1. I refer to the parties as the Claimant and the Respondent, as below. This is the Claimant's appeal against a Judgment of the London (Central) Employment Tribunal (Employment Judge Grewal, sitting with members on 10-13 November and on 14 November 2014 in chambers; "the ET"), sent to the parties on 15 January 2015. Representation below was as now. By its Judgment, the ET dismissed the Claimant's claims of unfair dismissal, and of direct race and age discrimination. This appeal concerns only the rejection of one aspect of the age discrimination claim. The Respondent resists the appeal, essentially relying on the reasons provided by the ET for concluding there was no less favourable treatment because of age.

1. The Claimant, born on 5 January 1960, was aged over 50 at the time of the events with which this appeal is concerned. He started his employment with the Respondent on 15 August 1978 and, from March 2003, had been employed as a Regional Director in retail banking.

1. In 2012 a restructure took place, which gave rise to what was seen as a new Regional Director role. As such, no existing Regional Director would automatically transfer into the new position but would have to go through a selection exercise. The decision was initially taken that no one should be permitted to apply for voluntary severance until after a preliminary desktop selection exercise, as the Respondent did not want to risk losing talent. Those who were not to be offered an interview would then be given an options letter, allowing them to volunteer for redundancy. If aged over 50, that would include an option to take early retirement, a benefit that did not amount to unlawful discrimination given the provisions of section 68(1) of the Equality Act 2010 ("EqA") and the Equality Act (Age Exceptions for Pension Schemes) Order 2010, Schedule 1, paragraph 10.

1. Four Regional Directors fell into the category of those who were not to be offered an interview under that process. Two, including the Claimant, were aged over 50. When the severance costs were calculated, however, it became apparent that, out of redundancy costs of £1.4 million, £1.25 million would be accounted for by the two individuals aged over 50. Specifically, the cost to the Respondent of the Claimant taking early retirement would be £552,286.87, mainly due to the amount the Respondent would have to contribute to provide an undiscounted pension (£460,275 in the Claimant's case). Such a significant severance payment gave rise to certain risks for the Respondent and needed higher level approval.

1. The Respondent had a change of mind and interviews were then also offered to those initially unsuccessful on the desktop sift. One of the four was successful after all; the Claimant and the remaining two were not. Meanwhile, the Respondent had progressed the question of the severance costs to a higher level; it would need to do so where the value of the package in issue exceeded £500,000, and there was a risk that any such package would be declined if there were redeployment opportunities that had not been explored. Whilst this issue was investigated further, on 28 May 2012 two of those who had not been selected - Ms Denise Alexander and Mr David Batey, both aged under 50 - were given letters giving them the opportunity to apply for voluntary redundancy or redeployment; no such letter was given to the Claimant.

1. On 29 May 2012, an alternative role became available, which was suitable for the Claimant; in part, because he had previously carried it out for a year between 2010 and 2011. It was decided that he and Mr Batey - who had declined voluntary redundancy - should be offered the opportunity to be considered for this. This offer was made to the Claimant on 31 May. He asked whether redundancy options were available but was told that they were not given there was a suitable alternative role. It seems the Claimant was told he would be appointed into the alternative job before the selection exercise involving him and Mr Batey was conducted. He was pleased to accept and undertook that role until a further, unrelated restructuring in 2013.

1. In the meantime and after a two month consultation, from 1 October 2012, the Respondent had changed its pension rules. From that date, the age at which volunteers for redundancy could retire immediately with a non-discounted pension was raised from 50 to 55.

1. In the 2013 restructuring, the Claimant was permitted to apply for voluntary redundancy; which he did, leading to the termination of his employment on 30 September 2013.

1. On direct age discrimination, the question was whether the Respondent discriminated against the Claimant by failing to offer him the option of applying for voluntary redundancy as it had his under age 50 comparators, Ms Alexander and Mr Batey. An objection to the ET hearing this claim (as out of time) had previously been resolved in the Claimant's favour.

