Does an employer directly discriminate against its employee because of his or her age by ceasing PHI payments prior to the employee reaching the greater of age 65 or their state pension age?
The employment tribunal (ET) in Whitham v Capita Insurance Services Ltd ET/2505448/12 answered this question with an emphatic yes. However, the EAT in Smith v Gartner UK Ltd UKEAT/0279/15/LA has seemingly given a different impression. The point was not properly ventilated in Smith v Gartner and, further still, the EAT’s discussion in respect of a claim under section 39(2) of the Equality Act 2010 (EqA 2010) is strictly obiter. The law is therefore in a state of flux and an appellate decision is required to settle the issue.
This blog is limited to the question of direct age discrimination. Be aware that such cases frequently lead to other arguments such as unlawful deduction from wages and indirect discrimination. Continue reading