By Michael Nadin - Associate Solicitor The Coronavirus Job Retention Scheme (CJRS) was originally due…
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Two civil servants who received lower severance payments than younger colleagues would have been entitled to when leaving their posts on a voluntary basis have achieved a resounding success in their age discrimination claims.
The men were employed by the Ministry of Justice and the Department for Business, Innovation and Skills respectively. The value of lump sums that were payable to them when they gave up their posts depended on whether they were eligible to take a pension as at the date of termination, with no actuarial deduction. If that criterion were met the sum payable was equivalent to six months’ salary.
Other employees who left voluntarily before earning entitlement to a pension immediately, without reduction, were entitled to a lump sum equivalent to a maximum of 21 months’ salary, depending on the length of time between termination and the date when they would become entitled to a full pension.
Both men were entitled to pensions immediately on termination, having each reached the age of 60. They sought to compare themselves to other, younger, employees who were part of the same pension scheme but were entitled to higher compensation payments on termination of their employment.
An Employment Tribunal (ET) dismissed the men’s age discrimination claims on the basis that their circumstances and those of their comparators were materially different and could not be seen as ‘like for like’. The ET noted that younger people who left their civil service posts could be expected to carry on working and therefore required a greater ‘cushion’ to tide them over until they found another job.
However, in upholding the men’s challenge to that decision, the Employment Appeal Tribunal (EAT) held that the reason for their different treatment when compared to younger colleagues was their age. The men were entitled to ask, “Why am I getting less in compensation than my younger colleague?” and to assert that the only rational answer was, “Because he is younger.”
In the circumstances, the EAT found that the men had been differently treated because of their age and remitted the case to the ET for consideration of Government arguments that that was objectively justified.