palmer_rbsEAT1408
EAT Age Discrimination : The Respondent Bank decided to restructure the division in which the Claimant worked. She amongst others was consequently at risk of redundancy. Just prior to the decision as to restructuring, the Bank had also decided to adjust its Voluntary Early Retirement (‘VER’) scheme, so that only those who were at least 55 at the date of leaving employment would be entitled to an immediate pension payable without actuarial reduction for early receipt. Previously the minimum age had been 50. The Bank was persuaded by the employees’ union to delay the introduction of this adjustment until after the restructuring was complete. Employees at risk of redundancy, including the Claimant, had already indicated whether they chose to accept voluntary redundancy (for which a generously enhanced payment was available) or wished to be redeployed if this were possible, with those who would be over 55 being offered a third choice, that of VER. Now that the adjustment was to be delayed, those who would be at least 50, but less than 55, were allowed to revisit their options, with the third option now being made available to them as it had not been before. The Claimant (aged 49) complained that the failure to permit her too to revisit her choice unlawfully discriminated against her on age grounds. She had chosen the redundancy payment option, but if permitted to choose again would now elect for redeployment, believing that it would take some time before the fact that there would be no job for her was identified, and she would then be old enough validly to opt for VER. An ET held that she was not in a comparable position to those between 50 and 55, since (a) she was 49; and (b) her route to gaining VER would be different. If that were wrong, the policy of permitting those between 50 and 55 to revisit their choices was aimed at reducing compulsory redundancies, and was a proportionate means of doing so.
Held: The ET was entitled to conclude that less favourable treatment had not been established, since the comparators could lawfully have chosen VER but the Claimant at her projected date of leaving employment could not. This did not fall foul of the principle expressed by the C.A. in Lockwood v Department for Work and Pensions, since in the present case the Claimant could not lawfully have been offered VER at her age – there was a statutory prohibition against it. If, however, that were wrong, the ET had permissibly identified a legitimate aim, and decided the means adopted towards achieving it were appropriate, but had not sufficiently balanced the importance of achieving the aim against the discriminatory effect on the group, of which the Claimant was part, of being denied the chance to revisit their options after the delay in making the adjustment to the policy on VER.
Langstaff J P
[2014] UKEAT 0083 – 14 – 0108
Bailii
England and Wales
Employment, Discrimination
Updated: 01 November 2021; Ref: scu.535553