If you need background to this dispute read first part I. For my general commentary on the case see ‘Academic position, age discrimination and social justice‘. If you would like to know how Queen Mary failed to follow its own Redeployment Procedure when dismissing Babis see part II. Here, I comment on three (of the four) final (summary) points in the Employment Appeal Tribunal Judgment (paragraphs 34-36).
“First, on the facts of this case there was no viable alternative to the compulsory redundancy of the Claimant. If there had been such a viable alternative, it would have surfaced during the long and careful process of restructuring, consultation and selection that the ET described in its Reasons. It is not feasible or realistic at the end of such a process to impose a further requirement on an employer to investigate the various tweaks that Mr Dutton suggested in his submissions, which I have just summarised. I pressed him in argument for an alternative PCP that would have been less discriminatory, and the PCP that he came up with was that those who ought to be selected for redundancy would achieve the cost reduction sought by the Respondent. It seemed to me that this was an unfeasibly vague and messy criterion for an employer to have to apply. When I put that point to Mr Dutton, he said that it would not be if it was applied pragmatically on a case by case basis, but the difficulty is that the process of restructuring a consultation had taken a year, the ET was entitled to assume that everything had been looked into and considered during the course of that long process and nobody had come up with any suggestion other than that at the end of the process there was going to have to be at least one compulsory redundancy. Mr Dutton accepted in answer to a question from me that if there was no alternative the ET’s decision was not erroneous, and that seems to me to be the position: there was no alternative, and the ET’s decision is not flawed by any error of law.”
My comment is that the key premises put forward by the unaccountable Queen Mary managers and accepted by the Tribunal Judges are questionable: Queen Mary’s cost reduction in the Medical School must be seen in the context of its final year financial statements, declaring a surplus of £9M in 2012/2013, which rose to £17M in 2013/2014 (after the bonuses given out to senior managers). The Medical School was hiring staff to replace Babis and others who left. It was precisely their failure to mention those positions to Babis that shows that their process was not “careful” and that it was “realistic” to ask them to consider alternatives, as their process actually requires them to do. I ask whether it is in the public interest to destroy academic expertise and freedom in a ‘cost reduction’ exercise, when making millions and whether the Law was applied correctly in this case.
“Secondly, it follows from that analysis both that the Respondent discharged the burden of proof on the defence of justification and secondly that there was no duty on the ET on the facts of this case to consider obvious alternatives.“
The Respondent denied their age discrimination policy when they effected it. This in my view should have been enough of a scandal, given that Queen Mary is a public institution, for them to apologise and reinstate Babis. The fact that they were allowed to:
poses a threat to everyone who cares about higher education in the UK. I cannot help thinking that the Employment Tribunal Judges are unqualified to understand the context of academic institutions who have worked for centuries on trust, honesty and lifelong service under academic values.
“The third point is that if my analysis of the facts is wrong I do reject the submission that as a matter of law there is a general burden on an employer or on an ET to look into alternatives in every case. Whether there is such a burden either on the employer or on the ET must of course depend on the facts of the individual case. Nothing in the authorities that I have been shown supports such a general duty, and, in my judgment, nothing on the facts of the case requires such a duty to be imposed here.“
The application of justice requires that the Employment Tribunals make more effort than only what they are asked of by the parties. If we want a society with reduced discrimination on the basis of – you name it, here age – then the Tribunals should have a general duty to ask whether the discrimination could have been avoided.