Court of Appeal dismisses probation officer’s indirect age discrimination appeal


Re: Heskett v Secretary of State for Justice [2020] EWCA Civ 1487

The appellant has been employed as a probation officer since 2006. In 2016, aged 38, the appellant brought proceedings against the respondent, his formal employer, in the Employment Tribunal (“ET”) complaining of indirect age discrimination under the Equality Act 2010.

Specifically, his complaint was that the rate of pay progression for his job has drastically reduced as a result of the policy of austerity in public sector pay which was in force since 2010. This disadvantaged younger employees such as himself, he alleged, since they were inherently less likely than older colleagues to have reached the top of the applicable pay range when the policy came into force.

This complaint was dismissed by the ET in 2017. The ET found that, that while the reduction in the rate of progression produced inequities which could not be justified in the long term, it was a proportionate short-term response to the extreme financial stringency caused by the “pay freeze” imposed by the Treasury.

The appellant appealed to the Employment Appeal Tribunal which dismissed his appeal in 2019.

The appellant then appealed to the Court of Appeal which has also dismissed the appeal, rejecting all three grounds. The principal ground of appeal was that the ET erred in holding that, when deciding whether the cost was a legitimate aim for the purposes of justifying age discrimination, there was a valid distinction between costs and an absence of means. However, the Court held that the ET was not wrong in law; it was entitled to treat the need to observe the constraints imposed by the pay freeze as a legitimate aim. Accordingly, the appeal was dismissed. Additionally, the Court ordered that permission to appeal to the Supreme Court be refused.

Claire Darwin and Nathan Roberts were involved in this case.