In 2008, the Land Registry, in response to tightening budgets, opted to merge a number of its offices and reduce its staff levels accordingly. As an incentive to take voluntary severance, an early release scheme was devised, for which Mrs McGlue expressed an interest in 2009. At the time of her expression of interest, she was on a career break which was not due to end until 2013.

The Tribunal found, importantly, that upon reasonable notice, which would be in the nature of about a month, she could apply to return to her pre-existing work and would be entitled to do so. After her expression of interest was received, managers decided to exclude from the scheme those on career breaks who were not due to return before April 2010. This change was not publicised. In their subsequent correspondence with Mrs McGlue, however, her employer indicated that she was still in fact eligible for the scheme. When Mrs McGlue’s application was rejected, she was told this was because she was on a career break. She was not told, however, that she would have been eligible for selection if she had indicated an intention to return to work before 1 April 2010. She raised a grievance and appealed unsuccessfully against the decision, before taking the matter to a Tribunal which deemed her employer’s actions to have been to be indirectly discriminatory.

The Employment Tribunal awarded Mrs McGlue £12,000 damages for injury to feelings; £5,000 in aggravated damages; and compensation for economic loss of £72,000. This final amount represented the full voluntary severance payment which Mrs McGlue would have received under the scheme, even though she retained her right to return to work.

The Land Registry appealed to the EAT, inter alia, to reduce the damages for economic loss payment. The employer questioned why the claimant should get this amount as she remained in employment. As such, they argued, there had been no severance and therefore the voluntary severance scheme did not come into play. The EAT rejected this submission. No deduction was made to reflect the fact that the claimant remained in post because the claimant would have taken the severance payment and then obtained work of comparable remuneration elsewhere (her evidence on this point was uncontested). Thus, there were no grounds to offset any financial benefit Mrs McGlue might have had by remaining employed by the Land Registry. An appeal the £5,000 for aggravated damages was upheld, although the appeal against the £12,000 injury to feelings was not. http://bit.ly/Zouhoa