The National Union of Rail, Maritime and Transport Workers (RMT) v Lloyd (Age Discrimination)

For age discrimination, an asserted justification must be a true aim, capable of being legitimate and legitimate in the particular circumstances. Evidence that an age-based rule has failed to achieve its asserted objective may be relevant to each of those inquiries. It is not confined to the later question of proportionality.

An aim relied on to justify direct age discrimination must be consistent with the social policy aims of the state. A trade union's political policy favouring a lower retirement age did not justify enforcing a rule which excluded a member from election because of age. Proportionality remains a distinct, sequential inquiry. An inadequate alternative finding on proportionality does not affect the result where no legitimate aim has been established.

The claimant, a member and branch secretary of the RMT, was nominated for election to its National Executive Committee for a three-year term. The union rejected his nomination under a Rulebook provision which prevented a candidate from standing if they would reach 65 before completing the term.

He brought a direct age discrimination claim under Equality Act 2010, section 13, read with section 57(2)(d). The Employment Tribunal upheld the claim. It rejected the union's asserted aims of intergenerational fairness, efficient planning and consistency with its policy of campaigning for a lower retirement age. It also held, alternatively, that the rule was disproportionate.

The union appealed. The central issue was whether the Tribunal had erred in rejecting those aims as legitimate and in its alternative treatment of proportionality.

1. Appeal dismissed. The Employment Tribunal made no error of law in concluding that none of the three aims pursued on appeal was legitimate for the purposes of section 13(2) of the Equality Act 2010.

2. Applying Seldon v Clarkson Wright and Jakes (A Partnership), [2012] UKSC 16, the inquiry required consideration of whether an asserted aim was in fact the rule's true aim or actual objective; whether it was capable of being legitimate; and whether it was legitimate in the particular circumstances. Although the Tribunal did not expressly separate those questions, its conclusions were sufficiently clear.

3. Evidence of the rule's effectiveness was relevant when testing whether intergenerational fairness was a genuine objective and whether it was legitimate in the circumstances. The Tribunal was entitled to rely on the age composition of the membership and the NEC. Those figures supported its conclusion that the rule neither opened opportunities for younger members nor secured a generational mix.

4. The Tribunal was also entitled to compare the treatment of paid officials who could be re-elected although unable to serve until their retirement age. That comparison was relevant to whether avoiding the cost and disruption of by-elections was a true objective and a legitimate aim in the circumstances. Evidence may overlap between aims and means; it is not always necessary or possible to draw a sharp distinction between them.

5. There was no circularity in rejecting consistency with the union's political policy on retirement age. There was no inconsistency between pursuing that political policy and complying with age-discrimination law. Further, a retirement-age policy contrary to government policy could not be a legitimate aim within the Seldon requirements.

6. The Tribunal's alternative, one-sentence conclusion on proportionality did not adequately address that distinct balancing exercise and gave insufficient reasons. That defect was academic because the union had established no legitimate aim. Had it succeeded on legitimate aim, the appeal on proportionality would have been allowed.

• Employment Appeal Tribunal: Dismissed the union's appeal and upheld the finding of direct age discrimination.
• Employment Tribunal (London Central): In a decision sent on 23 August 2018, upheld the claimant's direct age discrimination complaint. It rejected the asserted justifications for the Rulebook age restriction.