This case was an appeal from the EAT. For details of the facts and a summary of that decision, click here.

Ms Lockwood’s case was appealed to the Court of Appeal. The main issue was to consider whether her circumstances were materially different from the comparator and if so, whether there was an objective justification for the less favourable treatment. 

Decision - comparator point

The Court of Appeal held that the EAT was incorrect in considering factors intrinsically connected with age in its approach to a comparator. The purpose of the comparative exercise is to test whether the claimant has been discriminated against on a prohibited ground, in this case age. Therefore to consider factors related to Ms Lockwood’s age was an error and the circumstances of the comparator group were not materially different. The features of age should only be considered at the objective justification stage.

The Court of Appeal referred to Shamoon v Chief Constable of the Royal Ulster Constabulary [2003], in which Lord Scott of Foscote stated that “the comparator required for the purpose of the statutory definition of discrimination must be a comparator in the same position in all respects as the victim save that he, or she, is not a member of the protected class.’

It therefore held that Ms Lockwood had suffered less favourable treatment and the first ground of the appeal was allowed.

Decision - justification point

The Court of Appeal then considered whether there was objective justification for Ms Lockwood’s less favourable treatment, whether the discriminatory scheme of paying higher severance to older employees was a proportionate means of achieving a legitimate aim.

The Court of Appeal referred to Seldon, which states that you should consider the aims of the policy, whether the policy is appropriate with regard to its aims and whether the policy was reasonably necessary with regard to its aims. The Court of Appeal agreed with the ET that older employees did require more financial cushioning than younger employees and therefore the scheme was objectively justified.

The Court of Appeal stated that the ET’s reasons were full and conscientious, gave careful consideration of the evidence and applied the test with care and appropriate rigour.

The judgment is available here

Lockwood v Department of Work and Pensions & Anor [2013] EWCA Civ 1195 (11 October 2013) [2013] IRLR 941, [2014] 1 All ER 250, [2014] ICR 1257, [2013] EWCA Civ 1195, [2013] Eq LR 1190