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Age Discrimination Can Be Objectively Justified

PLEASE NOTE: Information in this article is correct at the time of publication, please contact DFA Law for current advice on older articles.

In a ruling which underlines that ageism, unlike other forms of discrimination, can be objectively justified, a civil service worker who received a much smaller payment on taking voluntary redundancy than she would have done had she been 10 years older has had her compensation hopes dashed by the Court of Appeal.

The woman worked for the Department of Work and Pensions for eight years before she took voluntary redundancy at the age of 26. As a result of banding arrangements that then applied within the Civil Service Compensation Scheme, she received a severance payment of £10,849. Had she been aged over 35, she would have been entitled to a further sum of £17,690 under the rules of the scheme.

An employment tribunal dismissed her age discrimination claim on the basis that she had not been treated less favourably than a 36-year-old comparator. The tribunal noted, amongst other things, that employees aged in their 20s could generally be expected to have lesser family and financial obligations than their older colleagues and to cope better with redundancy.

The tribunal also took into account the substantial financial burden that would be placed on the public purse if the woman and others in her position were to receive the same severance packages as older workers. The administrative workability of the scheme depended upon clear-cut bands that could be easily understood and the tribunal found that they were a legitimate means of implementing the department’s cogent business aims. The woman’s challenge to that decision was subsequently dismissed by the Employment Appeal Tribunal.

The Court found that the tribunal’s conclusion on the discrimination issue was ‘self-evidently wrong’. The inference that younger workers were likely to adapt better to losing their jobs did not change the fact that the woman had been less favourably treated than her older comparator purely on grounds of her age. The EAT had also been wrong not to correct the tribunal’s error.

However, in dismissing the woman’s appeal, the Court noted that age discrimination, unlike race or gender discrimination, was capable of being objectively justified. Given the explanations put forward by the department, as well as cost considerations, the disparate treatment under the rules of employees in different age groups was a proportionate means of achieving a legitimate aim.

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