THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF TOWER HAMLETS v MR J WOOSTER [2009] UKEAT 0441_08_1009

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0441_08_1009Case No Appeal No. UKEAT/0441/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF TOWER HAMLETSAPPELLANTMR J WOOSTERRESPONDENT
Before
Mr Justice UnderhillDate 10 September 2009
[1]APPEARANCES For the Appellant MR ADRIAN LYNCH (One of Her Majesty's Counsel) and MR MAX THOROWGOOD (of Counsel) Instructed by: The Legal Department London Borough of Tower Hamlets Town Hall Mulberry Place 5 Clove Crescent London E14 2BG For the Respondent MS RACHEL TONEY (of Counsel) Instructed by: Messrs Royds LLP 65 Carter Lane London EC4V 5HF SUMMARY AGE DISCRIMINATION UNFAIR DISMISSAL – Polkey deduction Council employee seconded to registered social landlord – Secondment comes to an end, so that he is formally redundant – Employee aged 49 and would be entitled to an early retirement pension if retained in employment to age 50 - Council fails to find him alternative employment or to permit an extension of the secondment, notwithstanding an offer by organisation to which he is seconded to fund his continued employment to age 50 Tribunal finds Council liable for unfair dismissal and age discrimination, on basis that:(a) Council made insufficient effort to redeploy the Claimant; and(b) it was motivated by a wish to avoid the additional costs of him taking early retirement at age 50. Tribunal also holds, as regards remedy, that it has "little doubt" that if Claimant had not been treated unfairly and discriminated against he would have been found alternative employment. On the Council's appeals against the finding of age discrimination and as regards remedy, held : (1) that, while the Council was justified in refusing to continue the Claimant's secondment for the purpose of allowing him to reach age 50 and then take early retirement (which would indeed have been unlawful - Eastbourne Borough Council v. Foster [2002] ICR 234 , and Hinckley & Bosworth Borough Council v. Shaw [2000] LGR 9 referred to), to take into account his impending entitlement to a pension in the application of its redundancy and redeployment policy constituted age discrimination (no defence of justification being advanced); and that the Tribunal was entitled on the evidence to conclude that the Council had done so; (2) that the Tribunal was entitled on the evidence to find as a practical certainty that the Claimant would, but for the matters complained of, have been found alternative employment and that the use of the phrase "little doubt" did not mean that it was obliged to make a discount for the chance that he might not have done so. THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT) INTRODUCTION The Claimant was born 11 July 1957. On 3 December 1973 he began employment with the London Borough of Tower Hamlets ("the Council"). From 2003 he was working on secondment to a registered social landlord called East End Homes ("EEH"). On 9 October 2006 he was notified that his secondment was coming to an end and that unless alternative employment within the Council could be found he would be dismissed for redundancy. He was at the same time offered an advantageous voluntary redundancy package, which he reluctantly accepted, with the result that his employment with the Council was terminated with effect from 29 December 2006.[2]On 16 March 2007 the Claimant commenced the present proceedings against the Council. He claimed both that his dismissal was unfair and that it constituted unlawful (direct) age discrimination contrary to regs. 3 and 7 (2) (d) of the Employment Equality (Age) Regulations 2006 . The claim of unfair dismissal was on the basis that the Council could and should have done more to redeploy him, i.e. to find him alternative employment. The age discrimination claim was founded in the fact that at the date of his dismissal he was some 6½ months short of his 50 th birthday. If he had remained in employment until then he would under the Local Government Pension Scheme have become entitled on any subsequent involuntary termination of his employment to an immediate early retirement pension (not subject to actuarial reduction), rather than having to wait until he became entitled to a deferred pension at (at earliest) age 60; and he contended that the Council in deciding to dismiss him when it did was motivated by a desire to avoid the cost of having to fund the payment of such a pension. (There was also a claim for breach of contract but that was not in the event pursued.)[3]At a late stage the Council admitted that it had not complied with the statutory dismissal procedures and that accordingly the Claimant's dismissal was "automatically" unfair by reference to s. 98A of the Employment Rights Act 1996. Nevertheless the question of "substantive" unfairness required to be decided, since it would be fundamental to the approach to remedy. That issue and the issue of liability for age discrimination were heard over four days in January 2008 by an Employment Tribunal sitting at Stratford, chaired by Employment Judge Pritchard-Witts. The hearing of the evidence took up the whole of the period allotted for the hearing: we were told that the over-run was at least to some extent the result of substantial late disclosure of documents and witness evidence by the Council. The original intention had been that the Tribunal should decide the issue of remedy also. That was recognised to be unrealistic, but it was agreed that the Tribunal should deal with those remedy issues – most obviously any potential Polkey issue – that arose out of the liability evidence.[4]The result of the over-running of the evidence was that closing submissions were made entirely in writing and in two tranches, with initial submissions being followed by a second round in response. Those submissions were considered by the Tribunal in chambers over three days in May and June 2008. We take the opportunity to repeat the observation which this Tribunal has already made in other cases that, although written submissions are very valuable in any complex case and will often reduce the time that it is necessary to spend on oral submissions, it is very unsatisfactory that the Tribunal should in such a case be deprived of the benefit of oral argument altogether.[5]By a Judgment and Reasons sent to the parties on 1 July 2008 the claims both of substantive unfair dismissal and age discrimination were upheld. It is clear, and is not disputed on this appeal, that the Claimant was a loyal and able employee whose case was badly and unsympathetically treated by the Council's management and HR department over a long period.[6]The Council has not appealed against the decision that the Claimant's dismissal was unfair; but it has appealed against:(a) (A) the decision that the dismissal of the Claimant constituted age discrimination; and(b) (B) two findings – or what are said to be findings – material to the issue of remedy. The Claimant has himself cross-appealed; but the cross-appeal was disallowed on the sift on the basis that it was premature. 7. The Council was represented before us by Mr Adrian Lynch QC and Mr Max Thorowgood, and the Claimant by Ms Rachel Toney: both junior counsel, but not Mr Lynch, appeared before the Tribunal.[8]The bundle before us contained not only the contemporary documents that were before the Tribunal but also both the witness statements and an agreed note of the oral evidence. A. THE AGE DISCRIMINATION APPEAL THE LAW[9]It is convenient to start by setting out the relevant provisions of the 2006 Regulations. Reg. 3 (1) provides, so far as relevant:
"For the purposes of these Regulations, a person ("
A") discriminates against another person ("B") if— (a) on grounds of B's age, A treats B less favourably than he treats or would treat other persons, or (b) … and A cannot show the treatment … to be a proportionate means of achieving a legitimate aim." (We will use the usual shorthand of "justification" to refer to the latter element in the definition.) Reg. 3 (2) provides that:
"A comparison of B's case with that of another person under paragraph (1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."
By reg.

(d) :

"It is unlawful for an employer, in relation to a person whom he employs at an establishment in Great Britain, to discriminate against that person— (a) … ; (b) … ; (c) … ; or (d) by dismissing him, or subjecting him to any other detriment."
