Mr Woodcock appealed the decision of the Employment Tribunal to dismiss his claims of unfair dismissal and age discrimination.
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. He was dismissed one month before his 50th birthday so that the Trust would avoid having to pay him an enhanced pension. A full summary of the facts can be found here.
The EAT rejected Mr Woodcock’s appeal in relation to his age discrimination claim. There were two main grounds upon which Mr Woodcock brought his appeal.
Mr Woodcock’s first ground was that it was wrong in principle for the ET to take any account of cost. He argued that case the Trust had relied solely on the costs consequences of Mr Woodcock remaining in employment after his 50th birthday and that it was not entitled to do so.
Mr Woodcock relied on the EAT’s decision in the case of Cross -v- British Airways plc  IRLR 423. The conclusion drawn in Cross was that “cost alone” can never justify a measure or state of affairs with a discriminatory impact, but “cost plus some other factor” may be taken into account. “Costs plus” has become the accepted view.
The EAT agreed with the position in Cross to some extent and found that, as a matter of principle and of common sense, considerations of cost must be admissible in considering whether a measure is justified. However, the EAT found it hard to find the principled basis for a rule that consideration of cost alone can never be justified. The EAT commented that the adoption of such a rule leads to artificial game playing – “find the other factor” – and is likely to produce arbitrary and complicated reasoning.
The EAT felt constrained by authority but clearly would have liked to depart from Cross. The President of the EAT, Justice Underhill commented that an employer should be able to justify a measure which produces a discriminatory outcome where the cost of avoiding that outcome is disproportionately high.
There may be cases where the impact is trivial and the cost of avoiding it enormous, and in such cases the EAT found it hard to see why the principle of proportionality should not be applied in the ordinary way.
However, the EAT considered that it did not need to depart from the current accepted Cross position as it found that cost alone was not the only consideration in this case. The Trust had been motivated by a legitimate desire to prevent a windfall for Mr Woodcock and, for these reasons, dismissed this ground of appeal.
The EAT then moved onto the second ground of Mr Woodcock’s appeal. Mr Woodcock sought to argue that even if costs considerations are admissible by way of justification, it should not be possible to deprive an employee (whatever the costs involved) of the right to be consulted about his proposed dismissal for redundancy, which is an essential procedural safeguard, for age reasons.
Underhill accepted that as a general rule, this ground of appeal should be correct, stating that an employer should not be obliged by the age discrimination legislation to defer steps which he would otherwise be entitled to take, but nor should he be entitled to cut corners for age reasons.
The EAT referred to several important points made by the ET. These were:
- the fact that Mr Woodcock had already had a far longer period of informal notice than he was legitimately entitled to expect before formal notice was given;
- that Mr Woodcock had had informal discussions with the Trust (although no formal consultations);
- that a chapter of accidents led to the giving of his 12-month notice period being delayed until after his 49th birthday;
- that no suitable employment was available for Mr Woodcock in any event; and
- that the giving of notice did not bring consultation to an end as the duty to consider alternative employment persists until the expiry of the notice period.
The EAT found that, therefore, because of the very particular circumstances, the ET was entitled to find that it was justifiable for the Trust to accelerate the final giving of notice. Mr Woodcock had no legitimate expectation at the time the redundancy situation arose that he might still be in employment on his 50th birthday. The EAT dismissed this ground of appeal.
Having not upheld any of Mr Woodcock’s grounds of appeal, his appeal was dismissed.
Mr N Woodcock -v- Cumbria Primary Care Trust UKEAT/0489/09/RN