Pulham and Others v London Borough Of Barking and Dagenham: EAT 28 Oct 2009

The Council operated a scheme rewarding loyalty and experience under which employees were paid increments if they satisfied both a length-of-service and an age criterion. The scheme was terminated with effect from 1.4.07, but employees already in receipt of increment were allowed to retain it by way of ‘pay protection’. The Claimant sought payment of increment on the coming into force of the Employment Equality (Age) Regulations 2006 on 1.10.06 but was refused. She claimed that she had been discriminated against on the grounds of her age (a) between 1.10.06 and 30.3.07 by being excluded from the scheme and (b) from 1.4.07 by being excluded from the pay protection arrangements.
The Tribunal dismissed the claim in relation to both periods.
As regards the first period its reasoning was unclear but was either that because under the terms of the scheme employees only became entitled to payment from the 1 April following their fulfilment of both qualifying conditions no detriment occurred prior to the abolition of the scheme or that the discrimination was justified because the Council was in the course of negotiating the abolition of the scheme.
As regards the second period, it held that the limitation of the pay protection arrangements to those employees already in receipt of benefit was justified because of the cost of extending it to all persons who had satisfied the length-of-service criterion but not the age criterion and because the arrangements in question had been negotiated with the recognised trade unions.
Held: In relation to the first period, that the Claimant could not be equated with a newly-qualifying employee and was discriminated against by being refused payment of increment with effect from 1.10.06; but that the Tribunal had either not considered the question of justification at all or had done so inadequately.
In relation to the second period, that, while pay protection arrangements of the kind adopted could in principle be justified, the Tribunal had not applied the appropriate test but (a) had attached a significance to the fact that the arrangements had been negotiated with the unions which on the evidence it could not have and (b) had wrongly treated the fact that a particular sum allocated by the Council for a different purpose had been exhausted as indicating that the Council had no funds to meet the additional costs.


Underhill J P


[2009] UKEAT 0516 – 08 – 2810




Employment Equality (Age) Regulations 2006

Employment, Discrimination

Updated: 04 August 2022; Ref: scu.377312