The EAT held that regulation 24 of the Employment Equality (Age) Regulations 2006 addresses the question of whether or not a person has a right to make a claim for age discrimination in respect of an act by a person with whom he was previously in a relationship, where the act complained of takes place after the relationship has come to an end.  The answer to that question is yes but only if there was either:

a) a relationship which subsisted after 1 October 2006 for claims not relating to a pension matter, or which subsisted after 1 December 2006 for claims relating to pensions; or

b) a relationship during the course of which there was no duty to refrain from age discrimination but such a duty is deemed because if the relationship had not ended prior to 1 October 2006 or 1 December 2006, the duty would have applied;

and the act in respect of which the claimant seeks to claim arose out of and was closely connected with that relationship and it occurred after the relevant commencement date for the Regulations (i.e. after 1 October 2006 for claims other than pensions or after 1 December 2006 for pension related claims).

Facts

Mr Wilson commenced his employment with the Respondent Bank on 15 March 1999.  On 4 April 2001, he reached his 60th birthday and his employment was terminated on the grounds of retirement on 5 April 2001.  He began to receive a pension on that date and the Respondent ceased paying any employer’s contributions into his pension, in accordance with the Bank’s policy to pay employer’s contributions only until an employee’s 60th birthday.  He was also immediately re-engaged under a fixed term contract, which was then extended until April 2006.

Mr Wilson sought to bring a claim for unlawful age discrimination alleging that he had suffered a detriment in the Bank’s failure to pay employer’s contributions between his 60th and 65th birthday.  Mr Wilson sought to rely on regulations 24 of the Age Regulations, alleging that the effect of that paragraph was to allow him to introduce the claim of age discrimination notwithstanding the fact that his employment ended many months previously at a time when age discrimination was lawful.  The Employment Tribunal found that the fact that the age discrimination was lawful at the time was negated by paragraph 24(3) which, they said, takes the definition of what is and what is not unlawful forward to the present, essentially giving the Regulations retrospective effect.  This was overturned on appeal.

Decision

The EAT held that it is only acts of post relationship discrimination that are made unlawful by Regulation 24. Mr Wilson’s complaint was one of an act which was completed before he left the Respondent’s employment, at a time when age discrimination was not unlawful.  The act complained of took place during the subsistence of the employment relationship in April 2006 and therefore did not amount to a claim of post relationship discrimination.  As such, Mr Wilson could not rely on regulation 24 to bring a claim of age discrimination in relation to an act which took place during his employment at a time when age discrimination was not unlawful.   

Useful guidance

The EAT went on to give a helpful illustration of how regulation 24 works.

• In January 2008, A refuses to provide B, a former employee, with a reference on grounds of age, the employment relationship having terminated on 31 December 2007.  The relationship was one in which, during its subsistence (after 1 October 2006, the employer had a duty not to discriminate on grounds of age (regulations 1(a), 3 and 7).  Regulation 24(2) plainly renders such post employment discrimination unlawful.
• In January 2008, A refuses to provide B, a former employee, with a reference on grounds of age, the employment relationship having, in that case, terminated in April 2006.  During its subsistence, it would not have been unlawful for A to discriminate against B on grounds of age.  However, B can look to the deeming provisions of 24(3) to show that the relationship is nonetheless a “relevant relationship” thus opening the door to the possibility of him being able to claim in respect of a post employment relationship act of discrimination.  He has a relevant claim because the post employment act founded on occurred after 1 October 2006, from which date such discriminatory acts were rendered unlawful.