Mr Whitham had been in receipt of benefits under a Permanent Health Insurance (PHI) scheme. When Mr Whitham reached the age of 55, Capita stopped the payments.

Mr Whitham brought a claim of direct age discrimination, on the basis of the decision to cut payments at 55. Mr Whitham also brought a claim of indirect discrimination on the basis that the age related cut off put those aged 45 and over at a disadvantage.


The Tribunal upheld Mr Whitham’s claims of direct and indirect discrimination.

In relation to Mr Whitham’s direct discrimination claim, the Tribunal used a 50 year old comparator. The Tribunal decided that Mr Whitham was treated less favourably than the comparator; a 50 year old would have qualified for PHI and so continued to receive payments.

In relation Mr Whitham’s indirect discrimination claim, the tribunal said that the age related cut off was applied in 2002. It was at this point, when Mr Whitham was 45, that he first suffered a disadvantage. The Tribunal drew what it considered to be “an obvious conclusion”: the age related cut off did put the 45 and over age group at a particular disadvantage.

Capita sought to objectively justify both direct and indirect discrimination using the same argument. Capita said that the legitimate aim was to admit as many employees into the PHI scheme as possible, but the Tribunal did not accept this as a legitimate aim. Furthermore, the Tribunal did not consider that stopping the PHI payment was a proportionate means of achieving that aim (even if it were legitimate). The Tribunal also found that Capita’s aims were purely budgetary. The Tribunal therefore upheld both direct and indirect discrimination claim.

The judgment is available here.

Mr A J Whitham v Capita Insurance Services Limited, case number 2505448/12, Newcastle upon Tyne Employment Tribunal 26 February 2013