Ford Motor Co Ltd v Elliott

Former employees may bring discrimination claims under section 108 of the Equality Act 2010 only if both statutory conditions are met. The alleged discrimination must arise out of, and be closely connected with, the former employment relationship. Separately, the alleged conduct must be of a kind which would contravene the Act if it occurred during employment. That inquiry includes consideration of whether there is any material difference between the claimant’s circumstances and those of the comparator under section 23(1). A tribunal deciding jurisdiction at a preliminary hearing need not determine whether discrimination is established, but must decide whether the pleaded allegations, taken at their highest, could satisfy both conditions.

Retired senior managers and pensioner members of the Ford Pension Scheme for Senior Staff claimed that Ford’s failure to pay them lump sums comparable to those paid to current employees after pension increases moved from the Retail Prices Index to the Consumer Prices Index amounted to direct or indirect age discrimination.

The Employment Tribunal held that it had jurisdiction under section 108 of the Equality Act 2010. Ford appealed, contending that the Employment Judge had applied the wrong test under section 108(1)(a) and had failed to consider section 108(1)(b), including material differences between the claimants and comparators. The central issue was whether the pleaded claims could satisfy both statutory conditions.

Appeal allowed. The Employment Tribunal’s decision that it had jurisdiction under section 108(1) of the Equality Act 2010 was set aside. The claims were remitted to a different Employment Judge, sitting with members, to determine jurisdiction.

1. Section 108(1)(a) and (b) impose separate and cumulative requirements. Under paragraph (a), the alleged discrimination must arise out of and be closely connected with the employment relationship which formerly existed between the parties. The relevant question is not whether there is a connection between the claimant’s former-employee relationship and current status as a pensioner.
2. The pleaded allegations could potentially satisfy section 108(1)(a) if the payments to active and pensioner members were made for the same reason and represented different treatment concerning pension increases. That was not, however, the basis on which the Employment Judge decided the issue.
3. Under section 108(1)(b), the alleged conduct must be conduct which would contravene the Act if carried out during employment. Applying section 23(1), the allegations must be capable of showing that there was no material difference between the circumstances of the claimants and their comparators. The Employment Judge did not decide this question.
4. At a jurisdictional preliminary hearing, the tribunal was not required to decide whether discrimination was proved. It was required to consider the claims at their highest and determine whether the allegations, if established, could fall within both limbs of section 108(1).

The matter was remitted for a fresh preliminary hearing.

1. Employment Appeal Tribunal: allowed Ford’s appeal, set aside the finding that the Employment Tribunal had jurisdiction, and remitted the claims for determination by a different Employment Judge sitting with members.
2. Employment Tribunal: Employment Judge Hallen had held that the Tribunal had jurisdiction under section 108(1) of the Equality Act 2010 to hear the direct and indirect age-discrimination claims.