Justifying age bias: an update

The EAT in Woodcock v Cumbria Primary Care Trust UKEAT/0489/09 has cast doubt on an established principle of discrimination law, namely the rule that “cost” alone can never justify age discrimination.

The leading case is Cross v British Airways PLC [2005] IRLR 423, which established that, while cost alone can never be used to justify discrimination, cost considerations can be one factor in the balance.

The EAT in Woodcock commented that it was hard to justify the position in Cross, which leads to “artificial game playing” by the parties, looking for other “factors” to place alongside that of cost. The comments were not part of the main decision, but are an important pointer as to the likely direction of the tribunal in future claims. The case will be covered in full in a future edition of Workplace Report.