Age discrimination in redundancy: employment tribunal decisions

This article provides a round-up of employment tribunal decisions on age discrimination in redundancy, a common complaint during the recession. Although the decisions are not binding on other tribunals, they provide useful illustrations for employers of redundancy situations that have led to age discrimination claims and, in some cases, large awards of compensation.

Introduction

Redundancy figures published by the Office for National Statistics (ONS) in 2009 reveal that: "In the three months to January 2009, 266,000 people had become redundant in the three months before the Labour Force Survey interviews, up 86,000 from the three months to October 2008 and up 154,000 from a year earlier."

Although figures for the three months to June 2009 show a decrease of 9,000 over the three months prior to the Labour Force Survey interviews, the overall figure for redundancies was still up 150,000 on the previous year.

Alongside this rapid rise in redundancy dismissals, there has been a significant increase in the number of unfair dismissal claims lodged at employment tribunals. In its press release announcing the publication of its annual report for 2008/09 (on the Acas website), Acas notes that the recession has stimulated a 22% rise in the number of unfair dismissal cases referred to the organisation for conciliation purposes, and that demand for redundancy advice has soared by almost 75%.

Although older workers may sometimes receive higher statutory or contractual redundancy payments than younger colleagues, they are perhaps more likely to feel that they have been left with few options in the job market, not least because of the acknowledged existence of age discrimination (whether justified or not) in some recruitment practices. As demonstrated by the Killa case (discussed below) the lower likelihood of finding alternative employment after redundancy means that (although age discrimination may of course impact on younger workers too) older employees may stand to gain more than their younger colleagues from the uncapped compensation available in a successful age discrimination claim.

It is inevitable that some redundant employees (of whatever age) will bring proceedings alleging age discrimination under the Employment Equality (Age) Regulations 2006 (SI 2006/1031). This article examines five such cases, all of which involve older employees.

"Bumping" redundancies led to age discrimination

In Leung and another v Elements Oriental Buffet House Ltd [2008] ET/2101669/08 & ET/2101670/08, two chefs who worked in a Chinese restaurant successfully claimed unfair dismissal and age discrimination after being made redundant.

The employer ran two restaurants: one at Cheshire Oaks near Chester (where Mr Leung and Mr Tsang worked), and the other at Southport (where three younger men "in their 30s at most" were employed on lower pay than the £160 per week paid to Mr Leung and Mr Tsang).

In late 2007 or early 2008, the employer closed its Southport restaurant, resulting in the jobs of the three younger men becoming redundant. However, the younger men were transferred to work at the Cheshire Oaks restaurant and, without any consultation or procedure whatsoever, Mr Leung and Mr Tsang were dismissed with pay in lieu of notice on 25 February 2008. At that time, Mr Leung had been employed since November 2005 and Mr Tsang since January 2005.

The employment tribunal noted that, at the time of their dismissal, Mr Leung and Mr Tsang were both aged in their 50s (having been born in 1954 and 1950 respectively) and that they had been bumped out of their jobs "in favour of men from another workplace who were in their 30s". This was despite the fact that the younger men's jobs were redundant, whereas the jobs of the middle-aged employees were not. These facts were sufficient to justify a finding of age discrimination and the tribunal therefore sought an explanation from the employer.

The employer did not appear before the tribunal and its written response to the effect that the younger men had been with it for over four years failed to satisfy the tribunal that its actions in choosing to retain significantly younger staff whose jobs were redundant had not been discriminatory. Accordingly, the tribunal upheld the claims of unlawful direct age discrimination.

Mr Leung and Mr Tsang were awarded compensation of £1,000 each for injury to feelings. The employment tribunal commented that, although the men displayed cheerfulness and resilience, this sum would be substantial enough to reflect their inevitable resentment and disappointment. The men's financial losses (consisting primarily of 32 weeks' loss of wages from the date of the dismissal until the hearing) together with a 50% uplift for failure to follow the statutory dispute resolution procedures were reflected in unfair dismissal awards of £8,055 to Mr Leung and £7,335 to Mr Tsang.

Case transcript of Leung and another v Elements Oriental Buffet House Ltd

Reference to lower training costs for young people did not render redundancy dismissal discriminatory

An employment tribunal held in Spyrka v Club Company Holdings Ltd [2009] ET/1102011/08 that a manager's remark that it cost less to train younger workers did not, when taken in context, indicate that Mr Spyrka had been dismissed because of his age.

The employer operates 10 country clubs, including Nizels Golf & Country Club, where Mr Spyrka was employed as an assistant greenkeeper from April 2006 until his dismissal by reason of redundancy in September 2008. In addition to Mr Spyrka, the greenkeeping team at the club consisted of two greenkeepers (both aged 22), a course manager, a deputy course manager and a groundsman. Mr Spyrka, who was born in 1954, was experienced in all aspects of greenkeeping, but had not obtained the NVQ2 qualification required to be a greenkeeper.

