Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2008/1328_07IT.html
Cite as: [2008] NIIT 1328_7IT, [2008] NIIT 1328_07IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1328/07

CLAIMANT: John Dignam

RESPONDENT: Royal Mail Limited

DECISION

The unanimous decision of the tribunal is that the claimant's claim for age discrimination is dismissed.

Constitution of Tribunal:

Chairman: Ms Ó Murray

Members: Mrs M McReynolds

Mr J Kinnear

Appearances:

The claimant was unrepresented.

The respondent was represented by Mr D Dunlop, Barrister-at-Law, instructed by Napier & Sons, Solicitors.

THE CLAIM

The claimant's claim was that he was discriminated against on the grounds of his age contrary to the Employment Equality (Age) Regulations (Northern Ireland) 2006 ("the Regulations"). The provisions of the Regulations engaged were regulation 7 and regulation 3 as regards both direct discrimination (regulation 3(1)(a)) and indirect discrimination (Regulation 3(1)(b)).

THE ISSUES

The issues for the tribunal to determine were as follows:-

(a) Did the claimant suffer a detriment by virtue of the operation of a voluntary redundancy scheme?

(b) If yes, was the claimant treated less favourably on grounds of his age?

(c) Did the respondent apply a provision criterion or practice to the claimant which the respondent applied or would apply equally to persons not of the same age group as the claimant but, which put, or would put, persons of the same age as the claimant at a particular disadvantage when compared with other persons and, which put the claimant at that disadvantage?

(d) Was any less favourable treatment whether by way of direct or indirect discrimination justified in that it was a proportionate means of achieving a legitimate end in accordance with Regulation 3(1) of the Regulations?

SOURCES OF EVIDENCE

The tribunal heard evidence from the claimant and from Mr Nielson for the respondent. The tribunal also had an agreed bundle of documentation and witness statements from each of the witnesses.

FINDINGS OF FACT

The tribunal found the following facts relevant to the issues before it:

The claimant joined the respondent company in 1983 as a postman and at the time relevant to these proceedings worked inside the Mallusk depot in the specialist sorting department.

The claimant's date of birth is 12 May 1963 and at the relevant time for these proceedings he was aged 44. He turned 45 just before the presentation of his claim form on 18 June 2007.

The respondent had identified 10 surplus posts in the Mallusk depot and this prompted it to look at a voluntary redundancy (VR) exercise.

In late November/early December 2006 the respondent placed an advertisement in the Mallusk depot directed at all workers there asking for those individuals who might be interested in VR to register their interest with their line manager by 8 December 2006. The advertisement poster stated:-

"VR is not guaranteed for all applicants. Registering interest is not viewed as guaranteed acceptance of a VR offer".

The claimant spoke to his line manager to register his interest at the beginning of December 2006. Thereafter he waited to hear a response from the respondent in line with their policy.

In February 2007 the claimant heard on the shop floor that some people had received, what he believed to be, written "offers" of voluntary redundancy. Upon making enquiries he realised that no one under the age of 50 had received such an offer. On 6 March 2007 the claimant saw what he believed to be an offer of voluntary redundancy. This document was headed "Declaration of Interest in Voluntary Redundancy" and set out the possible lump sum and pension figures in the event of a voluntary redundancy being offered and accepted. The tribunal does not find this to have been an offer of voluntary redundancy but simply the first step in the voluntary redundancy scheme whereby individuals who registered their interest would receive a statement of possible benefits. Receiving this statement did not guarantee that an individual would be offered voluntary redundancy later down the line.

The claimant e-mailed the Chairman of Royal Mail to raise a grievance that he had not been made an offer of voluntary redundancy and that this was due to his age. It was accepted by the respondent and the tribunal so finds that the e-mail dated 6 March 2007 constituted a written grievance in accordance with the statutory grievance procedures.

The respondent's voluntary redundancy procedures are set out in the Managing the Surplus Framework document which states at Appendix 5 under the heading Selection as follows:-

"In a surplus situation where there is an oversubscription of volunteers for redundancy the following sequence for selection will apply. First volunteers will be selected in seniority order from relevant employees aged 55 and over. If there is still a need for volunteers, offers of voluntary redundancy will then be extended in seniority order to employees aged 54 and below …"

At the time the claimant registered his interest for voluntary redundancy the whole scheme for VR was under review with trade union side to check amongst other things that it was compliant with the age discrimination legislation.

