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Age Discrimination

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[Thanks to Alfred Weiss of Zenith Chambers for providing this case summary]

The EAT (Underhill P) has handed down its decision in ABN Amro v Hogben , which is authority for the proposition that:-

  • where an application is made to strike out a claim for age discrimination on the grounds that it has no reasonable prospects of success, in refusing that application the tribunal is wrong to attach any weight to the possibility that evidence in support of the age discrimination claim may be adduced through cross-examination of witnesses at the substantive hearing, where there is no material before the tribunal to support that possibility.
  • where an employer introduces a change from one substantive PCP, to another substantive PCP, and the employees to whom the earlier PCP applied have a different age profile from those dealt with under the new PCP, the change itself cannot be described as constituting a PCP.
  • (expressed as obiter) where the claimant makes a complaint that a redundancy scheme discriminates against younger employees, what has to be justified by the employer is the feature of the scheme which impacts on the claimant. If that feature can be justified the fact that the scheme has other features which may discriminate against other age groups is immaterial unless the employer attempts to justify the scheme by relying on those other features. In those circumstances whether or not those other features are discriminatory may become relevant 
  • the practice of offering an enhanced redundancy payment in return for an agreement not to pursue any age discrimination claim did not place persons of the same age group as the claimant at a particular disadvantage when compared with other persons. The practice affected all dismissed employees in the same way. Even if a discriminatory impact could be made out the practice would be plainly justified because employers have a legitimate interest in achieving finality as regards all issues arising out the dismissal and the practice was a proportionate means of achieving that aim.