Standard Life Bank Ltd v Wilson: UKEATS/17/07

EAT(Sc): Lady Smith, Miss J Gaskell and Mr M Smith: 20 March 2008

When the claimant employee retired at the age of 60, in April 2001, he was immediately re-engaged by the respondent employers under a fixed-term contract for five years. In June 2006, after that term had expired, he made a complaint to the employment tribunal that he had received less favourable treatment as a fixed-term employee, as the employers had failed to make contributions to his pension after he reached 60. In October 2006 the claimant applied to the tribunal for permission to add a new claim of age discrimination, contending that under regulation 24 of the Employment Equality (Age) Regulations 2006 it was unlawful for an employer to subject a former employee to a continuing detriment on the ground of age and that, by virtue of regulation 24(3), that included action taken before the coming into force of the Regulations, which in respect of his proposed claim was 1 December 2006. The tribunal granted permission to amend, holding that the fact that age discrimination had not been unlawful when the employers ceased making pension contributions for the claimant, in April 2001, was negated by regulation 24(3) and that the failure to pay employers’ contributions between the claimant’s 60th and 65th birthdays was a detriment.

The employers appealed.

The Employment Appeal Tribunal held:
Under regulation 24 of the Employment Equality (Age) Regulations 2006 a person had a right to make a claim for age discrimination in respect of an act by a person with whom he was previously in a relevant relationship after the relationship had come to an end, only if the relationship was one during the course of which that other person either in fact had a duty to refrain from age discrimination because of the provisions of Part 2 of the Regulations or was deemed to have had such a duty and the act in respect of which he sought to claim arose out of and was closely connected with their relationship and had occurred after the relevant commencement date for the Regulations. The deeming effect, which resulted from applying the provisions of regulation 24(3), did not render any act unlawful but opened up regulation 24(1) to a claimant being able to claim that a post-relationship act of discrimination was unlawful under regulation 24(2), and such a person had a relevant claim because the post-relationship act founded on occurred after the date on which such an act was rendered unlawful. The claimant’s claim did not fall within either category because it was not a claim for an act of post-relationship discrimination, since the act complained of was completed immediately before he left the employers’ employment in April 2006, at which time age discrimination was not unlawful.

The appeal was allowed.

Appearances: Brian Napier QC (of the Scottish Bar) (Brodies LLP, Edinburgh) for the employers; Ian Truscott QC (of the Scottish Bar) (Anderson Strathern LLP, Edinburgh) for the claimant.