Lockwood v Department of Work and Pensions & Anor

In direct age discrimination claims, the claimant and comparator must occupy the same position in all material respects apart from age. Consequences associated with age cannot be used to defeat comparability. They may instead be relevant to objective justification.

Age-based severance bands may be justified where they pursue the legitimate aim of providing financial protection according to differing needs. The tribunal must scrutinise whether the scheme is appropriate and reasonably necessary. It may consider reliable statistical evidence, administrative workability, cost, workforce planning and trade union agreement, while balancing those matters against the discriminatory impact.

A civil servant aged 26 received substantially less voluntary redundancy compensation under the Civil Service Compensation Scheme than an employee aged over 35 with identical service would have received. She alleged direct age discrimination contrary to the Employment Equality (Age) Regulations 2006.

The Employment Tribunal dismissed her claim. It found that younger and older employees were not in materially comparable circumstances and, alternatively, that the age-related scheme was objectively justified. The Employment Appeal Tribunal dismissed her appeal.

The issues before the Court of Appeal were whether age-related consequences could establish a material difference between the claimant and her comparator, and whether the discriminatory compensation scheme was a proportionate means of achieving a legitimate aim.

1. Appeal dismissed. The Employment Tribunal and Employment Appeal Tribunal had erred on comparability, but the claim nevertheless failed because the age-based treatment was objectively justified. Lewison and Treacy LJJ agreed with Rimer LJ.
2. For the comparison required by regulation 3(2) of the Employment Equality (Age) Regulations 2006, the comparator had to occupy the same position as the claimant in all material respects apart from age. The claimant’s comparator was therefore an employee over 35 with identical service who left under the same compensation scheme. The fact that younger people might recover from unemployment more quickly or have fewer financial responsibilities was itself consequent upon age. It could not invalidate the comparison. The claimant suffered less favourable treatment because she received substantially less compensation than that comparator: paras 33–39, 56–58.
3. Those age-related considerations could, however, be relevant to objective justification under regulation 3(1). The question was whether the discriminatory scheme was a proportionate means of achieving a legitimate aim. This required careful scrutiny of the scheme’s aims, its appropriateness, its reasonable necessity and its impact upon the disadvantaged group: paras 40–46.
4. The tribunal had correctly understood and rigorously applied that test. The scheme legitimately sought to distribute a limited fund so as to provide a proportionate financial cushion until alternative employment was found, or a bridge to retirement. Statistical evidence supported the assessment that younger workers generally returned to work more readily and carried fewer family and financial responsibilities. Clear age bands were administratively workable across a very large workforce, whereas individual assessment was impracticable. Cost, workforce planning and trade union agreement were also relevant considerations: paras 46–54.
5. A banded scheme could not achieve exact justice in every individual case. The tribunal knew that some younger employees had circumstances resembling those of older employees, but was entitled to conclude that the selected bands were appropriate and proportionate. Reconsideration on the same evidence was unwarranted: paras 49–53.

1. Court of Appeal (Civil Division): Dismissed the appeal. It reversed the reasoning below on comparability but upheld the finding that the age-based treatment was objectively justified: [2013] EWCA Civ 1195.
2. Employment Appeal Tribunal: Dismissed the appeal from the Employment Tribunal, holding that the claimant and older comparators were materially different and, alternatively, that the compensation scheme was objectively justified. Appeal No UKEAT/0094/12/RN.
3. London Central Employment Tribunal: Dismissed the claim. It found no comparable circumstances and held in the alternative that the scheme was a proportionate means of achieving a legitimate aim.