Age Discrimination
Tuesday, 30 November 2021 09:50
Legal framework
- EU Directive 2000/78/EC - Defences
○ Genuine Occupational Requirement
○ Public security, public order, prevention of crime, protection of health, rights and
freedoms of others
○ Objective justification
- Equality Act 2010 (repealed the Age Regulations 2006)
○ Genuine Occupational Requirement
○ Objective Justification
Equality Act 2010 s13
1. A person (A) discriminates against another (B) if, because of a protected characteristic, A
treats B less favourably than A treats or would treat others.
2. If the protected characteristic is age, A does not discriminate against B if A can show A's
treatment of B to be a proportionate means of achieving a legitimate aim.
Compatibility with the Directive
- Concerns that the defences in the Age Regulations 2006 were not compatible with the parent
directive
- Case C-388/07 Age Concern
○ Aims must fulfil social policy aims, which were 'distinguishable from purely individual
reasons particular to the employer's situation, such as cost reduction or improving
competitiveness',
○ Aims may be identified from the 'general context' of the specific section
- Age UK [2009] ICR 260 (HC Admin) confirmed:
○ Social policy could be identified from the 'context' of the explanatory notes (paras
99-101) (to the Age Regulations 2006) and Government's 'elaborate' and publically
available consultation process ([91]-[97])
○ Any defect in the defence as originally drafted could be cured by reading it down and in
light of emerging ECJ case law ([96])
○ There was a 'clear distinction' between a government's social policy and 'individual
business saying it is cheaper to discriminate than to address the issues that the Directive
requires to be addressed' ([93])
Objective justification - retirement - legitimate aims
- Workforce planning
○ 'Attrition profile'
▪ 2006 explanatory notes (100):
□ 'for employers, being able to rely on a set retirement age allows the
recruitment, training and development of employees, and the planning of
wage structures and occupational pensions, against a known attrition
profile.'
○ 'Job blocking' or 'dead man's shoes'
▪ Idea that older workers are stopping the development and progress of younger
workers
▪ Seldon v Clarkson [2012] UKSC 16
□ Partnership agreement at the law firm - partners will retire at 65
□ Law firm argued:
'Ensuring associates were given the opportunity of partnership after a
reasonable period'
'Facilitating the planning of the partnership and workforce across
individual departments by having a realistic long term expectation as
to when vacancies will arise'
Equality Law Page 1
, to when vacancies will arise'
▪ Employment and Skills Guidebook p6 (2011)
□ 'Older workers do not tend to block opportunities for younger workers.
Evidence indicates that there was no positive effect on youth employment
from measures which allowed older workers to retire early.'
○ Encouraging pension provision
▪ 2006 explanatory notes (100) (see also Age UK [72])
□ 'encourage employees to save now and make provisions for their
retirement, and avoid them putting off career and pension planning on the
assumption that they will be able to continue working indefinitely'
▪ The 2010 Guidance (p7) notes that:
□ 'The State Pension age is not a 'retirement age' - older workers can carry on
working past their State Pension age, and continue to work while claiming
their State Pension. Alternatively, they can defer claiming their State
Pension for at least a year in return for either an enhanced pension, or a
lump sum when they do decide to claim.'
- Stability of pension scheme
○ Recognised as a social policy aim in Age UK
○ In a written statement to Parliament, the Government underpinned its policy thus:
▪ 'Furthermore, … if all employers only had the option of individually justified
retirement ages at the time the legislation was introduced, this could risk adverse
consequences for the occupational pension schemes and other work related
benefits. Some employers would instead simply reduce or remove benefits they
offer to employees to offset the increase in costs.' - Hansard Written Ministerial
Statements for 14 December 2004
○ Pension stability was recognised also by the Canadian Supreme Court in McKinney v
University of Guelph [1990] 3 SCR 229
- 'Dignity'
○ Seldon v Clarkson [2012] UKSC 16
▪ 'Limiting the need to expel partners by way of performance management, thus
contributing to the congenial and supportive culture in the firm.'
▪ Waller LJ: 'intended to produce a happy work place … [M]y experience would tell
me that it is a justification for having a cut-off age that people will be allowed to
retire with dignity' [2010] EWCA Civ 899
▪ Lady Hale: ' the philosophy underlying all the anti-discrimination laws is the dignity
of each individual, the right to be treated equally irrespective of either irrational
prejudice or stereotypical assumptions which may be true of some but not of
others. The assumptions underlying these objectives look suspiciously like
stereotyping. Concerns about capacity, it is argued, are better dealt with [as a
GOR]'
○ 2011 'Age positive' Guidance - employers should:
▪ 'Encourage an open culture of active performance management, formal or
informal, throughout workers' careers to avoid unexpected announcements,
confrontations or 'loss of dignity'.
- Health and safety
○ Physical fitness
▪ Case C-229/08 Wolf para 41: 'very few officials over 45 years of age have sufficient
physical capacity to perform the fire-fighting part of their activities … scientific
data deriving from studies in the field of industrial and sports medicine which
show that respiratory, musculature and endurance diminish with age.'
○ Protection of the public
▪ Case C-341/08 Petersen
□ German legislation retired dentists aged 68
□ 'The protection of the health of patients as performance of dentists declines
after a certain age.'
