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Age discrimination

Updating author: Tina McKevitt

Summary

  • Age is a "protected characteristic" under the Equality Act 2010. (See Definition of age)
  • As well as being liable for its own actions, there are circumstances in which an employer will be liable for the acts of others. (See Who is liable?)
  • The Equality Act 2010 prohibits direct discrimination, indirect discrimination, victimisation and harassment. (See Prohibited conduct)
  • Direct discrimination is where, because of the protected characteristic of age, a person treats another person less favourably than that person treats or would treat other persons. (See Direct discrimination)
  • Indirect discrimination occurs where a "provision, criterion or practice" puts one age group at a "particular disadvantage". (See Indirect discrimination)
  • Under the Equality Act 2010, it is possible for employers to justify both direct and indirect discrimination. (See Justification)
  • Harassment is unwanted conduct related to an individual's age that has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual. (See Harassment)
  • Victimisation occurs when a person is subjected to a detriment because they did a protected act. (See Victimisation)
  • Employers that compulsorily retire employees, or attempt to pressurise employees to retire, are at risk of direct age discrimination and unfair dismissal claims. (See Retirement)
  • There are some exceptions from unlawful age discrimination. (See Service-related benefits, National minimum wage, Redundancy payments, Service-related benefits, Insurance and financial services and Other exceptions)

Future developments

There are no future developments.

Definition of age

Age is a protected characteristic under the Equality Act 2010. Section 5 of the Equality Act 2010 provides that, in relation to the protected characteristic of age:

  • a reference to a person who has a particular protected characteristic is a reference to a person of a particular age group; and
  • a reference to persons who share a protected characteristic is a reference to persons of the same age group.

An age group means "a group of persons defined by reference to age, whether by reference to a particular age or to a range of ages".

The effect is that, when people fall into the same age group (whether that means people of the same age or people of a particular range of ages), they share the protected characteristic of age.

The Equality Act 2010 explanatory notes state at para.37:

  • An age group would include over-50s or 21-year-olds.
  • A person aged 21 does not share the same characteristic of age with people in their 40s. However, a person aged under 21 and people in their 40s can share the characteristic of being in the under-50 range.

Who is protected?

The Equality Act 2010 provides protection against direct and indirect discrimination, harassment and victimisation in the fields of employment and vocational training to:

  • actual and prospective employees;
  • ex-employees;
  • apprentices;
  • some self-employed workers;
  • contract workers;
  • actual and prospective partners in a partnership or a limited liability partnership; and
  • people seeking or undertaking vocational training.

Job applicants are prospective employees and, therefore, protected under the Equality Act 2010. However, in Kratzer v R+V Allgemeine Versicherung AG [2016] IRLR 888 ECJ, the European Court of Justice held that a person who applies for a job with the sole purpose of making an application for compensation for discrimination is not covered by the Equal Treatment Framework Directive (2000/78/EC) or the Equal Opportunities and Equal Treatment Directive (2006/54/EC). Such a person may be considered as having committed an abuse of rights under EU law. Following Kratzer, vexatious discrimination claims will be unsuccessful where the candidate is unable to demonstrate a genuine interest in the position. However, employers will need to consider carefully each recruitment decision, given the potential difficulty in identifying which claims are vexatious.

In Uber BV and others v Aslam and others [2019] IRLR 257 CA, the Court of Appeal held that Uber taxi drivers are "workers" within the meaning of s.230 of the Employment Rights Act 1996 and, as such, are entitled to statutory rights arising from that status. Since the definition of employment in s.83 of the Equality Act 2010 includes, in effect, a wider definition of "worker" than that contained in s.230 of the Employment Rights Act 1996, the drivers would also be covered by discrimination legislation.

It is assumed that a voluntary worker who has a contract to carry out work personally will be protected under the Equality Act 2010. However, in X v Mid Sussex Citizens Advice Bureau and another [2013] IRLR 146 SC, a disability discrimination case, the Supreme Court held that a voluntary worker without a legally binding contract who, accordingly, was not an employee under the now repealed Disability Discrimination Act 1995 was not protected by the Equal Treatment Framework Directive (2000/78/EC) because it is clear that the Directive does not cover voluntary activity. The Supreme Court went on to state that a reference to the European Court of Justice was not justified. In Breakell v Shropshire Army Cadet Force EAT/0372/10, the Employment Appeal Tribunal (EAT) confirmed that a paid volunteer is not an employee within the meaning of s.68(1) of the repealed Disability Discrimination Act 1995 where there is no mutuality of obligation between the parties.

