Comparators in Age Discrimination

Donkor v Royal Bank of Scotland UKEAT/0162/15 considered the appropriate comparator in direct age discrimination cases.

Mr Donkor’s employer, the Royal Bank of Scotland (RBS), underwent a restructuring in 2012. As part of this process, some employees were interviewed for new roles and others given the opportunity to apply for voluntary redundancy. Mr Donkor, a regional director aged 50, was not given the opportunity to apply for voluntary redundancy as the severance costs for doing so greatly increased for those over 50 (due to enhanced early retirement benefits for which internal approval had to be obtained beforehand). Two other regional directors who were under 50 applied successfully for voluntary redundancy and Mr Donkor successfully applied for another role. 2013 saw a further restructuring of RBS and this time Mr Donkor, now aged 52, applied successfully for voluntary redundancy. In the interim, however, the pension enhancement payment terms had changed, those aged over 55 now being eligible, thereby excluding Mr Donkor. He therefore brought a claim arguing that the initial refusal to allow him to apply for voluntary redundancy in 2012 was direct discrimination on the basis of the protected characteristic of age. RBS successfully argued, at the Employment Tribunal, that the two regional directors under 50 were not appropriate comparators as their lack of entitlement to early retirement benefits constituted a material difference between them and Mr Donkor. The Employment Appeal Tribunal however overturned this decision: the only reason why the two regional directors were not eligible for the early retirement benefits was because of their age — they were under 50. As the only material difference between Mr Donkor and the two regional directors was their age, they were appropriate comparators.

This case serves as a useful reminder of the real issue at the crux of direct discrimination: if an employer applies a criterion which distinguishes between employees based on a protected characteristic such as age, then this amounts to direct discrimination unless it can be objectively justified.