HM Land Registry v Benson & Ors [2011] UKEAT 0197_11_1002
Published on: 17/02/2012
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Background
The Appellant offered employees a voluntary redundancy/early retirement scheme, with enhanced benefits. It had more applicants than could be accommodated within the available budget, and a selection exercise was undertaken. The Claimants in the two appeals were applicants who had not been selected for release under the scheme. They were of two kinds – five who alleged age discrimination and one (Mrs McGlue) who alleged sex discrimination.The Age Discrimination ClaimsThe Appellant selected for release those applicants whose entitlements under the scheme would be lowest, thus maximising the numbers who could be released within the constraints of the budget. The Claimants were all aged between 50 and 54, and their entitlements were particularly costly because they would have been in receipt of an immediate unreduced pension. They claimed that the use of a selection criterion constituted indirect age discrimination. The Tribunal accepted that the criterion used was the only practicable criterion if it was necessary to select, but it found that it was “affordable” for the Appellant to release all of those who had applied, albeit that that would have meant spending an additional £19.7m over the £12m budgeted; and it held that accordingly selection 26(necessarily employing a discriminatory criterion) was not a proportionate means of achieving its legitimate aim of reducing headcount.The court held, allowing the appeal and dismissing the claims, that the Tribunal should haveproceeded on the basis that the Appellant‟s decision as to what resources to allocate to the exercise, i.e. £12m, constituted part of its “real need” or “aim”, and that it was not relevant that it could in an absolute sense have “afforded” to allocate a larger amount; and that, although the Tribunal was entitled to assess the proportionality of the means chosen to achieve that aim, its finding that there was no other practicable alternative meant that on the facts of the present case it was obliged to hold that the selection criterion chosen was a proportionate means of achieving that aim.Mrs McGlue‟s ClaimMrs McGlue had been excluded from the scheme because she was on a career break and not due to return for over a year. She was not notified that employees in her position would be excluded: if she had been, she would, as she was entitled to do, have given notice to return to work within the relevant period. The Tribunal found that the failure to notify her was unfair. It was accepted that the exclusion of employees on longer-term career breaks had a disproportionate impact on female employees, but it was contended that it was justifiable to exclude employees who did not form part of the current headcount.The Court, dismissing the appeal, held that, while the exclusion of employees on long-term absence was in principle capable of being justified, the Tribunal‟s finding that the failure to notify Mrs McGlue was unfair meant that the application of the criterion to her could not be relied on as proportionate.http://bit.ly/AEjUl9
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This article is correct at 17/02/2012
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