1. The ET first considered whether Ms Alexander and Mr Batey were appropriate comparators. It concluded they were not, reasoning:

"69. … Leaving aside the difference in age, we considered whether there were any material differences between their circumstances and that of the Claimant. We concluded that there was a material difference in respect of the benefits to which they would be entitled if they applied for voluntary redundancy. The Claimant would be entitled to apply for voluntary early retirement; Mr Batey and Ms Alexander were not entitled to that benefit. It was a benefit that could lawfully be offered to the Claimant, but not to Mr Batey and Ms Alexander. …"

1. That said, the ET acknowledged that the entitlement to the benefit of early retirement was itself linked to age and it might be argued that this was tantamount to taking the ages of the Claimant and his comparators into account. Allowing for this alternative, the ET concluded that, in any event, the Claimant was not less favourably treated:

"70. The Claimant's basic complaint was not that he had not been given the option to apply for voluntary early retirement. Mr Batey and Ms Alexander were also not given the option to apply for voluntary early retirement because they were not entitled to apply for it. In those circumstances, it is difficult to see how it can be said that the Claimant was treated less favourably than them in this respect. They were all treated in the same way."

1. And, even if less favourable treatment, the ET further concluded that the difference:

"71. … was attributable to the fact that the costs implications, legal risks and process to obtain approval were different in his case from that of Mr Batey and Ms Alexander. We were satisfied that if the Claimant's severance package would have cost the Respondent less than £500,000, he would have been given the option to apply for voluntary redundancy/voluntary early retirement at the same time as Mr Batey and Ms Alexander notwithstanding his age. … the reason that the Claimant was not given the option to apply for voluntary redundancy at the end of May 2012 was not because he was over 50 or entitled to apply for voluntary early retirement but because of the amount that his redundancy package would have cost the Respondent and the unlikelihood of that being approved when there was potential suitable alternative employment that he could be offered. …"

1. Although the Respondent had amended its response to assert a defence of justification in respect of direct age discrimination, that was not addressed by the ET.

1. I start with the relevant legislative provisions, which are to be found in the EqA 2010. Section 5 defines the protected characteristic of age as follows:

"(1) In relation to the protected characteristic of age -

(a) a reference to a person who has a particular protected characteristic is a reference to a person of a particular age group;

(b) a reference to persons who share a protected characteristic is a reference to persons of the same age group.

(2) A reference to an age group is a reference to a group of persons defined by reference to age, whether by reference to a particular age or to a range of ages."

1. Direct discrimination in this context is then defined by section 13(1) and (2):

"(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

(2) If the protected characteristic is age, A does not discriminate against B if A can show A's treatment of B to be a proportionate means of achieving a legitimate aim."

1. Less favourable treatment imports an element of comparison, whether that is with an actual or hypothetical comparator. In this regard section 23, relevantly, reads:

"(1) On a comparison of cases for the purposes of section 13 … there must be no material difference between the circumstances relating to each case."

1. Direct age discrimination in the field of work is rendered unlawful by (so far as relevant to this case) section 39(2)(d), which provides that an employer must not discriminate against one of its employees by subjecting that employee to a detriment.

1. Turning to the relevant case-law, the question of comparison for these purposes was considered in Lockwood v Department of Work and Pensions [2013] IRLR 941, in the context of a redundancy scheme that provided differential benefits dependent on age, distinguishing between those over and under 35. That case was brought under the earlier provisions of the Employment Equality (Age) Regulations 2006 SI 2006/1031, but there is no material difference for present purposes. Although ultimately rejecting the Claimant's appeal - on the basis that the age discrimination was justified - the Court of Appeal held that the ET and the EAT had erred in finding there were material differences between the 26 year old complainant and her over 35 year old comparators; see, per Rimer LJ:

"35. … There was no difficulty in identifying a comparator, namely someone over 35 who was, or would have been, otherwise in all material respects as regards his or her employment in the DWP in the same position as Ms Lockwood. For the ET then, however, to have held that the respective circumstances of the, say, 36-year-old comparator and the 26-year-old Ms Lockwood were materially different, so that Ms Lockwood failed to show less favourable treatment as compared with her comparator, was wrong.

