7 September 2011 0 Comments
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Press Release: Leisure Centre Manager unfairly dismissed on the grounds of his age to save pension costs, by Helen Murphie

A local authority unfairly dismissed a Leisure Centre Manager shortly before his 50th birthday to save his pension costs, an Employment Tribunal found, (Wednesday 7th September 2011).

Christopher Walsh, 51, had worked in local government for 26 years when he was unlawfully made redundant by Tewkesbury Borough Council on 20th September 2009. 

In a 36 page Judgment, Bristol Employment Tribunal upheld Mr Walsh’s claims of unfair dismissal and age discrimination following a four day hearing in August.

It found the council had deliberately refused to extend Mr Walsh’s employment under vital transitional provisions during a management restructure because it did not want to incur his £90,000 pension costs when he turned 50 on December 21st 2009.

Mr Walsh, of Tewkesbury, Gloucestershire, said: “I am greatly relieved that after two protracted years my case has finally reached a conclusion. I was certain from the outset that I had been treated unjustly and, although it has been a difficult journey, I am delighted that the Tribunal has made the right decision.”

“I would like to thank Helen Murphie and the team at Royds, and my barrister Mathew Gullick for helping me with my case.”

Ms Murphie, a Senior Associate at Royds Solicitors, said:  “This is a well deserved victory for Mr Walsh who faced numerous trials and tribulations in the last two years in his fight for justice.  Mr Walsh feels  betrayed by the cold and calculated actions of Tewkesbury Borough Council who dismissed him to avoid paying him his pension entitlement. He hopes that this will be a salutary lesson to councils up and down the country.”

The Employment Tribunal was told that Mr Walsh, who had worked at Tewkesbury Borough Council for 21 years, was initially to be made redundant in March 2010.   His role was expected to come to an end when the five centres he managed transferred out of council control.  The Local Government Pension Scheme rules at that time permitted early retirement for those aged 50 and over in a redundancy situation.

 Mr Walsh’s role was separately put at risk of redundancy from September 2009 in a management restructure.  In light of the situation, it was decided that Mr Walsh’s colleague Andy Saunders would take a lead role in connection with the transfer of the centres.  However Mr Walsh provided significant support because of his expertise in this area.  

The Employment Tribunal heard that Mr Walsh was invited to an urgent meeting with Gordon Mitchell, the Council’s then interim Chief Executive, on 3rd April 2009.    During the discussion, Mr Mitchell suggested that Mr Walsh should be retained during the transitional period to take over the transfer work until its completion. 

Mr Walsh told the Employment Tribunal: “He (Mr Mitchell)  said that there was a need to keep some staff on to oversee projects to the end in other departments and that is what they envisaged with me….

“I said I was very happy to do that. I went on to say that it would be mutually beneficial to both the Respondent and I because I would be able to obtain my pension when I reached 50. I believe it went over his head the first time I said it.  I therefore repeated myself. I remember saying that I would be able to gain my pension because I would be 50 in December.  He then repeated what I had said as though the penny was dropping…

“ I was open and honest with Mr Mitchell about the fact that I would be delighted to stay on because I would be able to access my pension at 50. With hindsight, I believe I made a huge mistake in informing Mr Mitchell of this fact. Had I not, I believe he would have extended my employment and I would have remained at the council until the leisure centre handover had finished at the end of March 2010.

After the meeting, Mr Mitchell had a meeting with Howard Crabtree, a Human Resources consultant, who had been engaged to supervise the management restructure.  Mr Crabtree was asked to consider whether there was a need for Mr Walsh’s post to be extended.  However, Mr Crabtree did not do as he was asked but instead requested a pension calculation for Mr Walsh.  Mr Walsh was later informed that he would not be retained due to his pension costs.

The Employment Tribunal was told that neither Mr Mitchell nor Mr Crabtree were able to make decisions about the restructure itself.  Such issues were decided by council members upon the recommendations of the Management Restructure Working Group which was set to consider all responses to consultation.  

Employment Judge Street said:“What is surprising is that there is no clear recorded discussion of the position in Leisure, no evaluation of the risk and benefits and no record of the decision relied on as having been made by the Working Group that no transitional provision was needed. Transferring out of the leisure centres was no small exercise.

The assessment that Mr Crabtree reports having been asked to make seems to come to a halt with establishing Mr Walsh’s pension costs in early April 2004.  

Mr Mitchell and Mr Crabtree decided against putting any case for an extension to the members. They considered the business need and the costs….. No business case was put to members. There was not even a case put forward with a recommendation for the status quo for termination in September …… There was a case to be considered in relation to an extension of the role but it was not put to the members to consider.  The business case for extension was not explored or presented once the pension strain costs were established in April.”

“Mr Walsh proves facts from which the tribunal could conclude in the absence of an adequate explanation that there was discrimination on the grounds of his age.

The council denied Mr Walsh’s claims stating that his pension costs had not been a relevant factor in its decision not to retain him during the transitional period.  In the alternative, it claimed any age discrimination was justified.  The Employment Tribunal rejected both defences. It said the Council’s arguments were weakened by Mr Mitchell’s change of evidence on the third day of the hearing.

Mr Walsh is seeking in excess of £250,000 compensation.

For further information, please contact Helen Murphie on 0207 583 2222.

Royds Solicitors, 65 Carter Lane, London, EC4V 5HF.

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