Cockram v Air Products Plc

For direct age discrimination, an employer must establish an actual legitimate aim and show that the discriminatory measure is a proportionate means of achieving it. A tribunal must make clear findings about the aim actually pursued, why it is legitimate in the particular circumstances, the measure’s implementation, and whether it is appropriate and reasonably necessary.

Assertions that an aim is intergenerational fairness do not suffice without reasoned analysis, particularly where contemporaneous material may indicate a different aim. Proportionality requires a real comparison between the significant discriminatory loss and the employer’s needs under Equality Act 2010, section 13(2).

The claimant left the respondent’s employment aged 50. Although he could begin his pension under the protected terms of its defined-benefit scheme, the respondent treated retirement under its long-term incentive plan as occurring only at age 55. His unvested stock options were therefore forfeited.

The respondent admitted direct age discrimination but contended that it was justified by intergenerational fairness and consistency, rewarding experience and loyalty, and maintaining a mix of generations in the workforce. The Employment Tribunal dismissed the claim. The claimant appealed, contending that the Tribunal had not properly identified or examined the asserted aims and had not conducted the required proportionality assessment.

1. Appeal allowed. The Employment Tribunal erred in law in accepting that the respondent’s aim extended beyond consistency between employees in two pension schemes. It gave insufficient reasons for finding that the aim included intergenerational fairness, and did not explain what that fairness meant in this setting.

2. Applying the approach reflected in Seldon v Clarkson Wright and Jakes [2012] IRLR 590, a tribunal must identify the aim actually pursued and decide whether it is legitimate in the particular circumstances. It cannot accept an employer’s assertion without explaining why it is accepted where other evidence may point in a different direction. Here, the Tribunal did not adequately address the contemporaneous memorandum’s focus on consistency, the absence of earlier changes to the plan, or whether an undisclosed age-55 condition could incentivise employees to remain.

3. The Tribunal also failed to give adequate reasons on proportionality. It made no finding that the respondent had compared the claimant’s loss with its asserted aims, and did not itself conduct that comparison. A precise valuation was unnecessary: on either party’s case, the loss was significant. Clear findings were required on the aim, its legitimacy, the steps taken to implement it, and whether those steps were appropriate and reasonably necessary, including a balance between the discriminatory loss and the respondent’s needs.

4. The case was remitted to a freshly constituted Employment Tribunal. It must accept the existing factual findings and determine whether the discrimination was justified under Equality Act 2010, section 13(2).

• Employment Appeal Tribunal: appeal allowed and the justification issue remitted to a freshly constituted Employment Tribunal.
• Employment Tribunal: dismissed the claimant’s age-discrimination claim in written reasons sent on 2 January 2015.