The employer decided that, as a result of reduced income resulting from a downturn in trade, each of its clubs should, among other measures, independently cut costs by reducing the workforce. Mrs Machin, the general manager of Nizels, decided that the club could manage with a smaller greenkeeping team and identified the assistant greenkeeper's role as the obvious position to be made redundant, taking the view that it stood alone.

Mr Spyrka's post was confirmed as redundant following a consultation process and, after an unsuccessful appeal, he instituted tribunal proceedings for unfair dismissal and age discrimination.

Mr Spyrka submitted that Mrs Machin had not approached the question of redundancy with an open mind. He alleged that during the course of a meeting on 13 August 2008 she had told him that he would be selected for redundancy because it cost less to train a younger person than someone of his age. The employer denied that Mr Spyrka's age was the reason for selection. Mrs Machin conceded that she had referred to the lower cost of training younger people (which is apparently due to the availability of grants for that purpose), but said that her remark was in response to Mr Spyrka's complaint that he should have been trained in more technical matters (although it appears that the employer does not provide a budget for such training). The employer submitted that, since the club already had two qualified greenkeepers who would be retained, there was no logical reason for Mrs Machin to have considered or raised the issue of training. It also argued that (contrary to Mr Spyrka's view) it was justified in excluding the groundsman from consideration for selection because his annual salary was £2,000 less than Mr Spyrka's, which reflected the lower level of the role.

The employment tribunal preferred Mrs Machin's evidence about the meeting to that of Mr Spyrka. While the tribunal had "no doubt that the reference to younger staff costing less to train was in the circumstances . . . extremely unfortunate, not to say thoroughly injudicious", it took the view that the remark had to be interpreted in context. The issue of training was, the tribunal found, on Mr Spyrka's mind because, had he possessed an NVQ2, he would have been placed in a redundancy selection pool with the other greenkeepers. The tribunal implied that Mr Spyrka himself might have drawn attention to the age of the greenkeepers because there was "no particular reason for Mrs Machin to raise the issue in the first instance". The tribunal was also influenced by the fact that Mr Spyrka's first complaint about age discrimination was made only after the redundancy process was complete and he had lodged his appeal.

Mr Spyrka's complaints of age discrimination and unfair dismissal were unsuccessful.

Case transcript of Spyrka v Club Company Holdings Ltd

Redundancy dismissal of 59-year-old manager was unfair, but did not involve age discrimination

In Shorey v Facilities Group Ltd [2009] ET/2203711/08, an employment tribunal found that, although Mr Shorey had raised facts suggestive of age discrimination, the employer's explanation was sufficient to displace that suspicion, with the result that the claim failed.

The employer produces graphic art and images for a variety of media. Mr Shorey was employed as "reproduction manager" and was the most senior and highly paid of three employees engaged in "True Colour", which was a sub-department of the employer's production department and was located in separate office accommodation. The other two employees in the team were Mr Price (a more junior "repro operator" who was much younger than Mr Shorey and earned considerably less) and an administrative worker, Mr Shailer.

For a number of years, some colleagues had referred to Mr Shorey as "Old Shorey". It seems that he accepted this as a term of endearment, although he found it somewhat annoying.

In mid-2008, the employer decided to close the True Colour office, dismiss one repro operator and transfer the remaining repro operator to other premises. In the ensuing redundancy selection process, Mr Shorey scored the same as Mr Price in relation to two out of the four criteria, but less than him with regard to "skills and knowledge" and "ability to multi-task". The tribunal found that the score on multi-tasking "seems to have related to the fact that [Mr] Price had acquired knowledge of the administrative work done by [Mr] Shailer and had also taken the initiative to attend three weekend courses at which he had acquired skills in a new digital process called 'Flash' whereas [Mr Shorey] had not undertaken such training nor expressed any interest in doing so".

On 27 August 2008, the employer circulated an email addressing the possibility of alternative employment for a repro operator but, while referring to Mr Price and attaching his CV, the email did not refer to Mr Shorey by name, it did not attach his CV since he did not have one, and it failed to make clear that Mr Shorey was "a reproduction manager . . . with skills going well beyond simple reproduction operator".

Meanwhile, on 8 August 2008, another manager in the employer's production department, Mr Brown, handed in his resignation, thereby creating a vacancy. That post attracted a salary of £44,000, which was £10,000 less than Mr Shorey was earning. Mr Shorey was aware of this vacancy but did not inform the employer that he wished to be considered for it, nor did the employer raise the subject with him.

After his selection for redundancy was confirmed on 29 August 2008, Mr Shorey filed an appeal, together with a document alleging age discrimination. One of his grounds of appeal was that no real consideration had been given to his continuing employment options because of his age.

