United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ADAM OHRINGER (of Counsel) Bar Pro Bono Unit
For the Respondents	MR AKASH NAWBATT (of Counsel) Instructed by: Treasury Solicitor's Department One Kemble Street London WC2B 4TS


 


SUMMARY

AGE DISCRIMINATION

Direct age discrimination. Differences in severance payments on voluntary redundancy in the Civil Service between younger and older leavers.

ET findings (a) that the two groups were not truly comparable and, in the alternative (b) on justification upheld. As to justification, Seldon (Supreme Court) considered and applied.

Claimant's appeal dismissed.


 


HIS HONOUR JUDGE PETER CLARK

Introduction

1. The protection for employees against direct age discrimination, to be found in reg 3(1)(a) of The Employment Equality (Age) Regulations 2006, is based on the same comparative question as in the race and sex discrimination legislation, however, unlike that protection, it is open to an employer to show that any less favourable treatment on age grounds is justified. Although the test for justification in reg 3(1) appears to apply in the same way to indirect age discrimination, the Supreme Court in Seldon v Clarkson Wright and Jakes (2012) ICR 716 has ruled that there is one material difference between direct and indirect age discrimination justification; in a case of direct discrimination the fact-finding Tribunal is to consider, among other things, whether the objectives of the employer's policy under scrutiny are legitimate objectives of a public interest nature within the meaning of EC Directive 2000 / 78, transposed into domestic law by the 2006 Regulations; per Baroness Hale, paras 49(7); 67. In so revealing the law the Supreme Court added a further dimension to the Court of Appeal decision in Seldon (2011) ICR 60. The case presently under appeal was decided before the Supreme Court decision in Seldon, a compulsory retirement age case.

Background

2. The Claimant, Miss Lockwood, entered employment with the Department of Work and Pensions, the first Respondent at the age of 18 on 18 October 1999 as an Administrative Officer in the Benefits Agency.
3. On 2 April 2007 her position was declared as surplus and on the same day DWP announced a voluntary redundancy scheme. The scheme, operated across the civil service, was the Civil Service Compensation Scheme (CSCS). She applied for release under the scheme; her application was accepted and her employment ended on 21 September 2007.
4. Under the scheme, as a 26 year old leaver with almost 8 years service, she was entitled to a payment of £10,849.04. However, had she been over age 35, under the scheme rules she would have been entitled to a further sum of £17,690.58. It was that disparity in severance payments, compared with an older worker with identical length of service which caused her to lodge her complaint of direct age discrimination (and a further claim of breach of contract which is not material to this appeal) in the London Central Employment Tribunal. The claim was resisted and came on for hearing, together with that of a Mr Inglis, before an ET chaired by Employment Judge Sigsworth on 5-7 September 2011. By a reserved Judgment with reasons promulgated on 3 November 2011 all claims were dismissed. Against that decision the Claimant, who, like Mr Inglis had appeared in person, appealed. On the paper sift her appeal was set down for an Appellant only Preliminary Hearing by order of HH Jeffrey Burke QC dated 16 February 2012. At the PH before a division on which I sat the Claimant then had the benefit of representation by Mr Adam Ohringer of counsel under the ELAAS pro bono scheme. On the basis of amended grounds of appeal settled by Mr Ohringer we allowed the appeal to proceed to a full hearing with both parties present. Mr Ohringer again represents the Claimant and Mr Akash Nawbatt appears for the Respondents as he did below. We are grateful to both counsel for their characteristically well-researched and careful submissions.

The Employment Tribunal decision

5. Having heard evidence from the Claimants and Mr Peter Spain, head of the internal dispute resolutions and pensions technical team for the Respondents the ET rejected the age discrimination claims on two alternative bases;

(1) There were material differences between the Claimant's age group, (under 35) and the comparator group relied on (over 35). The two were not truly comparable (the comparator point) and/or;

(2) if, contrary to the first finding, the over 35 group were truly comparable, then the Respondents had objectively justified the less favourable treatment of the Claimants (justification).

