EAT rules on correct approach to comparators in an age discrimination claim

The EAT has addressed the question of comparators in a direct age discrimination case. An employee aged over 50 who was denied the opportunity to apply for voluntary redundancy during a reorganisation was able to compare his treatment with two employees under 50 who applied successfully for voluntary redundancy. The EAT ruled that the fact that employees over 50 were entitled to early retirement benefits under the pension scheme (making 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 was prima facie direct discrimination for the employer to have taken it into account. The EAT remitted the case to the tribunal to determine whether the employer’s actions were objectively justified. (Donkor v Royal Bank of Scotland UKEAT/0162/15.)


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