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An employer cannot pay lower redundancy payments to older staff because they are getting a pension as well

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The Employment Appeal Tribunal found that a council could not rely on a statutory defence to justify an age discrimination claim. Sefton Council paid redundancy payments in accordance with the Civil Service Scheme. This scheme reduced redundancy payments if employees were eligible to draw a pension as it was thought unnecessary to compensate people drawing a pension for loss of a job to the same extent as if they were still in work.

Some no-doubt pension age or close to pension age judges ruled that in the current climate, individuals over 60 remain in the workforce and require income from their earnings and pension to maintain a standard of living, so the reduction in redundancy payment was not justified and Ms Heron got her full redundancy payment.

Detail

Ms Heron TUPE transferred from the civil service to Sefton council. Her entitlement to the Civil Service Compensation Scheme (which was derived from statute) was incorporated into her new contract with the council. At the age of 61, the council made her redundant and awarded her a redundancy package in accordance with the scheme. However, whilst her younger colleagues under 60 received redundancy packages based on their length of service, Ms Heron’s package was capped because of her age. She subsequently brought an age discrimination claim.

The council argued it had not discriminated against Ms Heron because it had awarded her redundancy package in accordance with statute. The EAT disagreed and said that:

whilst the scheme is derived from statute, it does not require different treatment of employees over 60 in terms of redundancy payments (it merely provides for it); and
when Ms Heron TUPE transferred to the council, the scheme rules ceased to be statutory and became contractual. This meant that the scheme could not be justified using the statutory defence.

The council also argued that if it was age discrimination, their decision to pay Ms Heron a lower redundancy package than her younger colleagues was a proportionate means of achieving a legitimate aim, because someone who has reached pension age will be better provided for as they can draw their pension. The EAT disagreed and said that in the current climate, individuals over 60 remain in the workforce and require income from their earnings to maintain a standard of living, so the fact that Ms Heron can draw a pension will not justify age discrimination. Accordingly, Ms Heron was entitled to the balance of the redundancy payment.

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John McCririck loses age discrimination claim

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It was widely publicised before Christmas that John McCririck, horse-racing pundit, lost his age discrimination claim against Channel 4. The Tribunal appears to have found that the decision to dismiss Mr McCririck was not age-related but due to his sexist views, unpalatable presenting style and controversial appearances on reality TV shows. That said, the Tribunal judgment stands up poorly under legal scrutiny and the factual basis for the decision is not entirely clear.

In 2012, Channel 4 secured the exclusive rights to broadcast horse racing ‘crown jewel’ events on terrestrial TV. This was a real coup and the broadcaster decided to use this opportunity to ‘to grow new audiences’.

As part of a shake-up of its presenting team designed to achieve this growth, Mr McCririck, aged 72, was dismissed. He claimed that he lost his job to younger rival, Clare Balding, because of his age and sought £3m in damages.

In age discrimination cases, the legal analysis is as follows:

Stage 1 – the employee must show evidence from which discrimination can be inferred in the absence of an adequate explanation;
Stage 2 – if the employee is successful at (1), the burden of proof shifts to the employer to prove that discrimination did not occur i.e. to provide a non-discriminatory explanation for its actions; and
Stage 3 – if discrimination did occur (i.e. the employer cannot provide a non-discriminatory explanation), it has a second bite of the cherry as it has a chance to argue that its actions are justified in any case.

Mr McCririck satisfied Stage 1 as he convinced the Tribunal that there was sufficient evidence to infer that discrimination had taken place. That evidence included: (1) that Mr McCririck’s co-presenter, Ms Tanya Stevenson, aged 42, was retained as a presenter on Channel 4 racing; and (2) all of the presenters whose contracts were terminated as part of Channel 4’s ‘revamping’ were over 50.

The Tribunal then went straight on to Stage 3 and considered whether the decision to dismiss Mr McCririck could be justified. That suggests that either Channel 4 was unable to provide a non-discriminatory explanation or the Tribunal got confused as to the legal test to be applied.

At the very end of its judgment, the Tribunal suggests that McCririck was “dismissed because of his persona emanating from his appearances on celebrity television shows….together with his appearances as a broadcaster on Channel 4 Racing where, as he accepted, his style of dress, attitudes, opinions and tic tac gestures were not in keeping with the new aims’. That appears to be a non discriminatory explanation for the dismissal but if that is the case, why did the Tribunal go on to consider justification at all?

In terms of justification, the Tribunal found that Channel 4’s aim of attracting a wider audience to horse racing was legitimate and the means used to achieve it were proportionate. Unfortunately, no explanation is provided of why the Tribunal decided the means used were proportionate and there is no discussion of what alternatives Channel 4 might have implemented in order to achieve the same aim.

Is Mr McCririck’s case really so different to that of presenter Miriam O’Reilly who successfully won her age discrimination case against her BBC bosses after being culled from the long-running ‘Countryfile’ series to be replaced by a younger presenting team? In that case, the wish to appeal to a primetime audience, including younger viewers, was found to be a legitimate aim but it was not proportionate “to do away with older presenters simply to pander to the assumed prejudice of some younger viewers”. It is unclear why the same does not apply in the present case.

Bearing in mind the flaws in the judgment, it seems likely we have not seen the last of Mr McCririck.