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Discrimination: Costs As Justification

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[Thanks to Ed McFarlane of EEF for preparing this case summary]

The EAT (Underhill P) has handed down its decision in Woodcock v Cumbria Primary Care NHS Trust, which challenges the orthodox view that an employer is not entitled to rely on cost alone when justifying discrimination.

Whilst the EAT emphasized that it was not departing from previous authorities in this area, it cast doubt on the "current orthodoxy" of the Cross v BA line of authority for the "cost plus other factor" approach to justification, suggesting that an employer can have a legitimate interest in considering cost alone, on the basis that if the cost of avoiding or rectifying a discriminatory impact would be disproportionately high, there would be scope for considering the proportionality of the measures (para. 32). The EAT also noted that the "cost plus" approach tended to lead Tribunals and parties into "artificial game-playing" of "find the other factor".

The Claimant was unfairly dismissed with notice with dismissal taking effect before a birthday triggered costly early retirement rights. On the facts, the Tribunal had correctly applied the "costs plus" test to the age discrimination, and the Claimant's appeal failed.