Mr Johnson, a civil servant, aged 57 was made redundant in April 2007 and entitled on redundancy to a lump sum payment of six months' final pensionable salary under the Civil Service Compensation Scheme ("CSCS"). For those aged 57 to 60, like Mr Johnson, this lump sum was tapered progressively to zero under the CSCS rules.
The age discrimination rule and the objective justification defence: a recap
The age discrimination provisions that applied at the time were enshrined in the Employment Equality (Age) Regulations 2006 (SI 2006/1031), the key provisions of which are unchanged and now enshrined in the Equality Act (Age Exceptions for Pension Schemes) Order 2010 (SI 2010/2133). Those regulations defined age discrimination as treating a person less favourably than another on grounds of age unless such treatment could be shown to be a "proportionate means of achieving a legitimate aim” ("the objective justification defence").
The Ombudsman's findings
The deputy ombudsman followed an earlier decision of the employment tribunal in J M Wallis & Others v The Cabinet Office & Others which had considered these provisions under the CSCS, among others, and held them to be discriminatory on grounds of age. She agreed with the tribunal that the Cabinet Office's defence that there was a legitimate aim in having the tapering provision was not satisfied. (The aim, the Cabinet Office had argued, had been to provide a bridge to retirement and avoidance of a "cliff edge"). Even if the aim was satisfied, the tapering provisions were not a proportionate means of achieving that aim. The ombudsman also held that the tapering provisions amounted to maladministration, disagreeing with the Cabinet Office's argument that maladministration required some carelessness or fault on its part. Maladministration was not a statutorily defined term and applying the age discriminatory provisions was faulty administration which amounted to maladministration.
The determination highlights the difficulties inherent in relying on the objective justification defence.