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Council to appeal against age discrimination ruling in early retirement case

23 September 2009

Tower Hamlets Council is appealing against an EAT ruling that a 49-year-old housing officer, made redundant before he could qualify for early retirement, was a victim of age discrimination.

John Wooster claimed over £1m in compensation for loss of earnings, reduction in pension and injury to feelings. The figure includes an uplift of 50 per cent to take into account the council’s failure to follow procedures. It is understood to be the largest age discrimination claim so far.

In Tower Hamlets LBC v Wooster (UKEAT/0441/08/RN), Mr Justice Underhill, president of the EAT, held that the council made insufficient effort to redeploy him, motivated by a wish to avoid the additional costs of him taking early retirement at 50.

Wooster worked for the council for over 30 years before being sent on secondment to social landlord East End Homes. When the secondment ended, the council made him redundant, meaning that he qualified for a voluntary redundancy payment but not for early retirement.

Mr Justice Underhill said Wooster claimed his dismissal was unfair and constituted direct age discrimination contrary to the Employment Equality (Age) Regulations 2006.

“It is clear, and is not disputed on this appeal, that the claimant was a loyal and able employee whose case was badly and unsympathetically treated by the council’s management and HR department over a long period,” according to the judge.

Underhill J said the council did not appeal against the employment tribunal’s decision that Wooster’s dismissal was unfair, but against the decision that it constituted age discrimination.

Wooster worked his way up over several decades at the council, from junior clerk to senior community consultation officer, responsible for working with communities where council housing was transferred to social landlords.

As a result of restructuring in 2001, he was moved to a temporary appointment, and then, while remaining an employee of the council, seconded to East End Homes.

When Wooster’s secondment ended, in the autumn of 2006, he was sent a letter saying that the council’s three month redundancy process had been activated.

“The tribunal found that there were a number of vacancies for permanent jobs in the council, both shortly before and during the 12-week redeployment period, which the claimant could have filled,” Underhill J said.

In December, the claimant’s application for voluntary redundancy was accepted.

Dismissing the council’s appeal, Mr Justice Underhill said there was “adequate material” on which the tribunal could have concluded that in dismissing Wooster when it did, it was motivated by the desire to terminate his employment before he reached 50.

A spokeswoman for Tower Hamlets council said it would have been unlawful for the council to extend Wooster’s temporary contract for six months simply to allow him to claim early retirement.

“We were obliged to challenge the initial employment tribunal findings of age discrimination on the grounds of not extending his employment in order to protect the public purse,” the spokeswoman said.

“This is particularly important, as it would have been unlawful to do what was being asked of us and this point has a significant impact for councils across the country.”

The spokeswoman said the EAT was “very critical” of the employment tribunal’s decision.

“However, we have been advised that the appeal tribunal itself has made substantial errors of law in its concluding judgement and therefore we have filed an application to appeal against this decision,” she said.

“Mr Wooster was paid a substantial payment when he accepted voluntary redundancy in recognition of his many years of service (for which we are grateful), however we are firm in our belief that he was not discriminated against on the grounds of his age in relation to pension.”

Helen Murphie, solicitor at City commercial firm Royds, acted for Wooster. She said the council’s decision to appeal was a “devastating blow” to her client after more than two and a half years of litigation, which he had found extremely stressful.

“The council can only apply to the Court of Appeal if there has been an error of law,” she added. “We would say that none has been made.”

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