Defence to Both Direct and Indirect Discrimination

‘In view of a justification defence to both direct and indirect discrimination, the law will continue to do little to prevent age discrimination’

Critically evaluate this statement as a reflection of the current position of the law in this area.

The current law on discrimination is laid down in the Equality Act 2010. Age is one of the protected characteristics within the Act. The term ’’Age’’ refers not only to a person’s age, but also to persons in a particular age group. The Equality Act stipulates that direct discrimination occurs where a person treats less favourably another due to the latter’s protected characteristic. Thus, there must be a comparator to compare with. If one does not exist, the court would create an imaginary comparator. The comparator must be in the same or not in a materially different position from the plaintiff in all aspects with the exception of being a member of the protected class. The comparison exercise must be reasonable. The Tribunal applies an objective test for less favourable treatment. Indirect discrimination can be claimed where there is an ostensibly neutral provision, criterion or practice which indirectly discriminates against the claimant. The indirect discrimination provisions are aimed to tackle ’’disguised age barriers’’ rather than barriers stemming from retirement. Thus, the fact that an individual cannot obtain a qualification needed for a promotion before retirement does not mean that he has been discriminated against.

In contrast to other forms of direct discrimination, direct age discrimination can be justified. Although the motive for discriminating is irrelevant, the employer could raise a defence that the discriminatory acts were proportionate means of achieving a legitimate aim. Legitimate aims and proportionality are distinct issues which must be examined by separately by the Tribunal. Indirect discrimination is justified using the same principle. The Tribunal must strike an objective balance between the discriminatory effect of the provision and the reasonable needs of the business. There must be a need for the provision and it must be reasonably necessary.

The peculiarities of age as a protected characteristic should be pointed out. Age discrimination includes a wide range of objective justifications unlike sex discrimination where there are very few and race discrimination where there are virtually none. This is logical given the fact that age discrimination is related to many complex issues such as retirement, business needs or working culture. Such peculiarities superficially imply that in most occasions, the employer’s policies would be justifiable and age discrimination claims should be a response only to the most heinous conduct. Even though direct discrimination claims are becoming a rare phenomenon as most companies have developed solid equal opportunities policies and training, there have been several recent direct age discrimination cases where managers have made discriminatory remarks in view of the employee’s performance. Furthermore, a 2012 DWP report pointed out that age-related assumptions and stereotypes are still prevalent in the UK. Thus, a careful balancing act between the employer’s legitimate aims and the severity of the discriminatory measure is prudent.

The background of the current legislation should also be considered. The Equality Act 2010 is a consolidating legislation, replacing the provisions of the Employment Equality (Age) Regulations 2006 which implemented the Equal Treatment Directive. In that regard, the objective justification defence is a recognised concept in EU Law. In Incorporated Trustees of the National Council on Aging v Secretary of State for Business, Enterprise and Regulatory Reform (the Hayday case) The European Court of Justice acknowledged that it is acceptable to derogate from the provisions of the Equal Treatment Directive relating to age discrimination in situations where there are legitimate public interest objectives. The means of implementing the objectives must be appropriate to the aim and reasonably necessary for its achievement. The Court has recognised legitimate objectives such as inter-generational fairness and dignity. A policy, criterion or provision which is justified based on staff retention and workforce planning meets the inter-generational fairness objective. Avoiding the necessity to dismiss older workers on the basis of incapacity or underperformance has been directly related to the dignity objective. Avoiding the need for expensive and divisive disputes about capacity and underperformance would also meet said aim. However, it is recognised that direct and indirect age discrimination cannot be identically justified.

Age Discrimination and Retirement

An example of a discriminatory but justifiable provision is a legislation permitting compulsory retirement on the ground of age. The European Court has held that said legislation was necessary for checking unemployment and encouraging recruitment. A compulsory retirement clause for partners in a law firm has also been justified on the grounds that it allowed associates of the firm the opportunity of partnership after a reasonable period; facilitated the planning of the partnership by having a realistic long term expectations as to when vacancies would arise; and limited the need to expel partners by way of performance management, which contributed to the collegiate environment within the firm.

In Harrod v Chief Constable of West Midlands Police the authority applied a compulsory retirement provision within the Police Pensions Regulations 1987 to force a large number of officers to retire. Generally, a discriminatory practice is not justifiable on the basis of cost but may be justified on the basis of efficiency. However, the distinction between the two can sometimes be blurred. Improving efficiency was accepted by the Tribunal as a legitimate aim. However, the measure was disproportionate. The discriminatory practice was applying the Regulation to all officers only because they were within its ambit. There were other less discriminatory alternatives such as voluntary retirements, part-time working and career breaks, which were not considered.

