Employment Bulletin
18 April 2008
Age Discrimination and Benefits
Swann v GHL Insurance (ET)
There is a continuing problem over the question of benefits which either cost more for older workers or are not available for older workers, for example, health and life insurance.
GHL provided a fund to staff with which staff could buy items of their choice from a flexible benefits package. One option in the package was private health insurance. The premiums were calculated by the insurer according to age and gender. Because of her age, the premium in Mrs Swann's case was more expensive than the total fund available to her to make purchases from the flexible benefits package.
She claimed age discrimination. The Tribunal said that the relevant act for this purpose was the provision of the fund to staff to enable them to purchase from the flexible benefits package. The amount of the fund was age neutral because it was based on a percentage of salary, and this could not be discriminatory.
More generally, can the inclusion of one item which is discriminatory in a basket of flexible benefits be justified? According to this case, there would be a justification defence if the employer can show a legitimate aim (such as recruitment and retention), show that it acted on considered professional advice, and show actual evidence that the benefits did in fact further the legitimate aim of retention and recruitment. In this case a staff survey was available to prove this aspect of the justification.
This is only a decision at tribunal level. There is likely to be more law on this difficult topic.
For further information, please contact Julie Davies: jdavies@vwl.co.uk
Depression Awareness Week
There is helpful guidance from ACAS on the issue of depression at work. This can be accessed in the following link:
http://www.acas.org.uk/CHttpHandler.ashx?id=854&pn
For further information, please contact Juliane Brustinow: jbrustinow@vwl.co.uk
This publication is for guidance only. Reliance should not be placed upon it and nor should action be taken, without obtaining advice in respect of the specific circumstances applicable. We will be pleased to provide such advice or assistance.
