The claimant, who worked for the respondent for 27 years, argued that he was discriminated against on the grounds of his age after being excluded from an enhanced severance package. The claimant had made his employer aware that he wanted to continue working after his 65th birthday by signing a ‘Retirement Option’ form.

After a global review of its manufacturing operations the respondent announced its intention to close its Ballymena factory with the loss of 850 jobs. The redundancy package was based an earlier contractual redundancy scheme which stated “entitlement… only applies up to age 65” with employees over 65 receiving statutory redundancy pay only. This scheme had not been amended following the removal by Government of the Default Retirement Age in October 2011. During the negotiation process the views of the workers over 65 years were not sought nor was there an equality audit to determine whether the scheme might potentially discriminate against that group.

The tribunal pointed to the “the inescapable reality” that employees over 65, were completely excluded from the benefits of the company’s enhanced severance scheme.” It was held that the claimant suffered both direct and indirect discrimination on the ground of age.

Practical Lessons

After the decision, the Equality Commission noted the trend of over 65s remaining in work since the removal of the Default Retirement Age. According to the Department for Work & Pensions, 10.2% of those aged 65 and over were working either full time or part time last year. What this decision shows is that employers must adapt to the reality that older workers are legally entitled to the same consideration as employees of other ages. This applies to a range of matters including contractual terms, performance standards or, as in this case, redundancy decisions. The respondent here did not dispute that the redundancy scheme adversely affected employees over 65, but based its defence on the ground of objective justification – a proportionate means of achieving a legitimate aim. However, this decision clarifies that employers must consider whether there are alternative methods of achieving their desired outcome in ways that do not discriminate.
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