Lockwood v Department of Work and Pensions & Anor

In direct age-discrimination claims, the comparator exercise requires an assessment of whether the age-related differences are material for the purpose of the employment measure. That is a factual question for the Employment Tribunal.

Direct age discrimination may be justified only where the employer pursues legitimate objectives of a public-interest nature and uses proportionate means. A severance scheme may properly reflect evidence that older employees face greater difficulty in obtaining new work and have different financial commitments. The Tribunal may therefore find both that younger and older employees are not truly comparable and, alternatively, that the differential payments are justified under the Employment Equality (Age) Regulations 2006.

The claimant accepted voluntary redundancy from the Department for Work and Pensions under the Civil Service Compensation Scheme. At age 26, with almost eight years’ service, she received £10,849.04. An employee over 35 with the same service would have received a further £17,690.58.

She brought a claim of direct age discrimination in the London Central Employment Tribunal. The Tribunal dismissed it, holding that the under-35 and over-35 groups were not truly comparable and, alternatively, that the differential treatment was objectively justified. The claimant appealed to the Employment Appeal Tribunal, challenging both conclusions.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the claimant’s age group and the proposed older comparator group were materially different for the purpose of the redundancy scheme. The comparative question asks whether the distinguishing characteristic is material for the purpose in hand. It is a question of fact and degree.

2. The Tribunal’s finding rested on evidence that older workers suffered comparatively greater difficulty following loss of employment, including in obtaining further work and meeting family financial commitments. The claimant provided no competing statistical evidence. The Tribunal therefore made no error of law in concluding that the two groups were not truly comparable. The comparator finding disposed of the appeal.

3. The EAT nevertheless considered the alternative justification finding. Following Seldon v Clarkson Wright and Jakes (2012) ICR 716, justification for direct age discrimination requires legitimate objectives of a public-interest nature within article 6(1) of EC Directive 2000/78, as well as proportionate means.

4. The Tribunal had identified a legitimate aim of providing workers with a proportionate financial cushion until they found alternative employment. Its assessment of the balance between that aim and the disadvantage to younger workers was relevant and sufficient. Its findings provided sound reasons for concluding that the respondents’ aims accorded with article 6(1) and that the scheme was proportionate. No remittal was required.

• Employment Appeal Tribunal: dismissed the claimant’s appeal from the Employment Tribunal: [2013] UKEAT 0094_12_0402.
• London Central Employment Tribunal: by a reserved judgment promulgated on 3 November 2011, dismissed the direct age-discrimination claim on comparator and alternative justification grounds.