Labour & European Law Review Weekly Issue 344 06 November 2013
Once an employee has established facts from which a tribunal could conclude that there had been discrimination then the employer has to show that they did not discriminate against them. In Osoba v Chief Constable of Hertfordshire Constabulary, the Employment Appeal Tribunal (EAT) held that employers can defend themselves by claiming incompetence.
As part of a reorganisation to save money, Mr Osoba was asked if he wanted to retire (he had done 30 years with the force) and if not, whether he wanted to stay in his current role or apply for another post within the constabulary. He said he wanted to stay on.
Ms Pritchard, the officer overseeing the process of reducing the headcount then drew up a matrix which gave points to officers who trained Special Constables at weekends and/or in the evenings. Mr Osoba scored no points under this head and, as a result, was selected for redundancy.
He claimed he had been discriminated against on the ground of age in that he alleged that Ms Pritchard deliberately manipulated the exercise to avoid the problem of his imminent retirement and the headache of having to find someone to replace him.
Although the tribunal found that the matrix used was “at best inconsistent and certainly shambolic in places”, that did not mean that Mr Osoba had been the victim of either direct or indirect unlawful discrimination. It did mean, however, that the burden of proof transferred to his employer and Ms Pritchard to account for the apparent discrimination.
Despite its criticisms of the process, the tribunal believed Ms Pritchard’s evidence, finding that she did not have any discriminatory motives behind her actions. It concluded that Mr Osoba was not placed at a particular disadvantage compared to other serving police officers who were not approaching imminent retirement, as the errors could equally have applied to them.
Mr Osoba appealed, arguing that the tribunal had not tried to find out why the process was so badly devised and had therefore failed to ensure that his employer had discharged the burden of proof properly.
The EAT disagreed. Given the “substantial battering” to which Ms Pritchard was subjected during cross examination, it wondered how much more she could have been expected to offer by way of explanation.
“The central problem with someone who admits to making errors” said the EAT “is whether a further explanation is to be wrung from her.” Although there may be cases where people can put forward mitigating circumstances, such as overwork or family issues, equally there are cases, such as this one, when there is nothing more to say other than "Well, I got it wrong and I take responsibility for that".
The EAT could therefore see no grounds for overturning the tribunal’s decision which accepted the honesty of Ms Pritchard. “She was not mistaken about her intention, she was mistaken in the way in which she did the process and allocated the points for all of these officers. It was open as a question of fact to accept the explanation given by Miss Pritchard; that was a matter of judgment for it and we see no error of law”.
This case demonstrates the importance of not only alleging discrimination but bringing evidence to convince a tribunal that unlawful discrimination has in fact taken place or to challenge an employer’s reasons for their actions.