Ms Smith, was TUPE transferred to Gartner in 1996.  Gartner’s guide to company benefits stated that all employees were to be provided with permanent health insurance, subject to their terms and conditions of employment.  In 2002, Ms Smith was signed off sick and did not return to work, but began receiving payments under the scheme in 2003. At this time, Gartner had a compulsory retirement age of 60.  In 2007, Gartner introduced a new policy, which provided cover to employees until age 65. However, in 2014, when Ms Smith turned 60, her benefits ceased and she was advised that she was only covered by the scheme provider until that age.

Ms Smith brought claims for unlawful deduction from wages and direct age discrimination, arguing that, by refusing to continue her contractual permanent health insurance until she retired, Gartner had treated her less favourably and this decision could not be justified as a proportionate means of achieving a legitimate aim. 

The claims were struck out at first instance by the Employment Tribunal.  The Tribunal held that as Gartner’s only obligation was to provide an insured disability scheme and the benefits were provided by the insurer, they had complied with their obligations.  The cessation of the benefit when Ms Smith turned 60 was consistent with the rules of the scheme and this therefore, did not amount of direct age discrimination.  

Ms Smith appealed.


The EAT, dismissing the appeal, held that the Tribunal was correct to conclude that Gartner’s obligation was limited to providing insurance. The reason that Ms Smith received no payments past age 60 was because of the insurance terms in place at the time that she began claiming permanent health insurance by the provider.  Therefore, a claim for direct age discrimination could not succeed against Gartner. The EAT also held that Gartner’s decision not to extend the new policy to Ms Smith was not direct age discrimination as she was already claiming under the previous policy and therefore did not meet the conditions of the new scheme.

The judgment is available here.

Smith v Gartner UK Ltd (Practice and Procedure: Striking-out/dismissal) [2016] UKEAT 0279_15_0803 (08 March 2016)