In EAD Solicitors LLP and others v Abrams [2015] IRLR 978 EAT, the sole director and principal shareholder of a limited company brought a complaint of age discrimination in the name of the company through which he was providing his services (as well as in his own name). The EAT held that a limited company can bring a claim of direct discrimination under the Equality Act 2010. Although a limited company does not itself have the protected characteristics identified in the Equality Act 2010, the EAT held that it could bring a claim of direct discrimination on the ground that it suffered detrimental treatment because of its association with someone having a protected characteristic.

There are special provisions in the Act dealing with office-holders, the police, barristers and advocates, trade organisations, qualifications bodies and employment-service providers. The Act's employment provisions also apply to members of the armed forces.

Additional resources on who is protected?

FAQs

Recipients or (intended) victims of instructions to discriminate

Section 111 of the Equality Act 2010 prohibits a person from instructing, causing or inducing another person to discriminate, harass or victimise a third person. The Equality Act 2010 explanatory notes state at para.364 that s.111 provides a remedy "for both the recipient of the instruction and the intended victim, whether or not the instruction is carried out, provided the recipient or intended victim suffers detriment as a result". While the express power allowing the intended victim to bring proceedings is new, the express power allowing the recipient of such instructions to bring proceedings is intended to codify the position established in Weathersfield Ltd t/a Van & Truck Rentals v Sargent [1999] IRLR 94 CA (a case decided under the repealed Race Relations Act 1976). Mrs Sargent resigned from her job as a receptionist with a car-hire firm when she was instructed to tell black or Asian callers that there were no cars available for them to hire. The Court of Appeal upheld her claim of race discrimination, stating that she had been less favourably treated than a person willing to carry out the discriminatory policy and that she had been put in an intolerable position as a result.

Discrimination, harassment and victimisation because of age by trustees and managers of occupational pension schemes are also prohibited by s.61 of the Equality Act 2010.

Employees and workers

"Employment" is defined under s.83(2) of the Equality Act 2010 as meaning: employment under a contract of employment or of apprenticeship or a contract personally to do any work; or employment as a Crown employee or as a "relevant member" of the House of Commons or House of Lords staff. This is an extended definition compared to the one that is used in s.230(3)(b) of the Employment Rights Act 1996 and other employment legislation.

In Windle and another v Secretary of State for Justice [2016] IRLR 628 CA, the Court of Appeal considered the definition of employees "in the extended sense" under s.83(2)(a) of the Equality Act 2010, that is those who are engaged on a contract "personally to do work". The case concerned professional interpreters who undertook work for Her Majesty's Courts and Tribunals Service (HMCTS) on a case-by-case basis, whereby "HMCTS was under no obligation to offer them work; nor were they under any obligation to accept it when offered". The Court of Appeal restored the employment tribunal decision that the interpreters were not employees within the meaning of the Equality Act 2010. The Court of Appeal held that the absence of mutuality of obligation between the parties outside the period during which work is being done may "influence, or shed light on, the character of the relationship within it". The Court of Appeal concluded that "the fact that a person supplying services is only doing so on an assignment-by-assignment basis may tend to indicate a degree of independence, or lack of subordination, in the relationship while at work which is incompatible with employee status even in the extended sense".

In Pimlico Plumbers Ltd and another v Smith [2018] UKSC 29 SC, the Supreme Court noted that, while s.83(2) of the Equality Act 2010 defines "employment" in terms different from those descriptive of the concept of a "worker" under s.230(3)(b) of the Employment Rights Act 1996 (see Contracts of employment > Determining employment status > Workers) and other employment legislation, "this distinction has been held to be one without a difference" and the meaning is essentially the same. In Pimlico, the Supreme Court upheld the employment tribunal decision that a "sub-contracted" plumber was a worker within the meaning of s.230(3)(b) of the 1996 Act and s.83(2)(a) of the 2010 Act because the dominant feature of the plumber's contract was an obligation of personal performance. The tribunal was entitled to conclude that Pimlico Plumbers could not be regarded as a client or customer of the plumber because of its "tight control" over him.

