Mr Wooster was made redundant at the end of 2006; he was 6 months shy of this 50th birthday. If he had remained in employment until 50 he would have been entitled, under the Local Government Pension Scheme, to an immediate early pension. As it was, by leaving while 49, his pension was not payable until he was at least 60.
Mr Wooster successfully claimed unfair dismissal and unlawful age discrimination. The tribunal found that the decision to dismiss him before he reached 50, was motivated by a desire to avoid the cost of having to fund the early pension. Mr Wooster’s employer appealed, but lost.
In relation to age discrimination the EAT held:
“There was adequate material on which [the tribunal] could have drawn the inference that the Council's conduct in not redeploying [Mr Wooster], or extending his employment, and instead dismissing him when it did, was motivated by a desire to terminate his employment before he reached 50.”
There is no positive duty to keep someone employed (when no longer required) simply to allow them to qualify for an early pension. Indeed doing so could be unlawful - as it would have been in Mr Wooster’s case. However, an employer’s motive for dismissing will be scrutinised. If there is a deliberate termination to avoid additional cost, when valid and permissible alternatives exist, a finding of unlawful age discrimination is possible.
There is no cap on the compensation payable for age discrimination and a large award is expected. It is crucial therefore for employers to review their reasons for dismissal andto assess the risks ofan age discrimination claim. Where risks exist, the possibility of justification should be considered.
(London Borough of Tower Hamlets v Wooster, UKEAT/0441/08/RN)
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