Decision: In Donkor v Royal Bank of Scotland, the EAT found that a prima facie case of direct age discrimination had been made out by Mr Donkor who missed out on voluntary redundancy during a restructuring exercise at RBS in 2012 because of the cost involved of having to offer him access to his early retirement pension benefits. He was one of four regional directors affected by the restructuring; two aged under 50 were offered voluntary redundancy, whilst Mr Donkor and one other, who were over 50 and eligible for early retirement pension benefits, were not. The EAT held that the Tribunal was wrong at first instance to find that the two regional directors under 50 were not appropriate comparators; there was no material difference in their circumstances apart from age. The EAT also found that there was less favourable treatment because the comparators had been given the opportunity to apply for voluntary redundancy, whereas Mr Donkor had not, which was enough to amount to detrimental and less favourable treatment. It did not matter that the comparators were not eligible for early retirement benefits, as this was simply a consequence of their age. Finally, the EAT rejected the Tribunal’s finding that the reason for the treatment was not age, but was other factors such as cost, legal risks and the need to obtain approval from a higher level of authority for the redundancy package it would have needed to offer Mr Donkor. The EAT found that all of those factors clearly related to Mr Donkor’s age and, therefore, it was his age that was the main reason for the detrimental treatment. Following the clear line of case law on the topic, the EAT held that there was no need to enquire as to why RBS treated Mr Donkor as it did; merely whether RBS had treated the him differently on the grounds of age, which it found to be the case here. The EAT remitted the case to the same employment tribunal in order to consider whether RBS could objectively justify such treatment.

Impact: Whilst this case does not establish any new legal principles, it is a useful reminder of the necessary components of a direct age discrimination claim (and how these can get confused). It is also a warning to employers who are facing similar issues with their own ageing workforce. The pension benefits were materially different for the claimant in this case, and it was a significant additional cost for the employer. Why should an employer, when faced with a finite pool of resources to allocate to a redundancy, be forced to make someone redundant when that was going to be significantly more expensive? In this case, it was because the enhanced pension cost was directly linked to the employee’s age. As such, it would be very difficult to argue that there was not a comparator, when one employee is simply paid a higher salary because of his age to the other employee. In those circumstances, there would clearly be an age link, and so the EAT was right, in this case, to call out that link, making the younger employee a valid comparator. Recognising that it is likely that an employer will be forced to justify its actions in this regard should help employers to plan ahead so that they are seen to have justified their policies and considered any consultation exercise/communications that are done before the exercise gets underway.

Donkor v Royal Bank of Scotland