14th December 2012

Employer’s Conversations about Retirement of Employee Were Not Discriminatory

In the recently decided case of Quick v Cornwall Council and another, an employment tribunal dismissed claims of unfair dismissal and age discrimination, despite several age-related comments having been made to the claimant during the course of her employment, including comments about her retirement plans.

The facts of the case were that the claimant, Mrs Quick, was the headmistress of a small primary school. The school was one of four primary schools in the surrounding area, and it had been clear since 2006 that Cornwall Council intended to form a partnership or federation between these schools to reduce costs and maximise resources. As part of these proposals, the retirement or redeployment of some teachers was likely.

Following an initial period of absence between July 2007 and February 2008 due to a depressive illness, which was not work related, Mrs Quick then had a phased return to work until she resumed her full responsibilities in April 2008. Several allegations were made against Mrs Quick between September 2009 and April 2010, the investigation of which caused a subsequent depressive illness from the end of 2009. After commencing a further period of sick leave from 4 January 2010, Mrs Quick never returned to her teaching duties, which significantly delayed the investigatory process.

An investigatory interview eventually took place in May 2011. The governors of the school then held a disciplinary committee hearing on 19 July 2011, which decided to dismiss Mrs Quick, with notice. The reasons relied upon for Mrs Quick’s dismissal were serious misconduct, and some other substantial reason on the grounds of an irretrievable breakdown in trust between the parties. Mrs Quick appealed the decision but was unsuccessful.

Mrs Quick then complained to an employment tribunal of unfair dismissal, as well as direct age discrimination, bullying and harassment.  Mrs Quick had not previously raised any allegations of age discrimination, however she alleged that she had been discriminated against on the grounds of her age due to the following:-

• A colleague had asked if she had any plans for retiring.

• A discussion took place between Mrs Quick and the chair of governors in which Mrs Quick’s retirement was discussed.

• A comment in an email from the chair of governors to the respondent’s Senior Education Improvement Officer: “we will be observing teaching in both classes, including her. She’s 59”.

• Comments from an email chain between the chair of governors and one of the School Improvement Partners which discussed matters such as the notice Mrs Quick would be required to give if she intended to retire.

In reaching its decision the tribunal looked first at the procedural allegations raised against the dismissal by Mrs Quick, and found the process to have been carried out in a fair and reasonable manner.  The tribunal also found the reasons given for dismissal to be fair. The claimant was alleged to have committed some serious misconduct in, amongst other things, failing to follow the correct procedure when dealing with a child protection issue following a complaint being made against a colleague. By the appeal stage this was discovered to in fact be a false complaint engineered by Mrs Quick herself, which was deemed to be gross misconduct. The tribunal found that this was sufficient reason to dismiss Mrs Quick.

Further to the above, the tribunal also dismissed Mrs Quick’s claims of age discrimination, on the basis of the following findings of fact:

Given the planned restructuring/amalgamation of the four schools, it was sensible for the school and the council to discuss and record information such as the ages of current head teachers and possible retirement as part of the process of succession planning. The tribunal also noted that Mrs Quick had made tentative enquiries about her own retirement.

The tribunal found that exploring the possibility of a compromise agreement with Mrs Quick was a normal part of this procedure. The tribunal stated that “discussion of possible retirement in this context is not per se any less favourable treatment because it cannot be imposed and could be very favourable”.

The majority of Mrs Quick’s allegations involved the Chair of Governors. The Chair appeared to have understood that Mrs Quick was actually intending to retire, so discussions focused on this possibility. The tribunal found this to be “sensible succession planning”, and not less favourable treatment.

The second allegation concerned a conversation with Mr Martin, the only other qualified teacher at the school, in which Mr Martin asked Mrs Quick if she had any plans about retirement. The tribunal noted that these plans would clearly affect Mr Martin’s own career progression and aspirations, and that this was not evidence of less favourable treatment.