EAT Equality Act 2010 sections 5, 13(1) and (2), 23 and 39(2)(d)
Direct age discrimination – different treatment of those aged over 50.
Held: Allowing the appeal.
(1) The ET had erred in its approach to the question of comparison; wrongly relying on the differences attributable to the ages of the Claimant and his comparators (Lockwood v Department of Work and Pensions  IRLR 941 CA).
(2) It had then erred in its alternative finding that there was no less favourable treatment. It had considered the Claimant’s case on a basis that was not before it. As the Respondent conceded, the failure to afford the Claimant the opportunity to apply for voluntary redundancy could amount to a detriment and to less favourable treatment in these circumstances.
(3) Finally, in considering (as a further alternative) the reason for the less favourable treatment, the ET had erred in failing to adopt the correct – but for – test, where the reason for the treatment (the Claimant’s ability, as an employee aged over 50, to apply for early retirement if accepted for voluntary redundancy) itself imported the relevant characteristic, age (applying James v Eastleigh Borough Council  2 AC 751 HL, R (E) v Governing Body of JFS  2 AC 728 SC and Bull v Hall  UKSC 73 SC).
The conclusion that there was no direct age discrimination would be set aside and substituted by a finding that, subject to the ET’s (outstanding) finding on justification, the Claimant’s case had been made out. The matter would be remitted to the same ET for consideration of the question of justification.
Updated: 17 January 2022; Ref: scu.565077