Following his dismissal, Mr Shorey issued employment tribunal proceedings for unfair dismissal and age discrimination.

The employment tribunal was satisfied that there was a genuine redundancy situation to which the employer had, on the face of it, applied fair criteria and a fair procedure. However, the employer's "useless" email of 27 August 2008, and its failure expressly to raise and explore the vacancy that had arisen when Mr Brown left, with Mr Shorey, meant that it had failed "to make the attempt which any reasonable employer would have made to find [Mr Shorey] alternative employment". Although Mr Shorey could and should have referred to the vacancy himself, the tribunal accepted his evidence that his failure to do so was largely due to his being demoralised at that time. It accepted that he could have performed the role satisfactorily and would have accepted it if offered, and went on to find that the dismissal was unfair in all the circumstances.

The employment tribunal's findings as to the alternative employment question, with the linked assumption by the employer that Mr Shorey was "unwilling to extend his skills and was inflexible", taken together with the epithet "Old Shorey" that had been applied over a long period, persuaded the tribunal that Mr Shorey had established facts from which it would be bound to conclude that age discrimination had occurred in the absence of an adequate explanation.

The tribunal went on to conclude "with some hesitation" that age discrimination was not involved in the process for three main reasons. First, Mr Shorey had survived previous redundancy selections in the recent past when younger colleagues in the True Colour department had lost their jobs. Second, there was no evidence, on the facts, that the scorers in the redundancy process were aware of Mr Shorey's age.Third, one of the scorers (Mr Manley, the CEO of the employer's twin company, Mundocom UK) was, at 60, older than Mr Shorey.

With specific reference to the "Old Shorey" label, the tribunal commented that, although it "may have been inappropriate and could well have been the basis of a successful claim for harassment" had such a claim been made, it had nothing to do with the redundancy process and the redundancy scorers appeared to be unaware of it.

Mr Shorey's age discrimination claim was dismissed.

Case transcript of Shorey v Facilities Group Ltd

Age discrimination would limit future employment prospects of redundant engineer

In Killa v Electronic Motion Systems Ltd (EMS) ET/1605121/08, an employment tribunal awarded Mr Killa over £90,000 in respect of age discrimination, the bulk of that amount representing future loss of earnings.

Mr Killa, described as a skilled and experienced electronic engineer, worked for the employer from June 1999 until his (entirely unexpected) dismissal by reason of redundancy with effect from 7 May 2008. On the first occasion on which he was consulted about redundancy, Mr Killa was "immediately excluded from the premises and from his computer", treatment that the tribunal later described as "brutal". It appears that, although alternative work existed, it was not offered to him for consideration. His dismissal was later confirmed following completion of the statutory dismissal procedure.

In November 2008, an employment tribunal upheld Mr Killa's claims of unfair dismissal and age discrimination, and subsequently issued a further decision dealing with remedies.

Mr Killa was aged 59 at the time of his dismissal. His gross annual salary was £34,259 (net pay of £1,958.53 per month). The tribunal decided to award compensation for past and future loss of earnings in respect of the age discrimination claim and to avoid double recovery these headings were not reflected in the unfair dismissal compensation, which consisted of only £330 for loss of statutory rights, including loss of notice. In theory, Mr Killa was also entitled to a basic award of £3,960 (£330 x 1.5 x 8) for unfair dismissal. However, this was wiped out by his redundancy payment of £7,905.92, the remainder of which was offset against his past losses for age discrimination.

On losing his job, Mr Killa also lost the benefit of his employer's pension contributions worth £111.34 per month, medical care worth £133 per month and dental care worth £32.60 per month. Taking these losses into account (and after deducting the excess redundancy payment and jobseeker's allowance), his net loss for the 27 weeks between the date of his dismissal and the date of the hearing came to £8,540, including interest at 6%.

In calculating Mr Killa's future losses, the tribunal accepted that, but for his dismissal, he would have worked until the statutory retirement age, a total of five years and 19 weeks from the date of the hearing. It took the view that Mr Killa's future employment prospects were not good because the economy in and around Swansea was not buoyant, and that he would be at a disadvantage in the job market because of his age. In the tribunal's view, someone of Mr Killa's age does not compete "on a level playing field with younger people". It found that: "The reality is that age discrimination exists and is likely to be highly influential in limiting his opportunities."

