Justifying any form of discrimination is always an uphill struggle. In one case, a trade union failed to meet that challenge after refusing to allow a member to stand for election to its national executive committee because he was too old (The National Union of Rail, Maritime and Transport Workers v Lloyd).

The union's rulebook included a ban on nominations for election to the committee of members who would reach the age of 65 before completing a three-year term of office. After a 62-year-old shipping worker and local union official fell foul of that rule, a proposed amendment was debated at the union's AGM. However, the motion was defeated and his nomination was rejected. His complaint of age discrimination was subsequently upheld by an Employment Tribunal (ET).

In challenging that decision before the Employment Appeal Tribunal (EAT), the union argued that the rule was justified as a proportionate means of achieving legitimate aims. It was said to promote intergenerational fairness, efficient planning in the avoidance of mid-term by-elections, and consistency with the union's long-standing policy of campaigning for a reduction in national retirement ages.

In dismissing the appeal, however, the EAT found that the union had sought to justify the rule by an exercise of ex post facto rationalisation – explaining it after the fact. The ET was entitled to find that the objective of intergenerational fairness was not a legitimate aim, in that the rule was ineffective in achieving the same, and that the union's argument in respect of efficient planning could not withstand scrutiny.

The EAT noted that the man would not be entitled to draw his state pension before reaching the age of 66. There was no inconsistency between the union's policy objective of reducing retirement ages and its obligation not to treat people less favourably because of their age. A policy which was contrary to government policy could not, in any event, qualify as a legitimate aim.

For advice on age discrimination in the workplace please contact Emma Hewitt on 0808 166 8860 or email e.hewitt@sydneymitchell.co.uk.

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