In Bloxham v Freshfields Bruckhaus Deringer the Tribunal held that Bloxham had been treated less favourably than partners aged 55 or over as, being only 54, he was subject to a 20 per cent reduction. However, modification of the pension scheme to make it more financially sustainable and fairer to younger partners was held to be a legitimate and necessary aim and the firm had successfully demonstrated that the amendments were a proportionate means of achieving this aim.

Access to Employment

Another example of a justifiable policy is restricting a job position to applicants over a certain age. This constraint may be reasonable considering the requirements of the job in question. In the same spirit, the Equality Act recognises an exception to some of its provisions relating to promotion and access to employment if the employer can demonstrate that age is an occupational requirement and that said requirement is a proportionate means of a achieving a legitimate aim. This is particularly relevant for professions within the film or sports sectors.

Enhanced Redundancy Payments

The Equality Act permits employers to consider age as a factor when deciding whether to make an enhanced redundancy payment. Although such practices may be prima facie discriminatory, there have been many cases of recognised justifications. For example, a redundancy scheme whereby payments are raised depending on age and length of service was held to meet legitimate aims. Such aims were: encouraging loyalty, supporting older workers who are more vulnerable in the job market and providing an incentive to older workers to volunteer for redundancy, which would free senior posts for younger employees. In another example, the employer, DWP, justified an enhanced payment for older employees as part of a scheme by presenting evidence which demonstrated that older employees were unemployed for a longer period of time and had more family and financial responsibilities. The aim of the enhanced payment policy was to provide proportionate monetary support until the employee finds other employment or retires. The court recognised that even though the scheme could have been made non-discriminatory at no extra cost by reducing the payments, this did not render the scheme disproportionate. This implies that there is no requirement that it is absolutely necessary to take into account whether there are alternative, less discriminatory measures. It was also recognised that due to the nature of the scheme, the individual circumstances of the claimant could not be taken into account. The caveat is that such subtleties may serve as a carte blanche for employers to discriminate on the grounds of age.

Dismissal due to Age

Although in both direct and indirect discrimination the Tribunal employs the same test, following Seldon v Clarkson Wright and Jakes the employer must demonstrate a social policy aim not merely a private business aim to justify direct discrimination. Because of the more severe nature of direct discrimination, it is not illogical to argue that more scrutiny should be placed on the legitimacy of the employer’s objectives and the proportionality of its measures.

In O’Reilly v BBC the plaintiff was successful in her claim for age discrimination. The company dismissed her in order to change the image of the Countryfile program to appeal to a younger audience. The tribunal acknowledged that this was a legitimate aim, but it held that the measure was disproportionate as it was not necessary to replace the plaintiff with younger presenters to achieve the aim. Similarly, in McCririck v Channel 4 Television Corporation the claimant was dismissed in order to change the image of the program. An important distinguishing point in that case was that the defendants conducted a research exercise which identified negative views associated with the claimant’s image and character. No such research was carried out in O’Reilly. Moreover, Channel 4 considered the plaintiff’s personal qualities, particularly his reputation as holding old-fashioned views, which were indirectly linked with his age. The Tribunal concluded that the defendants have used proportionate means.

An interesting point is that in McCririck, the decision to dismiss was justified by evidence and based to a larger extent on the plaintiff’s style and to a lesser extent on his age. In contrast, in O’Reilly, the decision was based primarily on the stereotype that the plaintiff could not appeal to a younger audience because she was older. This serves as an example of a situation where the law should intervene to protect the employee from counterproductive stereotypes which may, in certain situations, by disguised under neutral, ubiquitous policies.

In conclusion, the cases examined demonstrate the wide array of justifications within different contexts. Some of the justifications appear to be specific only to age discrimination. Objectives such as dignity may be unnecessarily vague particularly against the background of a company policy or scheme where the employee’s individual’s circumstances are seldom a relevant consideration. Justifications such as avoiding the need for costly and divisive disputes can be controversial in light of the potential harm suffered by the plaintiff. Medical research by Florida State University College of Medicine demonstrated that older people who perceive age discrimination experience lower physical and emotional health than people who perceive sex or race discrimination. In that regard, cases such as O’Reilly and McCririck represent an illustrative example of the very thin line between a proportionate measure based on evidence and a measure based on stereotype.

