Woodcock v Cumbria Primary Care NHS Trust

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Richard has worked on some complex cases. I can honestly say that his eagerness to succeed is matched with his willingness to listen and his calm yet consistent approach to confront issues head-on. And above all else, unlike solicitors we have dealt with before, he will go to vast lengths to understand each case before making any assertion. Without hesitation I recommend GD People. Peter Hetherington (Operations Director 1^st Care Ltd, Midlands) We needed help to guide us though our redundancy process and clearly the whole matter had to be handled sensitively. On recommendation, we chose GD People to help co-ordinate and communicate this to our workforce and they did a sterling job for us. We would have no hesitation in recommending their services based upon our own experience to-date. Darren Timson, Landcare Operations Director, Stockport.

Testimonials

Richard has worked on some complex cases. I can honestly say that his eagerness to succeed is matched with his willingness to listen and his calm yet consistent approach to confront issues head-on. And above all else, unlike solicitors we have dealt with before, he will go to vast lengths to understand each case before making any assertion. Without hesitation I recommend GD People.

Peter Hetherington (Operations Director 1^st Care Ltd, Midlands)

We needed help to guide us though our redundancy process and clearly the whole matter had to be handled sensitively. On recommendation, we chose GD People to help co-ordinate and communicate this to our workforce and they did a sterling job for us. We would have no hesitation in recommending their services based upon our own experience to-date.

Darren Timson, Landcare Operations Director, Stockport.

Woodcock v Cumbria Primary Care NHS Trust

The Employment Appeal Tribunal (EAT) has handed down its decision in a ruling on whether employers can objectively justify age discrimination in a redundancy situation.

Mr Woodcock was Chief Executive of North Cumbria Primary Care Trust and was made redundant following the merger of a number of Primary Care Trusts (PCTs) in the area. Mr Woodcock had applied for one of the new chief executive roles after the PCT merger but was unsuccessful and no alternative employment for him was found. He claimed that his dismissal amounted to direct age discrimination as notice to terminate his employment was given so as to expire one month before his 50th birthday, when he would have benefited from an enhanced pension.

The Employment Tribunal found that Mr Woodcock had suffered direct discrimination by being dismissed without proper consultation, but this was justified as it was a proportionate means of achieving a legitimate aim – which included the avoidance of a significant cost to the Trust in respect of the enhanced pension.

The EAT agreed that the tribunal had correctly applied the test but threw doubt on established thinking laid down in Cross v. British Airways plc [2005] IRLR 423, which is said to be authority for the proposition that “cost alone cannot be a legitimate aim for the justification of discrimination”. The EAT stated, "We respectfully agree with Burton P’s observation ...that, as a matter both of principle and of common sense, considerations of cost must be admissible in considering whether a provision criterion or practice which has a discriminatory impact may nevertheless be justified; and we see no reason to take a different view in the context of the justification of (what would otherwise be) direct age discrimination. But we find it hard to see the principled basis for a rule that such considerations can never by themselves constitute sufficient justification or why they need the admixture of some other element in order to be legitimised."

The EAT did not need to decide the point and went on to say that they should be slow to depart from the established position but the reasoning will give lawyers much to play with and employers reason to be optimistic as to whether you can objectively justify age discrimination when cost is the sole issue.

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Case Law Update

Morgan v The Welsh Rugby Union

This is a useful case for reviewing some of the issues you need to consider when engaging on a redundancy procedure in its various forms.

In this particular case, the Claimant and a colleague were made redundant and their roles were replaced by one amalgamated wider role. Both men were interviewed for the new role but despite the fact that the Claimant met the new job description and the colleague did not, the colleague was given the job.

The Claimant's argument was based on the case of Williams v Compair Maxam [1982] IRLR 83. Williams sets out principles of good industrial relations to be observed in redundancy cases where the employees are represented by an independent union recognised by the employer. The EAT when outlining these principles was clear that they should not be taken as immutable or principals of law. Nonetheless, the principals have long been used as a benchmark for managing redundancy situations. They read as follow:

Conteh v Parking Partners Ltd

The Claimant was a black African female born in Sierra Leone. She was employed by the Respondent employer from 16 February 2009 as a customer car park attendant working in a car park at St George's Residential Development. The employer was a company which carried on business providing car parking facilities.

The marketing staff for St George's worked at the premises and were issued with tickets as they entered the car park. To leave the tickets had to be validated and on occasion the validation machine was broken. The Claimant had standing orders not to allow anyone to leave if their ticket was not validated. On the 14th March 2009, the Claimant exercised this standing order and refused to allow a member of the marketing staff to leave. The following day another member of the marketing staff came into the Claimant's office and was alleged to have said that "The fucking bloody machines are not working and who is paying your fucking bloody wages?", pointed to the sign on the wall and answered the question by saying, "St George's, you fucking stupid black African bitch". She went on insulting the Claimant, eventually letting herself out and slamming the door.

Lisboa v Realpubs

Over four decades the Coleherne Public House in Earls Court, London developed a national and international reputation as London's first 'gay pub'. Realpubs bought the premises. Realpubs own and operate gastropubs and their business model is to buy failing pubs and reposition them as gastropubs, offering good food and drink to all sections of the community.

In September 2008 when Realpubs acquired the Coleherne it was then in decline. The premises underwent refurbishment and were re-launched as the Pembroke Arms, opening to the public on 5 December 2008.

The Claimant in this case was an openly gay man. His working life has been spent in the hospitality industry. Between 2003 and late 2008 he worked as General Manager of a gastropub in Ealing. In late November 2008 he was interviewed by Realpubs' Operational Manager for a post in the Pembroke Arms. Following that interview the Claimant was offered and accepted a position as Assistant Manager at the Pembroke Arms. His employment commenced on 1 December 2008; it ended with his resignation on 11 January 2009.

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