Silver lining: age discrimination back in the spotlight
It is difficult to measure the effectiveness of the ban on age discrimination in services, public functions and associations but a new statutory code should help improve matters, say James Davies and Lee Nair
An abundance of literature exists on
the Equality Act 2010 (the Act). And no wonder. This legislation embodies principles of equality stretching across not only the workplace but society at large. It consolidated protection against discrimination in respect of various ‘protected characteristics’, including age, disability, marriage and civil partnership, pregnancy and maternity, sex, sexual orientation, race, religion and belief.
While people in work had been protected on the grounds of age since 2006 (under the Employment Equality (Age) Regulations), provisions in the Act banning age discrimination in the field of services, public functions and associations did not come into force until October 2012. This was considerably
later than provisions relating to other forms of discrimination in this area, which were already the subject of a statutory code of practice produced by the Equality and Human Rights Commission (EHRC).
Fast forward to now. The EHRC has launched a consultation into a newly drafted statutory code specifically on age discrimination in this arena (the code), intended to supplement the existing statutory guidance on other strands of discrimination. No doubt there will be plenty of interested parties ready to give their views.
Liability for discrimination
Since October 2012, providers of services and those exercising public functions, as well as associations (under parts 3 and 7 of the Act respectively) can be liable for each of the key strands of discrimination law, namely:
- direct discrimination (where they treat a person less favourably than they treat or would treat others because of age)
- indirect discrimination (where they apply a seemingly neutral provision, criterion or practice that puts those of a particular age, including the individual in question, at a disadvantage)
- harassment (where they engage in unwanted conduct related to age, which has the purpose or effect of violating the person’s dignity, or creating an intimidating, hostile, degrading or offensive environment for the person); and
- victimisation (where they subject a person to a detriment because that person has carried out a ‘protected act’ related to age, such as asserting their rights under the Act).
Much of the text is devoted to a fairly methodical depiction of the relevant legal tests.
Avoiding liability
What is striking about the code (and by default,
the law on which it is based) is the broad scope
for acting in a way which would on first glance appear discriminatory.
First, not everyone who uses a service or public function or is involved with an association will be entitled to the Act’s protections. A bowling alley operating a blanket ban of only ever allowing adults to use its lanes because ‘youths mess around too much’ would be off the hook for age discrimination, as only those age 18 or above are protected from discrimination by service providers.
Second, the general ‘objective justification’ defence is available to claims for direct and indirect discrimination (but not harassment and victimisation). For this, any less favourable treatment must be proven as an appropriate and reasonably necessary means of achieving a legitimate aim.
This defence is not specific to the protected characteristic of age, although the ability to apply
it to both direct and indirect discrimination (rather than just the latter) is unique.
Helpfully, the code gives some examples of aims that are likely to be legitimate, such as enabling people of a particular age group to socialise together, ensuring health and safety, or preventing fraud or inappropriate use of services. It also reminds readers that a desire only to reduce costs, or aims founded on stereotypical assumptions, will not be legitimate.
Third, positive action is permitted (i.e. favouritism of certain age groups) where it helps to address an imbalance in representation. The code describes a college providing extra IT training to those age over 60 where data suggests such a need in this group.
Finally, an abundance of specific exceptions in schedule 3 of the Act permit service providers and public functions to act in ways that would otherwise be discriminatory.
Some seem more or less benign. For example, the Act permits certain age-based concessions, such as discounts; age-related holidays, such as Club 18–30; and age bands in sport where this can, inter alia, ensure fair competition or safety of participants. That is not to say that a specific exception was really needed here, where objective justification could otherwise have been used in respect of age-based decisions but will avoid unnecessary disputes and uncertainty about justification.
The Act also ensures dovetailing with certain other legislation, such as age-related restrictions on buying alcohol under the Licensing Act 2003 or entry clearance for immigration purposes. This is also explained in the code.
Areas of contention
Other exceptions are more contentious. The exception relating to financial services attracted criticism from some quarters when introduced for consultation in May 2011. No age discrimination can be committed by those doing anything in connection with the provision of a 'financial service', which is defined broadly to include banking, credit, insurance, personal pension, investment or payment nature.
Some examples of permissible activity given in the code include a ‘silver saver’ account with a higher interest rate for those over 60, or an accountancy firm offering concessionary rates to customers over 50.
The exception theoretically allows financial service providers to turn down applicants without needing to justify their decision in ways which some might find surprising and contrary to the overriding principle of equality enshrined in the Act. For example, applications from people over a certain age for a mortgage or a credit card could be declined, without the need for the service provider to justify its use of age in its decision-making.
