The EAT has considered whether “absence of financial means” is capable of justifying indirect age discrimination.


Mr Heskett worked as a probation officer.

Because of funding cuts, the Ministry of Justice (MOJ) made changes to the rate at which certain Probation Officers progressed up a salary scale. The changes meant that it would take someone 23 years to reach the top of the salary scale, compared with 7 or 8 years previously.

The effect of these changes was that older employees close to (or at) the top of the band would earn more in salary and pension than those lower down the band. The difference would be around £5,000 a year.

Mr Heskett argued that the progression policy was indirect age discrimination. An Employment Tribunal held that it was prima facie age discrimination as it favours employees aged over 50, but that it was justified.

The ET it did not think that MOJ was relying on cost alone to justify discriminatory conduct. The ET said that an absence of means forced MOJ to take the decisions that it did.

This, according to the ET, was not the same thing. The ET accordingly held that implementation of the new pay policy was for legitimate aims.

Mr Heskett appealed. He argued that this was a “cost alone” case, as discussed in Woodcock. Mr Heskett argued that the ET’s words "it was an absence of means which forced the respondent to take the decisions it did but that is not the same thing" amount to an error of law: it is a distinction without a difference.


The EAT dismissed Mr Heskett’s appeal.

The EAT said that the cases of Benson and Edie have confirmed that it is a legitimate aim for an organisation to seek to break even year on year. The MOJ’s new pay policy was crafted to distribute the pain incurred as a result of funding cuts in as fair and equitable a way as possible. The EAT said that this was considerably more "nuanced" than a policy arising from cost alone.

In relation to proportionality, the EAT said that the fact that the discriminatory effect of the policy had been noted, and also that steps were being taken to address it within a short period were relevant. The EAT also noted the ET’s comment in the final paragraph of its judgment that MOJ was considering making changes to the progression policy. The EAT said that this comment did not support an argument that the ET had applied the wrong test or made an error in its ruling.

The judgment is available here.

Heskett v The Secretary of State for Justice [2019] UKEAT 0149_18_2506 (25 June 2019)