The tribunal noted that Mr Killa had made efforts to secure other employment. He was in the process of retraining as an electrician, was willing to work for lower pay and was also reluctantly considering self-employment, despite his lack of experience as an independent contractor. On a practical level, the tribunal noted that, should Mr Killa set up his own business, he would face a lot of competition, particularly from former sub contractors in the shrinking construction industry who would have many established contacts and a track record as an electrician. Mr Killa, on the other hand, would have to market himself constantly to try to obtain work while also acquiring the skills essential to running his own business, such as issuing quotations, managing his time and dealing with customers. The tribunal was of the view that Mr Killa's age would also be against him with regard to the kind of work that he would be able to undertake. He lacked the experience and the fitness required for work that was physically demanding or on difficult sites, and even with regard to domestic work he was "simply not used to work on ladders or in constricted spaces".

Overall, the tribunal concluded that Mr Killa had no realistic chance of getting work in his own field "at his age" or of achieving his former earnings level in any other field. If (as he hoped) he managed to find another job, he would earn less and his package would be unlikely to include a pension and dental and medical care. If he was effectively forced to try self-employment, it would take a long time for him to build up a business in order to produce a living wage. On either projection, Mr Killa was likely to suffer loss for the rest of his working life.

The tribunal calculated that, had he stayed in his job until retirement, Mr Killa could have been expected to earn £127,781. This was based on net earnings of £23,500 per annum plus a modest 2% increase with effect from November 2011 onwards to reflect prospective pay rises. His projected earnings (from any source or combination of sources) totalled £65,481, leaving a net future loss of earnings of £62,300. After adding £11,990 for loss of dental and medical care and £7,169 for pension loss (and deducting £2,456 for accelerated receipt), the tribunal awarded £78,913 for total net future loss.

The tribunal awarded £2,500 plus £78 interest for injury to feelings. It took into account that, although this was a one-off incident, it had caused a substantial shock to Mr Killa, whom it described as a "stoical individual", and had impacted on his sense of self-worth. It was appropriate to award damages within the lowest Vento band, but not at the lowest level.

The total award for age discrimination amounted to £90,031.

Case transcript of Killa v Electronic Motion Systems Ltd

Hospital trust discriminated in failing to appoint 56-year-old manager to an equivalent position on reorganisation

In Sturdy v Leeds Teaching Hospitals NHS [2008] ET/1803960/07, ET/1807285/07 & ET/1801248/08, an employment tribunal held that the employer unlawfully discriminated against Mrs Sturdy during a reorganisation by failing to appoint her to a new position for which she was eminently suited and victimising her when she persisted with her complaints about her treatment and refused to take up a post at a significantly lower level.

The facts of the case are set out in detail below to illustrate the discriminatory treatment of Mrs Sturdy over a prolonged period of time that led the employment tribunal to award her £29,500 for injury to feelings and £5,000 for aggravated damages.

Regrading exercise

At the time of the events that gave rise to Mrs Sturdy's complaints, she had worked in the radiology field for 38 years and had been brought in 16 years before from another Trust to set up and manage a breast screening service from scratch. Written terms and particulars of employment were issued to Mrs Sturdy on 9 August 1990, with her job title as screening manager and her grade "superintendent II".

From 2005 onwards, the employer implemented a new job evaluation scheme (JES) as part of the national "Agenda for Change" (AfC) programme. At that time, Mrs Sturdy occupied what the tribunal subsequently described as "a unique role" with her employer owing to the fact that the employer effectively acted as the "host" for a discrete breast screening service that was commissioned by the Leeds and Wakefield Primary Care Trust. The service was independent of any particular hospital within the respondent trust and was not part of its radiology department. Although Mrs Sturdy's post was at a level comparable to that of a radiographic superintendent, she reported to Dr Liston, the director of the Leeds and Wakefield breast screening service.

Dr Liston had a high clinical workload and delegated non-clinical management to Mrs Sturdy. By 2006, Mrs Sturdy managed the equivalent of 35 full-time members of staff and had a budget of £1.4 million. She did not undertake clinical work and had not worked as a "conventional" radiographic superintendent for some time. She was, the tribunal accepted, responsible for staff recruitment, appraisals and development plans, strategic planning and ensuring that national standards and targets were met. She also produced business cases for the procurement of capital equipment and staff changes and liaised with numerous national and local agencies including health commissioners, the strategic health authority and health professionals such as GPs. Dr Liston had found Mrs Sturdy's performance to be exemplary.

In May 2006, Mr Godfrey was appointed to the post of head of clinical management radiology, in charge of 22 superintendent radiographers and, in September and November 2006, proposed bringing together the employer's various radiology departments, which would inevitably involve reorganising the management structure. He eventually proposed the introduction of nine principal superintendents who were to be accountable to a lead superintendent. It was anticipated that the principal superintendents would carry out some clinical work, to be agreed with the lead superintendent. One of the discrete medical areas or "modalities" to be covered by a principal superintendent was the breast modality, including the screening service. Mr Godfrey also noted the need to reduce management costs by £300,000, which might involve redundancies.