There is no obligation in the Act to carry out a risk assessment before making a decision related to age – there are simply obligations on the manner in which an assessment should be carried out if it is done. This would appear to allow providers not to apply their minds to the issue at all but has the benefit of focusing on 'outcomes' and not process.
However, the code does provide some hitherto lacking guidance for when assessments are carried out, specifically on what would make them ‘relevant’ and ‘reasonable to rely on’ in the context of the Act.
As the code is statutory, it can be used as evidence in legal proceedings and more guidance on anti-abuse of the financial services exception would have been welcome.
Another big question during initial consultation on the Act was whether the provision of health services should be subject to the ban on age discrimination in its entirety. In particular, there was much debate about how the ban should operate in the NHS.
In the end, it was decided that there should be no special exceptions. This means that any age limits on NHS treatment (for example, surgery or chemotherapy) must be objectively justified. The code gives an example that restricting access to vaccines is justified if there is evidence to show a slower and less effective response in a particular age group and not offering to them will increase the health of the population as a whole.
It is unlikely the code will be used as a meaningful source of guidance for those in the NHS, given that more in depth guidance has already been issued by the Department of Health.
Ban in practice
EHRC is seeking responses on both its supplemental code and the potential costs and benefits of the ban on age discrimination in services, public functions and associations. The consultation closes on
2 May 2014.
Feedback will no doubt come from a broad range of service providers and associations potentially affected by the law and code, such as in the field of health and social care, financial services, travel, recreation, sport and transport. ELA also intends to give its thoughts in more depth in its response to the consultation.
It is difficult to measure the effectiveness of the ban on age discrimination in services, public functions and associations to date. One potential impact of the code will be to attract more attention to the scope of the Act in these areas with the probable increase in awareness among potential claimants of their potential rights.
The code does not amend any flaws that exist in the law on which it is based. But nor can we expect it to. If we judge it against its own aim – to provide “a comprehensive and technical guide to the law” – it does not at first glance do so badly.
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AGE DEBATE: FROM SOLICITORS TO STARS
Age discrimination in the workplace and in higher and vocational education has been unlawful since 2006. The Equality Act 2010 extended the protection to consumers and users of goods and services, to prevent people being treated less favourably and without justification on the basis of their age.
It can be a difficult claim to succeed with, certainly in the employment tribunals. One reason is that the test for many potential cases of age discrimination is whether the discrimination can be ‘justified’. Unlike most other types of discrimination, age discrimination can be objectively justified and considered lawful for direct as well as
indirect discrimination.
There is also the significant cost in pursuing a claim to consider, particularly for those who are of an older age for whom there is a real risk that they may not work again.
Many practitioners (not only those of a certain age) will be familiar with and interested in the case
of Mr Seldon, who claimed that an enforced retirement date in the partnership deed of his law firm was direct discrimination and therefore unlawful. After a number of appeals, the case made its way to the Supreme Court, where it was sent back to a tribunal to decide whether the firm could defeat the direct age discrimination claim.
The tribunal decided that although the firm setting a retirement age of 65 was direct age discrimination, it could be justified because it was a proportionate way of achieving legitimate aims, namely workforce planning, to provide access to partnership for junior solicitors and avoid them looking elsewhere for other opportunities. At the time, the statutory retirement age of 65 remained in place so similar arguments may not now succeed.
Of course, it is easy to forget that discrimination can happen at both ends of the age spectrum. I have previously commented on my own experiences, where clients have expressed some surprise at my ‘perceived’ age. I’m pleased to hear that I am not alone: a well-known journalist was recently asked at his workplace whether he was on work experience.
Some sectors attract greater criticism than others. Recently, the octogenarian staple of Saturday night television, Sir Bruce Forsyth, put his retirement from BBC1’s Strictly Come Dancing not down to his own abilities, but the criticism he was receiving from the press: “It’s live every week and if I made a mistake [they would say]: ‘Oh he’s 86 years old and past it.’ I was getting all that, which you don’t need...”
The BBC is no stranger to claims of age discrimination, although it is usually older women who feel sidelined, with former Countryfile host Miriam O’Reilly succeeding in her own claim of discrimination and spearheading a revolt. And last year, Channel 4 racing pundit John McCririck raised similar allegations against the broadcaster, but ultimately failed in his claim of age discrimination.
There is little doubt that age will continue to be a factor in assessing ability (or perceived ability), but as employers and service providers become more aware of the risks involved, tribunals and courts will have to become more wise to attempts, overt or otherwise, to escape liability and to properly justify any policies, procedures or decisions that directly favour one age group over another.
Kevin Poulter is editor at large of Solicitors Journal
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James Davies is a partner and Lee Nair an associate at Lewis Silkin. Davies is also chair of ELA's working party on the EHRC age discrimination statutory code of practice on services, public functions and associations