Where a contract described car valeters as sub-contractors, the Supreme Court held that the employment tribunal was entitled to look behind the contractual terms to ascertain the reality of the situation. On the facts, the valeters were held to be employees and/or workers and thus entitled to certain statutory rights (Autoclenz Ltd v Belcher & others [2011] IRLR 820 SC).

However, in Halawi v WDFG UK Ltd T/A World Duty Free [2015] IRLR 50 CA, the Court of Appeal upheld the employment tribunal decision that the claimant did not have "a contract personally to do work" under s.83 of the Equality Act 2010. Ms Halawi provided her services to the end user via a limited company which she had set up for that purpose. On the facts, she did not have any contract with either the first respondent (the end user) or with the second respondent (whose role, according to the Employment Appeal Tribunal (EAT), "was in effect that of an agent supplying workers to a third party to work in retail space controlled by the first respondent"). Dismissing her appeal, the Court of Appeal concluded that there is no incompatibility between s.83(2) of the Equality Act 2010 and EU law on the meaning of employment. It rejected an argument that there was a relationship of employment if the relationship was one of subordination, meaning a relationship of economic dependency and economic value to the enterprise. The Court of Appeal held that it was clear that there must be some obligation to perform work personally.

In Muschett v HM Prison Service [2010] IRLR 451 CA, the Court of Appeal held that an agency worker did not come within the definition of employment in s.78(1) of the now repealed Race Relations Act 1976 because he was not contractually obliged to provide services personally to the end user, HM Prison Service. He was not, therefore, able to bring a claim of race discrimination against it. The decision in Muschett is relevant to age discrimination cases under the Equality Act 2010, because the definition of employment in the Employment Equality (Age) Regulations 2006 (SI 2006/1031) and s.83(2) of the Equality Act 2010 is substantially the same. If employed by the agency, a person in Mr Muschett's position would be protected from discrimination by the end user as a contract worker under the Equality Act 2010.

Whether or not a minister of religion is an employee for the purposes of the Equality Act 2010 will depend on the facts of the case. In Percy v Church of Scotland Board of National Mission [2006] IRLR 195 HL, the House of Lords held that although an associate minister in a parish of the Church of Scotland did not have a "contract of service" she was an employee for the purposes of the (now repealed) Sex Discrimination Act 1975 because she had a "contract personally to execute any work or labour". However, in President of the Methodist Conference v Preston [2013] IRLR 646 SC, the Supreme Court held that, on the particular facts, Ms Preston (who was a Minister in the Redruth Circuit of the Methodist Church until 2009) did not have a contract at all and accordingly could not be an employee under the Employment Rights Act 1996 for the purposes of pursuing an unfair dismissal claim. Although this did not arise on the facts, the absence of a legally binding contract would also have denied employment status to Ms Preston pursuant to the broader definition under the Equality Act 2010. Similarly, in Sharpe v The Bishop of Worcester (in his corporate capacity) [2015] IRLR 663 CA, where a Reverend had brought complaints of unfair dismissal and detriment for "whistleblowing", the Court of Appeal held that there were "no features of the method of Reverend Sharpe's appointment, the duties imposed upon him by law or the means by which he could be deprived of his benefice which would support the existence of a contract between him and either the bishop or the diocesan board of finance".

Illegal contracts

Individuals employed under an illegal contract (eg where there is some form of tax evasion in the way the employee is paid) are not usually allowed, as a matter of public policy, to bring proceedings relying on the contract. However, an illegal contract does not necessarily prevent a claimant from bringing a claim for discrimination.