Dr Liston and Mrs Sturdy were unhappy with the impact that this would have on the breast screening service and they made written representations to this effect. Mrs Sturdy also asserted that "her current responsibilities already exceeded those envisaged for a principal superintendent post".

At that time, Mrs Sturdy had submitted her job description to the AfC team as part of the ongoing JES, but her new AfC banding had not been completed. She had also submitted a lengthy job analysis questionnaire (JAQ), which was signed off by two external job analysts on 2 October 2006, after an interview with her. Mr Godfrey requested Mrs Sturdy's JAQ, having formed the opinion that Mr Peters (who then held a senior management position in the radiography department) was a more appropriate manager than Dr Liston. Mr Godfrey failed to return the JAQ in time for 10 November 2006, the date on which it was scheduled for submission to the job evaluation panel, with the result that no decision was made on Mrs Sturdy's new banding on that date.

On 16 November 2006, Mrs Sturdy and Dr Liston attended a meeting with Mr Godfrey to discuss the extent of Mrs Sturdy's existing job and the question of her line management. Mrs Sturdy arrived first and was assured by Mr Godfrey that he would recommend her for the role of principal radiographer to the interview panel. He later denied this before the tribunal, asserting that he had told Mrs Sturdy only that she was a "credible candidate", but his evidence was rejected. After Dr Liston arrived, Dr Godfrey discussed his proposals for the next decade. Mrs Sturdy mentioned that she would be retiring in 2010. Mr Godfrey remarked: "I didn't realise you were so old." When Mrs Sturdy replied that she was not old, Mr Godfrey added: "Oh, I mean you don't look 57." Mrs Sturdy pointed out that she was not 57 until the following April.

Later that month the employer informed staff that, although the screening and symptomatic services would not be merged, the two services would be included within the breast modality and that the principal radiographer's AfC job banding was expected to be band 8a. On 4 December 2006, Mrs Sturdy was notified that she was to be placed in a ring-fenced pool for the posts of lead superintendent radiographer and principal superintendent radiographer and that selection would be by way of interview. She was not alerted to the possibility under the employer's effective change management policy of being "slotted into "a new post where at least 80% of the duties in the new post are the same as those in the existing post.

Mrs Sturdy applied only for the post of principal radiographer (breast modality). The other candidate was Mrs Clayton, who was aged 43 and had been in the trust's employment since July 2003. Mrs Clayton was interviewed on 13 December and Mrs Sturdy on 14 December 2006, with Mr Godfrey, Mr Peters and Ms Douglas (the employer's senior human resources advisor) on both interview panels. The fourth member of Mrs Clayton's panel was Mr Bury (a nuclear medicine expert) and the fourth member of Mrs Sturdy's panel was Dr Nicholson (a vascular expert).

On 15 December 2006, Mr Peters informed Mrs Sturdy that her application had been unsuccessful because she had not shown a broader perspective. This was a reference to her alleged focus on the breast screening programme to the exclusion of other aspects of the new post and the wider context of the radiology department. On the same day, Dr Liston emailed Mr Godfrey expressing concern at the appointment of Mrs Clayton who, while an "able individual", had minimal knowledge of the breast screening programme for which she was due to assume responsibility in a matter of days.

Grievance submitted

On 18 December 2006, Mrs Sturdy submitted a grievance to her line manager Dr Liston, alleging that she had in fact fulfilled the criteria for slotting into the post of principal radiographer (breast modality) because her present role encompassed 80% of the job responsibilities in the new post. She also asserted that her salary banding had been deliberately delayed in order to avoid dealing with her via the slotting in process and instead forcing a competitive interview. As well as his tardiness in returning the JAQ, it seems that Mr Godfrey had made it plain that he would not support Mrs Sturdy's job description as originally submitted. She had therefore felt pressurised to amend it before Mr Godfrey eventually resubmitted it on 14 December 2006, after the interviews. Mrs Sturdy stated in her grievance letter that she had now withdrawn the amended job description and resubmitted a further amended version, signed off by Dr Liston on 18 December 2006.

During a meeting on 22 December 2006 attended by Mr Godfrey, Mrs Sturdy and Dr Liston, Mr Godfrey admitted that he had taken no further action with regard to Mrs Sturdy's amended job description of 18 December as "he did not like the tone of [Mrs Sturdy's] letter; did not like being accused of pressurising people, and would not be spoken to in such a manner". It seems Mr Godfrey eventually submitted the amended job description to the AfC Team in January 2007.

On 28 December 2006, Mr Baker (the employer's assistant director of human resources) wrote to Dr Liston informing her of his decision that the grievance should not be heard by Mrs Sturdy's new line manager (Mrs Clayton) but by Mr Peters, with Mr Godfrey as the first point of appeal. This was a decision that the tribunal later commented indicated that Mr Baker had "given no weight at all to the fact that the . . . grievance was, in large part, about Mr Godfrey's actions". The tribunal went on to point out that Mr Peters himself was also implicated and it was therefore inappropriate for him to be involved in the process.

