Age Discrimination and Objective Justification

Age Discrimination and Objective Justification

The Court of Appeal has recently been called upon to decide on a question of age discrimination in the case of Lockwood v (1) Department of Work and Pensions and (2) Cabinet Office. The question was whether or not the Employment Tribunal was correct to take into account differences between a Claimant and her comparator that related to age?
The claim was unsuccessful at the Employment Tribunal and the Claimant appealed to the Employment Appeals Tribunal. This was also unsuccessful and she appealed to the Court of Appeal.
A few brief facts will be useful here in order to put this point into context.
Facts
The Claimant started working for the Respondent when she was 18 years old. She had almost 8 years of continuous service and in 2007 accepted voluntary redundancy. Under the Civil Service Compensation Scheme (CSCS) which determines how much redundancy pay an employee is entitled to she was due to receive £10849.04. However had she been over 35 years old at the time she left she would have received a further sum of £17690.58. On this basis she claimed discrimination on the grounds of her age.
Law
Regulation 3(2) of The Employment Equality (Age) Regulations 2006 (this case was pre-Equality Act 2010) provides that the"relevant" circumstances of the Claimant and the comparator must be"the same or not materially different". The Employment Tribunal was considered to have wrongly relied on the differences between the Claimant and the comparator that were based on her age. Namely that she was statistically less likely to have family ties a mortgage and less difficulty to recover from redundancy because she was younger than her comparator.
The Tribunal should have considered whether the Claimant was in materially comparable circumstances to employees aged over 35 years of age whose employment was terminated and if so whether payment of more compensation to those over 35 years old was justified. Unlike other forms of discrimination in claims for age discrimination it is possible to argue that such discrimination was objectively justified.
The Court of Appeal found that the Employment Tribunal had failed to conduct the comparison exercise properly as the considerations they took into account were only relevant to the question of objective justification rather than there was any discrimination in the first place.
The Court found that once the correct comparator exercise had been made the Claimant had suffered less favourable treatment. However the appeal was unsuccessful as the Court agreed that the less favourable treatment was objectively justified.
This case provides an important restatement of the two stage test for direct age discrimination claims. Firstly the Claimant must prove facts from which the Tribunal in the absence of an adequate explanation that the Respondent committed the act of discrimination. Once proven the Respondent then must show that they did not commit the unlawful act and that the treatment was not on the ground of the prohibited factor (such as age sex etc).
Age discrimination can be a difficult and complex area of law and may occur even where this is not immediately apparent.
If you believe that you have been subjected to age discrimination or discrimination on the grounds of your sex sexual orientation race religion or belief and you are looking for specialist age discrimination solicitors in Leeds please contact our dedicated employment law department who will be happy to discuss your situation with you.
Written by
Anthony Fox

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