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08 January 2021 / Charles Pigott
Issue: 7915 / Categories: Features , Employment , Discrimination
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Pay freezes, ‘costs plus’ & indirect discrimination

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Charles Pigott takes the measure of the ‘costs plus’ rule of thumb in age discrimination cases
  • The Court of Appeal has confirmed that the discriminatory impact of slowing pay progression in the probation service could be justified in the context of the last public sector pay freeze.
  • The ruling examines the usefulness of the ‘costs plus’ test as a way of distinguishing between lawful and unlawful policies when these disadvantage protected groups.

The origins of the dispute in Heskett v Secretary of State for Justice [2020] EWCA Civ 1487, [2020] All ER (D) 72 (Dec) go back to the public sector pay freeze imposed by the coalition government after it took power in 2010. The Court of Appeal’s decision was announced two weeks before the 2020 spending review, in which the chancellor announced another pay freeze for the whole public sector, excluding the NHS.

The Court of Appeal, reaching the same conclusion as the Employment Appeal Tribunal (EAT) ((2019) UKEAT/0149/18, [2019] All ER (D) 12 (Jul)), dismissed

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