On 29 December 2006, Dr Liston rang Mr Baker objecting to her removal as Mrs Sturdy's line manager. She also indicated her view that Mrs Clayton lacked the "core knowledge and skills" to fill the principal radiographer post, at least in respect of breast screening. Mr Baker emailed Mr Godfrey about this, stating that he had advised Dr Liston that her opinion could be relied on by Mrs Sturdy, if she wished, in her appeal process. The tribunal later expressed its surprise that, having received this expression of concern from the clinician responsible for the breast screening service, the employer took no further action to investigate the position.

Mrs Sturdy expanded on her grievances in writing, alleging, for instance, that her age may have been taken into account, as evidenced by Mr Godfrey's remark and apparent change of heart thereafter, and that the interview process had been unfair with regard to the composition of the respective panels and the fact that no panel members had any practical working knowledge of the breast screening process.

A grievance meeting took place on 9 January 2007 attended by Mrs Sturdy, Ms Douglas, Mr Peters and Dr Liston. Ms Douglas later asserted that, after this meeting, she started to collate the various interview notes concerning the principal radiographer post, although the tribunal accepted Mrs Sturdy's submission that there was no audit trail to support this assertion. In any event, the tribunal pointed out that there "was a clear breach of good practice in failing to retain the notes at the time of the interviews, and a further breach in not starting to collate them until after the grievance hearing, when it had been clear since 18 December that they were likely to be required". These matters could, the tribunal stated, give rise to an inference in support of Mrs Sturdy's case. When the interview notes were eventually disclosed to Mrs Sturdy (on 1 March 2007), it emerged that Mr Godfrey's had gone missing and Dr Nicholson had made no note.

A meeting (outside the grievance procedure) was held on 18 January 2007 to discuss Mrs Sturdy's future role. At the meeting, according to the tribunal's findings, "the Respondent's team endeavoured to persuade [Mrs Sturdy] that there would be a need for a Team Leader in Breast Screening which would be appropriate for her, although no job description for that role had yet been created and there was no AfC banding for it". The tribunal was perplexed by the delay in defining and banding the team leader role given that, for the most part, jobs had been banded very quickly within the AfC scheme. In the event, the employer was simply unable to offer a satisfactory explanation for the delay, a matter from which the tribunal drew "the inference that the difficulty was to try to create a role at Team Leader level in order to fit in with the pre-planned scheme, but also to accommodate [Mrs Sturdy] at her Grade and with her seniority and experience, in order to avoid having to make a redundancy". It was also at this meeting that a Dr Irvine said to Mrs Sturdy something like "if you retired tomorrow" and then stopped himself and changed the subject.

Further grievance submission

At some stage Mrs Sturdy had been asked to submit a further grievance form, which she did on 23 April 2007. It appears that, in essence, she raised the same grievances as before but updated the situation and gave further details. She mentioned, for instance, her distress at receiving (on 21 March 2007) notification of her grade 8a AfC banding in a letter headed "Clinical Team Leader" and several incidents of conflict with Mrs Clayton including being instructed in the presence of the office manager to visit a mobile unit for a full day and undertake a screening workload, something that she had not done for over 15 years. The employer elected (wrongly, in the tribunal's view) to treat these matters "as new and additional grievances" that would have to be dealt with from the first, informal stage.

At a meeting on 24 May 2007 to discuss the "second" grievance, Mrs Sturdy formally rejected the team leader's post, having received the job description and felt that the post was at a much lower level than she was accustomed to, as indicated by the fact that proposed applicants were to come from the band 7 pool. As later found by the tribunal, "the Respondent was extremely reluctant to face the issue [Mrs Sturdy] was actually raising". Ms Douglas "became increasingly frustrated by [her] insistence that the Respondent was not entitled to make the fundamental changes to the terms and conditions of her employment". Ms Douglas lost her temper and told Mrs Sturdy to "shut up", or words to that effect. In an email dated 30 May 2007, Mrs Sturdy complained about her treatment at that meeting and notified her employer that she had been signed off sick for six weeks with work-related stress.

Despite Mrs Sturdy's rejection of the team leader role, Mr Peters wrote to her on 31 May 2007 informing her that she had been slotted into that post with effect from 4 June 2007 with appropriate pay protection. He also argued that Mrs Sturdy had in fact been too late in submitting her second grievance, which she would need to resubmit (an attitude that the tribunal later described as pedantic). He informed Mrs Sturdy that she was to respond to any reasonable management request from her line manager, Mrs Clayton, failing which she would face disciplinary action. Before the employment tribunal, neither Mr Peters nor Ms Douglas could justify why Mrs Sturdy was at that stage slotted into the team leader post that had previously just been "offered" to her, a fact from which the tribunal drew inferences against the employer.

