Justifying age discrimination?

Many managers and people working in HR will have grown used to the concept of age discrimination over the last ten years or so since regulations came into effect making it unlawful to discriminate in employment on the grounds of age.

As with many changes in the law, when the concept of making age discrimination unlawful first surfaced it had a decidedly mixed reception. For everyone who thought that it was high time that older people received similar protection from harassment, victimisation and less favourable treatment as other workers in minority groups there were the same number if not more people who thought that this additional strand of discrimition caused an unnecessary burden on business.

Now that age discrimination has been embedded in the Equality Act 2010 and the default retirement age has been removed there appears to have been a positive shift in the opinion not only of managers, business and those working in HR but in society as a whole towards the idea of age discrimination and the ability of older workers.

Nevertheless there is no doubt that age discrimination has made it possible for workers to find new ways of claiming against their employer in the Employment Tribunals.  Everyone has an age and therefore claims have not just been restricted to older workers with numerous successful age discrimination claims being made by workers who have been discriminated against for being “too young” as well.

Despite the fact that discrimination claims are now theoretically open to everyone the deluge of Tribunal claims predicted ten years ago by those sceptical about age discrimination has not materialised and age discrimination remains the poor relation of the other strands of discrimination with the latest Employment Tribunal statistics revealing that there are roughly twice the number of race discrimination claims and around six times as many sex discrimination claims.

One of the main reasons for this is because of the way the law is drafted. The critical difference between age discrimination and the other forms of discrimination is that both direct and indirect age discrimination can be justified if the discrimination is:

1. intended to achieve a legitimate aim; and
2. a proportionate means of achieving that aim

This defence was successful in the recent Employment Appeal Tribunal (EAT) case of Braithwaite and ors v HCL Insurance BPO Services Ltd.

The EAT found that the employer’s requirement that its employees agree to new terms and conditions or be dismissed put employees in the age group 38-64 at a particular disadvantage because it was they who had built up greater entitlements through longer service. The employer’s actions would therefore be unlawful age discrimination unless they could be justified.

However, given that there was no practical alternative open to the employer, the disadvantage caused to older employees was justified as a proportionate means of achieving the employer’s legitimate aim of reducing staff costs to ensure its future viability.

As age discrimination claims are theoretically open to everyone it is important for employers to analyse the impact of the decision they take and remember the justification defence.

Please feel free to comment on this blog if you have had first hand experience of bringing or defending claims for age discrimination or if you have an opinion on how attitudes towards age have changed in employment.