"But for" test
Labour & European Law Review Weekly Issue 459 02 March 2016
Under the Equality Act 2010, claimants need to show that their comparator is in the same or similar situation to them, but do not have the protected characteristic they are complaining about. In Donkor v Royal Bank of Scotland the Employment Appeal Tribunal (EAT) held that tribunals must ask whether the less favourable treatment would have occurred “but for” that protected characteristic.
Following a restructuring exercise in 2012, Mr Donkor was told that, as one of four regional directors, he would be allowed to volunteer for redundancy. As he was over 50, that meant he was entitled to an enhanced pension. However, when the bank worked out the cost of severance for the two regional directors who were over 50, it changed its mind. Mr Donkor was then offered another job and was told that as it was suitable, alternative employment he could no longer apply for redundancy. However, the two regional directors who were aged under 50 were allowed to apply.
After another restructuring exercise in 2013, Mr Donkor was again told he could apply for redundancy. However, the bank had changed its pension rules by then so that the age at which volunteers could retire with a non-discounted pension was now 55, as opposed to 50. That meant that Mr Donkor, who was not 55, could not receive his full pension on retirement.
He claimed direct age discrimination, arguing that he had been treated less favourably than the two younger regional directors as they were allowed to apply for voluntary redundancy in the first restructuring exercise whereas he was not.
The tribunal, however, held that they were not appropriate comparators as the two younger directors could not apply for voluntary early retirement as part of their application for voluntary redundancy, unlike Mr Donkor.
Although it accepted that the benefit of early retirement was itself linked to age, the tribunal held that Mr Donkor could not argue that he was treated less favourably than the other two directors as, like him, they were not allowed to apply for voluntary early retirement. In other words, they were all treated the same way.
It concluded that, even if the failure to offer voluntary early retirement did amount to less favourable treatment, the difference in treatment was not because he was over 50 but because of the cost to the bank of his redundancy package.
The EAT disagreed that the comparators (the two regional directors under 50) were not appropriate, pointing out that the difference was clearly one of age - he was over 50 whereas his comparators were not.
As for the issue of less favourable treatment, the EAT held that the tribunal had considered the wrong issue. Mr Donkor had not complained that he was not given the option of applying for early retirement, but rather that he was treated less favourably in not being given the option to apply for voluntary redundancy. This could amount to a detriment which resulted in less favourable treatment of Mr Donkor.
Finally, the EAT held that the tribunal failed to ask whether the less favourable treatment would have occurred “but for” his age. As the difference in treatment was clearly because of his age, Mr Donkor had made out a prima facie case (on the face of it) of direct age discrimination. It therefore set aside the tribunal’s decision and remitted it back to consider the issue of justification.
This case is a useful summary of the law on comparators in discrimination cases. Essentially the focus of the case at the tribunal had been the differences between Mr Donkor and his colleagues, which were, when analysed, because of age, and therefore could not be said to be materially different. RBS had applied a criterion to the way that they dealt with four employees undertaking the same roles which was purely based on age and which placed Mr Donkor at a disadvantage. The only remaining question is whether their actions can be justified.