Last week the Employment Appeal Tribunal published the transcript of its judgment in National Union of Rail, Maritime and Transport Workers (RMT) v Lloyd UKEAT/0281/18/JOJ, a case considering, among other things, the circumstances in which an aim is capable of being legitimate for the purpose of justifying less favourable treatment because of age.
The respondent Union had a rule preventing members from standing for election to its National Executive Committee where the candidate, if elected, would reach the age of 65 before the end of the three-year term. The respondent conceded that this rule amounted to less favourable treatment because of age but alleged that it was justified as a proportionate means of achieving a number of legitimate aims.
The employment tribunal did not accept that any of the aims relied on by the respondent were legitimate. In reaching this conclusion the tribunal took into account that: (i) there was no evidence that the rule had any effect on intergenerational fairness as it had failed to encourage younger members to stand for election to the NEC; and (ii) the stated aim of efficient planning was at odds with the equivalent rules in respect of paid officials seeking re-election. The tribunal held, in the alternative, that the imposition of the rule was disproportionate to any such aims.
The respondent appealed against the tribunal’s conclusions in respect of three of its alleged aims: intergenerational fairness; efficient planning; and consistency with its long-established policy of campaigning to lower the retirement age.
The EAT held that evidence as to the effectiveness of a measure pursuing an alleged aim is potentially relevant to the issue of whether that aim is legitimate, not merely to the subsequent stage, if it arises, of the balancing exercise on proportionality. If the evidence shows that the measure has been ineffective in achieving the stated aim, this may be relevant to two stages of the enquiry for the tribunal as to the legitimacy of the aim: first, when testing whether, as an ex post facto rationalisation or otherwise, the aim was the actual objective; second, when considering whether the aim was in fact legitimate in the particular circumstances.
The EAT thus concluded that, given the findings it made, the tribunal had been entitled to conclude that intergenerational fairness and efficient planning were not legitimate aims as they were not true aims or, alternatively, were not legitimate in the circumstances. As for the aim of acting consistently with the respondent’s policy of seeking to reduce the retirement age, the tribunal had reasonably concluded that this was not capable of being a legitimate aim since it was not “consistent with the social policy aims of the state” (a condition of a legitimate aim as set out in Seldon v Clarkson Wright & Jakes  UKSC 16 at paragraph 55). Given these conclusions, the challenge to the tribunal’s conclusion on proportionality was rendered academic.
Mark Greaves acted for the claimant who successfully resisted the appeal.
Judgment summary and link is available here.