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Age Discrimination: Justification and the 'cost plus' rule

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Is 'absence of financial means' capable of justifying indirect age discrimination?

Yes, held the EAT in Heskett v Secretary of State for Justice.

The Respondent operated a policy limiting pay increases across the public sector. This was because of budgetary constraints imposed by central government. While the policy was prima facie indirectly discriminatory against younger workers, it was held to be objectively justified on the facts. The EAT concluded that this was not a 'costs alone' case.

The aim of seeking to break even year-on-year by making decisions about the allocation of resources is capable of justifying indirect age discrimination. There is a distinction to be drawn between absence of means and a Respondent seeking impermissibly to place reliance solely on cost. The tribunal was entitled to find that considerations arising from absence of means justified the treatment in the circumstances of this case.

Thanks to Assunta Del Priore of Nine St John Street Chambers for preparing this case summary.