Following a restructuring, the employer started a preliminary "desktop" selection exercise for new regional director positions.  A decision was taken that anyone who was not offered an interview at this stage would be allowed to apply for voluntary redundancy. If aged over 50, that would include an option to take early retirement.  The 52 year old claimant and two fellow regional directors (both under 50) failed to get interviews but, unlike the other two, the claimant was not given the voluntary redundancy option.

The Tribunal rejected his direct age discrimination claim. The claimant couldn’t compare himself with the other two because, being over 50, voluntary redundancy would have enabled him to obtain early retirement benefits not available to them. The Tribunal recognised that there might be a problem here – the Court of Appeal in Lockwood made it clear that the comparator in an age discrimination case must be "materially similar" to the claimant in all ways except for the protected characteristic – age. So the Tribunal had an alternative ground for rejecting the claim – that the failure to offer voluntary redundancy was not on the basis of age but due to cost implications, legal risks and the need to obtain high level approval.

The EAT allowed the appeal. The issue at the first stage – identifying whether there was a case of discrimination which the employer then needed to justify – was not why the employer had taken the claimant's age into account, it was whether it had done so. As the Tribunal had realised, differences attributable to age had to be ignored. All the factors identified here, including the cost implications, were basically linked to age. The case will now go back to the Tribunal to decide whether the claimant's less favourable treatment was justified.