No, held the Court of Appeal in Lockwood v (1) Department of Work and Pensions; (2) Cabinet Office.
The Court of Appeal found that the employment tribunal had failed to conduct the comparison exercise properly. Regulation 3(2) of The Employment Equality (Age) Regulations 2006 provides that the ‘relevant’ circumstances of the Claimant and the comparator must be ‘the same, or not materially different’. The employment tribunal wrongly relied on the differences between the Claimant and the comparator, which were based on her age; namely she was less likely to have family ties, a mortgage and less difficulty to recover from redundancy because she was younger than her comparator.
The Court found that once the correct comparator exercise had been made, Ms Lockwood had suffered less favourable treatment. However, Ms Lockwood’s appeal was unsuccessful as the Court agreed that the less favourable treatment was objectively justified.
This case provides an important restatement of the two stage test for direct age discrimination claims.