Romilly Lockwood v Department of Work and Pensions and Another

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Rimer,Lord Justice Lewison,Lord Justice Treacy
Judgment Date11 Oct 2013
Neutral Citation[2013] EWCA Civ 1195
Docket NumberCase No: A2/2013/0505

[2013] EWCA Civ 1195

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

His Honour Judge Peter Clark, Mr C. Edwards and Mr G. Lewis

Appeal No: UKEAT/0094/12/RN

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Rimer

Lord Justice Lewison

and

Lord Justice Treacy

Case No: A2/2013/0505

Between:
Romilly Lockwood
Appellant
and
(1) Department of Work and Pensions
(2) Cabinet Office
Respondents

Mr Declan O'Dempsey and Mr Adam Ohringer (instructed by the Equality and Human Rights Commission) for the Appellant

Mr Akash Nawbatt (instructed by the Treasury Solicitor) for the Respondents

Lord Justice Rimer
1

This appeal, by Ms Romilly Lockwood, is against the order made on 4 February 2013 by the Employment Appeal Tribunal (His Honour Judge Clark, Mr C. Edwards and Mr G. Lewis, 'the EAT') dismissing her appeal against the dismissal of her claim by the judgment of the London Central Employment Tribunal (Employment Judge Sigsworth sitting with unidentified members, 'the ET') sent to the parties, with reasons, on 3 November 2011.

2

Ms Lockwood's claim before the ET was one of two lead cases in a group of cases in which the claimants challenged the Civil Service Compensation Scheme ('CSCS') on the grounds of alleged age discrimination. The respondents to her claim and appeal are the Department of Work and Pensions ('the DWP') and the Cabinet Office. The DWP is Ms Lockwood's former employer. The Cabinet Office is the department responsible for the implementation and administration of the CSCS.

3

Ms Lockwood represented herself at the ET, but was represented by Mr Ohringer at the EAT, and before us she was represented by Mr O'Dempsey, leading Mr Ohringer. The respondents have at all stages been represented by Mr Nawbatt.

The facts

4

Ms Lockwood commenced her employment with the DWP on 18 October 1999 as an administrative officer in the Benefits Agency. She was aged 18. She stayed in that post throughout her employment but was from time to time given extra responsibilities and specialist duties, and also acted as deputy to her line manager. On 2 April 2007, her position was declared surplus. That was because she had not secured a vacancy in a Benefits Delivery Centre or any other DWP office. On the same day, the DWP announced a voluntary redundancy scheme. Ms Lockwood applied for release under it and her application was accepted. As she was under 50, with at least one year's qualifying service, she was entitled to compensation calculated under the CSCS, which operated across the Civil Service. Ms Lockwood's employment ended on 21 September 2007. She was aged 26.

5

Under the relevant CSCS rules (rules 2.8, 2.8(a) and 2.9(a)), the compensation payable to those taking voluntary redundancy is calculated as follows (subject to a maximum compensation cap of three years' pay):

'(a) one month's pay for each year of service, plus

(b) the lesser of:

(i) one month's pay for each year of service given after 5 years service and

(ii) one month's pay for each year of service given after the employee's 30 th birthday, plus

(c) one month's pay for each year of service after the employee's 35 th birthday'.

6

As a 26 year old leaver, with almost eight years' service, Ms Lockwood was entitled to a payment of £10,849.04. Had she been over 35 at the time she left, and had served the DWP for an identical length of service, she would have been entitled to a further sum of £17,690.58 under the rules. She asserted that the disparity in the severance payment to which she was entitled as compared with that to which an older worker with an identical length of service would have been entitled was direct discrimination against her on grounds of her age, in breach of The Employment Equality (Age) Regulations 2006 (SI 2006/1031). She brought a claim for discrimination by an ET1 presented on 18 December 2007. It was heard, together with a like lead claim by a Mr Inglis, over three days in September 2011.

