Facts

HM Land Registry (“HMLR”) needed to make costs savings and so ran a voluntary redundancy and early retirement scheme. It had set £12m aside to cover this scheme, but it was  oversubscribed and a selection process had to be carried out.

In order to maximise their headcount reductions, HMLR selected only those whose entitlement under the scheme would be lowest. Mrs Benson (and others) were all aged 50-54 and were entitled to immediate unreduced pension. Their entitlements under the scheme were very large so they were not selected.

Mrs Benson and her colleagues brought age discrimination claims arguing that the use of a selection criterion relating to the amount of their entitlement constituted indirect age discrimination. The Employment Tribunal found that use of the selection criterion was discriminatory and that, since it was “affordable” for HMLR (i.e. costing £19.7m more) to give voluntary redundancy/early retirement to everyone that applied, it was not justified because it was not a proportionate means of achieving a legitimate aim. HMLR appealed to the EAT.

Decision

The EAT allowed HMLR’s appeal and held that the Employment Tribunal had erred. The EAT held that it was irrelevant whether HMLR could afford to allocate a larger amount to the redundancy/retirement process. It had set itself a budget of £12m for this exercise and achieving this was an essential part of the exercise.

The EAT referred to the Pulham case and rejected an argument that an employer “cannot automatically justify a failure to eliminate discrimination by allocating the costs of doing so to a particular budget and then declaring that budget to be exhausted”. This case could be distinguished from Pulham because that was a case of a directly discriminatory pay practice which the employer wished to continue on the basis that it would cost too much to eliminate. The difference in HMLR’s case was that the budget was for a particular project that was not directly discriminatory, but which required a selection exercise that could only practicably be done on an indirectly age discriminatory basis.

The EAT held that there was no other practicable alternative to selecting from the pool and so the use of the selection criteria was a justified as a proportionate means of achieving a legitimate aim. The EAT accordingly upheld HMLR’s appeal and dismissed the claims of Mrs Benson and her colleagues.

The judgment is available here.

Her Majesty’s Land Registry-v- Mrs S M Benson and others UKEAT/0197/11/RN.