In MacCulloch v Imperial Chemical Industries PLC [2008] UKEAT/0119/08 the EAT considered direct and indirect age discrimination claims relating to a contractual redundancy scheme where the payments due were calculated on the basis of the employee's age and length of service, but did not mirror the statutory scheme.

The EAT held that, while the tribunal had identified certain legitimate aims of the scheme, it had not properly determined if the measures adopted were proportionate ways of achieving those aims. It remitted the case to the tribunal to decide the question of proportionality. In reaching this decision, Elias P gave some useful indications on what may be a legitimate objective and how an employer could justify such a scheme. He also gave his view on how the tests for justifying direct and indirect discrimination may differ.