Reg. 37 contains provisions relating to the burden of proof in terms equivalent to those employed in the other discrimination legislation. The scheme of the Regulations is thus identical to that familiar from that legislation, with the single but very significant exception that direct age discrimination can be justified. THE FACTS[10]The story of the final years of the Claimant's employment is recounted in considerable detail in the Reasons. For present purposes, however, it can be summarised fairly briefly.[11]The Claimant started his employment with the Council as a junior clerk. He worked his way up over the years, and in May 1998 was appointed Senior Community Consultation Officer in the Consultation and Participation Team in the Council's Housing Directorate. That job involved working with local communities where what had previously been council accommodation was proposed to be transferred to registered social landlords: that is, under the current legislation, a complex process in which, among other things, the views of tenants have to be ascertained by ballot.[12]In early 2001 there was a restructuring within the team, and in the consequent "assimilation" exercise the Claimant was unfortunately not successful in obtaining any of the new posts created as a result. He was, however, assured that the Directorate could find a role for him, and he was appointed on a temporary, "unassimilated", basis to the role of Project Officer in the Stock Transfer Team. Although he made it clear that his goal was to move back into a permanent post, none was immediately forthcoming; and in January 2003 he accepted another unassimilated post as Senior Project Officer with EEH, to which part of the Council's housing stock was in the process of being transferred. The Claimant's role there was essentially equivalent to his previous role as a Community Consultation Officer and was primarily concerned with the work needed up to the point at which the tenants were balloted on whether they wished to transfer ("pre-ballot work"): it was thus finite in character. The appointment was for twelve months, renewable.[13]At the time of the Claimant's original appointment to EEH, it was legally and administratively part of the Council. In the course of 2004 it became legally distinct, but for reasons into which we need not go it was accepted that the Claimant's employment did not transfer and that he remained an employee of the Council, seconded to EEH. The Chief Executive of EEH was Paul Bloss, who had previously been Acting Head of the Council's Housing Directorate, and so had a good understanding of how things were done. The Claimant's immediate manager was Keith Brown.[14]The Claimant's appointment as Senior Project Officer was renewed by EEH in 2004 and 2005.[15]Throughout the period from 2003 the Claimant was concerned about the vulnerability of his position. He communicated that concern to the Council. The Tribunal found that his concerns were not properly considered. It referred in particular to advice given in August 2004 by Maureen McEleney, the Director of Housing Management, communicated to him the following month in a letter from Mr Coker of the HR Department, to – in effect – do nothing about his unassimilated status until his secondment expired naturally. The Tribunal was very critical of that advice, which meant that the Claimant was deterred from applying for permanent posts that came up over the next two years.[16]It was Ms McEleney's policy generally that all secondments to registered social landlords should be brought to an end as soon as possible. By the autumn of 2006 it was understood that the work for which the Claimant had been seconded to EEH was coming to an end: the last ballot with which it was concerned was due to take place in November. That was the understanding both of EEH, who told the Claimant on 27 September that his work for them was likely to come to an end in about three months, and of Ms McEleney, who accordingly intended and expected the secondment to terminate in accordance with her general policy. (To anticipate, the Tribunal found that this initial decision was entirely non-discriminatory: its findings of discrimination related to the Council's handling of the consequences – see the first sentences of para. 109 of the Reasons, set out at para. 29 below.) The ending of the secondment meant that the Claimant was, as an unassimilated employee, liable to be dismissed for redundancy unless alternative employment could be found within the twelve-week redeployment period prescribed by the Council's Redundancy and Redeployment Policy.[17]Accordingly, the Claimant was sent the letter of 9 October 2006 referred to at para. 1 above. That letter was sent on the authority of the Council's Redundancy and Redeployment Panel and was in standard form, giving him twelve weeks' notice of dismissal for redundancy but informing him that during that period the redeployment process would be activated. The letter encouraged him to consider applying for voluntary redundancy under a scheme which offered substantial financial incentives.[18]The Claimant was aware by no later than the beginning of September that his secondment to EEH was coming to an end and that he would at that point be regarded by the Council as redundant. He took advice from the Council's Pensions Office. They told him that, as indicated in para. 2 above, his rights on redundancy would be fundamentally different depending on whether his employment terminated before his 50 th birthday on 11 July 2007. He shared his concerns on this point with EEH, who valued his work and sympathised with his position. On 12 October Mr Bloss e-mailed Karen Scott in the HR Department seeking clarification of the position. He referred to the Claimant having been told that "if he can somehow manage to hang on until he is 50 next July" he would be entitled to early retirement. Shortly afterwards he offered to Ms Scott to continue to employ the Claimant until July 2007 on the basis that EEH funded half of his salary cost (which had previously been borne 100% by the Council). Ms Scott passed the offer on to Ms McEleney, who, however, told her that it would be "difficult to achieve given all of our current restructurings and our budget position". Despite that Ms Scott, by a regrettable error, at first told Mr Bloss that the secondment could continue. But the error was corrected shortly afterwards and Mr Bloss was told that the Council would not extend the secondment. On 3 November Mr Bloss responded by offering to fund out of EEH's own budget the entirety of the cost of the continuation of the Claimant's employment from the date that he would otherwise be dismissed until at least his 50 th birthday. It is plain that the intention of the proposal was simply that the Claimant would attain age 50 and then retire; and the Claimant himself expressed that intention in the e-mail of 21 November referred to at para. 19 below, where he said: "I am 50 in July and was planning to retire at that age after 32 years with LBTH. At 50 I would be able to draw my pension which I had planned to do some time ago. Thus declaring I am in my last year of service." (It is fair to say that the Claimant said in evidence that that was not really his true, or at least his underlying, state of mind. He had always wanted to stay on with the Council until normal retiring age, but he said what he did in this e-mail because of the pressure he was under. The Tribunal accepted this, finding at para. 108 of the Reasons that if he had been given the opportunity the Claimant would have stayed with the Council until age 65. But for present purposes what matters is what Ms McEleney was told.)[19]Mr Bloss did not specify to the Council what work he proposed that the Claimant should be doing, but it was understood that – necessarily, since the pre-ballot period had concluded - it would not be the work for which he had originally been seconded. On 3 November Mr Brown e-mailed Mr Bloss saying that he did not know what work he had in mind for the Claimant but that "if you haven't got anything I can use him ... to help set up the office/filing system/tenancy files".[20]In the course of a telephone conversation with Mr Bloss on, probably, 17 November Ms McEleney rejected EEH's offer. She also rejected a subsequent plea by e-mail from Mr Wooster, dated 21 November, that she reconsider her decision or meet him to discuss it. She said:
" I can confirm that the Council's decision to bringing [ sic ] the secondments to [EEH] to an end is not in any way related to your particular circumstances. The decision is however related to the continued need for bringing to an end secondments of staff to [EEH] in the light of both recent ballots and transfers as well as further potential transfers. I can also confirm that the secondments have continued for longer this year than we had originally planned and it is important that this is now addressed. Whilst your years of service are very much appreciated this cannot be a factor in our decision making. I appreciate that you will be disappointed by this but the Council is obliged to look at the needs of the service overall."
