In Donkor v Royal Bank of Scotland, Donkor was a Regional Director. In 2012 a restructure took place, involving redundancies at Regional Director level. At that time Donkor was aged 52. Two other Directors, Alexander and Batey, both aged under 50, were given the opportunity to apply for voluntary redundancy or redeployment, but Donkor was not invited to apply. The reason related to the cost of Donkor taking early retirement, as allowed for at the time for those aged over 50 under the pension scheme. The severance package would cost £552,286.87, mainly due to the employer having to contribute an undiscounted pension of £460,275.

Donkor was offered an alternative job. He asked whether redundancy was available, but was told “no”, because a suitable alternative role existed. Donkor decided to accept the other job. He subsequently brought a tribunal claim arguing that the decision not to offer him the opportunity to apply for voluntary redundancy in 2012, whereas it had been offered to Alexander and Batey, was an act of direct age discrimination.

An employment tribunal rejected Donkor’s claim. It held that Alexander and Batey were not appropriate comparators, because the relevant circumstances were not like-for-like. They were not entitled to the enhanced early retirement benefits available to Donkor.

The EAT upheld Donkor’s appeal, ruling that direct age discrimination had occurred. The fact that those aged over 50 were entitled to early retirement benefits, thereby making their severance payments higher, was not the relevant issue. The key factor was the extra cost, which was purely because of age. Donkor was aged over 50, whereas his comparators were aged under 50.

The case will return to the same tribunal to decide whether the employer can justify its treatment as a proportionate means of achieving a legitimate aim. Case law has held that cost alone is not acceptable, but it can be part of a matrix of other factors.  Furthermore, in cases of direct age discrimination, a legitimate aim must be related to a legitimate objective of a public interest nature and be consistent with the State’s social policy aims.

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