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In Donkor v Royal Bank of Scotland UKEAT/0162/15, the EAT was required to look at the matter of comparators in a direct age discrimination case. It considered whether the circumstances of younger workers were materially different to those of older workers in a redundancy situation for the reason that they were not eligible for early retirement pension enhancements.
Section 13 of the Equality Act 2010 provides 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, and the treatment is not a proportionate means of achieving a legitimate aim. An employee claiming direct age discrimination is required to show that they have been treated less favourably than a real or hypothetical comparator whose relevant circumstances are not materially different to their own.
Mr Donkor, who was aged over 50, was employed by the Royal Bank of Scotland as a Regional Director. He was denied the opportunity to apply for voluntary redundancy during a reorganisation of the company in 2012. Mr Donkor brought a tribunal claim arguing that the decision not to allow him to apply for voluntary redundancy was an act of direct age discrimination and compared himself to two other Regional Directors who were under 50 and had been given the opportunity. The tribunal had found that the two Regional Directors under 50 were not appropriate comparators.
The EAT however ruled that Mr Donkor was able to compare his treatment with the two employees who were aged under 50 who had applied successfully for voluntary redundancy. The fact that employees over 50 were entitled to early retirement benefits under the pension scheme which made their severance costs much higher than for employees aged under 50, was not a "relevant circumstance" which could render the comparison invalid. Since the extra cost was a direct result of the employee's age, it could therefore be direct discrimination for the employer to have taken it into account. It was only because of his age that Mr Donkor was eligible for early retirement benefits and the other two Regional Directors were not. Any difference therefore between their circumstances and Mr Donkor's was, in reality, just one of age.
The EAT noted the tribunal's finding that neither the claimant nor his comparators had actually in the end been allowed to take early retirement and so there was not actually any less favourable treatment. However, that was not the case that the claimant had put forward. He had complained that the comparators had been given the opportunity to apply for voluntary redundancy and he had not. The respondent conceded that this could amount to a detriment and less favourable treatment.
The EAT held that a legitimate case for direct age discrimination had been made, however the question of justification had not been addressed by the Tribunal and so the EAT remitted the justification issue to the same tribunal for a decision.
Although this case does not alter existing authority on direct age discrimination matters, it clarified the key issue that should be focused on in a direct age discrimination case. It should be the “reason why” issue, ie why the respondent acted as they did that should be focused on and getting bogged down by an issue such as the appropriate comparator issue should be avoided. It also highlights how complex a claim like this can become and how matters an employer may have had confidence in being not susceptible to such a claim can be found by a Tribunal or the EAT as having a legitimate case for a direct discrimination claim.
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