[21]The Tribunal's finding in this regard is at paras. 72-73 of the Reasons and reads as follows:
"72. Despite East End Homes offering to pay 100% of Mr Wooster's salary up to July 2007, Ms McEleney would not be persuaded to allow the secondment to continue and, without giving detailed consideration to the key principles of the redundancy and redeployment procedure, she stated that it was her desire to bring all secondments to an end and reacted to the offer of Mr Bloss relating to salary in the following way: "
Paul, if you are going to pay his salary then you can pay his bloody pension when he is 50. If he goes now we do save the pension." This is a finding made by the Tribunal based upon what Mr Wooster was told by Mr Bloss. Mr Bloss did not confirm that he uttered those words to Mr Wooster but we are sure that they were spoken. Given the nature of Ms McEleney's input into the August 2004 letter and the attitude displayed at paragraph 14 of her witness statement we are in no doubt that these words were spoken and, as we will conclude hereafter, that the trigger for her decision was the age of Mr Wooster. 73. Ms McEleney never met Mr Brown nor Mr Wooster to discuss the situation despite the request of Mr Wooster dated 21 November 2006. Her decision was based upon her perception that stock transfers were coming to an end (expedited by several council estates having voted "no") and as a consequence, although she was not entirely au fait with the details of the ongoing work that might subsist until the Autumn of 2007, she had decided that Mr Wooster no longer had a job with the Housing Directorate."[22]On 28 November the Claimant's union representative wrote to Ms McEleney asking for the Claimant's case to be reconsidered. A reply from Ms Scott reiterated that ". .. John was seconded to undertake consultation work on pre ballot estates. The funding for 2006/07 was only agreed until the end of July and has now been exhausted. As there are no more pre ballot estates for EEH it was decided that John's secondment would come to an end and John was formally advised of this. Neither Human Resources or Housing have advised John that this secondment would continue. We are aware that John has had discussion with [EEH] regarding an extension to his secondment. However for the above reason the Council could not agree to an extension of his secondment."[23]It was in these circumstances that the Claimant decided that he had to apply for voluntary redundancy: if he had not done so and had in due course been made compulsorily redundant he would have forgone a payment worth some £20,000. Making such an application did not, however, prevent him remaining a candidate for redeployment.[24]The Tribunal found that there were a number of vacancies for permanent jobs in the Council, both shortly before and during the twelve-week redeployment period, which the Claimant could have filled. Most of them he did not apply for, either (on the Tribunal's findings) because he believed on the basis of the advice received in 2004 that he should not do so until his secondment had expired or because he was not aware of them or for other particular reasons. He was interviewed for two of the posts of which he was made aware but he was unsuccessful. The Tribunal also found that there was worthwhile post-ballot work with EEH and on other "post-ballot estates" that the Claimant could have been asked to do, albeit that such work would have been temporary, pending the finding of a permanent post for him. We return to this aspect in connection with the remedy appeal. However, because he had not found alternative employment at the end of the redeployment period, on 22 December the Claimant's application for voluntary redundancy was accepted and his dismissal took effect from 29 December, being the provisional date identified in the letter of 9 October. THE ISSUES AND SUBMISSIONS BEFORE THE TRIBUNAL[25]At a case management discussion in July 2007 the issues relating to age discrimination were stated as follows:
"4.1 Whether the respondent treated the claimant less favourably than a hypothetical person in comparable circumstances would have been treated on grounds of age, by dismissing him when it did and/or by failing to extend the secondment to July 2007. This claim is brought under regulation 3 (1) (a). 4.2 Whether any inference can be drawn from the fact that the claimant would have been entitled to enhanced pension rights on his 50 th birthday, if permitted to remain in employment to that date and that East End Homes, with whom he was on sabbatical, was content to keep him to that age. 4.3 The respondent has denied age discrimination, but did not address the matter of justification. This is dealt with in the order set out below."
The order referred to at 4.3 required the Council to supply particulars of any defence of justification by no later than 31 August. It did not do so.[26]That formulation of the issues is not particularly elegant. For example, the point raised at 4.2 is not an issue as such but rather one of the matters to be considered in connection with the actual issue defined at 4.1. But what is important for the purpose of the present appeal is that it recognises that two distinct bases of discrimination by the Council are alleged – namely(i) "dismissing [the Claimant] when it did" and(ii) "failing to extend [his] secondment [to EEH] until July 2007 [i.e. his 50 th birthday]". The relationship between the two alternatives appears to be as follows. The former represents a general case that the Council could and should have retained the Claimant beyond the end of 2006 but decided not to do so in order to ensure that he was not still in employment when he reached early retirement age: it was his case that there were jobs into which he could have been redeployed if the Council had had the will to do so, and that his employment could if necessary have been extended for a short time (not necessarily by extending the secondment to EEH, though that was one possibility) to facilitate such redeployment. The latter represents a specific case based on the rejection by Ms McEleney of EEH's proposal. It may be debatable whether these two ways of putting the case were clearly distinguished in the Claimant's original Particulars of Claim; but the statement of issues for the purpose of the CMD is authoritative. We refer to the two ways of putting the discrimination claim as "the general case" and "the specific case".[27]The written submissions before the Tribunal proceeded on the basis of those two alternative ways of putting the case: see, e.g., para. 9 of the Council's Opening Submissions. We shall have to refer below to various particular aspects of the submissions, but it is convenient at this stage to set out in a little more detail how Ms Toney put the Claimant's general case on discrimination in her clear and full "Draft" Closing Submissions (i.e. the first tranche of submissions, in accordance with the arrangements referred to at para. 4 above). We can summarise it as follows:(a) Paras. 81-91 set out in detail the basis on which she submits that the Claimant had been treated unfairly between 2001 and 2006. Among other things she submits (i) that the Council failed to make reasonable efforts to find the Claimant suitable alternative employment (para. 83 (i)), and (ii) that it should in the particular circumstances of his case have extended the original twelve-week redeployment period (as permitted by its Redundancy & Redeployment Policy) if he had not found a job in that time (para. 83 (j)): the latter submission was self-contained and not related to the refusal of EEH's offer (which is the subject of a separate head – para. 83 (k)). The case that there were suitable alternative positions into which the Claimant could have been redeployed – i.e. (i) above - is developed in detail at paras. 84-91. A number of points, both specific and general, are made; and a number of particular vacancies referred to. The Submissions are highly critical of the unimpressive way in which the Council complied, or failed to comply, with its obligations – as a matter of law and under its own Policy – to find alternative employment for the Claimant.(b) Ms Toney's arguments on age discrimination are set out at paras. 92-99. She begins by referring back to the submissions on unfairness - see (a) above – and inviting the Tribunal to "draw inferences" from it. At para. 94 she then sets out – again in considerable detail – further facts from which the Tribunal is invited to infer age discrimination. These include, but are by no means limited to, the episode of Ms McEleney's rejection of the EEH proposal. Inter alia she refers to evidence given in cross-examination by both Mr Bloss and Mr Brown (of which we have seen the notes) to the effect that they believed that the reason why the Claimant was dismissed when he was – as opposed to being redeployed (or having his employment extended so as to facilitate redeployment) – was the concern not to allow him to reach age 50: they said that that was not only their own opinion but that of (named) other colleagues "on the ground" with knowledge of the case. She also refers to the age profile of other secondees who were redeployed. She submits at para. 94 (n) that it would have been "the obvious thing" for the Council to extend the redeployment and that the explanation for its failure to do so was the need to dismiss him before he reached 50.(c) Paras. 95-99 reiterate the key points on which Ms Toney relies as justifying an inference of discrimination. She emphasises the importance of the views of the managers on the ground as to Ms McEleney's motivation; the improbability that the failings in the Council's performance were the result only of incompetence; and the difference between the treatment of the Claimant and other employees. THE TRIBUNAL'S REASONS[28]The Tribunal's Reasons follow the conventional pattern of setting out the issues and the relevant law in advance of the findings of fact and the conclusions. We need only be concerned with the conclusions section, save that in para. 11, in the course of its review of the law, the Tribunal sets out the nature of the Claimant's case as to "the hypothetical comparator", as follows:
"In this case it is the contention of the Claimant that the relevant hypothetical comparator (for both elements to the discrimination claim) is a person who is not aged 49 in the same or relevantly similar circumstances as the Claimant ie a person who is on secondment to East End Homes and whose secondment has been or was in the process of being determined and who was without a substantive post and/or a person who was on secondment to East End Homes and whose secondment had been or was in the process of being determined, with a substantive post."
