Mr Hogben was head of Structured Funding and Investments at ABN Amro. He was made redundant when he was aged 42 after ABN Amro was taken over by Royal Bank of Scotland. Mr Hogben brought claims for unfair dismissal and age discrimination and brought these discrimination claims in respect of 4 aspects of his treatment: non selection, pro rata bonus, enhanced redundancy payment and the compromise agreement. 

ABN Amro applied to have his claims struck out as having no reasonable prospects of success. The Employment Tribunal initially struck out just one of Mr Hogben’s four claims. ABN Amro therefore appealed this decision, with Mr Hogben counter-appealing against his one claim being struck out.

The Employment Appeal Tribunal dealt with each of the claims of Mr Hogben’s age discrimination in turn.

Non selection

Mr Hogben claimed that his non selection for one of the new roles was because of his age and he argued that this was inferred from the ages of those appointed (though he was wrong about the ages of those appointed). The Employment Tribunal refused to strike out this claim, but the Employment Appeal Tribunal disagreed and the claim was struck out; the claim in their opinion was “fanciful” as Mr Hogben’s suggestion was that the decision-maker was influenced by the fact that one successful candidate was nine months older than him.

The Employment Appeal Tribunal also said no weight should be attached to the possibility that evidence in support of a claim could be adduced from cross examination in due course. It is up to the Claimant to show a prima facie case of discrimination and if he cannot do so, then it is sensible that the claim be struck out as having no reasonable prospects of success.

Pro rata bonus

ABN Amro had a policy that they would pay a pro rata bonus to employees who were made redundant, but then changed this so that their policy was that an employee also had to show that there were “exceptional circumstances” that mean deserve that they should receive a pro rata bonus.

As both of the old and the new requirements were age neutral, Mr Hogben instead argued that the change from one policy to the other was a policy in itself and was directly and indirectly age discriminatory. The Employment Appeal Tribunal rejected this. A policy must apply to the employee and to the comparator group at the same time. Where a new policy was applied that was to an employee's disadvantage, unless that policy was discriminatory in itself, no case for indirect discrimination could be made out. ABN Amro's new policy was entirely age-neutral and so Mr Hogben’s claim under this head was struck out.

Enhanced redundancy payment

ABN Amro’s redundancy policy meant that employees would receive one month’s basic pay (excluding bonus) for each year they had been with the firm, subject to a minimum of nine months pay. After initially misunderstanding the nature of the scheme, Mr Hogben argued that the scheme was indirectly discriminatory as although it conferred an advantage on all age groups, he was not obtaining sufficient advantage relative to his length of service.

Mr Hogben’s claim under this head was not struck out.

The Employment Appeal Tribunal also said that where an employer is attempting to justify part of a redundancy scheme, it is not necessarily relevant if other features of the scheme discriminate against other age groups. This is only relevant if the employer is attempting to rely on the other features as part of their reason.

Compromise agreement

The enhanced redundancy pay referred to above was offered if Mr Hogben entered into a compromise agreement which, amongst other things, would compromise claims for age discrimination.

Mr Hogben claimed this was age discriminatory but both the Employment Tribunal and Employment Appeal Tribunal disagreed. It did not place any age groups at a disadvantage and even if it did, strong public policy elements would enable the scheme to be justified. Compromise agreements are a proportionate means of achieving the legitimate aim of settling claims.

The Employment Tribunal struck out this head of Mr Hogben’s claim and the Employment Appeal Tribunal upheld this decision.

The judgment is available here.

ABN Amro Management Services Ltd & Anor -v- Hogben [2009] UKEAT 0266_09_0111 (1 November 2009)