To successfully challenge a complaint of indirect age discrimination about a provision, criterion or practice, employers have to show that it was a proportionate means of achieving a legitimate aim. In Heskett v The Secretary of State for Justice, the Employment Appeal Tribunal (EAT) held that employers can justify indirect age discrimination based on an “absence of means”.
Following the financial crisis in 2008 the government announced a policy whereby probation officers would only be able to progress up the pay scale by one pay point per year, rather than three as had previously been the case.
The effect was that progression to the top of the scale would take many years longer for younger probation officers. Older employees who were close to or at the top of the band would therefore earn significantly more in salary and accrue greater pension benefits than those lower down the band, for as long as the policy persisted.
Mr Heskett, a probation officer, argued that the new policy amounted to indirect age discrimination.
The tribunal agreed that the new progression policy was prima facie (sufficient) discriminatory in favouring employees over the age of 50 as opposed to younger employees.
However, it accepted the argument of the Ministry of Justice that it was a proportionate means of achieving a legitimate aim, the aim being to retain probation officers in employment whilst faced with a reduction in public money to run the service. As such, it was an “absence of means” rather than cost that forced the Ministry into taking the decision.
Mr Heskett appealed, arguing that the reason for implementing the policy was, in reality, one of “cost alone” which could not amount to a legitimate aim according to case law. The tribunal’s distinction between cost and an absence of means amounted in effect to “a distinction without a difference”.
Dismissing the appeal, the EAT held that the tribunal was right to make a distinction between an absence of means and an employer who was relying solely on cost to justify discrimination.
In this case, the Ministry (through no fault of its own) had to find a way of squaring a circle brought about by a central government policy limiting pay increases across the public sector. It was clear from case law that it was legitimate for organisations to seek to break even year-on-year and to make decisions about the allocation of its resources.
In this case, the Ministry had negotiated with the unions to craft a pay policy that distributed the “pain in as fair and equitable a way as possible given the constraints”. This was, therefore, considerably more "nuanced" than a policy arising from cost alone.
With regard to the question as to whether the means adopted by the Ministry were proportionate (no more than reasonably necessary), the tribunal took into account that the Ministry had noted the discriminatory effect of the policy and was taking steps to address it within a short period. These were legitimate considerations for it to take into account.
Although the tribunal had suggested at the end of its reasons that the outcome of a further complaint might be different, this did not mean that the tribunal had made an error of law or support the argument that the tribunal had applied the wrong test.
This case is another demonstration of the fine line between “balancing means”, which can be a justification defence and saving costs, which cannot. It is rare, in any event, that such “means” are fixed and employers should be wary of relying on balancing means as a justification defence where budgetary constraints may change.