Case law: substantial compensation for unfair dismissal of older worker

By: Fanny Marshall

Date: 19 June 2009

Businesses can expect to pay additional compensation if they unfairly dismiss an older worker who genuinely tries, but fails, to obtain new work, as highlighted in a recent tribunal decision.

This case concerned a 59-year-old employee who was selected for redundancy, although the employer used no objective criteria or formal selection process. Following his initial redundancy consultation meeting, he was dismissed with immediate effect and was not permitted to return to work. Even though suitable alternative work was available, it was not offered to the employee.

The employment tribunal found that the employee had been unfairly dismissed, with both substantive and procedural defects, and that the dismissal amounted to age discrimination. The tribunal noted that the employee had taken all reasonable steps to mitigate his loss, ie by applying for other jobs, undertaking training, and showing a willingness to work self-employed, but without success.

The tribunal stated, ‘It is not, unfortunately, the case that someone aged 59, 60, or over, competes on a level playing field with younger people. The reality is that age discrimination exists and is likely to be highly influential in limiting his opportunities’. On the basis that it would be more difficult for a 59-year-old to find work at an equivalent income, the tribunal awarded compensation of more than £90,000, most of which was for loss of future earnings.

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