The answer is still no, according to the Court of Appeal, but the good news is that they can still be taken into account.
As a general rule employers cannot justify direct discrimination, i.e. less favourable treatment that is directly linked to a particular protected characteristic. Age discrimination is slightly different – the legislation makes it clear that even direct age discrimination can be justified, provided that the employer can point to alegitimateaim and the means of achieving that aim are proportionate, the same test that applies when considering whether acts of indirect discrimination can be justified. Until recently the advice to employers has always been that they cannot justify discriminatory behaviour solely on considerations of cost, i.e. that it would have been too expensive not to discriminate. They are, however, entitled to put cost into the balance together with other justifications, the “cost-plus” principle.
In 2010 the President of the EAT threw a spanner in the works in Woodcock v Cumbria Primary Care Trust, when he suggested (albeit in passing and so not in binding form) that employers should be able to justify discrimination on the basis that the cost of doing otherwise would be disproportionately high. Last week the Court of Appeal had an opportunity to consider his comments.