Mr R Wagener v The Commissioners for Her Majesty’s Revenue and Customs and 1 other — 2019

The claimant, a Grade 6 HMRC employee, alleged that slow progression through the Grade 6 pay band indirectly discriminated against him because, given his age when promoted and his intended retirement age, he had no realistic prospect of reaching the maximum salary before retirement. The tribunal accepted, for strike-out purposes, the claimant's factual case and considered whether the way he defined the relevant age group could support an indirect age discrimination claim.

The tribunal found it was arguable that slow pay progression, implemented through a series of small annual pay awards, could amount to a provision, criterion or practice. However, it held that the claimant's proposed disadvantaged group was not an age group within section 5 Equality Act 2010 because it was defined by age at the time of promotion and by the disadvantage of being unable to reach maximum salary before retirement, rather than by current age or a current age range.

Because the claimant had expressly maintained that definition and did not wish to rely on an alternative age group, the tribunal concluded that the claim would inevitably fail: there was no group disadvantage and therefore no indirect discrimination. The claim was struck out as having no reasonable prospect of success. The tribunal did not determine whether the claim was in time or whether it would be just and equitable to extend time.