The Claimant was a member and branch secretary of the Respondent trade union. At the age of 62, he was nominated to stand for election to the Respondent’s National Executive Committee for the requisite three-year term. His nomination was rejected by the Respondent on the basis of a rule in its Rulebook which did not allow nomination where the proposed candidate would if elected reach the age of 65 before the end of the three-year term. The Claimant presented a claim which included detriment on the ground of direct age discrimination, contrary to sections 57(2)(d) and 13 Equality Act 2010.
The ET rejected each of the alleged legitimate aims of the rule relied on by the Respondent pursuant to section 13(2); and in the alternative held that the means were disproportionate to any such aims.
The Respondent appealed in respect of three of the alleged aims, namely intergenerational fairness, efficient planning and consistency with its long-established policy of campaigning to lower the retirement age. As to the first two aims, it contended in particular that the ET had taken account of matters which were only potentially relevant at the stage of assessing proportionality. These included findings that (i) the rule had in fact failed to advance younger members in respect of NEC membership and that (ii) the stated aim of effective planning was at odds with the comparative rules in respect of the nomination of paid officials for re-election. As to consistency with policy on reducing retirement ages, the ET had rejected this by a circular argument. As to the alternative decision on proportionality, the decision was based on no more than an assertion and/or was not Meek-compliant.
The EAT dismissed the appeal, holding in particular that (i) the ET had been entitled to take account of the matters relied on when considering whether intergenerational fairness and efficient planning were true aims of the rule and, if so, whether they were legitimate aims; (ii) there was no circularity in the rejection of the stated aim of consistency with the Respondent’s political policy on retirement age. The ET had correctly held that there was no inconsistency between that policy and its obligations under age discrimination law; and that a policy which was contrary to Government policy on retirement age could not constitute a legitimate aim: Seldon v Clarkson Wright and Jakes [2012] UKSC 16 at paragraph 55. The EAT accepted the Respondent’s criticism that the ET’s alternative consideration of proportionality was too cursory, but that issue fell away in the light of the dismissal of the appeal on the issue of legitimate aims.
Citations:
[2019] UKEAT 0281 – 18 – 1503
Links:
Jurisdiction:
England and Wales
Employment
Updated: 12 July 2022; Ref: scu.639213
