees approaching a pension threshold and consider the motivation for dismissal.
• Base all redundancy decisions on objectively justifiable criteria.
• Ensure that all factors and reasoning for dismissal decisions are documented.