If an employee is awarded a far greater sum of money as part of an enhanced redundancy package than their younger colleague, most HR professionals would cry "age discrimination". However, under the veil of public interest, things are not quite that clear cut. Employment lawyer Helen Ward looks into when age discrimination can be justified.
What happens if one employee gleans greater benefit from an enhanced package than another? Is that discriminatory? How should these enhanced packages be calculated? These were some of the issues dealt with recently by the Employment Appeal Tribunal (EAT).
Q. What is age discrimination?
Age is one of nine "protected characteristics" under the Equality Act 2010. The remaining eight are race, sex, sexual orientation, gender re-assignment, marriage or civil partnership, disability, pregnancy or maternity and religion or belief.
The Equality Act makes it unlawful to treat employees less favourably because they are in a particular age group, and to implement workplace policies and procedures which put anyone at a disadvantage because of their age.
Q. Can age discrimination ever be justified and if so, when?
Ordinarily different treatment because of a protected characteristic cannot be justified, but there is an exception to the rule when the different treatment is on the basis of a person's age and can be objectively justified.
Age is the only protected characteristic that changes throughout a person's life, and everyone could potentially benefit from preferential treatment on the grounds of age. It is likely that, for this reason, there is such an exception for age discrimination. However, it now seems that the exception only applies when it is considered to be in the public interest.
Q. What is objective justification?
Essentially, it means that an employer's actions must be a proportionate means of achieving a legitimate aim. The courts have also found that when employees are treated differently because of their age, the employer's actions must support a social policy objective, rather than simply the employer's own private interests. Reducing unemployment, encouraging career progression and rewarding employee loyalty all pass that test.
Q. Was age discrimination justified in Lockwood v Department for Work and Pensions?
The recent EAT case of Lockwood