In a recent case, the Employment Appeal Tribunal (EAT) considered whether “absence of financial means” is enough to justify something which would otherwise amount to indirect age discrimination.

The claimant, Mr Heskett, worked as a probation officer. In 2016, he brought a claim after government funding cuts led to changes in the way that certain probation officers progressed up the salary scale. Under the new progression policy, it would take newly-appointed offers 23 years to climb to the top of the salary scale as opposed to seven or eight, meaning his longer-serving (and typically older) colleagues who had reached the top (or close to the top) of the band would earn around £5,000 more per year in salary and pension.

Mr Heskett argued age discrimination, asserting that the pay progression policy indirectly discriminated against younger probation offers like himself. He argued, with reference to previous case law, that cost saving alone could not amount to a legitimate aim and therefore the employer’s actions could not be justified.

While the Tribunal agreed that the policy was, on the face of it, discriminatory, it held that it was objectively justified based on the facts of the case. Crucially, it found that this was not a ‘costs alone’ situation. The EAT upheld this decision, and the case eventually made its way to the Court of Appeal.