Mr Donkor was born in 1960 and started his employment with the Royal Bank of Scotland in 1978. He worked through the ranks and, from 2003, was employed as a regional director in retail banking. In 2012 there was a bank restructure which effectively meant that all existing regional directors would have to go through a selection exercise. Following a “desktop exercise” those not selected for interview would be given an options letter, allowing them to volunteer for redundancy. Those aged over 50 would also be given the option of early retirement.
Mr Donkor and three others were not offered an interview. He was one of two of the four over 50. However, when severance costs were calculated it was apparent that out of a total cost if £1.4m, £1.25m would be accounted for by the two employees aged over 50. In Mr Donkor’s case the overall cost would be £552,286.87, including a pension contribution of £460,275. The Bank reviewed the process and offered interviews to those who were initially successful. the result was that one of the four was successful. Mr Donkor was not. the value of Mr Donkor’s proposed settlement required approval at a higher level. While this process was ongoing the two other employees, both under 50, were given letters inviting them to apply for redundancy or redeployment. Mr Donkor was not sent such a letter.
In May 2012 an alternative role became available. He and Mr Batey (one of the employees under 50) were considered to be suitable candidates. Mr Donkor was notified accordingly and asked whether redundancy options were available. He was told that they were not since there was a suitable alternative role. He was offered and accepted the role before the selection exercise concerning him and Mr Batey was conducted. He remained in post until a further unrelated restructuring in 2013. In the meantime the bank changed its pension rules so that the minimum age at which volunteers for redundancy could apply for early redundancy was raised from 50 to 55. Within the 2013 restructure he was permitted to apply for voluntary redundancy and his employment terminated in September 2013.
He brought a claim of age discrimination on the basis that in the 2012 exercise he was not given the option of voluntary redundancy whereas comparable employees aged under 50 were. At the Employment Tribunal it was held that the employees aged under 50 were not appropriate comparators because they could not apply for voluntary early retirement. Alternatively, bearing in mind that Mr Donkor was not offered the option of voluntary early retirement so they were all treated in the same way. Further, even if there was less favourable treatment the reasons were the considerably higher cost and the likelihood that such a package would not be approved when there was suitable alternative employment. Accordingly, his claim failed. However, on appeal the Employment Appeal Tribunal disagreed with the Employment Tribunal and noted that the ET “lost its way when it came to this particular aspect of the direct age discrimination claim before it”.
Putting aside the matter of the pension Mr Batey and Ms Alexander (both under 50) were given the option of applying for voluntary redundancy whereas Mr Donkor was not. “The ability to apply for voluntary redundancy might be considered a benefit; conversely, to be denied that option might reasonably be viewed as a detriment.” The differentiating factor between Mr Donkor and the others was quite simply age. That was precisely Mr Donkor’s complaint. The ET had considered it conclusive that neither Mr Donkor nor his comparators were given the option of applying for early retirement but that was not the complaint. The ET should have asked itself whether Mr Donkor was treated less favourably by not being given the option to apply for voluntary redundancy. That could amount to a detriment and to less favourable treatment so that the complaint of age discrimination would be made out.
As for the costs implications resulting from including Mr Donkor they were again a product of his age, this being inherent in each of the matters identified and being the reason why he was not offered the opportunity to apply for voluntary redundancy. The only possible conclusion was that a prima facie case of age discrimination was made out and this decision was therefore substituted for that of the ET. As for any justification Mr Donkor’s case was that it was all about cost and therefore could not provide good justification for the purpose of resisting the claim. Judge Eady QC did not think it was that straightforward and the question of any possible justification for the discrimination was therefore remitted for further consideration by the same employment tribunal.
It is often the case that an employer wants to make its employment processes work in a way that fits with its objectives. However, whenever that approach is adopted it is immediately vulnerable and may be exposed, as happened in this case. It is obvious why the bank did not want Mr Donkor to be able to take both voluntary redundancy and early retirement but it was found out by its attempts exclude him in a way that others were not excluded. It will be interesting to see whether the employment tribunal sees it the same way when consideration any potential justification for the Bank’s actions.
