Shy and retiring

London Borough of Tower Hamlets v Wooster

It is unlawful for employers to discriminate against employees on the ground of their age. In London Borough of Tower Hamlets v Wooster, the Employment Appeal Tribunal (EAT) said that an employee who was six months short of qualifying for early retirement was unlawfully discriminated against on the ground of his age when the Council made him redundant in order to avoid paying his pension.

Basic facts

Mr Wooster (who had worked for the Council since 1973) was seconded in 2003 to work for East End Homes following a restructuring exercise at the Council. In October 2006, he was told that his secondment was coming to an end and that, unless the Council could redeploy him, he would be made redundant.

At the same time, the Council offered him a generous voluntary redundancy package which he reluctantly accepted. He was dismissed with effect from 29 December 2006, six months before his 50th birthday.

Under the terms of the pension scheme, Mr Wooster would have been entitled to an immediate early retirement pension (not subject to actuarial reduction) if he had remained in employment until the age of 50. By leaving when he did, his pension entitlement was deferred until 60, at the earliest.

In the lead-up to his redundancy, East End Homes offered to extend his secondment and pay his entire salary (previously paid by the Council) until he became entitled to his pension. The Council refused the offer, telling East End Homes that "if you are going to pay his salary then you can pay his bloody pension when he is 50".

In March 2007 Mr Wooster lodged a claim for unlawful dismissal and age dicrimination.

Tribunal decision

As the Council had failed to comply with the statutory dismissal procedure, the tribunal held that the dismissal was automatically unfair.

As for the claim of age discrimination, the tribunal found that the Council had not done enough to find alternative employment for Mr Wooster and that when refusing to countenance an extension to the secondment, it had been motivated by saving the cost of his pension.

It concluded that “it was the fact of Mr Wooster's pensionable age that was the tipping point” leading to his dismissal and that “given the hypothetical comparator, we take the view that age was the reason for the decision to dismiss instead of redeploying Mr Wooster.”

EAT decision

And the EAT upheld the tribunal’s decision.

Although it agreed with the Council that extending Mr Wooster’s secondment simply to allow him to qualify for an early pension would have been beyond its powers and therefore unlawful, it pointed out that this was not the basis on which the tribunal had decided the claim.

Instead, it had taken into account the Council's refusal to contemplate the offer by East end Homes as evidence of its determination to end Mr Wooster's employment before he was 50. It also took into consideration that the Council could have temporarily extended his employment (which would have been lawful) but chose not to do so.

The Council's actions therefore constituted less favourable treatment on the grounds of age, as an employee who was not 49 would not have been treated in the same way.

It concluded that “There was adequate material on which [the tribunal] could have drawn the inference that the Council's conduct in not redeploying the Claimant, or extending his employment, and instead dismissing him when it did, was motivated by a desire to terminate his employment before he reached 50.”