The EAT has allowed an appeal in Donkor -v- Royal Bank of Scotland 2015, holding that a prima facie case of age discrimination had been made out and remitting the case to the tribunal to hear argument on whether the discrimination could be justified.

During a restructure, four managers at RBS were told that they had the option of interviewing for another job or applying for voluntary redundancy. Two managers aged under 50 applied for (and took) voluntary redundancy. Mr Donkor, who was aged over 50, was subsequently told that he would have to apply for an alternative role, and that voluntary redundancy was not available to him. The bank had changed its mind as it had realised that since Mr Donkor was old enough to apply for early retirement, this benefit would mean that it would be much more expensive to make him redundant than the other staff. Mr Donkor stated that not allowing him to take voluntary redundancy because of this was direct discrimination on grounds of age. The employer argued (successfully at first instance) that Mr Donkor could not be compared to the two younger managers who had taken redundancy as they did not qualify for the early retirement benefit and this was a material difference in their circumstances.

The EAT said that the fact that Mr Donkor qualified for the early retirement benefit, and the other managers did not, was not a material difference; the difference relied upon was attributable to the protected characteristic of the claimant (his age). The younger managers were therefore appropriate comparators and a prima facie case of age discrimination had been made out. The tribunal would need to hear argument on justification in order to determine the case.