Incompetence not necessarily unlawful

24 October 2013

Warren Wayne, James Froud

In Osoba v Chief Constable of Herts, the EAT considered the case of an employee who alleged age discrimination in the way that a redundancy selection matrix had been constructed.

From some of the questions asked within this matrix, an inference could be drawn that those closer to retirement would be treated differently. In such a case, it falls to the employer to show that any less favourable treatment was for a reason entirely unconnected with the relevant ‘protected characteristic’ – in this case, age. The employer’s only explanation here was that it had made errors in constructing the matrix and applying it. Was this a sufficient explanation, or should the tribunal have asked why there had been such incompetence? The EAT said that it was clear on the evidence that what had happened here was an honest mistake. There was no need for the tribunal to enquire further. The employer had provided a reason for the treatment which did not constitute unlawful discrimination. The claim failed.

Point to note:

  • This decision is helpful to employers who must provide reasons for their actions in such cases. Otherwise the inference that discrimination has occurred will be sufficient for the claimant to succeed.

  • Depending on the circumstances, tribunals may decide that an employer was subconsciously affected by a discriminatory motive which is hard for employers to disprove.

This article is part of the UK Employment Law Update for October 2013

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