Comparators in Age Discrimination cases

The Employment Appeal Tribunal (EAT) has recently ruled on the correct approach for comparators in an age discrimination case. The EAT had to decide whether the fact that early retirement benefits were not available to employees aged under fifty years old meant that the employer’s treatment of employees aged over fifty and under fifty could be compared when considering a redundancy exercise.

The law on age discrimination is set out in S13 Equality Act 2010 which states that A directly discriminates against B if A treats B less favourably than A treats or would treat a comparator because of a protected characteristic, (one of which is age), and the treatment is not a proportionate means of achieving a legitimate aim.  The employee must show that they have been treated less favourably than a comparator whose circumstances are not materially different to their own.

The recent case involved a regional director at a bank which undertook some restructuring in 2012. A primary selection exercise was carried out by the bank to decide who would be given the option of voluntary redundancy and who would be interviewed for the new roles. Members of staff who were over fifty would also be given the option of early retirement. The employee in question was one of four regional directors who were not selected for an interview; two of the four were over fifty. Two of the regional directors under fifty were granted voluntary redundancy.

Due to the pension cost and the necessity of higher management authority the bank did not offer the employee in question voluntary redundancy but he was given the opportunity to apply for an alternative role. The employee in the case was successful in his application.

The bank underwent further restructuring in 2013 and the employee was successful in his application for voluntary redundancy. Unfortunately for him, the pension rules had changed in the interim and only those aged over fifty five were entitled to early retirement benefits and he was no longer eligible. He therefore brought a claim to the Employment Tribunal, his case being that the decision not to allow him to apply for voluntary redundancy in 2012 was direct age discrimination as the two regional directors under fifty had been offered the same.

The Employment Tribunal held that the two employee under fifty were not appropriate comparators as they were not entitled to early retirement and this amounted to a ‘material difference’ between their circumstances and those of the employee in the case. The Tribunal held that even if they were appropriate comparators, the employee in question had not been treated less favourably because they were not able to apply for early retirement benefits either.

The employee appealed to the EAT which held that there was prima facie direct age discrimination (the EAT remitted the issue of justification back to the Employment Tribunal). The EAT held that the tribunal was wrong to find that the comparators had been inappropriate as the only reason why the younger employees were not entitled to early retirement was their age. The material difference was simply the age of the employees which could not be relied upon as it was the protected characteristic. The younger employees had been treated differently by being offered voluntary redundancy in 2012.

The case highlights the potential difficulties in establishing comparators in age discrimination cases and the fact that it is easy to confuse the issues in such a case by focusing too much on whether the comparator is appropriate or not. The key issue is why the employer acted the way he did. In this case, the employer could compare his treatment to that of the employees aged under fifty and it was not the case that the comparison was invalid due to the fact that the younger employees were not offered early retirement as this was only down to age.