Following the review, various changes were made to the Managing the Surplus Framework Policy document but the selection criteria set out in Appendix 5 stipulating a threshold of age 55 remained unaltered. The revision document issued on 1 May 2007 stated at paragraph 2 as follows:-

"Selection Criteria

The existing selection criteria for VR that are contained at Appendix 5 of MTFF remain unaltered. The only fair method of selection that did not look at age and service as criteria is a completely random method of selection which would not reward loyalty or take into consideration the health and life style factors that would make it fair".

Following the registrations of interest the respondent drew up a priority list for voluntary redundancy. The first 12 names on that list were all individuals over 55 and were placed in order of seniority, that is, in order of the dates in which they joined Royal Mail. The remainder of the list comprised individuals under the age of 55 placed in order of seniority. There were 128 people on the list in total. The claimant was placed at number 31 on the list. The claimant's comparators for the purposes for these proceedings were numbers 6 to 12 on the list being individuals over the age of 55 who had less service than the claimant.

Seventeen names from the list were put forward to the next stage which was a one-to-one discussion about the possibility of voluntary redundancy. The 17 names comprised 12 individuals over the age 55 and the top five individuals under the age of 55. The figure of 17 was arrived at by taking into account the respondent's experience of redundancy exercises in that if 17 individuals were brought through to the next stage they would likely get 10 individuals who were still interested in proceeding with voluntary redundancy.

The respondents then discovered that the 10 surplus posts could be dealt with by natural wastage so the voluntary redundancy exercise was withdrawn as it was no longer necessary to go down that route. However, the list which had been generated by the initiation of the VR exercise was kept live and was usable by the respondent for up to a year. The fact that it was kept live and used is evidenced by the fact that it was used later by the respondent in October 2007 to offer voluntary redundancy to an individual on the early shift to deal with a redundancy situation that arose in that group of workers. The claimant was not comparing himself to that individual as his claim was confined to the period up until the presentation of his claim in June 2007.

THE LAW

The law on age discrimination is set out in the Employment Equality Age Regulations (Northern Ireland) 2006. Direct and indirect discrimination are defined at Regulation 3 as is the justification defence. Discrimination in employment is outlined at Regulation 7 and the relevant part of that Regulation engaged in this case is Regulation 7(2)(d) which stipulates that discrimination can consist of subjecting an employee to a detriment.

The burden of proof provisions apply to these proceedings and the case of Igen -v- Wong sets out the way the burden of proof should work. It is for the claimant to prove facts from which the tribunal could conclude in the absence of any explanation by the respondent that discrimination on the grounds of age (whether direct or indirect) has occurred. If the claimant succeeds in proving such facts, the burden of proof shifts to the respondent to disprove that any discrimination whatsoever occurred and the burden is then upon the respondent to prove that any such discriminatory behaviour, or any provision criterion or practice applied, was justified in that it was a proportionate means of achieving a legitimate end.

The House of Lords decision in Shamoon -v- The Chief Constable of the Royal Ulster Constabulary 2006 UK HL 11 is the authority on what constitutes a detriment for the purposes of discrimination proceedings. The concept of detriment is broad but it is not without limit. In the Shamoon case, the statutory cause of action which the claimant had invoked was discrimination in the field of employment and the tribunal had to take all the circumstances into account.

The question for the tribunal in determining detriment is whether the treatment was of such a kind that a reasonable worker would, or might, take the view that, in all the circumstances, it was to his detriment. It is not necessary to demonstrate some physical or economic consequence and an unjustified sense of grievance cannot amount to a detriment. In the Shamoon case the effect of removing her ability to carry out appraisals on officers was to reduce her standing amongst her colleagues and she was justified in feeling demeaned in the eyes of those over whom she was in a position of authority. Lord Nicholl's quoted with approval the stipulation in the case of DeSouza -v- Automobile Association Case 1986 ICR 514 that the court or tribunal must find that, by reason of the act or acts complained of, a reasonable worker would or might take the view that he had thereby been disadvantaged in circumstances in which he had thereafter to work. It is therefore an objective test which must be applied.

