Facts

Mr Donkor was a Regional Director for Royal Bank of Scotland (“RBS”). Following a restructure in 2012, Mr Donkor and three other Regional Directors were not selected to be interviewed for a new role. Two of those Regional Directors were under 50 and were successful in applying for voluntary redundancy. On calculating how much the severance costs would be for the two Directors who were over 50, RBS realised that in Mr Donkor’s case this would result in a cost of over £500,000. As a result, Mr Donkor and the other Regional Director over 50 were offered alternative roles.

Following another restructure in 2013, Mr Donkor successfully applied for voluntary redundancy. However, this time he was ineligible for early retirement benefits since the rules had changed - only those over 55 were now entitled. Mr Donkor brought a claim arguing that RBS’s decision not to allow him to qualify for voluntary redundancy back in 2012 amounted to direct age discrimination.

In considering Mr Donkor’s claim, an employment tribunal decided that the two Regional Directors who were under 50 were not appropriate comparators because they themselves were not entitled to early retirement benefits on voluntary redundancy. In the alternative, it held that Mr Donkor had not been treated less favourably than those two Directors and also, despite justification not being considered, it was held that the treatment was on grounds on costs savings to RBS and not due to Mr Donkor’s age.

Mr Donkor appealed to the EAT.

Decision

The EAT upheld the appeal, finding the direct age discrimination claim successful. The EAT decided that the matter would be remitted to the same employment tribunal to determine justification.

To begin with, the employment tribunal had erred in stating that there was no difference in treatment because the Directors under 50 did not qualify for early retirement benefits. This had not been Mr Donkor’s argument; he stated that he had not been allowed to take voluntary redundancy whereas they had.

The EAT, citing the case of Lockwood v Department for Work and Pensions and The Cabinet Office, said that “the correct approach to the comparison required in a direct discrimination case of this nature can itself answer the question whether there has been less favourable treatment.”

It was a fact that Mr Donkor’s age was the reason why RBS decided to find an alternative position for him and it was why it allowed the two Regional Directors under 50 to take voluntary redundancy and refused to offer Mr Donkor the same opportunity. Because Mr Donkor’s age was “inherent in each of the matters identified”, the EAT found that it had no option but to conclude that a prima facie case of direct age discrimination had been made out.

The judgment is available here.

Donkor v Royal Bank of Scotland, UKEAT/0162/15