The appeal

6. The Claimant takes issue with the ET on both findings. We shall consider each in turn.

The comparator point

7. In support of the material difference argument the Respondents referred the ET to the majority House of Lords decision in Barry v Midland Bank Plc (1999) ICR 859. That was an equal pay claim concerning the Bank's voluntary redundancy scheme, based on years of service and final salary. The Claimant, a part-time worker on termination, complained that no account was taken of her 11 years service as a full-time worker prior to her going part-time. She compared herself to a male full-time worker throughout his service, contending that she had been less favourably treated on grounds of her sex (women were more likely to go part-time and thus suffer disparate impact compared with men).
8. On the comparator issue the majority (Lord Nicholls dissenting) held that there was a material difference between the Claimant's case and that of her male comparator. Lord Nicholls agreed that the claim failed, but on the basis that the difference in treatment was justified.
9. We do not accept the distinction between the present case and that of Barry proffered by Mr Ohringer, namely that Barry was a case of alleged indirect discrimination, whereas the present case is one of inherent direct discrimination, as in the House of Lords case of James v Eastleigh Borough Council (1999) ICR 555, free admission to the leisure centre for pensioners, which meant men had to wait until age 65 for free admission, whereas women were admitted free at age 60.
10. As Lord Nicholls, the dissenting member of the House in Barry, held (867G-868C) the question at the first stage of the enquiry (the comparator issue) is whether the difference between the Claimant and her comparator, here age, is material for the purpose in hand. That approach is consistent with the approach of the Court of Justice of the European Union, identified in the more recent case of Lindorfer (2009) AER (EC) 569; see the second Advocate General's opinion (Eleanor Sharpston QC), paras 21-23 (pages 592-3), in particular, her observation at para 23 that there may be some blurring between the assessment of characteristics which differentiate situations and the assessment of justification for differential treatment.
11. Applying that approach, we are satisfied that no error of law is made out in relation to the ET's finding of material differences at para 27.1 of their reasons. That finding was evidence based (the statistics provided by Mr Spain; none being advanced by the claimant) showing that the purpose of the different payments was to reflect the comparative difficulty of loss of employment suffered by the older workers (finding another job; family financial commitments) when compared with those in the younger age group. We are reminded by Mr Nawbatt that the comparator question is one of fact and degree for the ET; see Hewage v Grampian Health Board (2012) ICR 1054, para 22. per Lord Hope of Craighead, giving the unanimous Judgment of the Supreme Court.
12. In these circumstances we reject Mr Ohringer's challenge on the comparator point.

Justification

13. Like the ET we acknowledge that our finding on the comparator point effectively disposes of this appeal. However, again like the ET, we shall address their alternative finding on justification. We pause to record that Mr Ohringer accepts that no difficulty arises in the ET adopting the comparison advanced by the Claimant as a proper basis for determining the justification issue.
14. Leaving aside the public interest point identified by the Supreme Court in Seldon, to which we must return, we are not persuaded by Mr Ohringer that the factors taken into account by the ET at para 27.2 are other than relevant factors entitling them to conclude that the Respondents adopted proportionate means to achieve the legitimate aim of the Respondents to produce a proportionate financial cushion for workers until alternative employment is found when balanced against the disparate treatment of younger workers. See, on this aspect, the approach of the EAT in the indirect age discrimination case of HM Land Registry v Benson (2012) ICR 627 (Underhill P).
15. As to the public interest consideration, although that is not addressed in terms by the ET for the obvious reason that Seldon was decided subsequently in the Supreme Court, we derive considerable assistance from the observations of Lord Hope in Seldon at paras 73 and 75. We shall not repeat them here, the reader is referred to the report of that case. Applying that approach to the reasoning of the ET in our case, we accept Mr Nawbatt's submission that the findings of the ET, particularly at para 27(5), provide sound reasons for a conclusion that these Respondents have demonstrated legitimate aims which accord with Art 6(1) of the Directive- See also Baroness Hale, again at para 67.
16. It follows that we should not have found it necessary to remit the case back to the ET on this point.

Disposal

17. Accordingly, this appeal fails and is dismissed.