CONCLUSIONS

The respondent's counsel argued that the discrimination engaged in this case was indirect discrimination saying that the application of the selection criteria for VR were applied equally to everyone irrespective of age. The tribunal does not accept this and finds that the issues in this case fall clearly within the scope of direct discrimination. The claimant's complaint is that, due to an age 55 threshold, he was not placed at the top of the priority list unlike six individuals who were older than him who had fewer years of service with the respondent company. The part of the VR policy under attack in this case was the use of a threshold of 55 irrespective of seniority. It is nonsensical to say that the policy applied equally to everyone irrespective of age when it clearly applied differently to those over 55 purely on the basis of their age. As the tribunal has found that the case involves direct discrimination, there is no need for the tribunal to consider the indirect discrimination issue as it would involve an analysis of the effect of the same provision of the VR policy.

The next issue for the tribunal to determine is whether or not the claimant suffered a detriment due to the way the priority list was complied. The tribunal must look at the situation as it was at the time leading up to the presentation of the claim on 18 June 2007. The tribunal has expressly excluded from its deliberations the fact that an individual was made redundant in October 2007 from a different shift to the claimant as there is no evidence that this redundancy exercise was envisaged in June 2007.

By June 2007 the voluntary redundancy exercise, which had been initiated following the identification of 10 surplus posts, had been withdrawn because those posts were dealt with by natural wastage. At that stage the claimant's name was at number 31 on a list which could be used for future redundancy exercises. Any future exercises might or might not have encompassed the claimant depending on the number of staff identified as potentially redundant. As there was no evidence that there was any redundancy exercise envisaged as at June 2007, the height of the claimant's case is that he was lower down a list than he should have been; that list might or might not have been used in the future, and if it was used, it might or might not have encompassed him. In these circumstances the tribunal finds that, whilst the detriment as outlined in Shamoon is a broad concept, it does not encompass the claimant's situation. Applying the Shamoon test namely, whether a reasonable employee looking at the claimant's situation would regard him as disadvantaged in the circumstances in which he had thereafter to work, the tribunal finds no evidence of such a disadvantage. In general terms the tribunal's view is that, as regards a 44 year-olds not selected for redundancy, it would generally be regarded by the reasonable employee as advantageous rather than disadvantageous for him to retain his job. The tribunal heard no evidence from the claimant as to any particular aspects of his circumstances which made it particularly advantageous for him to be in a group which might be earmarked to be offered redundancy if and when it might come round.

As the claimant has not proved less favourable treatment amounting to a detriment, his claim must fail. The tribunal therefore does not need to look at the justification aspect of the claim but wishes to make some general comments about the proof likely to be required for this aspect of an age discrimination claim.

If detriment had been established by the claimant, on the face of it there would have been direct discrimination and the focus would have shifted to the respondent to raise a justification defence to show that the application of a threshold of age 55 was a proportionate means of achieving a legitimate end. In this regard the respondent's representative referred to three points:-

(a) The revision of the policy was agreed with the trade union side and the age 55 threshold was not removed.

(b) It is a matter of common knowledge that there is a training issue as older members of staff with limited employment life are, in general, more suitable for voluntary redundancy due to the fact that any expenditure by the business in training them will not yield as much of a dividend given their shorter potential working lifewith the respondent.

(c) Older people are less likely to be as fit as people in their early 40s and for a company like the Royal Mail with a huge number of manual workers a workable national policy needs to be in practice which recognises this general assumption.

In this tribunal's view, in cases where a policy which is discriminatory on the grounds of age is alleged to be justified, specific evidence in relation to a respondent company's circumstances will be required. Pointing to an agreement with TU side is unlikely, of itself, to be sufficient and it will likely not be enough for a respondent to ask the tribunal to rely on general assumptions about older people about their fitness or health as one of the fundamental reasons for the legislation being enacted was to challenge assumptions and stereotypes based on age.

The tribunal also wishes to record that it was particularly impressed with the claimant's presentation of his case. The claimant clearly felt that the operation of an age threshold was unfair but, nevertheless, that feeling of unfairness was not sufficient in law in this case. The tribunal's conclusion is, therefore, that the claimant's claim for unlawful discrimination is dismissed.

Chairman:

Date and place of hearing: 7 April 2008, Belfast.

Date decision recorded in register and issued to parties: