At the same time of my dismissal from Queen Mary on grounds of redundancy, my colleague Babis was also served notice. His case hasn’t seen any publicity so far. In what follows, I present the description of the original Employment Tribunal Judgment by the Honourable Mrs Justice Elisabeth Laing, DBE. I transcribe a few parts of her Judgment (ommitting some of the legal terminology) with an aim to make some aspects of Babis’ experience better known and the text easier to follow for the lay reader. The public document is available in full here.
This is an appeal from the Employment Tribunal (“the ET”) sitting at East London. In a Decision sent to the parties on 19 March 2014, the ET dismissed the Claimant’s claim for unfair dismissal and for indirect discrimination on the grounds of age.
The Claimant has worked in the field of academic research for over 25 years. He was a Research Fellow at the Imperial Cancer Research Fund between 1992 and 1997 and of the National Institute for Medical Research between 1997 and 2000. On 1 April 2000 he joined what was then the Queen Mary Westfield College and is now the Respondent (Queen Mary University of London). He joined as a Non-Clinical Lecturer in the Department of Neurosurgery, which was part of the School of Medicine and Dentistry (“the SMD”). The Claimant stayed in this post until he was dismissed with notice, and that dismissal took effect on 30 November 2012. The Claimant was born on 17 November 1959 and was 53 years old at the date when he was dismissed.
The ET’s Decision
In short, the argument on unfair dismissal was whether or not the Claimant had been unfairly selected for redundancy. [Among] the agreed issues about age discrimination were whether the restructure favoured younger employees to the detriment of older employees… and in particular, if so, whether the Respondent’s advertisement of positions for Early Career Research Fellowships was a PCP [provision, criterion or practice] that put the Claimant and others of his age at a particular disadvantage when compared with others and if so whether it was a proportionate means of achieving a legitimate aim.
The ET found that the SMD had always been able to cover its own costs but that by 2011 there was concern about funding changes. A review was commissioned. This review found that there would be a projected deficit by 2013-2014. It was therefore agreed in July and August 2011 that there should be a consultation with a view to restructuring the SMD in order to make savings. A redundancy committee was established in August 2011. The establishment of such a committee was required by the Respondent’s relevant policy. In September 2011 proposals for consultation were published. This document explained the background. The SMD had relied on a funding stream which was being cut. The proposal was to increase other sources of income, particularly from research, and to make cuts of £3million. Directors of institutes were asked to review academic activity. Formal consultation took place in September and October 2011, and no issue was raised about that.
After the consultation a further document was published. The proposal was to cut about 42 posts in the SMD. The Blizzard Institute, where the Claimant worked, was to bear the lion’s share of the cuts: 17.46 full-time equivalent posts were to be removed. The same selection criteria were used as before. One criterion had an exception which favoured young researchers. The document explained that an individual had to cross thresholds in the criteria in order to avoid being identified as at risk of redundancy. The academic staff were assessed against the criteria, and 43, including the Claimant, were identified as at risk of redundancy.
The Claimant was asked to attend a meeting. He was told that he would get information before the meeting and that the assessment would be explained to him. The Claimant was accompanied to the meeting, which was chaired by a Professor Curtis. The Claimant thought that his papers should have been assessed by external experts, but everyone was assessed internally. The Claimant questioned the assessment in various ways…
The people who had been identified as being at risk of redundancy were considered at a meeting on 31 May 2012. The Claimant’s points were raised, but the group considered that he was still at risk, and he was told that in a later letter. He was told that he would be invited to a meeting with the Redundancy Committee to discuss this. He said that Professor Curtis had not dealt with his points and asked for comparative data about other academics to help him mount his arguments. At the meeting one of his arguments was that he did not know how he had performed in comparison with others. The conclusion of the committee, which he was told in a letter of 12 July 2012, was that he was still at risk and would be recommended for dismissal. He was signed off work with stress on 26 July 2012.
At the same time the Respondent had advertised for 20 Early Career Researchers (“ECR”). These posts were self-funding, attracting up to an extra £100,000 under a Government scheme. The staff identified as being at risk went down to 28 after a review meeting, and that had been reduced to a figure of 19: three likely compulsory redundancies, 14 voluntary redundancies and two possible redeployments. The ECR posts were not open to those who had not been independent researchers before 1 August 2009.
