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Age Discrimination: Statutory requirement defence

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Thanks to Naomi Cunningham of Outer Temple Chambers for preparing this case summary

If a contractual entitlement to enhanced redundancy pay is determined by reference to a statutory scheme that discriminates on grounds of age, does that give the employer a defence of statutory authority? No, holds the EAT in Heron v Sefton MBC.

Ms Heron was employed from August 1995 by the Training and Enterprise Council, under terms that did not include the Civil Service Compensation Scheme. Two TUPE transfers later, having meanwhile acquired a contractual right to CSCS terms, she was made redundant by Sefton MBC. The CSCS capped the sum payable to an employee of over 60 at 6 months' pay, and Sefton implemented that cap. Ms Heron complained of age discrimination.

Sefton raised a defence of statutory authority, which succeeded at first instance. But on appeal, the EAT made short work of it. Ms Heron's entitlement was contractual, not statutory: it was 'a requirement of a contract which incorporated the terms of an enactment.' The difference in Sefton's treatment of Ms Sefton and her younger colleagues was not something it was required to do under an enactment.

Implicitly, the result might have been different had the CSCS applied directly to Ms Sefton's employment.