Palmer v Royal Bank of Scotland plc

For age-discrimination purposes, a comparator may be in materially different circumstances where the claimant could not lawfully receive a benefit which the comparator could lawfully receive. A statutory age restriction may therefore explain a difference in the available route to a benefit without constituting unlawful discrimination.

Where justification is relied upon, the tribunal should address separately: whether the aim is legitimate; whether the measure is appropriate to achieve it; and whether it is reasonably necessary, balancing the discriminatory impact against the importance of the aim and the consequences of alternative measures.

The claimant, aged 49, was at risk of redundancy during a bank reorganisation. Employees who would be at least 50 at their projected dismissal date were permitted to revisit their redundancy choices when voluntary early retirement became available under a delayed pension-scheme change. The claimant was not given that opportunity because she would remain under 50 at the projected dismissal date.

An Employment Tribunal dismissed her direct age-discrimination complaint under sections 13 and 23 of the Equality Act 2010. It held that the relevant employees were not valid comparators and, alternatively, that the treatment was justified. The appeal concerned the comparator issue and, alternatively, the adequacy of the justification reasoning.

1. Appeal dismissed. The Employment Tribunal was entitled to conclude that the claimant had not established less favourable treatment.

2. The employees permitted to revisit their choices could lawfully elect for voluntary early retirement at the projected dismissal date. The claimant could not lawfully have been offered that benefit because she would still be under 50. The difference in the route by which the claimant might eventually have obtained a similar benefit was therefore a material difference in circumstances. The distinction was caused by lawful statutory age restrictions, rather than unlawful age discrimination. This did not conflict with the reasoning in Lockwood v Department for Work and Pensions.

3. Alternatively, the Tribunal had identified minimising compulsory redundancies as a legitimate aim. The policy was an appropriate means of achieving that aim because allowing the claimant to revisit her choice could lead her to select redeployment, contrary to the objective of avoiding compulsory redundancy.

4. The justification analysis was insufficiently reasoned. A tribunal should address separately whether the aim is legitimate, whether the means are appropriate, and whether they are reasonably necessary. The final stage requires balancing the discriminatory effects against the importance of the aim and the consequences of alternative measures. Had the comparator issue been decided in the claimant’s favour, the appeal would have been allowed on this ground and the matter remitted.

• Employment Appeal Tribunal: dismissed the appeal from the Employment Tribunal’s dismissal of the age-discrimination complaint.
• Employment Tribunal: dismissed the complaint, holding that there was no valid comparator and, alternatively, that the treatment was justified.