Lockwood v Department of Work and Pensions

The Court of Appeal considered a claim of direct age discrimination under the Employment Equality (Age) Regulations 2006, in particular regulation 3 (definition of discrimination on grounds of age, and the justification defence) and regulation 7 (terms of employment). The Employment Tribunal had held that the claimant's circumstances were materially different from those of an over-35 comparator and so there was no less favourable treatment; alternatively it held the Civil Service Compensation Scheme (CSCS) was objectively justified. The Employment Appeal Tribunal upheld the ET.

The Court of Appeal concluded that the ET was wrong to treat characteristics consequent upon age (such as presumed greater financial responsibility and greater difficulty in re-employment) as part of the comparator exercise under regulation 3(2): those matters are relevant to justification, not to whether less favourable treatment occurred. The court therefore held that the claimant had been treated less favourably because of her age. However, applying regulation 3(1) the court accepted that the CSCS pursued legitimate aims (financial cushioning, workforce planning and administrative workability) and that the banded, age-related scheme was a proportionate means of achieving those aims. The appeal was therefore dismissed.

Background and parties:

• The appellant, Ms Romilly Lockwood, was a civil servant who accepted voluntary redundancy in 2007 at age 26 and received a smaller lump-sum payment under the Civil Service Compensation Scheme than an older employee with identical length of service would have received.
• Respondents were the Department for Work and Pensions (her former employer) and the Cabinet Office (scheme administrator).

Procedural history:

• Claim first heard by the Employment Tribunal (judgment sent 3 November 2011) which dismissed the claim.
• Employment Appeal Tribunal dismissed the claimant's appeal (order 4 February 2013, UKEAT/0094/12/RN).
• Appeal to the Court of Appeal was heard and dismissed on 11 October 2013 ([2013] EWCA Civ 1195).

Nature of the claim and relief sought:

• Claim for direct age discrimination under The Employment Equality (Age) Regulations 2006 challenging the age-related elements of the CSCS severance calculation. The claimant sought a finding of discrimination and the relief that she should have received the higher payment.

Issues before the court:

(i) Whether, for the purposes of regulation 3(2), the claimant and an over-35 comparator were in the same or not materially different relevant circumstances (the comparator question);

(ii) If less favourable treatment was established, whether the age-differentiated payments were objectively justified as a proportionate means of achieving a legitimate aim under regulation 3(1) (the justification question).

Court's reasoning and conclusions:

• On the comparator issue the court held that the ET erred in including features that were merely consequences of the claimant's age (for example, assumed greater adaptability and fewer financial obligations) as part of the ‘‘relevant circumstances’’; those features are the very aspects that explain age-based differential treatment and therefore cannot invalidate the basic comparison. Accordingly the claimant was treated less favourably compared with an otherwise identical over-35 comparator.
• On justification the court accepted the legitimate aims identified by the respondents (providing a proportional financial cushion, workforce planning, recruitment/retention incentives and administrative workability across a large civil service). The ET had examined statistical evidence and evidence about practicability and cost, and conducted the balancing exercise with appropriate rigour. The banded, age-related scheme was held to be a proportionate means of achieving the aims. The Court of Appeal therefore dismissed the appeal despite finding the ET wrong on the comparator point.
• The court also noted subsidiary factual findings (the history of the CSCS, union involvement in negotiations, and difficulty of individualised assessment) which supported the justification conclusion.

Appeal dismissed. The Court of Appeal held that the Employment Tribunal was wrong to treat age-consequent features as part of the ‘relevant circumstances’ under regulation 3(2) and therefore the claimant had been treated less favourably because of her age. However the court accepted that the Civil Service Compensation Scheme pursued legitimate aims and that the age-banded scheme was a proportionate means of achieving those aims under regulation 3(1); accordingly the discriminatory treatment was objectively justified and unlawful discrimination was not made out.

Employment Tribunal judgment sent 3 November 2011 (London Central ET) — claim dismissed; Employment Appeal Tribunal order 4 February 2013 (UKEAT/0094/12/RN) — appeal dismissed; Court of Appeal judgment [2013] EWCA Civ 1195 — appeal dismissed.