Mrs Sturdy appealed against the slotting in decision, arguing that there was only a 20% similarity between the roles, far below the 80% needed. The tribunal agreed, finding "that there was no substantive match" between the posts. Indeed, following analysis of the detailed relative scores given to Mrs Sturdy's old post (breast screening service manager), the principal radiographer post and Mr Peters' own new post of principal superintendent radiographer, the tribunal found (and Mr Peters accepted) that "there is a closer correlation between his job and [Mrs Sturdy's] than there was between [hers] and the Principal Radiographer's post for which she applied" and that "the respondent should have given serious consideration to slotting [Mrs Sturdy] into the Principal Superintendent role".

Mrs Sturdy submitted her first employment tribunal claim (for age discrimination) on 13 June 2007.

Appeal against regrading decision

Mrs Sturdy had earlier appealed her grade 8a banding and attended a meeting for that purpose on 24 June 2007. Although the outcome (announced on 24 July 2007) was ultimately successful, in that her banding was increased to 8b, she had a number of complaints about the conduct of the 24 June 2007 meeting. These included the employer's insistence that Mr Peters (and not Dr Liston) should attend in the capacity of her line manager at the relevant time, Mrs Clayton not being appropriate under the circumstances. Dr Liston was allowed to attend as a colleague. Mrs Sturdy declined to postpone the meeting, although she was on sick leave. The tribunal accepted that Mrs Sturdy "was placed in a position of considerable stress by Mr Peters' insistence on attending as her Line Manager [and] under further stress when Mr Peters decided to stay behind in the room with the AfC team after she and Dr Liston withdrew". The tribunal found Mr Peters' conduct "highly inappropriate" in the circumstances and concluded that Mrs Sturdy had been treated less favourably in relation to this meeting than she would have been if she had not made allegations of discrimination.

In dealing with Mrs Sturdy's appeal against being slotted into the team leader role, Mr Peters concluded on 14 August 2007 that the role did not represent a significant loss of responsibility or status, a stance that the tribunal later found (and indeed Mr Peters eventually conceded) was unsustainable. It emerged at the tribunal hearing that Mr Peters had throughout used Mrs Sturdy's 1990 job description rather than her recently prepared document when determining the slotting in issue, a situation that he was "totally unable to justify" to the tribunal. When dismissing her appeal, Mr Peters also asserted that Mrs Sturdy's refusal to carry out the team leader's duties was repudiatory conduct that would (not, the tribunal noted, "could") result in her dismissal. In the absence of any explanation as to why the threat to dismiss Mrs Sturdy was made, the tribunal inferred from this treatment that it was made as result of her "allegation that she had been discriminated against, and that thereby she was being victimised".

By the time Mrs Sturdy tried to return to work on 1 November 2007, she had submitted further grievances (and a second employment tribunal claim) alleging, among other things, victimisation. Her ongoing grievances were by then being dealt with by Mrs Wilson, who was line managed by Mr Godfrey. The employer refused to accept that Mrs Wilson could not in those circumstances be regarded as impartial.

On returning to work, Mrs Sturdy reiterated her refusal to carry out the team leader post but made clear that she was ready, willing and able to work in a suitable capacity. It appears that her refusal was deemed to be absence without leave and her pay was withheld on certain occasions, despite the intervention of her solicitors. From 14 January 2008, Mrs Sturdy was again signed off sick with stress. She was reminded by Mrs Wilson that the disciplinary action against her would proceed.

With effect from 23 November 2007, various members of staff (including Mr Godfrey, Dr Liston, Mr Peters, Ms Douglas and Mr Nicholson) were interviewed by Mrs Wilson and Mr McPherson (head of human resources) as part of the grievance process. The resulting report, produced around March 2008, was severely criticised by the tribunal. For instance, the authors (both trained in AfC job matching) found the team leader post suitable for slotting in or as suitable alternative employment in a redundancy situation. They discounted the discrepancy in pay because of the pay protection policy. It appeared that they had reached the conclusion that there was a 94% match between Mrs Sturdy's job and the team leader post without considering the number of people managed in the two roles, the budgetary requirements of the roles, or the considerable discrepancy in the day-to-day work expected of their occupants.

By asserting that Mr Godfrey's remark about her not looking 57 was the "sole basis" for Mrs Sturdy's age discrimination claim, the report's authors displayed a fundamental misunderstanding of her argument. They failed to recognise that Mr Godfrey's alleged remark was simply one factor to be considered and that the real basis of her allegation included that she was by far and away the better qualified individual for the job and had been unsuccessful at interview against a candidate who was clearly less experienced. Of particular concern to the tribunal, because it would no doubt have aggravated Mrs Sturdy's injury to feelings, was the report's conclusion that Mrs Sturdy had simply had sour grapes because she had not been successful in securing the job she wanted. The report concluded that Mrs Sturdy had been fairly and reasonably treated throughout the whole process and was very critical of her. The tribunal noted that this conclusion must have caused Mrs Sturdy additional distress.

