UK: Age Discrimination - Justification

Last Updated: 7 November 2013
Article by Davenport Lyons

The issue of age discrimination has arisen in a number of high-profile cases recently, with celebrities such as John McCririck claiming ageism in decisions made by Channel 4. An employer is not permitted to directly discriminate against employees on grounds of age unless the employer can show that such treatment is objectively justified. At the time of writing Mr McCririck's case is continuing but earlier this year the EAT had to consider the slightly more prosaic issue of the civil service voluntary redundancy scheme operated by the Department of Work and Pensions.

The case (Lockwood v Department for Work and Pensions) concerned a 26 year old employee with 8 years' service who was entitled to a payment of £10,849 under the scheme. Had she been aged over 35 she would have been entitled to an additional £17,690. She claimed direct age discrimination.

The EAT upheld the tribunal's decision that there were material differences between the two age groups (under 35 and over 35) such that the two were not truly comparable.  This finding was based on evidence showing that the purpose of the different payments was to reflect the comparative difficulty of loss of employment suffered by the older workers compared to the younger workers.

Although the EAT's finding on the comparator was enough to dispose of the appeal, the EAT went on to hold that if there was direct age discrimination, it could be justified. The employer had adopted proportionate means to achieve the legitimate aim of producing a proportionate financial cushion for workers until alternative employment is found when balanced against the disparate treatment of younger workers. This would satisfy the test set by the Supreme Court in the case of Seldon v Clarkson, Wright and Jakes that the aims were in the public interest (see comment below).

Comment

In the Seldon case the Supreme Court said that in order for discriminatory treatment to be justified, the policy in question had to have objectives of a public interest nature and not just be individual reasons of that particular employer. When the case returned to the employment tribunal in May 2013 the tribunal held that a compulsory retirement age of 65 was justified as a proportionate means of achieving the firm's aims.

However, this decision needs to be treated with caution as the employment tribunal took comfort from the fact that at the relevant time the normal state pension age was 65. As the normal retirement age of 65 was abolished in April 2011 this is no longer a relevant factor. In addition, some of the matters relied on by the tribunal in reaching its decision on justification were peculiar to the fact that the case concerned a partnership and these factors may not translate too well into a "normal" employment situation. It still remains that justifying a mandatory retirement age will be a tricky task for an employer.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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