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The case of Southcott -v- Royal Cornwall Hospitals NHS Trust has received much media attention, and been heralded as a “landmark victory”. The facts are as follows. Mrs Southcott, a 67-year-old NHS employee, was dismissed from her clerical post on 30 September 2006, the day before the Employment Equality (Age) Regulations were brought into force. In an attempt to avoid large redundancy payouts and to deal with its debt crisis, approximately 30 other employees, all aged over 65, were dismissed by the Trust at the same time. Mrs Southcott was informed she would receive her contractual notice, amounting to 11 weeks’ pay – a sum which compares unfavourably to the 11 months pay she would have been entitled to had she been dismissed a day later under the new rules.
The age regulations, which came into force on 1 October 2006, do not apply to acts which happened before that date. Consequently, Mrs Southcott, who was over normal retirement age, was unable to claim unfair dismissal and, owing to the date of dismissal, could not invoke the age discrimination laws.
The decision made at the preliminary hearing is not yet available, however, it is understood that Unison relied on the European Court of Justice (ECJ) case of Mangold v Helm to argue that the age discrimination regulations applied to Ms Southcott even though she was dismissed before they came into force.
In Mangold -v- Helm, Mr Mangold had brought a claim against his employer challenging a provision of German law which authorised, without restriction, the conclusion of fixed-term contracts of employment once a worker had reached the age of 52. The ECJ held that this provision was unlawful age discrimination and that the German government had acted illegally in adopting it. This was controversial because the German government adopted this provision in 2001, five years before it was obliged to implement the EU Directive outlawing age discrimination in the workplace. However, one of the reasons cited by the ECJ for its decision was that the prohibition on age discrimination is a ‘general principle of Community law’ applicable regardless of whether domestic law has been implemented.
Back to the present case, Unison relied on Mangold to argue that rights were conferred on Ms Southcott even before the specific regulations came into force in the UK. Readers should note that the fact that she was employed by a public sector employer may have been a key factor: public sector employees are able to rely directly on EC Directives regardless of whether, or how, they have been implemented domestically.
Following the Tribunal’s decision, the Trust decided to settle the claim and agreed to reinstate Ms Southcott (and a number of other individuals) with back pay from October 2006 and with no loss of service.
This case has a number of interesting implications and raises the question of whether, following Mangold, employees can bring claims relating to acts which took place before 1 October 2006. It appears that, at least in relation to public sector employers, there is some possibility that employees can bring such claims. It should be noted, however, that this may only be a technical point: in most cases, the time limit for bringing a complaint of age discrimination is three months from the alleged act. Practically speaking, any claimant with similar potential rights who failed to act is likely to be time barred.
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