Q&As

In relation to a voluntary redundancy scheme, would it be lawful, in light of the EAT’s decision in HM Land Registry v Benson, for an employer to exclude employees who are over the age of 55 from the scheme, on the basis that it would be too expensive to make them redundant?

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Published on LexisPSL on 25/10/2019

The following Employment Q&A provides comprehensive and up to date legal information covering:

  • In relation to a voluntary redundancy scheme, would it be lawful, in light of the EAT’s decision in HM Land Registry v Benson, for an employer to exclude employees who are over the age of 55 from the scheme, on the basis that it would be too expensive to make them redundant?

Under section 39(2) of the Equality Act 2010 (EqA 2010), in relation to an employee who has a protected characteristic, it is unlawful for an employer to discriminate against that employee:

  1. as to the employee’s terms of employment

  2. in the way the employer affords the employee access, or by not affording the employee access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service

  3. by subjecting the employee to any other detriment

Age is a protected characteristic, see Practice Note: Age, gender reassignment, race and sex.

While the concept of discrimination for the purposes of section 39(2) encompasses a wide range of prohibited conduct (see: Prohibited conduct—overview), your query primarily concerns two forms of discrimination in relation to the protected characteristic of age, namely direct and indirect discrimination.

A person directly discriminates against another person where:

  1. they treat them less favourably than they treat or would treat others, and

  2. they do so because of a protected characteristic

Direct age discrimination can be justified if the respondent can show that the provision, criterion or practice (PCP) amounting to discrimination was a proportionate means of achieving a legitimate aim. Other forms of direct discrimination cannot be justified.

See Practice Note: Direct discrimination.

Unlike direct discrimina

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