BIBLIOGRAPHY

Books

Bell, A; Employment Law (2nd edn; Sweet & Maxwell, London 2006)

Honeyball, S; Honeyball & Bowers’ Textbook on Employment Law (11th edn; Oxford University Press, Oxford, 2010)

Slewyn, N; Selwyn’s Law of Employment (16th edn; Oxford University Press, Oxford, 2011)

Online Resources:

The Lawyer, ‘Age Discrimination Time for Revision’ http://www.thelawyer.com/download.aspx?ac=68830 accessed 20 July 2014

Legal Week Law, ‘More than just a number – three key age discrimination lessons from recent cases’ http://www.legalweeklaw.com/download/-key-age-discrimination-lessons-recent-20289 Legal Week Law accessed 20 July 2014

Richard Lister, ‘Channel 4 dismissed John McCririck because of style, not age’ [2013] Lewis Silkin http://www.lewissilkin.com/Knowledge/2013/December/Channel-4-dismissed-John-McCririck-because-of-style-not-age.aspx#.U8w07vumXlQ accessed 20 July 2014

Table of Statutes

EC Directive 2000/78/EC

Employment Equality (Age) Regulations 2006

Equality Act 2010, c.5, c.13, c. 13(2), c.19,c. 39(1) (a); c.39 (1) (c); c.39 (2) (b); c. 39(2) (c); Schedule 9, paragraph 1; Schedule 9, paragraph 13

Table of Cases

Bloxham v Freshfields Bruckhaus Deringer ET 2205086/2006

Clements v Lloyds Banking plc UKEAT/0474/13/JOJ

Eweida v British Airways [2010] EWCA Civ 80

Homer v Chief Constable of West Yorkshire Police [2010] EWCA Civ 419

Incorporated Trustees of the National Council on Aging v Secretary of State for Business, Enterprise and Regulatory Reform (the Hayday case) [2009] All ER (EC) 619

James v Eastleigh BC [1990] 2 AC 751

James v Gina Shoes Ltd UKEAT/0384/11/DM

Lockwood v Department of Work and Pensions [2013] EWCA Civ 1195

MacCulloch v ICI plc [2008] ICR 1334

McCririck v Channel 4 Television Corporation ET 2200478/2013

O’Reilly v BBC ET 2200423/2010

Network Rail Infrastructures v Gammie (EAT (Scotland), 6 March 2009)

Palacios de la Villa v Cortefiel el Servicios SA [2008] All ER (EC) 249

Seldon v Clarkson Wright & Jakes [2012] UKSC 16

Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11

Smith v Safeways Stores [1996] IRLR 456

Wolf v Staldt Frankfurt am Main [2010] IRLR 244

Footnotes

S. 5 Equality Act 2010

N Slewyn, Selwyn’s Law of Employment (16th edn; Oxford University Press, Oxford, 2011) p.141

S.13 Equality Act 2010

Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11 per Lord Scott of Foscote

See Eweida v British Airways [2010] EWCA Civ 80

Smith v Safeways Stores [1996] IRLR 456

S.19 Equality Act 2010

Homer v Chief Constable of West Yorkshire Police [2010] EWCA Civ 419

James v Eastleigh BC [1990] 2 AC 751

S.13(2) Equality Act 2010

MacCulloch v ICI plc [2008] ICR 1334, EAT

Network Rail Infrastructures v Gammie (EAT (Scotland), 6 March 2009)

Clements v Lloyds Banking plc UKEAT/0474/13/JOJ; James v Gina Shoes Ltd UKEAT/0384/11/DM

The Lawyer, ‘Age Discrimination Time For Revision’ http://www.thelawyer.com/download.aspx?ac=68830 accessed 20 July 2014

[2009] All ER (EC) 619

EC Directive 2000/78/EC

Seldon v Clarkson Wright & Jakes [2012] UKSC 16

Seldon v Clarkson Wright & Jakes

Palacios de la Villa v Cortefiel el Servicios SA [2008] All ER (EC) 249

Seldon v Clarkson Wright & Jakes

ET 2205086/2006

Wolf v Staldt Frankfurt am Main [2010] IRLR 244, ECJ

s.39(1) (a); s.39 (1) (c); s.39 (2) (b) and s.39(2) (c) Equality Act 2010

Equality Act 2010, Sch 9, para 1

Equality Act 2010, Sch 9, para 13

MacCulloch v ICI plc [2008] ICR 1334

Lockwood v Department of Work and Pensions [2013] EWCA Civ 1195

[2012] IRLR 590

ET 2200423/2010

ET 2200478/2013

Richard Lister, ‘Channel 4 dismissed John McCririck because of style, not age’ [2013] Lewis Silkin http://www.lewissilkin.com/Knowledge/2013/December/Channel-4-dismissed-John-McCririck-because-of-style-not-age.aspx#.U8w07vumXlQ accessed 20 July 2014

The Lawyer, ‘Age Discrimination Time For Revision’ http://www.thelawyer.com/download.aspx?ac=68830 accessed 20 July 2014