[2008] UK EAT 0119/08

This was an employment case in which the principal issue was whether ICI’s contractual redundancy payments scheme discriminated against the claimant on grounds of her age. However, the principles should apply equally in respect of pensions issues.

The Employment Appeal Tribunal (EAT) summarised the legal principles relevant to the justification of age discrimination:

  • the burden of proof is on the respondent to establish justification;
  • the tribunal must be satisfied that the measures adopted by the employer correspond to a real need, are appropriate with a view to achieving the objectives pursued and are reasonably necessary to that end;
  • the principle of proportionality requires an objective balance to be struck between the discriminatory effect of the measure and the needs of the undertaking. The more serious the discriminatory impact, the more cogent must be the justification for it; and
  • it is for the tribunal to weigh the reasonable needs of the undertaking against the discriminatory effect of the employer’s measure and to make its own assessment of whether the former outweighs the latter. There is no “range of reasonable response” test in this context.

As noted above, the ECJ judgment in Heyday has now held that the test of justification is effectively the same for both direct and indirect justification.

Comment: this case should be noted by employers and trustees alike since it may mean that in some cases direct discrimination may be harder to justify.

View the Judgment.