K Cook v Gentoo Group Limited

Direct age discrimination may be justified only by an aim of a public-interest social-policy character, rather than cost reduction alone. The tribunal must identify that aim and make its own detailed, objective proportionality assessment.

Where an employer departs from its normal procedures to prevent an employee reaching an age-related pension enhancement, the tribunal must assess the nature and gravity of the discriminatory effects, the importance of the aim, whether the measure was appropriate and reasonably necessary, and any material comparison with earlier authority. A bare balancing assertion will not suffice.

The claimant was dismissed for redundancy shortly before his fifty-fifth birthday. The Employment Tribunal found the dismissal unfair. It found that a fair process would have ended after he reached 55, when he would have qualified for an enhanced pension.

The Tribunal rejected his direct age-discrimination claim on comparator grounds and, alternatively, held without reasons that the treatment was a proportionate means of achieving a legitimate aim. Following a Burns/Barke request, the Employment Judge identified cost saving together with regulatory disapproval of generous severance arrangements as the aim.

The claimant appealed the proportionality finding and a 15% reduction to compensation for delaying consultation.

1. Appeal allowed. By consent, the 15% compensation reduction for delaying consultation was revoked. The overall reduction was consequently reduced from 90% to 75%.
2. The Tribunal’s alternative finding that direct age discrimination was justified could not stand. It had not identified or analysed the required public-interest social-policy objective for justifying direct age discrimination under Equality Act 2010, section 13(2), as explained in Seldon.
3. The Tribunal did not conduct the required detailed proportionality exercise. It failed to assess the significance of departing from the employer’s usual procedures; the regulator’s earlier criticism and its relevance to this pension enhancement; the discriminatory effect of depriving the claimant of procedural protection and an age-related pension enhancement; and whether earlier dismissal was appropriate and reasonably necessary.
4. Woodcock required careful comparison, not merely citation. In that case a fair procedure could have achieved dismissal before the relevant age. Here, the Tribunal had found that compliance with the employer’s proper procedure would have resulted in dismissal after the claimant reached 55. It also gave no adequate basis for characterising the enhancement as a windfall.
5. The tests for unfair dismissal and justification differ. An unfair dismissal may nevertheless be justified, but that conclusion requires an objective balance between the gravity of the discriminatory effect and the employer’s legitimate aim. The Tribunal’s terse assertion that the balance favoured the respondent was insufficient.
6. There was more than one possible answer on a lawful assessment. The justification issue was remitted to a differently constituted Employment Tribunal because the original error was fundamental.

• Employment Appeal Tribunal: appeal allowed; the direct-age-discrimination justification issue was remitted to a freshly constituted Employment Tribunal. The compensatory-award reduction was varied by consent.
• Employment Tribunal: judgment dated 6 April 2021. It found the redundancy dismissal unfair, rejected the age-discrimination claim, and made a 90% total reduction to compensation.