Age Discrimination Justified By Social Policy Objective

Lockwood v DWP

In this case, an enhanced redundancy payment for workers over the age of 35 was objectively justified by a strong social policy objective of providing a “financial cushion” in view of the extra problems older workers experience after losing their jobs.

In 2007, Miss Lockwood a 26 year-old employee of the Department for Work and Pensions (DWP), was made redundant from her position as an Administrative Officer. As an employee with 8 years’ service Miss Lockwood received a redundancy payment of £10,849.04 under the DWP’s voluntary redundancy scheme.

She worked out that, under the scheme rules, had she been over the age of 35 with the same length of service, then she would have received an additional payment of £17,690.58.

Miss Lockwood brought a claim for unlawful age discrimination in the Employment Tribunal, comparing herself to a hypothetical employee of DWP aged 35 or over. At first instance, the Tribunal held that her less-favourable treatment was objectively justified – Miss Lockwood appealed.

The Employment Appeals Tribunal (EAT) held that there were significant differences between the two age groups (under 35 and over 35). The DWP had presented statistical evidence to the Tribunal to show that persons over the age of 35 face greater difficulties in finding alternative employment than younger people and have greater family and financial commitments. An enhanced payment was therefore a “proportionate means of achieving a legitimate aim” (the statutory defence to age discrimination) as it provided financial support to older workers whilst alternative work was being found.

The EAT also looked to previous case law which concerned the reasoning behind any objective justification with regard to public interest. There must be a balance between the reasoning that is individual to the employer’s own business and consideration of social policy. The EAT held that the DWP had given sufficient regard to legitimate public social aims. Miss Lockwood lost her appeal.

This case serves as a reminder that age discrimination can be justifiable in certain circumstances. Although being 35 would not be classed by many of us as “old” (particularly with an ageing population), the tribunal in this instance was looking to a comparison of two classes of employees (over and under 35) and not focussing on the specific age in question. Further, the Tribunal were certain in their judgment due to the public interest consideration made by the employer, demonstrating the importance of considering the wider picture.

Employers should still take care when seeking to implement a discriminatory policy based on a specific benchmark age (particularly one so low). Care would need to be taken and the individual circumstances of the employer considered.