In Woodcock v Cumbria Primary Care Trust the Court of Appeal held that the dismissal of a chief executive for redundancy without proper consultation to avoid qualifying for an enhanced pension was lawful age discrimination because the treatment was a proportionate means of achieving a legitimate aim. In giving its judgment the Court also confirmed that an employer cannot justify discriminatory treatment ‘solely’ on the grounds of cost alone.

In a merger of Trusts, Mr Woodcock was given notice of dismissal for redundancy before a consultation meeting took place when it was realised that notice given after Mr Woodcock’s 49th birthday would expire after his 50th birthday when he would be entitled to an enhanced pension.

The Court of Appeal agreed with the employment tribunal and the EAT that although this was age discrimination, it was a proportionate means of achieving a legitimate aim. The notice was not served with the single aim of saving money; it was served to give effect to the Trust’s genuine legitimate aim to terminate Mr Woodcock’s employment on the grounds of his redundancy. It was also a legitimate part of that aim for the Trust to ensure that the dismissal also saved the Trust the additional element of costs that it would have incurred, if it had it not timed the dismissal as it did. The means chosen was proportionate in meeting the aim. The reasonable need of the Trust was to bring about the end of Mr Woodcock’s employment without incurring cost to the taxpayer and although the discriminatory effect on Mr Woodcock was that he did not have a consultation meeting, consultation would have achieved nothing, because he wanted an alternative job that did not exist.

In giving it’s judgment, the Court also addressed the issue raised in the EAT, where the EAT commented that it did not find the ‘justification for discrimination cannot be on costs alone, it can only be on a costs plus basis’ proposition convincing. Firstly, as the EAT had rightly identified, this was not a ‘costs alone’ case, it was a ‘costs plus’ situation i.e. to serve the legitimate aim of making Mr Woodcock redundant and saving the taxpayer money in doing so. As to a ‘costs alone’ justification, the Court did not agree with the EAT’s view. Such a justification is not permissible. Judgments from the ECJ had made it very clear that an employer cannot justify discriminatory treatment ‘solely’ because of cost. In plain terms an employer cannot argue that it is cheaper to discriminate than not to discriminate.