The two "elements" of the claim referred to are no doubt what we have called the general and the specific case.[29]As for the conclusions, the Tribunal considered first the unfair dismissal claim. The reasoning (at paras. 94-108) is much more fully set out than that relating to the discrimination claim and is a necessary part of the background to it. In summary, the Tribunal held(a) that the Council had mishandled the Claimant's case since 2001, and in particular that Ms McEleney's advice to him in 2004 not to seek a permanent position had put him at a serious disadvantage;(b) that in the light of that mishandling it was incumbent on the Council to make special efforts to ensure that the Claimant was indeed redeployed when his secondment to EEH came to an end;(c) that, so far from making such efforts, the Council again wholly mishandled the Claimant's case, making no real effort to find him alternative employment and indeed proceeding on the plainly erroneous basis that what he really wanted was to take voluntary redundancy;(d) that if the Council had made proper efforts the Claimant could either have been found a permanent post or (if that were not possible) have been further seconded to EEH or another registered social landlord to do post-ballot work pending permanent redeployment. Paras. 106-7 of the Reasons summarise the Tribunal's conclusions as follows (we correct an obvious typographical error in the first line of para. 106 and square-bracket a plainly redundant "not" further down):
"106. Therefore, this is a case where, by failing to acquaint herself with the appropriate and singular circumstances of Mr Wooster who had been severely disadvantaged by the shortcomings of the Human Resources Department, Ms McEleney acted unreasonably in not ensuring that Mr Wooster's unique circumstances were [not] taken into account when considering his employment either within a post ballot registered home organisation or, more appropriately, within a permanent post so as to ensure that his vulnerability (to which the Respondents had contributed so materially) was brought to an end. 107. Accordingly, by failing to consult with Mr Wooster, by failing to explore meaningful alternatives which would have presented him as a strong candidate for redeployment and for taking into account, unlawfully, Mr Wooster's age in the taking of her decision, this dismissal is unfair ... ."
[30]As for the age discrimination claim, the entirety of the Tribunal's reasoning is to be found in para. 109 of the Reasons, which reads as follows:
"There is no challenge to the fact that the secondment was coming to an end and therefore considerations of redundancy arose initially in good faith, given the budgetary constraints that were going to affect the Housing Directorate as it transferred its assets to the Registered Social Landlords. However the picture changed dramatically as events unfolded themselves between October and December 2006. These events, of course, were the honourable attempts by Mr Brown and Mr Bloss to mitigate the harsh effects of Ms McEleney's decision - a decision that she did not make clear even to her own subordinates. We accept that Mr Wooster was treated differently in respect of his singular circumstances and that treatment did not just relate to his employment status but more particularly to the fact that after decades of service to the Respondents he was going to fall marginally short of the required birth date anniversary that would trigger a pension entitlement. Given Ms McEleney's involvement back in August 2004, it is perhaps somewhat troubling to comprehend her actions in December 2006. Granted, there is the argument that she felt as a matter of policy that secondments should come to an end that, nevertheless, does not explain her disinclination to take appropriate steps in these unique circumstances to ensure that Mr Wooster was not redeployed. The entire situation, of course, was pointed up by the fact of her refusal to even countenance an extension of the temporary contract without even bearing the financial responsibility under her own budget for the proposition. The 100% offer made by East End Homes was not just rejected in direct terms praying in aid financial and administrative consistency but Ms McEleney betrayed herself by uttering the words that East End Homes could also pay for Mr Wooster's pension as well if their generosity was of such a high degree. The Tribunal reposes entire confidence in the accuracy and honesty of Mr Wooster and we have no doubt, bearing in mind the corroboration that was being provided by reports relating to utterances received by other officers, that it was the fact of Mr Wooster's pensionable age that was the tipping point, if we might use such a phrase, that led to the dismissal. We take this view as given all the overall circumstances in the case. It is truly difficult to understand how a Respondent of this size and with the resources at its disposition could have treated an employee such as Mr Wooster in the way that it did. Little wonder that when he was rebuffed after submitting his employment profile he was even required to consult with his general practitioner such was his anguish. Given the hypothetical comparator, we take the view that age was the reason for the decision to dismiss instead of redeploying Mr Wooster."
[31]That reasoning is, we have to say, not very clearly expressed. In discrimination cases it is particularly important that tribunals present their conclusions analytically, addressing step-by-step the issues to which the legislative provisions give rise - and all the more so in cases involving the more recently-recognised and thus less familiar forms of discrimination. No doubt in recognition of the unsatisfactory nature of the reasoning, Ms Toney pleaded on the Claimant's behalf a very full Respondent's Answer seeking to uphold the Tribunal's decision by reference to the entirety of the contents of her Closing Submissions.[32]Notwithstanding that criticism, we believe that, by reference to the submissions made to it and to the earlier passages in the Reasons it is possible to identify the Tribunal's position as regards each of the necessary steps. We do so as follows.[33]The first question is what act or acts on the part of the Council the Tribunal intended to find constituted age discrimination – more specifically, whether it intended to find for the Claimant on the basis of the general or the specific case. Mr Lynch submitted that the finding was only on the basis of the specific case – that is, in effect, that the only act of discrimination on the Council's part was Ms McEleney's rejection of EEH's offer to fund the continuation of the Claimant's employment until his 50 th birthday. We do not accept that submission. The concluding sentence of the paragraph, which contains the Tribunal's actual decision, refers to "the decision to dismiss instead of redeploying Mr Wooster": although that does not directly adopt the language of the first alternative in the issues defined at the CMD, it is adequately clear that that is what is intended. We also note that elsewhere in the paragraph the Tribunal refers to Ms McEleney's "disinclination ... to ensure that Mr Wooster was [not] redeployed" (the "not" must be a slip), and treats the refusal of EEH's proposal as "pointing up ... the entire situation" (sc. of Ms McEleney's "disinclination"): that clearly treats the episode as evidential rather than as itself constituting the act of discrimination. (We also note in this connection the finding at para. 73 (see para. 20 above) that Ms McEleney had by November 2006 "decided that Mr Wooster no longer had a job with the Housing Directorate".) Thus the primary act of discrimination found by the Tribunal was the failure of the Council to continue the Claimant's employment beyond 29 December 2006: this had the consequence that he was dismissed on that date, but the focus of the finding – rightly, on the facts and the case as put – is on the prior failures. Although the Tribunal refers specifically to a failure to redeploy, it is reasonable to understand that as embracing also the failure (if a permanent job were not at that point available) temporarily to extend his contract: that was the way the case had been put (see para. 27 (b) above) and was specifically found as a failing in the decision on the unfair dismissal claim (see para. 29 (d) above).