Age Discrimination And Justification

Age Discrimination And Justification

Miss Lockwood brought a claim against the Department of Work and Pensions for direct age discrimination after she took voluntary redundancy. She had worked for them for 8 years and at the time of taking voluntary redundancy she was aged 26 and received a payment of just over £10,000. Had she been over 35 she would have been entitled to a further sum of just over £17,000.

She brought a claim to the Tribunal complaining that the difference in her severance payment, when compared with an older worker who had the identical length of service, amounted to unlawful direct age discrimination. She did not bring a claim of indirect age discrimination.

In a direct age discrimination claim, when determining whether there has been less favourable treatment, one must undertake a comparative exercise by looking at age groups, rather than at the specific age of the Claimant and a comparator. In this case, the Claimant's age group was under 35 and the comparator group relied upon were over 35.

It is only in a claim of direct age discrimination (as opposed to direct discrimination on the grounds of any of the other protected characteristics) that it is open to an employer to show that any less favourable treatment on the age grounds is justified.

Although the test for justification appears to apply in the same way to indirect discrimination claims (namely whether the employer had a proportionate means of achieving a legitimate aim), the Supreme Court recently held in Seldon v Clarkson Wright and Jakes that there is one material difference. In a case of direct age discrimination, the Tribunal must consider whether the employer's aims are legitimate and of a 'social policy nature'. Two such aims have been identified by the ECJ:

In comparison, in a case of indirect discrimination, the Tribunal will only be concerned as to whether the employer had a legitimate aim, and does not need to go onto consider whether that aim was of a 'social policy nature'.

The EAT in this case upheld the Tribunal's findings that there were material differences between the Claimant's age group and the comparator age group which meant that they were not truly comparable. Evidence was produced before the Tribunal to show that the purpose of the different payments was to reflect the comparative difficulty of loss of employment suffered by older workers when compared with those in the younger age group.

Further, it upheld the Tribunal's finding that the DWP had objectively justified the less favourable treatment, being satisfied that DWP had a legitimate aim, namely to cushion the impact of the loss of employment for older workers, and that its chosen policy was proportionate to achieving that aim.

The case underlines that, in order to successfully defend a claim of direct age or indirect discrimination, the employer must produce evidence to show the impact of its policies on staff (comparing one group with another) and be clear as to what its aims were in introducing, adopting or implementing that policy. The employer must also be able to evidence that the method adopted by them actually achieves its stated aims. In a direct age discrimination claim, this also requires the employer to show that those aims were of a social policy nature.

Further, what is also clear from the case law is that, whilst an employer's aim may justify a policy now, it may not do so in 10 years time. It is therefore sensible for employers to regularly review their polices and consider the impact of those policies on various staff groups. The reason for and aim of any policies should be formally recorded at the time of the review and consideration should be given as to whether there is any other means of achieving the employer's stated aim.