□ Framework Directive article 2(1)
'This Directive shall be without prejudice to measures laid down by
national law which … are necessary … for the protection of health…'
Equality Law Page 2
Tuesday, 30 November 2021 09:50
Legal framework
- EU Directive 2000/78/EC - Defences
○ Genuine Occupational Requirement
○ Public security, public order, prevention of crime, protection of health, rights and
freedoms of others
○ Objective justification
- Equality Act 2010 (repealed the Age Regulations 2006)
○ Genuine Occupational Requirement
○ Objective Justification
Equality Act 2010 s13
1. A person (A) discriminates against another (B) if, because of a protected characteristic, A
treats B less favourably than A treats or would treat others.
2. If the protected characteristic is age, A does not discriminate against B if A can show A's
treatment of B to be a proportionate means of achieving a legitimate aim.
Compatibility with the Directive
- Concerns that the defences in the Age Regulations 2006 were not compatible with the parent
directive
- Case C-388/07 Age Concern
○ Aims must fulfil social policy aims, which were 'distinguishable from purely individual
reasons particular to the employer's situation, such as cost reduction or improving
competitiveness',
○ Aims may be identified from the 'general context' of the specific section
- Age UK [2009] ICR 260 (HC Admin) confirmed:
○ Social policy could be identified from the 'context' of the explanatory notes (paras
99-101) (to the Age Regulations 2006) and Government's 'elaborate' and publically
available consultation process ([91]-[97])
○ Any defect in the defence as originally drafted could be cured by reading it down and in
light of emerging ECJ case law ([96])
○ There was a 'clear distinction' between a government's social policy and 'individual
business saying it is cheaper to discriminate than to address the issues that the Directive
requires to be addressed' ([93])
Objective justification - retirement - legitimate aims
- Workforce planning
○ 'Attrition profile'
▪ 2006 explanatory notes (100):
□ 'for employers, being able to rely on a set retirement age allows the
recruitment, training and development of employees, and the planning of
wage structures and occupational pensions, against a known attrition
profile.'
○ 'Job blocking' or 'dead man's shoes'
▪ Idea that older workers are stopping the development and progress of younger
workers
▪ Seldon v Clarkson [2012] UKSC 16
□ Partnership agreement at the law firm - partners will retire at 65
□ Law firm argued:
'Ensuring associates were given the opportunity of partnership after a
reasonable period'
'Facilitating the planning of the partnership and workforce across
individual departments by having a realistic long term expectation as
to when vacancies will arise'
Equality Law Page 1
, to when vacancies will arise'
▪ Employment and Skills Guidebook p6 (2011)
□ 'Older workers do not tend to block opportunities for younger workers.
Evidence indicates that there was no positive effect on youth employment
from measures which allowed older workers to retire early.'
○ Encouraging pension provision
▪ 2006 explanatory notes (100) (see also Age UK [72])
□ 'encourage employees to save now and make provisions for their
retirement, and avoid them putting off career and pension planning on the
assumption that they will be able to continue working indefinitely'
▪ The 2010 Guidance (p7) notes that:
□ 'The State Pension age is not a 'retirement age' - older workers can carry on
working past their State Pension age, and continue to work while claiming
their State Pension. Alternatively, they can defer claiming their State
Pension for at least a year in return for either an enhanced pension, or a
lump sum when they do decide to claim.'
- Stability of pension scheme
○ Recognised as a social policy aim in Age UK
○ In a written statement to Parliament, the Government underpinned its policy thus:
▪ 'Furthermore, … if all employers only had the option of individually justified
retirement ages at the time the legislation was introduced, this could risk adverse
consequences for the occupational pension schemes and other work related
benefits. Some employers would instead simply reduce or remove benefits they
offer to employees to offset the increase in costs.' - Hansard Written Ministerial
Statements for 14 December 2004
○ Pension stability was recognised also by the Canadian Supreme Court in McKinney v
University of Guelph [1990] 3 SCR 229
- 'Dignity'
○ Seldon v Clarkson [2012] UKSC 16
▪ 'Limiting the need to expel partners by way of performance management, thus
contributing to the congenial and supportive culture in the firm.'
▪ Waller LJ: 'intended to produce a happy work place … [M]y experience would tell
me that it is a justification for having a cut-off age that people will be allowed to
retire with dignity' [2010] EWCA Civ 899
▪ Lady Hale: ' the philosophy underlying all the anti-discrimination laws is the dignity
of each individual, the right to be treated equally irrespective of either irrational
prejudice or stereotypical assumptions which may be true of some but not of
others. The assumptions underlying these objectives look suspiciously like
stereotyping. Concerns about capacity, it is argued, are better dealt with [as a
GOR]'
○ 2011 'Age positive' Guidance - employers should:
▪ 'Encourage an open culture of active performance management, formal or
informal, throughout workers' careers to avoid unexpected announcements,
confrontations or 'loss of dignity'.
- Health and safety
○ Physical fitness
▪ Case C-229/08 Wolf para 41: 'very few officials over 45 years of age have sufficient
physical capacity to perform the fire-fighting part of their activities … scientific
data deriving from studies in the field of industrial and sports medicine which
show that respiratory, musculature and endurance diminish with age.'
○ Protection of the public
▪ Case C-341/08 Petersen
□ German legislation retired dentists aged 68
□ 'The protection of the health of patients as performance of dentists declines
after a certain age.'
□ Framework Directive article 2(1)
'This Directive shall be without prejudice to measures laid down by
national law which … are necessary … for the protection of health…'
Equality Law Page 2