[34]We accept that it is unclear from the terms of para. 109 whether the Tribunal intended to find for the Claimant on the basis of the specific as well as the general case. It seems likely from the findings in para. 73 that it did; but the point is by itself of no substantial importance since the consequences in respect of which the Claimant claims would flow from the more general finding irrespective of what finding was made on the specific case.[35]Since this is a case of alleged direct discrimination (and one where the act complained of is not inherently discriminatory), the Tribunal is required in principle to consider the "mental processes" of the relevant decision-maker(s). It is accordingly necessary to identify who the decision-maker(s) was or were. The Tribunal does not discuss this question, but it is clear that it treated the sole decision-maker as Ms McEleney. That is not self-evidently correct, since a number of people – mostly in the HR Department – were involved in the acts and omissions which led to the Claimant not being redeployed and thus being dismissed when he was; and the actual operative decision was that of the Redundancy and Redeployment Panel. But Ms Toney in her Closing Submissions had expressly made the point that it could be assumed that the HR Departme`nt and Ms McEleney worked closely together; and she submitted to us that the Panel would also have been highly dependent on recommendations from the relevant managers. That seems to us (and particularly to the lay members, who have experience in this field) to be right; and the Council's grounds of appeal in fact take no point on this.[36]The next question for the Tribunal was thus whether the failure to redeploy the Claimant (or otherwise extend his contract) constituted discrimination having regard to the provisions of reg. 3 (1) (a). Those provisions are conventionally analysed as involving a twofold test – the "less favourable treatment" question and the "reason why" (or "grounds") question; but, as Lord Nicholls pointed out in Shamoon v. Chief Constable of Royal Ulster Constabulary [2003] ICR 337 (see at paras. 7-12 - pp. 341-2) and as has been reiterated on several subsequent occasions (see, e.g. per Elias P. in Ladele v. London Borough of Islington [2009] ICR 387 - at paras. 35-39 (pp. 395-6)), the two questions represent two sides of the same coin. The Tribunal dealt with both aspects extremely briefly. The sentence in para. 109 beginning "we accept that Mr Wooster was treated differently" is presumably intended as a finding of less favourable treatment; and the final sentence contains the phrase "given the hypothetical comparator", which must be intended as a reference back to the Claimant's formulation of the hypothetical comparator quoted at para. 11 of the Reasons (see para. 28 above). Beyond that there is no analysis of the "less favourable treatment" question. "The reason why" question is answered in the final sentence, but there is no clear indication of the route by which that answer is reached. However, we think that the Tribunal's reasoning can be sufficiently discerned. It can be summarised as follows: (a) It had already found, in the context of the unfair dismissal claim, that the Council had behaved very unreasonably towards the Claimant. It had found that there was plenty that could have been done to see that he was redeployed within the twelve-week period or, even if that were not possible, to extend his employment temporarily until a permanent post became available. But the Council had done nothing. (b) That unreasonable behaviour and those failures were ultimately attributable to Ms McEleney's "disinclination" to retain the Claimant: see the middle sentences of para. 109 (and para. 35 above). (c) That disinclination required explanation – loc. cit. (We take this also to be the point of the observation in the antepenultimate sentence of para. 109 that the Council's conduct was "difficult to understand" – though the context and the following remark about the Claimant's "anguish" tend to obscure the focus.) (d) That the explanation lies in the wish to save the Council the cost of having to fund a pension if the Claimant remained in its employment at age 50, but took early retirement then or at some point subsequently, is demonstrated ("betrayed") by the terms in which Ms McEleney rejected EEH's offer; and that is corroborated by "reports relating to utterances received by other officers". The reference to the "corroborating" evidence is decidedly opaque, but we accept Ms Toney's submission that it must be to the evidence of Mr Bloss and Mr Brown about their contemporary understanding, and that of other managers "on the ground", as to Ms McEleney's motivation – see para. 27 (b) above. (The Tribunal does not in that reasoning apply the two-stage approach expounded in Igen Ltd v. Wong [2005] ICR 931 . It did not need to do so, since it was prepared to draw an inference of discriminatory motivation without recourse to reg. 37. That is entirely acceptable.)[37]In short, as we read it, the Tribunal accepted Ms Toney's submissions as set out at para. 27 above, though it did not (at least expressly) adopt every detail (e.g. as regards the different treatment of other secondees). THE APPEAL[38]In the skeleton argument and in his oral submissions on behalf of the Council Mr Lynch developed alternative (though to some extent overlapping) cases depending on whether the Tribunal was to be regarded as having found for the Claimant on the basis of the general or the specific case, though his primary case was that the Tribunal had proceeded only on the latter basis. He identified three errors of law, namely that it would have been impermissible in law for the Council to have accepted EEH's offer; that the Tribunal had not dealt properly with the question of "the hypothetical comparator"; and – generally – that the Tribunal's decision was inadequately reasoned. (Although all of those points can be found in the Grounds of Appeal, they are somewhat differently arranged.) We will start by considering the three points emphasised in oral argument and will then address any other points emerging from the Grounds of Appeal or in the oral argument. (1) Ultra vires[39]Mr Lynch submitted that it was illegitimate for the Tribunal to take into account in its decision as to Ms McEleney's motivation – as it clearly did: see para. 36 (d) above – her rejection of the EEH offer. He contended that it would have been unlawful for her to accede to Mr Bloss's proposal, in the terms in which it was advanced, and that no point can accordingly be taken against her for refusing to do so. The nature and purpose of EEH's proposal was, he submitted, accurately reflected in Mr Bloss's description of it as enabling the Claimant to "hang on until he is 50"; and Mr Brown's e-mail of 3 November showed that, while EEH would no doubt have found him something useful to do, its proposal was not driven in any way by a perceived need to retain him because of the value of his employment to the Council. A public authority was not permitted to act in such a manner. Mr Lynch referred us to Eastbourne Borough Council v. Foster [2002] ICR 234 , and the cases cited at paras. 6-9 of the judgment of Rix LJ (p. 237), particularly Hinckley & Bosworth Borough Council v. Shaw [2000] LGR 9. That submission was made principally in the context of his primary case, i.e. on the basis that the Tribunal had found against the Council only on the specific case; but he contended that the Tribunal's error would also vitiate any finding on the general case.[40]We agree that the nature of the proposal refused by Ms McEleney was quite clearly that the Claimant should be retained in employment in order to enable him to reach 50 and then take early retirement. We also agree that a decision to extend employment for such a purpose would be ultra vires. The case is closely analogous to Shaw . In that case the Council had given an employee a pay increase in contemplation of his impending redundancy with the primary purpose of increasing the value of his severance package. Bell J's decision is accurately summarised in the headnote as follows:
"... that a pay increase made by a local authority for the purpose or main purpose of enhancing an employee's redundancy or retirement benefits was unlawful and beyond the powers of the authority to make, and an agreement to make it was void, because it was not in reality a decision made in the exercise of its power to fix rates of pay but was made for an extraneous or collateral purpose; that the fact that the pay increase could be justified and seen as reasonable in itself did not save it if its real purpose was to enhance redundancy or retirement benefits ... ."
