In HM Land Registry v Benson and others the EAT held that while a cost criterion used to refuse applications for voluntary redundancy indirectly discriminated against those aged 50 to 54, there was no other practicable alternative for HMLR other than to keep within a £12m budget; therefore the selection criterion was a proportionate means of achieving a legitimate aim.
HM Land Registry (HMLR) needed to reduce staffing levels and part of the programme involved merging three offices with an allocated budget of £12m. HMLR offered employees a voluntary redundancy/early retirement scheme, with enhanced benefits. It had more applicants than could be accommodated within the budget, as to accept all the applications would require an additional £19.7m, so a selection exercise was undertaken, accepting applications from those who would cost the least, subject to ensuring that a balance of experience was retained.
A tribunal agreed with the claimants that the cost criterion did indirectly discriminate against people in the 50 to 54 age group, because the cost of accepting their applications was higher than applicants in other age groups. But when assessing justification, although HMLR’s aims were legitimate, i.e. reducing headcount, keeping within a £12m budget and retaining the right balance of experience, the means chosen was not proportionate. In the tribunal’s view HMLR could have afforded the extra £19.7m to accept all the applications because this represented just a small part of its funds and it had spent far more on a transformation-restructuring programme.
The EAT upheld HMLR’s appeal. The tribunal had found that the £12m budget was a ‘real need’ constituting part of a ‘legitimate aim’. Therefore, it was irrelevant that HMLR could have afforded to allocate a larger amount. The tribunal’s task was to assess the proportionality of the means chosen to achieve the aim. As there was no other practicable alternative for HMLR other than to keep within the £12m budget, then having balanced that legitimate aim against the discriminatory act complained of, the tribunal was obliged to hold that the selection criterion chosen was a proportionate means of achieving that aim.
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