The 2006 Regulations

7

The relevant provisions are regulations 3 and 7:

' 3. Discrimination on grounds of age

(1) For the purposes of these Regulations, a person ("A") discriminates against another person ("B") if —

(a) on grounds of B's age, A treats B less favourably than he treats or would treat other persons, or

(b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same age group as B, but —

(i) which puts or would put persons of the same age group as B at a particular disadvantage when compared with other persons, and

(ii) which puts B at that disadvantage,

and A cannot show the treatment or, as the case may be, the provision, criterion or practice to be a proportionate means of achieving a legitimate aim.

(2) A comparison of B's case with that of another person under paragraph (1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

(3) In this regulation —

(a) "age group" means a group of persons defined by reference to age, whether by reference to a particular age or range of ages; and

(b) the reference in paragraph (1)(a) to B's age includes B's apparent age.

7. Applicants and employees

(1) …

(2) It is unlawful for an employer, in relation to a person whom he employes at an establishment in Great Britain, to discriminate against that person —

(a) in the terms of employment which he affords him;

(b) …

(c) …

(d) by dismissing him, or subjecting him to any other detriment.'

8

It was agreed at the ET that any discrimination against Ms Lockwood was direct discrimination. The issues were (i) whether she was in materially comparable circumstances to employees aged 35 and above whose employment is terminated (regulation 3(2)); and, if so, (ii) whether the payment of more compensation to those over 35 was justified: that is, whether it was a proportionate means of achieving a legitimate aim (regulation 3(1)).

More facts

9

The Principal Civil Service Pension Scheme ('PCSPS') is the occupational pension scheme for the civil service. The CSCS sets out the tariffs that can be applied when civil servants' contracts are terminated. The PCSPS and the CSCS are both statutory schemes made under the Superannuation Act 1972. Before 1995, the rules relating to compensation now in the CSCS were included within the PCSPS. The PCSPS has recently undergone considerable reform, with the introduction of a new final salary pension scheme in October 2002 and a whole career pension scheme in 2007.

10

The CSCS has not been reformed in line with a like timetable. The terms applicable at the time of Ms Lockwood's departure were little changed from those introduced in 1987, following a review which started in 1983; and the particular compensation terms relating to Ms Lockwood's circumstances dated from June 1972 and were not changed until 2010, which was after her departure. The ET summarised the CSCS as providing:

'… financial protection in the form of compensation to people who lose their jobs prematurely through redundancy or re-organisation, with benefits calculated principally on the basis of length of service, so that all service is rewarded irrespective of age (albeit not always equally); with the "trigger" for compensation being age on the date of departure (rather than age on joining) from the Civil Service'.

11

The ET explained the evidence relating to the compensation terms. The Official and Staff Sides of the National Whitley Council carried out a wide-ranging review of such terms, which led to an agreement of November 1971. Those under 40, or with less than 10 years service, were to be entitled to one month's pay for each year of service, plus (a) a further month's pay for each year of service (save for the first five years of total service) completed between their 31 st and 36 th birthdays, and (b) a further two months' pay for each year of service completed after their 36 th birthday. In the discussions leading to those terms, the Official Side told the Staff Side that the proposals:

'… were designed to be most generous for those whose need was greatest. Those in the earliest part of their career would be likely to find it much easier to get other jobs … the proposals for enhancement between 31 and 36 and at higher rate between 36 and 40 were necessary to achieve a satisfactory balance between those under 40 who received their compensation in the form of a lump sum only and those over 40 who received a continuing payment, having in mind the generally accepted proposition that 40 was something of a watershed and that alternative employment was harder to find for those over that age … the provisions were not intended to be discriminatory in any way, but were simply designed to achieve a satisfactory build up to the age of 40'.

12

The ET explained that a working group that convened to consider what the new terms should be had earlier suggested that the calculation should be based both on age and length of service so as to recognise 'the likely weight of family responsibilities' (that is, the fact that younger workers were less likely to have such responsibilities) and the 'difficulty in finding another comparable job'. The new compensation terms were included in the PSCPS with effect from 1 June 1972, although the terms for mobile staff under the age of 40 had been modified a little and were broadly the same as the severance terms that applied to Ms Lockwood. These benefits were the same as those for employees made compulsorily redundant, although they would also receive six months' notice of dismissal or pay in lieu of notice, the ET finding...

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