A refusal to accept such a proposal, even if it could be characterised as a distinct decision made on the grounds of the Claimant's age (which may be debatable), would plainly be justified: to keep its actions within the bounds of its lawful powers is on any view "a legitimate aim". We would indeed add that, even apart from the public law aspect, we do not believe that the effect of the 2006 Regulations is that in a case where an employer no longer has work for an employee he is obliged to postpone the dismissal for however long is necessary in order to entitle the employee to qualify for an age-related benefit which had not yet accrued: it is plainly a legitimate aim for an employer to dismiss employees who are genuinely redundant.[41]It follows that if the Tribunal had decided the age discrimination claim only on the basis of the specific case we would (subject to the point referred to at para. 41 below) have held that it was wrong in law to do so. But we have held that it did not decide the claim on that basis: see para. 33 above. Ms Toney submitted that the fact that Ms McEleney could not lawfully have accepted EEH's proposal (which by the end of the argument before us she did not seriously challenge) did not mean that, when considering the general case, the terms in which she refused the proposal were irrelevant: they remained valid evidence of her motivation. She also contended that the fact that it would have been unlawful for the Council to agree to the extension of the Claimant's secondment to EEH for the purpose proposed by Mr Bloss did not mean that it would have been unlawful for it temporarily to extend his employment (whether by extending his secondment to EEH or to another registered social landlord or otherwise) for the distinct purpose of facilitating his redeployment, as she had argued before the Tribunal that it should (see para. 27 (b) above) – even if that had the effect of taking him over age 50: such a course was expressly contemplated in its Redundancy and Redeployment Policy and was plainly lawful. We agree with both those points and accordingly reject this ground of challenge.[42]We should mention that if we had been concerned with a finding by the Tribunal on the basis of the specific case Ms Toney would have submitted that Mr Lynch's argument on this point was not open to him, for two distinct procedural reasons:-(a) She said that "the ultra vires point" was not taken before the Tribunal. We have considered the Council's "Amended Closing Submissions" and are satisfied that that is not the case: we refer in particular to paras. 42.3.7.6, 61.2 and 63.1. The point does not, it is true, receive the same emphasis in those Submissions as Mr Lynch gave it before us, and the Tribunal was not referred to the relevant authorities. Nevertheless, it was taken.(b) She submitted that, on analysis, Mr Lynch's argument was that the rejection of EEH's offer was prima facie discriminatory but was justified; and she relied on the fact that the Council had deliberately not taken the opportunity to plead a justification defence (see para. 25 above). We are inclined to think that Ms Toney is correct in characterising Mr Lynch's point as a justification argument. Mr Thorowgood in his Closing Submissions before the Tribunal recognised that and sought permission, if necessary, to amend in order to take the point. The Tribunal does not address that application at all, but in our view it should – if the case was to be decided on this basis – have been decided in the Council's favour. It seems to us reasonably clear that what the Tribunal and the parties had in mind when deciding that any "justification case" required to be pleaded was a distinct case requiring examination of factual issues which would not otherwise be, or be fully, before the Tribunal. The Council's argument that it could not properly have accepted EEH's proposal is essentially an argument of law deriving squarely from the facts which the Tribunal was required to decide in any event. We asked Ms Toney to point to any difference in the evidence which might have been adduced if the Council had made it clear in advance of the hearing that it proposed to take the " ultra vires point"; but she was not able to identify any. We have dealt with those points for completeness; but for the reasons already given they do not in fact arise. (2) Hypothetical comparator[43]In the context of a finding on the specific case, i.e. one limited to the rejection of EEH's offer, Mr Lynch submitted that the Claimant's description of the hypothetical comparator set out at para. 11 of the Reasons, which the Tribunal accepted (see paras 28 and 36 above), was inadequate because it did not incorporate the facts(a) that the decision to terminate the secondment was for a non-discriminatory reason and(b) that the purpose for which the extension of the secondment was sought was to enable the comparator to qualify for a pecuniary benefit to which he would not otherwise have been entitled. As we understood it, this particular point was not advanced in the context of the Tribunal having accepted the Claimant's general case. But for the avoidance of doubt we should say that we believe that it is bad, at least to the extent that it is intended to go further than the " ultra vires point". We agree that the formulation quoted at para. 11 of the Reasons is rather clumsily expressed, but it is nevertheless clear that the comparison invited by the Claimant, and purportedly performed by the Tribunal, was with a person in the same circumstances as himself in every respect except that he was not aged 49 (and, therefore, not liable imminently to take early retirement at the conclusion of the extended secondment). In fact, as Lord Nicholls observed in Shamoon (above), argument about the precise characterisation of the hypothetical comparator is often less helpful than focusing on the "reason why" question. If, as the Tribunal found here, Ms McEleney was motivated in her decision to dismiss the Claimant when she did by a wish to prevent him qualifying to take imminent early retirement at age 50, it necessarily follows that she would have treated someone to whom that risk did not apply differently. (3) Inadequate reasons[44]In his oral submissions Mr Lynch treated this head, as we understand it, simply as another aspect of the two main arguments considered above. He was at that point focusing on his primary case; but it is clear from the skeleton argument that it was also his submission that the reasoning for any finding on the basis of the Claimant's general case is inadequately explained in para. 109 of the Reasons. We do not agree. We have already acknowledged that the drafting is a good deal less clear than it could have been, but the Tribunal's reasoning is nevertheless sufficient to allow the Council to know why it has lost: see para. 36 above.[45]There is a further point in the Grounds of Appeal and the Council's skeleton argument which it is convenient to deal with under this head. At para. 1.2.3 of the Grounds of Appeal the Council pleads that the Tribunal failed:
"... to consider whether the evidence of actual comparators advanced by the Council was relevant either to the comparison exercise or to any inferences which might be drawn from it and, if so, to apply it for that purpose."
At para. 4.1.5 of the Grounds the Council identifies the actual comparators in question as Sue Thompson, Dave Matthews, Richard Joyner and Steve Richardson, all of whom are described as "employees ... in similar 'unassimilated' positions to Mr Wooster's" but who were dismissed for redundancy at or about the same time. That point was developed in the skeleton argument, where it is pointed out that the employees in question were all over 50 and so entitled to early retirement benefits on dismissal and the question is posed , at para. 55:
"If, as Mr Wooster contends, there were other roles into which he could have been redeployed and from which he would have found further alternative employment within the Council, why did the Council not redeploy those employees who had already become entitled to early retirement benefits in employment, saving itself those costs and dismiss four other employees ?"
