Age is a protected characteristic under s.4 of the Equality Act 2010, and it is the only one an employer may justify discriminating against directly. Section 13(2) provides that there is no direct discrimination if the treatment is a proportionate means of achieving a legitimate aim, but Seldon v Clarkson Wright and Jakes confines that defence to aims of a public interest nature — inter-generational fairness, the dignity of older workers — rather than reasons particular to the employer such as cost. The test is narrower than for indirect discrimination under s.19, where Homer v Chief Constable of West Yorkshire governs both particular disadvantage and the structure of the proportionality exercise.
Section 5(2) lets the claimant define the disadvantaged age group, by a single age or a range, and the EHRC Employment Code accepts a relative group such as those 'older than me'. Two consequences follow. The protection runs in both directions: young workers are covered, and so is treatment based on perceived age or on association with someone of a different age, both now carried by the words 'because of a protected characteristic' in s.13(1). And the age gap between claimant and comparator need not be large — see Palmer v Royal Bank of Scotland plc — though absent a cut-off age Citibank NA and ors v Kirk holds that a small gap makes it less likely the treatment was because of age.
Age-related conduct is also caught by the harassment provisions in s.26, where tribunals apply both the subjective effect on the claimant and the objective question whether it was reasonable for the conduct to have that effect. Schedule 9 then carves out exceptions unique to age: service-related benefits, the national minimum wage, enhanced redundancy payments, life assurance, contributions to personal pension schemes and childcare benefits. On EU law, Mangold v Helm and Kücükdeveci v Swedex established age equality as a general principle, but para 3 of Schedule 1 to the European Union (Withdrawal) Act 2018 has closed off any free-standing claim built on it; both now serve as interpretive aids only.
Age discrimination; EU law; German legislation permitting fixed-term contracts without restriction for workers over 52 was not justified. The ECJ held that the prohibition of discrimination on grounds of age is a general principle of Community law, to which Directive 2000/78 merely gives expression, so that national law conflicting with it must be set aside even before the transposition period has expired. Its practical reach in the United Kingdom is now spent: para 3 of Schedule 1 to the European Union (Withdrawal) Act 2018 excludes any claim founded on a general principle of EU law, so the case cannot be used to argue for protection beyond that given by the Equality Act 2010.
Age discrimination; justification; the 'reasonable needs' of the business must be balanced against the discriminatory effect.
Age discrimination; justification; the standard of proof on a Member State. Article 6(1) of Directive 2000/78 permits national law to provide that differences of treatment on grounds of age are not discrimination where objectively and reasonably justified by a legitimate aim, and a Member State need not list the kinds of difference that may be justified — but the aims capable of justification are restricted to social policy objectives such as employment policy, the labour market or vocational training. Article 6(1) places on the Member State the burden of establishing the legitimacy of the aim to a high standard of proof: mere generalisations will not do. Whether the domestic measure is 'appropriate and necessary' is for the national court.
Age discrimination; justification; compatibility of the domestic power to justify direct discrimination. On the reference back from the ECJ, Blake J held that Reg 3 of the Employment Equality (Age) Regulations 2006 — the provision permitting direct age discrimination to be justified, now s.13(2) of the Equality Act 2010 — was compatible with Directive 2000/78: the Government's social policy concern to protect the confidence and integrity of the labour market met the requisite high standard, and aims found in the legislative background rather than the Regulations themselves did not offend legal certainty. The default retirement age of 65 was upheld on the material then before the court, but Blake J observed that a State enjoys a broad margin of appreciation whereas an individual employer justifying a particular act faces a more rigorous task.
Age discrimination; EU law; a German rule disregarding service before the age of 25 when calculating notice periods was unlawful. The ECJ confirmed that non-discrimination on grounds of age is a general principle of EU law to which Directive 2000/78 gives expression, and that a national court must disapply conflicting national law. Note that para 3 of Schedule 1 to the European Union (Withdrawal) Act 2018 now excludes claims founded on general principles of EU law, so the case survives in domestic practice as an interpretive aid only.
Age discrimination; justification of direct discrimination; mandatory retirement. The test under s.13(2) of the Equality Act 2010 is narrower than for indirect discrimination: direct age discrimination can be justified only by aims of a public interest nature consistent with the social policy objectives of Directive 2000/78, not by reasons particular to the employer's own situation such as cost. Inter-generational fairness and preserving the dignity of older workers are capable of being such aims. The aim must be legitimate in the particular circumstances of the employment concerned, and the means chosen must be both appropriate and reasonably necessary — so a retirement age adopted for a legitimate aim may still fail if the age selected cannot be justified. Remitted on whether 65 was the right age.
Age discrimination; indirect; particular disadvantage and the structure of the justification exercise. A requirement to hold a law degree for the top grade put Mr Homer, who was four years from retirement, at a particular disadvantage because of his age: the disadvantage need not flow from the age group's inability to comply, only from the fact that age made compliance futile. On justification the Supreme Court did not decide the point but remitted it, the tribunal having failed to approach proportionality 'in a suitably structured way' — it must weigh the discriminatory effect against the employer's reasonable needs and ask whether a less discriminatory alternative (such as a grandfather clause) would have served the aim.
EWCA Civ 1195 - Age discrimination; redundancy; a redundancy scheme paying less to younger workers was objectively justified.
Age discrimination; comparators; no dramatic age gap is required. In a restructuring, RBS offered those who would be old enough at their projected leaving date the chance to revisit their choice and take voluntary early retirement. The claimant, then 49, fell below the threshold and was not given that opportunity. Her claim failed: she was precluded by the terms of the pension scheme from taking the benefit her comparators could take, so there was a material difference in circumstances and no valid comparator under s.23. Her selection of comparators only a year or so older than herself was not itself challenged, which is why the case is cited for the proposition that the difference in age between claimant and comparator need not be a large one. Contrast Citibank NA and ors v Kirk, where the absence of a cut-off made a small gap tell against the claim.
EWCA Civ 2844 - Discrimination; age; transitional pension provisions protecting older judges were unlawful age discrimination.
Age discrimination; comparators; the significance of a small age gap. Because s.5(2) of the Equality Act 2010 permits an age group to be defined by a single age or a range, age discrimination can arise on a small difference in age, and is most likely to do so where the employer applies a cut-off age for a benefit or a detriment. Absent such a 'cliff edge', Choudhury P held at [62] that 'a relatively small difference in age may render it less likely that the discriminatory treatment is because of age'. The particular ages matter: two years between an 18- and a 20-year-old may signify far more than the same gap between two people over 40, and a small gap between protagonists in their 50s may without more make age an implausible reason. That is not a rule of law barring such claims, but they attract careful scrutiny. The tribunal had erred in not engaging with the respondents' evidence that the claimant (55) and his comparator (51) were regarded as being in the same age bracket.
Age discrimination; redundancy; using 'length of service' as a tie-breaker was justified.