[I interpose here to recommend this commentary published by Richard Horton at the time: Be carefull what you wish for]
The ET recorded that Professor Robinson had put some questions to Ms Garry by email on 12 July 2012. One of the issues that he had raised was the advertisements for the ECRs. I was told by Miss Tracy-Forster, who represented the Respondent at the hearing (Mr Dutton was not counsel at the hearing), that the redundancy committee had been concerned about the fact that the Respondent appeared to be recruiting to new posts at the same time it was making people redundant. The raising of that concern, she told me, led to a consideration by the Respondent of the PCP that was involved in the recruitment of the ECRs, and it had been reassured at the time, wrongly as it now transpires, that that PCP was not discriminatory.
On 10 August 2012 the Claimant was given three months’ notice of dismissal for redundancy. He was told that the Respondent would look for suitable alternative employment during his notice period. He was given and exercised a right of appeal. The appeal was dismissed.
The Claimant was one of three employees who were at risk and did not accept voluntary redundancy. The two other employees in this position appealed successfully. The ET also recorded that the Claimant did not appear to take much interest in redeployment initially but went to a short meeting about it when the system had been explained to him. The Respondent looked into redeployment nonetheless but could find no suitable posts. The Claimant later applied, unsuccessfully, for a post for which he was not shortlisted. He was told that this was because he did not have the necessary experience. His argument was that he could have been trained for this post, but the Respondent’s case was that it needed someone who could ‘hit the ground running’. The Claimant at that stage applied for no other posts. He identified no posts other than the ECR posts. Later on he applied for two posts for Lecturers in Biomedical Sciences; he was not short-listed. He asked for feedback but received none. He applied in June 2013 for a post as a Senior Lecturer in Neuroscience; he was not successful. The ET did not receive any evidence that he had received any feedback in relation to that application either.
[Relevant redeployment rules at Queen Mary University of London are listed here]
The Claimant had been told in 2007 that his work was not part of a submission to the Higher Education Funding Council for England as it was “insufficiently aligned” with the themes of the rest of the Neuroscience Department. He only achieved grant income of £9,180.44 in the three academic years from 2008, which was less than the £65,000 threshold in the ‘research activity’ criterion. It was common ground that the Claimant’s publications did not fall in category 1 of the four categories in the selection criteria because they were not publications in leading non-specialist publications.
The ET decided… that there was a “redundancy situation” and that the Claimant’s dismissal was not unfair. The choice of performance criteria, which reflected a strategy focussed on research, was within the band of reasonable responses, the ET found. The criteria were not so subjective and unclear as to be unfair. An element of subjectivity was unavoidable; for example, in assessing whether a publication was within the top 10 per cent of publications. Decisions about individuals were subject to the oversight of the redundancy committee. That was a sufficient safeguard.
The ET concluded, “[he] was fairly selected … by reference to fair selection criteria”. The ET held that there had been adequate consultation. Its pace had been slow and careful. It was not unfair that the Claimant did not get comparative data sooner. This was not a comparative exercise, and giving him the data sooner would have made no difference to the outcome. A sufficient search for suitable alternative employment had been carried out by the Respondent. The 20 ECR posts were not suitable, as the Claimant did not meet the criteria for appointment to them. The 2013 vacancies appeared after the obligation to find suitable alternative employment had ended.
The ET postponed its ultimate conclusion on unfair dismissal until after it had considered the Claimant’s indirect discrimination claim on grounds of age. The ET said that the indirect discrimination complaint related to the ECR posts. The selection criteria disproportionality favoured the young because of the 1 August 2009 date. The Respondent’s case was that there was no age requirement because an older person might be an ECR because of a career change, but in any event, said the Respondent, it arose from a funding requirement imposed externally; the reason for it had been to encourage the appointment of new researchers to give them a chance, and, perhaps, to generate new ideas.
The ET found that 1 August 2009 cut-off point was a PCP. It was applied to the Claimant. The ET accepted that it put the Claimant’s age group at a particular disadvantage compared with the younger researchers. Older researchers were less likely to meet the criterion. The Claimant did not meet it because he had been a researcher for many years before 2009. The ET was satisfied, however, by the Respondent’s evidence that it had established a defence of justification. The Respondent’s legitimate aim was to increase its research profile and to reduce costs:
This was not a case where the discriminatory conduct was justified by cost alone because the PCP was not imposed by the Respondent but by an external funder and the aim was plainly to encourage new research. The ET therefore found that there was no unlawful indirect discrimination on the grounds of age and that the Claimant’s dismissal had not been unfair.