Age Discrimination Case Update: Osaba v Chief Constable of the Hertfordshire Constabulary
The Employment Appeal Tribunal made an unusual decision in Osaba v The Chief Constable of the Hertfordshire Constabulary. The claim was brought by Mr Osaba, who said that he had been subject to age discrimination when he was made redundant during a reorganisation.
The redundancy process had been shambolic. Much of this view came about because of the statement and subsequent cross examination of Miss Pritchard, appearing from the Respondent. She admitted that she had made many errors. As the person responsible for the process that resulted in the selection of the Claimant, she was strongly criticised in the tribunal and again at the appeal stage. The employer would undoubtedly have been uneasy about its position and behaviour.
Mr Osaba informed his employer during the preliminary stage of the reorganisation that, while he was approaching retirement age, he had no wish to retire from the police force. He was later scored the lowest in the matrix and was subsequently made redundant as a result. The Tribunal rejected his claim and so 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 ‘excuse’ was complete incompetence; incompetence? What sort of reason is that? In this case it was a successful reason. The Employment Appeals Tribunal held that sometimes a plea of 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, because a mistake had been made, it removes it from any criteria that would find it 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.