Age Discrimination - Justification

The issue of age discrimination has arisen in a number of high-profile cases recently, with celebrities such as John McCririck claiming ageism in decisions made by Channel 4. An employer is not permitted to directly discriminate against employees on grounds of age unless the employer can show that such treatment is objectively justified. At the time of writing Mr McCririck's case is continuing but earlier this year the EAT had to consider the slightly more prosaic issue of the civil service voluntary redundancy scheme operated by the Department of Work and Pensions.

The case (Lockwood v Department for Work and Pensions) concerned a 26 year old employee with 8 years' service who was entitled to a payment of £10,849 under the scheme. Had she been aged over 35 she would have been entitled to an additional £17,690. She claimed direct age discrimination.

The EAT upheld the tribunal's decision that there were material differences between the two age groups (under 35 and over 35) such that the two were not truly comparable. This finding was based on evidence showing that the purpose of the different payments was to reflect the comparative difficulty of loss of employment suffered by the older workers compared to the younger workers.

Although the EAT's finding on the comparator was enough to dispose of the appeal, the EAT went on to hold that if there was direct age discrimination, it could be justified. The employer had adopted proportionate means to achieve the legitimate aim of producing a proportionate financial cushion for workers until alternative employment is found when balanced against the disparate treatment of younger workers. This would...