36. First, Ms Lockwood's age of 26 did not make the relevant circumstances of her case materially different from that of the comparator. Her case was that it was because of her age that she was being discriminated against. Just as a comparison between a black claimant and a white comparator is not invalidated because of their difference in race, so the comparison between the 26-year-old Ms Lockwood and the 36-year-old comparator was not invalidated either. On the contrary, the comparison was relevant, valid and essential for the purposes of answering the question whether or not Ms Lockwood had suffered less favourable treatment on the ground of her age.

37. Second, once the comparison was made, there was only one answer to the question whether she had suffered such less favourable treatment, namely yes. That is because, upon leaving her employment, she was paid substantially less money than was or would be paid to someone whose circumstances, age apart, were identical. The ET, however, rejected this straightforward conclusion. It instead approached the case by bringing into account in its assessment of the relevant circumstances the fact that, because Ms Lockwood was younger than the comparator and belonged to a generation whose members could adjust more easily and rapidly to the loss of jobs than their colleagues in their late 30s, her circumstances were materially different from those of the comparator.

38. Those considerations were, however, nothing more than features of being 26 rather than 36. The ET's reasoning appears to have been that, because a 26-year-old leaver can be assumed not to need as much money as a 36-year-old leaver, there was no less favourable treatment in giving the former a lower severance payment than the latter. Even if the premise was correct, the conclusion was self-evidently wrong. The premise, if right, may have provided grounds for justifying the disparity of the treatment between the different age groups. But that was a different question. There was, however, no question that Ms Lockwood suffered less favourable treatment than her comparator. The ET ought so to have found, and the EAT was wrong in failing to correct its error."

1. As can be seen from that passage, the correct approach to the comparison required in a direct discrimination case of this nature can itself answer the question whether there has been less favourable treatment. As Langstaff P observed in a postscript to his Judgment in [Chief Constable of West Midlands Police and Ors v Harrod and Or]()s UKEAT/0189/14:

"49. … Where a criterion inevitably distinguishes between individuals on the basis of age … to apply it is to discriminate directly …"

1. The point is well rehearsed in the case law: where the criterion itself imports the relevant characteristic, the question to be asked is whether the treatment in question would have occurred but for that characteristic, see James v Eastleigh Borough Council [1990] 2 AC 751 HL, adopting the "but for" test laid down by Lord Goff in R v Birmingham City Council (Ex Parte EOC) [1989] AC 1155 HL. See, also, the affirmation of that approach in Nagarajan v LRT [2000] AC 501 HL, per Lord Nicholls at page 511; R (E) v Governing Body of JFS [2010] 2 AC 728 SC, per Lord Phillips at paragraph 20; and Bull v Hall [2013] UKSC 73, per Lady Hale at paragraph 30, Lord Carr at paragraph 61, and Lord Toulson at paragraph 70. If the reason relied on for the conduct in issue itself directly discriminates on the basis of the relevant protected characteristic, then that conduct is an act of direct discrimination; to hold otherwise is simply fallacious (per Lord Bridge in James at page 763H). As Underhill J (as he then was) explained in Amnesty International v Ahmed [2009] ICR 1450 EAT:

"33. In some cases the ground, or the reason, for the treatment complained of is inherent in the act itself. If an owner of premises puts up a sign saying "no blacks admitted", race is, necessarily, the ground on which (or the reason why) a black person is excluded. James … is a case of this kind. There is a superficial complication, in that the rule which was claimed to be unlawful - namely that pensioners were entitled to free entry to the council's swimming-pools - was not explicitly discriminatory. But it nevertheless necessarily discriminated against men because men and women had different pensionable ages: the rule could entirely accurately have been stated as "free entry for women at 60 and men at 65". The council was therefore applying a criterion which was of its nature discriminatory: it was … "gender based". In cases of this kind what was going on inside the head of the putative discriminator - whether described as his intention, his motive, his reason or his purpose - will be irrelevant. The "ground" of his action being inherent in the act itself, no further inquiry is needed. …"

1. As for the detriment relied on by a Claimant for the purposes of section 39(2)(d), an unjustified sense of grievance will not be sufficient, albeit she does not have to establish some physical or economic consequence; the question is whether the treatment was (per Lord Hope, in Shamoon v Chief Constable of the Royal Ulster Constabulary :

"35. … of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment? …"