IER Equality and Discrimination Conference

Justifying Direct Age Discrimination

January 2013

Introduction

• Repeal of DRA since October 2011• Compulsory retirement of a worker on reaching a

certain age is directly discriminatory because of age• What does this mean for unions who have a

compulsory retirement age in collective agreements?

• What about those who want to work beyond a compulsory retirement age?

• Can length of service, as a criterion for determining entitlement to enhanced benefits, still apply?

Justifying Age Discrimination

S.13(2) Equality Act

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

Legitimate Aim (1)

Seldon v Clarkson Wright and Jakes [2012] ICR 716

• Need to retain associates by giving them the opportunity of partnership;

• Enable workforce planning by knowing when vacancies will arise;

• Limit the need to expel partners on performance grounds.

Legitimate Aim (2)

Intergenerational fairness;• Preserving dignity• Facilitating access to employment by young people;• Enabling older people to remain in employment;• Sharing limited opportunities to work in a particular

profession between the generations; and• Promoting diversity and the interchange of ideas

between younger and older workers.Avoiding the:• Need to discriminate older workers because of their

performance;• Need for costly debates about capacity or worker

performance.

Legitimate Aim (3)

• Costs:– In Woodcock v Cumbria Primary Care NHS Trust

CA costs plus – Fuchs v Land Hessen C159-10 – budgetary

considerations of a social policy• Health and Safety

– Prigge and others v Deutsche Lufthansa [2011] IRLR 1052

Is the aim legitimate in the circumstances?

• Does it encourage recruitment of younger workers?

• Are there performance procedures in place?

• Hampton v Lord Chancellor [2008] IRLR 258

Proportionality

• Are the means to achieving the legitimate aim appropriate and necessary?

• Involves balancing the reasonable business needs of the employer (e.g. economic or administrative efficiency) against the discriminatory impact. The more discriminatory the impact the greater the business need will have to be in order to be able to justify it.

Some EU Examples

Rosenbladt v Oellerking Gebaudereinigingsges mBh [2011] IRLR 51

– Contract collectively negotiated– Employee will receive a pension– Compulsory retirement widespread without

effects on level of employment

Fuchs and Köhley v Land Hessen [2011] EqLR 990

Action Points for Unions

1. Revisit collective agreements;

2. Review retirement age;

3. Consider alternative retirement age(s);

4. Check if there is support amongst the workforce.

Working beyond Retirement Age?

Alternatives

• Cambridge University

• Georgiev v Tehnicheski universitet-sofia, filial Plovdiv [2011] EqLR 84

Length of Service

EqA 2010 Sch 9 part 2 para 10(1) It is not an age contravention for a person (A) to

put a person (B) at a disadvantage when compared with another (C) in relation to the provision of a benefit, facility or service in so far as the disadvantage is because B has a shorter period of service than C”

(2) If B’s period of service exceeds 5 years, A may rely on sub paragraph (1) only if A reasonably believes

that doing so fulfils a business need

Conclusion

• Check Collective agreements

• Financial cushion

• Evidence in support