The claimant was a civil servant who took voluntary redundancy in 2007 at the age of 26 and after eight years service. Under the redundancy scheme, she was entitled to a payment of £10,894.04; a worker aged over 35 with the same length of service would have been entitled to £17,690.58.

The ET rejected the claimant’s initial case of age discrimination on two alternative bases: (1) There were material differences between the Claimant's age group, (under 35) and the comparator group relied on (over 35). The two were not truly comparable (the comparator point) and/or (2) If, contrary to the first finding, the over 35 group were truly comparable, then the Respondents had objectively justified the less favorable treatment of the Claimants (the justification point). The claimant appealed against each of these findings.

The EAT found that there were indeed material differences between the claimant and the comparator and also held that the Department could justify the policy’s discriminatory effects. Reg 3(1) (a) of The Employment Equality (Age) Regulations 2006 permits an employer to show that any less favorable treatment of an employee based on age is justified. This test for justification appears to apply to direct and indirect discrimination in the same way. In Seldon v Clarkson Wright and Jakes [2012] UKSC 16, however, the Supreme Court held that in a case of direct discrimination the fact-finding tribunal is to consider, inter alia, whether the employer objectives of the employer’s policy are legitimate objectives of a public policy nature per EC Directive 2000/78 and the Regulations.

The EAT held that the original Tribunal had set out its reasoning in a manner consistent with Lord Hope’s observations at paras 73 to 75 of Seldon, even though its decision was taken before Seldon had even been decided. Accordingly, the appeal was dismissed. http://bit.ly/12vqg88