Donkor v The Royal Bank of Scotland (Age Discrimination) (Rev 1)

For direct age discrimination, a comparison is not invalid because the asserted material difference is itself a consequence of age. The question whether treatment was less favourable must address the detriment actually alleged.

Where the criterion or reason for treatment inherently imports age, the but for test applies. An employer's reasons for using that age-based criterion do not prevent the treatment being direct discrimination. Those reasons may instead be relevant to justification under section 13(2) of the Equality Act 2010.

The Claimant, aged over 50, was not offered the opportunity to apply for voluntary redundancy during a restructuring. Two unsuccessful colleagues aged under 50 were given that opportunity. If the Claimant had been accepted for voluntary redundancy, he could have obtained early retirement benefits, producing a substantially higher severance cost.

The Employment Tribunal dismissed his direct age discrimination claim. It held that the comparators were materially different, that there was no less favourable treatment, and alternatively that the reason for the difference was cost and approval requirements rather than age. It did not determine the pleaded justification defence. The appeal concerned whether those conclusions disclosed errors of law.

1. Appeal allowed. The EAT set aside the Employment Tribunal's conclusion that no direct age discrimination had occurred and substituted a finding that the Claimant had established a prima facie case, subject to justification.

2. The Tribunal wrongly treated the Claimant's entitlement to early retirement on voluntary redundancy as a material difference from the comparators. That entitlement arose because he was over 50. Following Lockwood v Department of Work and Pensions [2013] IRLR 941, a difference which is age itself, or a feature of age, cannot defeat the comparison required by section 23 of the Equality Act 2010.

3. The Tribunal also addressed the wrong alleged detriment. The complaint was the denial of an opportunity to apply for voluntary redundancy, not a denial of an opportunity to apply for early retirement. The denied opportunity could reasonably be regarded as a detriment and as less favourable treatment when the comparators received it, even though an application might not have succeeded.

4. The Tribunal's alternative reasoning on causation was erroneous. On its own findings, the additional cost, approval process, legal risk and need to explore redeployment all arose because the Claimant's age entitled him to early retirement benefits. Applying the but for approach in James v Eastleigh Borough Council [1990] 2 AC 751, age was inherent in the criterion used. The employer's motive for relying on that criterion did not negate direct discrimination.

5. Justification under section 13(2) remained unresolved. It required fact-sensitive assessment of legitimate aims and proportionality, which the EAT could not undertake. The case was remitted to the same Tribunal, so far as reasonably practicable, solely to determine justification.

• Employment Appeal Tribunal: allowed the Claimant's appeal, substituted a finding that direct age discrimination was established subject to justification, and remitted justification to the same Employment Tribunal.
• London (Central) Employment Tribunal: dismissed the Claimant's claims for unfair dismissal and direct race and age discrimination. The appeal concerned one aspect of the direct age discrimination claim.