The claimant, a Government administrative officer, took voluntary redundancy at the age of 26. The rules of the Civil Service redundancy scheme had an age banding structure which gave considerably more to those who were older. The claimant, who had almost eight years' service, was entitled to £10,849.04. Had she been over 35 rather than under 30, she would have been entitled to a further £17,690.58. She brought a claim for direct age discrimination in the Tribunal which she lost.
The Tribunal (whose decision was upheld by the EAT) decided that there were "material differences" between the age groups; younger employees had fewer financial and family obligations and could be expected to find other work more easily than older employees. This meant she could not compare herself with an older worker and so the Tribunal rejected the claim. But they went on to say that, in any event, her treatment was objectively justified as a proportionate means of achieving a legitimate aim – to provide a financial cushion until alternative employment (or the receipt of a pension).
The Court of Appeal upheld the Tribunal's decision, but not on the "material differences" issue. The purpose of comparing people in the two age groups was to test whether the claimant had been discriminated against on a prohibited ground, in this case age. The comparator must therefore be "materially similar" to the claimant in all ways except for the protected characteristic. The claimant's comparator was an employee over 35 with the same length of service. That comparator would receive more than double the claimant's payment. Clearly she was treated less favourably because of her age. The differences cited between the two groups, such as financial commitments, were no more than features of being 26 rather than 36. The premise that a 26 year older leaver does not need as much money as a 36 year old leaver, if correct, may justify the disparity of treatment, but that is a separate issue.
On the justification point, the Court of Appeal agreed that the employer had adopted proportionate means to achieve the legitimate aim of producing a financial cushion for workers until alternative employment is found. The scheme was directed at applying a limited pot of money towards meeting the varying needs of former employees at different ages and it was therefore necessary to adopt a banding approach. The employer had proved, by statistical evidence, that its approach was proportionate. The fact that the scheme could have been made non-discriminatory at no extra cost by levelling down across the board did not change this.
The case illustrates the value of comprehensive statistical evidence to show objective justification. It is also significant because there are very few cases on the "materially different circumstances" aspect of the Act. (The claim was brought under the pre-Equality Act age discrimination regulations but the law has not changed.) The decision indicates that trying to rely on an argument that the comparator is not in the same circumstances as a potential way out of age discrimination problems, may not be helpful in practice and it will usually be necessary to concentrate on justification instead.
