Ben Power’s article “Age discrimination is still the same old problem” was published in the prestigious law pages of The Times newspaper on 2 August 2018. Ben’s article discusses the conundrum of balancing equality for older workers against fairness for younger generations.
A long way to go?
Age discrimination is unique among the equality strands in that it is widely viewed as a benign – what’s wrong with cheap theatre tickets for the young, or concessionary travel for the old, most people would ask?
Indeed, when age discrimination laws were first introduced in 2006 they contained a slew of specific exemptions to ensure such age based treatment regarded as positive did not fall foul of the new legislation.
Since then it’s fair to say that age discrimination laws haven’t really made much difference; it’s still socially acceptable to make comments and jokes about someone’s age – in a way which it most certainly would not be about someone’s race or disability.
What does the law say?
Age discrimination laws apply not only in the workplace but also cover those who provide goods and services.
Direct age discrimination is the only equality strand which may be objectively justified by an employer, and therefore held not to be unlawful. For all the other strands (disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex and sexual orientation) the motive for direct discrimination is irrelevant, there is no defence (other than a few far more limited exemptions).
Justification of direct age discrimination was scrutinised by the Supreme Court in the case of Seldon v Clarkson Wright and Jakes in 2012 in the context of the forced retirement of a partner in a law firm at the age of 65. It considered that the firm’s stated aims of staff retention, workforce planning and dignity were legitimate social policy objectives and, on remission to an employment tribunal the retirement age was held to be proportionate and therefore not discriminatory. Whether a court would have as much sympathy with the employer today remains to be seen.
Is the tide turning?
It was reported earlier in the summer that a former TUI airline pilot, Wayne Bailey, had lodged judicial review proceedings against the UK CAA challenging rules that prevent those over 65 working as commercial pilots. While the default retirement age of 65 has been abandoned by many employers as they cannot justify it, it is interesting to see that even those who still seek to enforce a retirement age due to the particular requirements of their business are under pressure to change.
The issue of intergenerational fairness has already manifested itself in law firms, as shown in the early case of Bloxham v Freshfields in 2006. An employment tribunal rejected a claim of direct age discrimination by a former partner related to changes to the firm’s pension scheme, the aim of which was to be fairer to younger partners and make the scheme more financially sustainable. It accepted the firm’s argument the changes were justified and therefore not discriminatory.
Intergenerational fairness and age discrimination are inextricably linked; it seems likely that the Courts and tribunals will increasingly be asked to resolve this conundrum as the trend towards greater awareness of age equality laws (and willingness to use them) for both the old and young gathers pace.
If you subscribe to The Times you can read Ben’s article in full at: https://www.thetimes.co.uk/edition/law/age-discrimination-is-still-the-same-old-problem-zmcxnjnsb