Honesty Important in Tribunals

Age Discrimination Case Update: Osaba v Chief Constable of the Hertfordshire Constabulary

The Employment Appeal Tribunal made and interesting and unusual decision in Osaba v The Chief Constable of the Hertfordshire Constabulary. This was a claim brought by Mr Osaba stating that he had been subject to age discrimination when he was made redundant during a reorganisation.

The employer had made a real shambles of the redundancy process, much of this centred around the statement and cross examination of Miss Pritchard from the Respondent who ultimately admitted that she had made numerous mistakes. As the person responsible for the matrix, scoring and selection of the Claimant, she was heavily criticised in the tribunal and again at appeal which no doubt would have made uncomfortable viewing for the employer.

Mr Osaba had informed his employer during the discussion phase of the reorganisation that although he was approaching retirement age, his intention was to continue within the police force, he did not want to retire. He was subsequently scored the lowest in the matrix and was made redundant. The Tribunal rejected his claim and he brought an appeal to the EAT.

The focus of the case was direct discrimination, whereby the onus is on the claimant to establish a prima facie case, the obligation then shifts to the employer to provide an explanation for the conduct or treatment. The central question used by the tribunal in such cases being, ‘Why has the Respondent done what could be considered to be a racially discriminatory act?’

The employer’s reason was incompetence; a strange answer to the Tribunal’s question and one which initially takes the reader aback. Incompetence? How many employers would like to admit to that? In this case it was successful. The EAT held that sometimes incompetence can provide a legitimate defence for an employer facing a discrimination claim.

The EAT was satisfied there had been no discriminatory motive for the way in which the selection process had been carried out and that just because a mistake had been made, doesn’t mean it was discriminatory. The Claimant had argued that the respondent had not discharged their legal burden of proving his redundancy was not discriminatory, this was rejected, the EAT stated that just because the employer couldn’t come up with a good enough excuse is not enough to draw an inference.

It was therefore found that the matrix had not been deliberately manipulated to avoid any problems associated with impending retirement, and there had been no reason to draw the conclusion that the behaviour was due to his age. The employer was found to have given an honest answer. This demonstrates that an employer being honest with the Tribunal outweighs any benefits that may be perceived from ‘finding an excuse’.  Trying to find an excuse that would not have stood up to cross examination, could have led to a tribunal to suspect a ‘cover up’ and ultimately finding the reason for dismissal as discrimination.