Hadfield v The Health and Safety Executive & Anor

Age discrimination cannot be established by comparing the pension consequences of hypothetical retirement with the position of an employee who remains in employment. A member who continues working has no entitlement to pension until retirement and continues to accrue pensionable service. The fact that actuarial adjustment applies differently before and after a specified age does not itself establish less favourable treatment. The use of age-based actuarial criteria in pension calculations is excluded from unlawful discrimination by Employment Equality (Age) Regulations 2006, Schedule 2. A pension claim seeking actuarial enhancement cannot be recast as an age discrimination claim where the statutory exemption applies. A claim may be struck out at a pre-hearing review where it has no reasonable prospects of success.

The claimant, a member of the Civil Service Pension Scheme employed by the Health and Safety Executive, alleged direct and indirect age discrimination during the period when he continued working after age 60 but could not draw his pension. He challenged both the prohibition on drawing pension while working full time and the absence of actuarial enhancement for pension deferred beyond age 60.

The Employment Tribunal struck out the relevant part of the claim under rule 18(7) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, holding that it had no reasonable prospects of success. The appeal concerned whether that conclusion was erroneous.

1. Appeal dismissed. The Employment Tribunal was entitled to strike out the claim under rule 18(7)(b) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004.
2. The direct discrimination claim had no reasonable prospect of success. The difference between actuarial reduction before age 60 and no reduction at or after age 60 did not demonstrate less favourable treatment. At most, the under-60 member was treated less favourably because the adjustment reduced the pension. In any event, the comparison was based on a hypothetical retirement, whereas the claimant had remained employed and continued accruing pensionable service.
3. The age-based actuarial adjustment was excluded from unlawful discrimination by Schedule 2 to the Employment Equality (Age) Regulations 2006. Paragraph 8 of Part 2 covered the use of age criteria in actuarial calculations, including the examples of benefits commencing before an early-retirement pivot age and enhancement after a late-retirement pivot age. Those examples were not exhaustive.
4. The indirect discrimination claim was misconceived. The PCP preventing full-time employees from drawing pension applied to both the under-60 and over-60 groups. There was no pension loss because entitlement arose only on retirement. Hypothetical future recovery of pension did not establish group or individual disadvantage.
5. The substance of the claim was a request for actuarial enhancement. That could not relevantly be presented as an age discrimination claim, particularly in view of the statutory exemption.

• Employment Appeal Tribunal: dismissed the appeal and upheld the Employment Tribunal’s decision to strike out the claim insofar as it concerned comparison with members under 60.
• Employment Tribunal: struck out the relevant claim under rule 18(7)(b) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 as having no reasonable prospects of success.