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NHS worker wins job back in landmark case
Times Online
12 April 2007
A 67-year-old NHS employee who was sacked the day before new age discrimination regulations protecting older workers came into force has won her job back in a landmark victory that could help others in a similar position.
Ann Southcott was dismissed from her post as a clerical worker at Treliske Hospital, Cornwall, on September 30 2006 - one day before the Employment Equality (Age) Regulations were introduced.
The regulations, based on a longstanding European directive that the UK is obliged to follow, make it illegal for employers to discriminate on the grounds of age.
Mrs Southcott was told she would receive the contractual requirement of 11 weeks pay – equal to her notice period - rather than the 11 months pay she would have been entitled to had she been dismissed a day later under the new rules.
With the backing of Unison, the public sector trade union, Mrs Southcott launched a claim for unfair dismissal and age discrimination at her local employment tribunal.
Following a preliminary hearing, the Royal Cornwall Hospitals NHS Trust agreed to reinstate Mrs Southcott and a group of other workers dismissed in similar circumstances.
Employment lawyers said Mrs Southcott’s case is thought to be the first age discrimination claim to have reached an Employment Tribunal since the new regulations were introduced.
Edward Cooper, head of employment law Russell Jones & Walker, said it was significant because it is “the first case to illustrate the very real unfairness that exists for older employees - which was allowed to go entirely unchallenged before the new laws took force.”
Mr Cooper added that there are “likely to be many other similar cases where rash decisions by employers to seek to avoid the impact of age discrimination prior to October 1st 2006 are successfully challenged.”
Employees who believe they were the victim of age discrimination have until the end of this month to file a claim – although they will need to have already complained in writing to their former employer.
However, other employment experts said Mrs Southcott’s case had wider significance because her solicitor - Mark Gray of Thompsons - was able to persuade an Employment Tribunal that she had a potential age discrimination claim despite the fact that she was dismissed prior to the new regulations taking effect.
The Employment Equality Regulations are not retrospective and so employees can only bring claims under them if the alleged discrimination took place after October 1, last year.
But Mr Gray argued that following a landmark ruling in a German case at the European Court of Justice (ECJ), the tribunal should accept Mrs Southcott’s age discrimination claim because the EU directive had already been introduced.
In the German case, Mangold v Helm, the ECJ ruled that individual country deadlines for implementing the EU directive were purely practical measures and they did not mean that the individual country is free to ignore the directive until that date.
Although Mrs Southcott’s case was settled before an Employment Tribunal was asked to rule on it, lawyers said the fact that the Tribunal – at the preliminary stage – accepted that Mr Gray’s argument based on the Mangold ruling was worth further discussion, was itself significant.
James Davies, head of employment at Lewis Silkin, said: “The Mangold ruling surprised a lot of people and many expect its effects will be watered down or even reversed in subsequent ECJ rulings. But the fact that a UK Employment Tribunal has embraced aspects of it is potentially very significant.”
One possible consequence, Mr Davies said, is that UK lawyers may try to use the Mangold ruling to argue that private as well as public sector employers can be challenged in circumstances where UK laws do not go as far as the EU directive.
This is because another radical aspect of the Mangold case, Mr Davies said, was that it overturned a previous understanding that employees could only attempt to bring claims against public sector employers in an individual country that had not yet formally adopted the rules.
This is because another radical aspect of the Mangold case, Mr Davies said, was that it overturned a previous understanding that employees could only attempt to bring claims against public sector employers when using the directive rather than the local country laws.
Following the Employment Tribunal’s acceptance of the Mangold ruling, Mr Davies said that private sector workers who feel they were discriminated against because of their age could now attempt to bring cases against their employers – opening a potential new set of age discrimination claims.