Mrs Sturdy appealed the outcome of the grievance but it appears that the appeal hearing never took place because she was dismissed on 19 May 2008. Her dismissal is the subject of a separate claim and was not one of the issues before the tribunal in this case.

Employment tribunal decision

In defending Mrs Sturdy's age discrimination claim before the employment tribunal, the employer argued that she had been unsuccessful in obtaining the principal radiographer post because she performed very badly at interview by comparison with Mrs Clayton. Indeed, Mr Godfrey's witness statement referred to Mrs Sturdy's performance as "appalling". The employer submitted that her focus had been too narrow, being preoccupied with the breast screening team and lacking appreciation of the new position within the new integrated structure. However, during cross-examination the witnesses (with the exception of Mr Godfrey whose interview notes had been destroyed) accepted that "their notes did not in fact reflect that position", a situation that the tribunal remarked "could raise the inference that extraneous factors such as age influenced the scoring".

In determining the age discrimination claim, the tribunal had regard to "the numerous breaches of the Respondent's own policies and procedures", such as those concerned with effective change management, recruitment, redeployment, security of employment and equality of opportunity in employment, noting that such breaches formed part of the primary facts from which the tribunal could draw inferences of discrimination.

The employer conceded that, on the facts as established by Mrs Sturdy, the burden of proof passed to it. In the event, the employer failed to discharge that burden of proof and the tribunal held that Mrs Sturdy had been directly discriminated against on the ground of her age and victimised by being treated less favourably on the ground that she had submitted a grievance.

The tribunal went on to outline various instances of direct age discrimination and victimisation. It found that, although at the outset Mr Godfrey and Mr Peters genuinely failed to appreciate the level of responsibility and autonomy enjoyed by Mrs Sturdy, by the time they considered her job description they should have challenged this view. Noting that Mr Godfrey's comment as to Mrs Sturdy's age (for which the motive, although it was probably meant as a compliment at the time, was irrelevant) was followed by the complete reversal of his view as to her suitability, and that the employer failed to consider Mrs Sturdy's agreed and up-to-date job description, the tribunal concluded that the reason that she was not slotted into the principal radiographer's post for which she was "on any objective analysis . . . better experienced and qualified" than Mrs Clayton was "because of her age and the fact that she was within three years of retiring".

The tribunal was also satisfied that the employer's assumption, without any evidential basis, that the account given by Mrs Sturdy (and supported by Dr Liston) about the extent of the responsibilities she was undertaking was inaccurate, was in part on the ground of age, although it was also simply not what the employer wanted to hear in the light of its plans for a more structured and controlled chain of management. The tribunal did not believe, for instance, that the employer would have closed its mind to a similar account given by a 40-year-old man rather than a 57-year-old woman, who would have been perceived as "hard-working and dynamic".

Mrs Sturdy was also less favourably treated and subjected to the detriment of not having her grievances fairly dealt with at her meeting with Ms Douglas and others on 24 May 2007, when Ms Douglas lost her temper with her simply because she "was maintaining her version of events". Her position was "perfectly rational, it is just that it was not an argument that the Respondent wished to hear".

The tribunal also found that the employer discriminated against Mrs Sturdy on the ground of age by slotting her into the team leader post. The employer failed to satisfy the tribunal that Mrs Sturdy's age formed no part of its reason for slotting her into this post. The indications were that, given "that she was so near to retirement and would have protected pay they could not see why she should not do this job". This unjustified action was also an act of victimisation.

The employer then tried to pressurise Mrs Sturdy into accepting a job that it knew was unsuitable. The tribunal found that being threatened with dismissal for failing to accept a "manifestly unsuitable" role was victimisation. Other instances of victimisation were the delay in instituting an adequate and appropriate grievance investigation and having her pay suspended.

Mrs Sturdy's failure to secure the principal radiographer's post at interview amounted to a further act of age discrimination. The tribunal rejected the employer's reasons, which were unsupported by the evidence and drew the inference that age played a part in the employer's decision not to appoint her.

Following a remedies hearing in April 2009, the employment tribunal awarded Mrs Sturdy the record amount of £29,500 for injury to feelings (plus interest) and a further £5,000 (plus interest) for aggravated damages. Financial loss remained to be determined.

Case transcript of Sturdy v Leeds Teaching Hospitals NHS

The author: Tina McKevitt is a solicitor and freelance writer. She is the updating author for the equal opportunities chapter of the XpertHR employment law manual.