The Respondent operated a Permanent Health Insurance (PHI) scheme that paid out sick benefits for employees who were off sick for more than 26 consecutive weeks. One term of the scheme was that these benefits would cease once the employee reached their terminal age, in this case age 65. The Claimant went off sick age 56 and was paid PHI payments until his 65th birthday in 2020, at which date they ceased. While the Claimant was receiving benefits under the scheme, the Respondent transferred PHI cover to another insurer which paid out benefits to people over the age of 65. The Claimant did not have access to this scheme. He claimed age discrimination at the ET, one ground asserting that the Respondent’s decision not to transfer the Claimant to a PHI policy that would pay out beyond his 65th birthday amounted to age discrimination. The ET dismissed his claim, saying that once the benefit is crystallised, it is no longer a matter of ‘access’ as the benefit has been triggered and access has been actualised. Also, the reason the Claimant was not eligible for his terminal age to be extended was that he was not ‘actively at work’. The Claimant appealed.

The EAT dismissed the appeal. Under the terms of the PHI scheme benefits were paid in accordance with the terms in force at the date that the claimant became incapacitated. It was the insurer, rather than the respondent, that ceased payment when the Claimant reached 65. It was clear that the Respondent did not unlawfully discriminate against the claimant because of his age during the period that it provided access to the benefit of the PHI scheme up to the date he became incapacitated for work.