The skeleton argument does not submit that that rhetorical question is so unanswerable that the Tribunal's decision as to Ms McEleney's motivation is perverse; but it does go on to submit that the Tribunal should have conducted a complete analysis of the evidence about the employees in question or at least "to have considered expressly the material if only to dismiss it". This is accordingly a " Meek challenge".[46]Mr Lynch did not, as we understood it, explicitly pursue this point in his oral submissions, but nor was it expressly abandoned; and we should accordingly say that we see no error of law here. Although it appears that the Council had indeed made some reference to the circumstances of these employees in its evidence before the Tribunal, Ms Toney in her Closing Submissions had pointed out (see paras. 83 (b) and 94 (j) in the "draft" and paras. 15 and 54 in the follow-up submissions) that there was no evidence adduced about their circumstances and, in particular, no reason to suppose that they had undergone the same history of mishandling or that they were, like the Claimant, either anxious or fit to be redeployed; and we cannot see that the point was pursued in Mr Thorowgood's Closing Submissions. The Tribunal clearly had the issue generally in mind in its finding in para. 109 that the Claimant's circumstances were "unique and singular". We do not believe that it was obliged to say more. Other points[47]In the course of oral argument Mr Lynch contended that even if Ms McEleney had been motivated by a desire to avoid the Claimant becoming entitled to draw an immediate pension that could not properly be characterised as a decision "on the grounds of his age". Although he put the point in different ways, the essence of the argument, as we understand it, was that Ms McEleney's concern was not with the Claimant's age as such but with the fact that the Council would become exposed to substantial costs in funding an early retirement pension: his age was a mere trigger. This point does not appear to have been taken before the Tribunal and it does not appear in the Grounds of Appeal, and it was not argued before us in any detail. But in our view it is sophistical. Pension entitlements are inherently dependent on age – or, to put it another way, are necessarily consequent (depending on the facts of the particular case) on a claimant attaining a particular age. In those circumstances the distinction propounded by Mr Lynch is not valid. It does not of course follow that less favourable treatment of an employee on account of his attaining pensionable age necessarily constitutes discrimination, because it may be capable of being justified; but that is another matter.[48]At para. 4.1 of the Grounds of Appeal the Council pleads that the three sentences of para. 109 which precede the final sentence demonstrate that the Tribunal fell into the " Zafar heresy" (see Zafar v. Glasgow City Council [1997] ICR 700) – that is, that it regarded the fact that the Claimant had been unfairly treated as raising at least a prima facie case that he had been discriminated against. We do not accept that submission. The Tribunal was entitled to regard the unreasonableness of the Council's behaviour as a relevant factor in the drawing of the inference of discrimination, but it was not the only factor relied on: its conclusion was clearly based on the combination of that unreasonableness and the factors specifically suggesting that it had been motivated by the Claimant's age which are identified at para. 36 (d) above.[49]As we understand the position, the Claimant would only have been entitled to take early retirement at age 50 if he had no permanent job. Logically, therefore, Ms McEleney's concerns about his reaching that age should not have been a disincentive to the Council redeploying him, as long as they were able to do so in the following six months. But Mr Lynch took no point on this. We think he was right not to do so. At the time that Ms McEleney's attitude to the Claimant was formed, she could not have known for certain whether he would get another job or not. If the Council had taken the option of extending the redeployment period (i.e. on a legitimate basis and not simply in order to let him "hang on to 50") he might still have been in an unassimilated position six months later. It would not therefore be surprising if she allowed herself to be influenced by this consideration; and certainly we do not think that the Tribunal could be said to have been perverse in concluding that she was. CONCLUSION[50]In our view none of the Council's challenges to the Tribunal's reasoning are made good. There was adequate material on which it could have drawn the inference that the Council's conduct in not redeploying the Claimant, or extending his employment, and instead dismissing him when it did, was motivated by a desire to terminate his employment before he reached 50; and its reasons for drawing that inference, though not very well expressed, are again adequate. In those circumstances we are not entitled to interfere in its finding. Perhaps not every tribunal would have drawn the conclusion that this Tribunal did, but that is not the question. The appeal on liability is accordingly dismissed. B. THE REMEDY APPEAL THE FINDINGS AND THE ISSUES[51]Paras. 105 and (so far as relevant) 108 of the Reasons are in the following terms: "105. The next factor that must be borne in mind is whether, if fair procedures were carried out (either for statutory or Polkey purposes) the redundancy position would have been effective in any event and we unanimously take the view that it would not. With appropriate advice and attendant publication of potential posts we have little doubt on the evidence we have received from Mr Wooster that he would have been successful in obtaining a substantive and assimilated post, albeit of some two grades below the one he was employed at. This of course means that he would have secured a post which, perhaps, he might have been over qualified for but still have had the reassurance of a ring fenced salary level for two years. In those circumstances we have little doubt with his job record he would have obtained a more senior post commensurate with his skills in the future prior to the expiry of the ring fencing arrangements. . .. 108. There is no reason whatsoever why appropriate measures [sc. to effect the Claimant's redeployment] should not have been taken in conformity with modern industrial practice and the statutory procedures that we have mentioned. ... It ... follows, we find, based upon Mr Wooster's evidence of his future intentions, that Mr Wooster had resolved to remain in the Respondents' service until his 65 th birthday." (It is common ground that the reference in the parenthesis in para. 105 to "statutory ... purposes" is wrong, since the Council's admission of "automatic" unfair dismissal meant that s. 98A (2) of the 1996 Act was not in play; but this is not a mistake of any significance.)[52]By paras 3 of the Notice of Appeal the Council appeals against:
"(b) the finding, if it be such, that the Respondent would have been employed by the Appellant until the age of 65; (c) the findings that the Respondent would have been redeployed to a new post two grades below his own in 2006 and have been promoted to a more senior post in two years ."
Point (b) refers to the finding in para. 108 and point (c) to para. 105. Before us counsel were agreed that the finding in para. 108 only relates to the Claimant's intention and that, while it is binding as far as it goes, it does not represent a finding that his employment would in fact have continued to that age. Accordingly point (b) is not pursued and we are concerned only with point (c).[53]As regards point (c), the Council's case as pleaded in the Grounds of Appeal is threefold. It contends:-(1) that the finding in para. 105 was perverse in as much as it was not open to the Tribunal on the evidence;(2) that the finding was wrong in law because it failed to take into account the many contingencies that might have prevented the Claimant being redeployed initially or moving back to his previous level of earnings within the next two years; and(3) that the Tribunal was wrong to reach a conclusion in terms that it had "little doubt" as to the matters found as opposed to making a finding as to the chances expressed in percentage terms. We take those points in turn. (1) "FINDING NOT OPEN ON THE EVIDENCE"[54]The evidence about the availability of other jobs into which the Claimant might have been redeployed was not presented in the most satisfactory manner. We were told that the Council initially took the position that there were no relevant vacancies at the time of the Claimant's dismissal and that accordingly there were no documents to be disclosed. However, in December 2007 it disclosed two lever-arch files of documents evidencing all available vacancies at around the time of the Claimant's dismissal. It was clearly not practicable for all those vacancies to be analysed and discussed in evidence. The Employment Judge suggested that the Claimant in his evidence-in-chief identify his best examples, and he identified rather over twenty jobs which he said he would have been willing to accept. He was cross-examined on some, but not all, of those identified and made concessions – the precise effect of which is debatable – about a few of them. There was no witness from the Council who was in a position to speak authoritatively about the majority of the vacancies in question.[55]In her "draft" Closing Submissions on behalf of the Claimant Ms Toney listed sixteen specific vacancies which were open in September 2006 or later (though not beyond the end of December) which the Claimant had identified in his evidence as jobs that he could have done (though in some cases he acknowledged that he would have required a degree of training): see paras. 89-91. (The relationship between those sixteen and the twenty or so referred to above is unclear, but nothing turns on this.) She accepted that some of the vacancies had advertised closing dates prior to 9 October; but it did not follow that they were irrelevant - partly because it was her case that the end of the secondment could have been seen coming from (at least) the end of August and partly because the vacancies were being relied on essentially as illustrating that there were plenty of jobs that the Claimant (who had very broad administrative experience) could have done. In connection with the latter point she noted that no disclosure had been made of vacancies occurring after 31 January and that it was part of the Claimant's case that if redeployment had not been possible before the end of the twelve-week period there should have been an extension.[56]In his written submissions in response to Ms Toney's submissions Mr Thorowgood did not deal in detail with the sixteen vacancies, but he submitted that half of them were with EEH or another registered social landlord called Poplar HARCA and "so not within [the Council's] gift" - that is, more precisely, that the employers in question were not obliged to give the Claimant any preference. He submitted that the most that the Council could do was to draw such vacancies to the attention of redeployees: he said that it had done so (though the Tribunal subsequently found that the Claimant had received no such notice – see para. 67 of the Reasons, quoted below).[57]At para. 67 of the Reasons the Tribunal found as follows:
"After 31 August 2006 at least 14 vacancies existed within the Respondents' Directorates that Mr Wooster's profile could have matched, albeit in some cases with an amount of training. It also has to be added that in respect of one of those appointments training is expressly offered. These positions are set out below and have closing dates just prior to the notification of the redundancy and within the redeployment period. They relate to posts which are either in East End Homes, the Poplar organisation known as Poplar HARCA or within a variety of the Respondent's Directorates. None of them were brought to the attention of Mr Wooster despite the fact that he was meant at various times to be the professional responsibility of nominated members of the Human Resources Directorate."
The positions were "set out below" at para. 90 of the Reasons, where the Tribunal listed sixteen vacancies in some detail. At paras. 91-93 it referred to three further positions. These are essentially the same as those relied on by Ms Toney in her submissions. (Such slight discrepancies as there appear to be in the numbers are, again, not significant.) It was against that background that the Tribunal made the finding in para. 105.[58]Para. 69 of the Council's skeleton argument (which essentially reproduces para. 7.1 of the Grounds of Appeal) makes seven points about the vacancies referred to by the Tribunal, which we consider in turn.[59]First , it is submitted that only three of the vacancies were for jobs within two grades of the Claimant's. That is true but irrelevant. The submission appears to have been made on the basis that the two-year salary protection which is extended to redeployed employees does not extend to redeployment more than two grades down. A statement to that effect appeared in the Council's letter of 9 October, but it was acknowledged before us that the Council had in fact accepted before the Tribunal that that was wrong and that there was no such limit.[60]Secondly , it is said that in respect of three of the vacancies the closing date was in January 2006 and that for five more it was prior to 9 October: it is also said that only four remained open on 17 November. Ms Toney did not challenge those facts. We accept that on that basis the three vacancies with a closing date in January were unavailable at the relevant time (though they may remain of interest for illustrative purposes); but that revision could not affect the overall picture. The point about the five with a closing date prior to 9 October had been acknowledged by Ms Toney herself in her submissions and by the Tribunal. But the Tribunal was entitled to regard them as relevant for the reasons given at para. 55 above: the issue is what would have happened if the Claimant had been treated fairly.[61]Thirdly , the point made by Mr Thorowgood to the Tribunal (see para. 56 above) is repeated. Ms Toney accepted that it was good as far as it went but submitted that it was not a complete answer: the fact that EEH and Poplar were not obliged to give the Claimant preference did not mean that they would not have given him a vacancy - and Ms Toney submitted that his chances would in fact have been good because of his experience in EEH.[62]Fourthly , it is pointed out that EEH had not offered the Claimant any of its vacancies, despite having had him working for them for three years; and it is submitted that that casts doubt on any suggestion that he would have been found permanent employment with them. Ms Toney objected that this point had not been taken before the Tribunal or put to Mr Bloss or Mr Brown when they gave evidence. In our view that is plainly a good objection. In fact the Respondent's Answer puts forward some plausible reasons why the point may be a bad one in any event (see para. 35.2.3).[63]Fifthly , it is said that two of the five vacancies with the Council itself were unassimilated. Ms Toney acknowledged that but submitted that it was of no real significance given that three were permanent.[64]Sixthly , it is pointed out that none of the vacancies within the Council were in the Housing Directorate and that it was thus less likely that the Claimant would have been appointed to them. This point too was not taken below, but in any event it is simply a matter to go into the overall assessment. The Respondent's Answer again puts forward some good reasons why the point may be of limited weight (see para. 36.3).[65]Seventhly , a particular point is made with regard to one of two positions at EEH which the Tribunal found (at para. 92 of the Reasons) that the Claimant failed to apply for owing to a misunderstanding: it is said that the evidence does not support the finding that there was a misunderstanding and that the inference must be that the Claimant would not have been interested in the position because it was too lowly-graded. We decline to become engaged in a detailed analysis of the evidence because even if the point were well-founded it is inconceivable that it could have any effect on the Tribunal's overall assessment.[66]In summary, we are not satisfied that these points, individually or collectively, demonstrate that the Tribunal was not entitled to make the finding that it did in para. 105. It must be recalled that the finding was not that the Claimant would have definitely obtained this or that particular (permanent) job; but simply that, if he had been fairly treated, he would have obtained one of the jobs identified (or, possibly, in the event of an extension, a similar job). That is not, as Ms Toney reminded us, an outlandish conclusion. The Claimant was an experienced administrator, with a good record, working for one of the largest local authorities in London, and willing to take a drop in grade if necessary. The Tribunal clearly looked carefully at the detailed evidence and the submissions made on the basis of it – as to which, it is to be noted, the Council had only made limited submissions in response – and reached a conclusion which it was entitled to reach. (2) CONTINGENCIES[67]This point was not pursued in the Council's skeleton argument or Mr Lynch's oral submissions. There is nothing in it in any event. In so far as the "contingencies" referred to are those affecting the availability of suitable employment in the redeployment period (or any subsequent extension of it) and whether the Claimant would have been offered and/or accepted such employment, those were inherent in the assessment made and analysed above. "External" contingencies such as death or illness would have no materiality since the Tribunal was not having to speculate about a future period. As regards the finding that at the end of two years the Claimant would have got back up to his previous grade, contingencies of that character were, we accept technically relevant since the hearing took place only about half-way through the relevant period; but in practice there could be no obligation to make such a discount for such contingencies in respect of a period of less than twelve months. The position will be different if it proves necessary at the remedy hearing to make an award for an extended period of future loss of earnings. (3) "LITTLE DOUBT"[68]Mr Lynch's submission was that the phrase "little doubt" necessarily implied that the Tribunal felt some doubt; and that it should have reflected that doubt by making an appropriate percentage evaluation. That is to read the decision far too literally. The use by the Tribunal of the phrase "little doubt" is plainly no more than a façon de parler. It means that it regarded it as a practical certainty that the Claimant would have been found suitable alternative employment (and recovered his original grade, if necessary, by the end of the protected period) – or, to put it another way, that there was no realistic chance that he would not have done so. That is in principle a perfectly acceptable finding: the Polkey line of authorities does not require discounts to be made for chances that a tribunal regards as too remote to require reflection in what is inevitably an imprecise exercise. The Council may consider it an over-generous finding on the facts; but we have already considered and rejected its submissions that it was perverse. CONCLUSION[69]The Tribunal made an assessment of the Claimant's prospects if he had been treated fairly and/or without discrimination on the grounds of his age (we note in passing that it was not suggested that different assessments were required in respect of the two bases of liability) which had regard to the evidence and which betrays no error of law. The appeal on the remedy issue must be dismissed.