hmlr_bensonEAT2012
EAT AGE DISCRIMINATION
SEX DISCRIMINATION – Justification
The Appellant offered employees a voluntary redundancy/early retirement scheme, with enhanced benefits. It had more applicants than could be accommodated within the available budget, and a selection exercise was undertaken. The Claimants in the two appeals were applicants who had not been selected for release under the scheme. They were of two kinds – five who alleged age discrimination and one (Mrs McGlue) who alleged sex discrimination.
The Age Discrimination Claims
The Appellant selected for release (other things being equal) those applicants whose entitlements under the scheme would be lowest, thus maximising the numbers who could be released within the constraints of the budget. The Claimants were all aged between 50 and 54, and their entitlements were particularly costly because they would have been in receipt of an immediate unreduced pension. They claimed that the use of a selection criterion related to the amount of their entitlements constituted indirect age discrimination. The Tribunal accepted that the criterion used was the only practicable criterion if it was necessary to select (and had been favoured by the recognised trade union), but it found that it was ‘affordable’ for the Appellant to release all of those who had applied, albeit that that would have meant spending an additional andpound;19.7m over the andpound;12m budgeted; and it held that accordingly selection (necessarily employing a discriminatory criterion) was not a proportionate means of achieving its (legitimate) aim of reducing headcount.
Held, allowing the appeal and dismissing the claims, that the Tribunal should have proceeded on the basis that the Appellant’s decision as to what resources to allocate to the exercise, i.e. andpound;12m, constituted part of its ‘real need’ or ‘aim’, and that it was not relevant that it could in an absolute sense have ‘afforded’ to allocate a larger amount; and that, although the Tribunal was entitled to assess the proportionality of the means chosen to achieve that aim, its finding that there was no other practicable alternative meant that on the facts of the present case it was obliged to hold that the selection criterion chosen was a proportionate means of achieving that aim – Barry v Midland Bank plc [1999] ICR 319, Cadman v Health and Safety Executive [2005] ICR 1546 and Chief Constable of West Midlands v Blackburn [2008] ICR 505 referred to – Observations in Pulham v London Borough of Barking and Dagenham [2010] ICR 333 distinguished
Underhill P J
[2011] UKEAT 0197 – 11 – 1002
Bailii
England and Wales
Employment, Discrimination
Updated: 02 November 2021; Ref: scu.451169