Facts

Mr Cockram worked for Air Products plc from August 1988 to 25 July 2012, most recently in a senior position as Director of Business Information. In May 2012, Mr Cockram submitted a grievance regarding comments made by his line manager but the grievance was not upheld and, unhappy with the appeal outcome, Mr Cockram subsequently resigned from his employment citing fundamental breach of trust and confidence.

After giving seven months’ notice, Mr Cockram made a claim to the Employment Tribunal claiming that he had been constructively unfairly dismissed, subjected to detriment by reason of protected disclosures and suffered age discrimination.  

Mr Cockram’s age discrimination claim was based on Air Products’ "Long Term Incentive Plan" ("LTIP"), in which certain employees were offered stock options. Mr Cockram held "unvested options”, however under the plan rules, these were forfeited when the employee left the company, except in certain defined situations: death, disability and retirement. Although Mr Cockram retired, he did not fall within the retirement exception under the plan because for the purposes of the LTIP an employee had to retire on or after “customary retirement age” (55 or over) to fall within the exception and Mr Cockram had retired at age 50.    

The Employment Tribunal dismissed all of Mr Cockram’s claims, but he appealed against the Tribunal's rejection of his age discrimination claim to the Employment Appeal Tribunal (EAT) which allowed his appeal and remitted the case for re-hearing by a freshly constituted tribunal.

Air Products accepted that the rule in the LTIP was directly discriminatory, but the issue between the parties was whether the discriminatory effect was objectively justified and was a proportionate means of achieving a legitimate aim.

Decision

The Court of Appeal upheld the Employment Tribunal's dismissal of the age discrimination complaint.

The Court ruled that the good leaver provision could be objectively justified on the basis that the employer wished to achieve intergenerational fairness and consistency, reward experience and loyalty, and ensure a mix of generations of staff.

It was held that the aim of intergenerational fairness by limiting the advantage enjoyed by one age group over another was a legitimate social policy. The plan provided a balance between acting as a retention tool to keep employees with the business until the age of 55 and being an incentive for retirement in order to create opportunities for younger employees.  

The Employment Tribunal was deemed entitled to find the provision proportionate and the EAT should not have interfered with the decision.  

The judgment is available here.

Air Products Plc v Cockram [2018] EWCA Civ 346 (02 March 2018)