In Hall v Woolston Hall Leisure Ltd [2000] IRLR 578 CA (a sex discrimination case decided under the repealed Sex Discrimination Act 1975), the Court of Appeal held that the correct approach in cases involving illegality and statutory torts, such as claims for discrimination, required the tribunal to consider if the "claim arises out of or is so inextricably bound up or linked with the illegal conduct that the court could not permit the [claimant] to recover compensation without appearing to condone that conduct". The Court of Appeal held that the employee could proceed with her sex discrimination claim because although she knew that her employer had been defrauding the Inland Revenue by not paying tax on her behalf, she had been powerless to change the situation. In V v Addey & Stanhope School [2004] All ER (D) 561 (Jul) CA (a race discrimination case decided under the repealed Race Relations Act 1976), a contract made with an asylum seeker was found to be illegal because he had falsely indicated in his application form that he did not need a work permit. Applying Hall, the Court of Appeal held that the asylum seeker was prevented from bringing a race discrimination claim because, unlike the facts in Hall, the illegal conduct was that of the employee and the circumstances surrounding his claim were inextricably bound with the illegality of his conduct.

However, in Hounga v Allen and another [2014] IRLR 811 SC) (another race discrimination case decided under the repealed Race Relations Act 1976), the Supreme Court focused its attention on public policy considerations. Ms Hounga was a Nigerian national who obtained a six-month travel visa to the UK having made dishonest declarations as to her age, name and the purpose of her visit. Having no right to work in the UK, she then knowingly entered into an illegal employment contract. Overturning the decision of the Court of Appeal, the Supreme Court held that there was an insufficiently close connection between her immigration offences and her discrimination claims, because "the former merely provided the setting or context in which that tort was committed, and to allow her to recover for that tort would not amount to the court condoning what it otherwise condemns". Lord Wilson (with whom Lady Hale and Lord Kerr agreed) was of the opinion that "the considerations of public policy which militate in favour of applying the defence so as to defeat Miss Hounga's complaint scarcely exist". Observing that Ms Hounga might be regarded as a victim of trafficking, Lord Wilson added that although she had not been compelled to commit a crime, the Court of Appeal's decision to uphold the illegality defence "runs strikingly counter to the prominent strain of current public policy against trafficking and in favour of the protection of its victims". The Court said that "public policy in support of the application of that defence, to the extent that it exists at all, should give way to the public policy to which its application is an affront; and Miss Hounga's appeal should be allowed".

The EAT applied Hall in Wijesundera v (1) Heathrow 3PL Logistics Ltd (2) Natarajan EAT/0222/13, in concluding that illegality was no defence to the serious sexual harassment claims brought by Ms Wijesundera. The EAT held that the illegality test in tort "is a test which looks to see whether, on all the facts, and not just simply applying a causation test, the claim is inextricably bound up with the applicant's illegal conduct". With the exception of the dismissal claim, Mr Natarajan's actions "could not be said to be inextricably bound up with the [il]legal conduct, for there is nothing intrinsic about being an employee that leads to sexual harassment or freedom from it". The EAT added that the "fact of employment may have given rise to a practical opportunity for the acts to be committed".

The same approach is likely to be taken with claims of age discrimination under the Equality Act 2010.

Contract workers

These are individuals employed by a third party and whose services are supplied to a principal in furtherance of a contract either between the principal and the individual's employer, or between the principal and another third party. It is not necessary for there to be a direct contractual relationship between the principal and the individual's employer.

Vocational trainees

An individual who is undergoing vocational training - defined by s.56 of the Equality Act 2010 as training for employment or work experience - is protected by s.55, which concerns the provision of employment services (including vocational training). In Treasury Solicitor's Department v Chenge [2007] IRLR 386 EAT (decided under the now repealed Race Relations Act 1976), the EAT held that an unpaid vacation placement scheme of 10 days was a work placement or work experience scheme, which was vocational training.

In Blackwood v Birmingham and Solihull Mental Health Foundation Trust EAT/0130/14, the EAT examined the relationship between the employment and the education protections in the Equality Act 2010. Ms Blackwood, a single parent, was a student at Birmingham City University undertaking a Diploma of Higher Education in Mental Health Nursing. As part of her course, she undertook a vocational placement with the trust, which the trust eventually withdrew because Ms Blackwood was unable to work the late night shift patterns due to her childcare commitments. She issued employment tribunal proceedings alleging indirect sex discrimination against both the trust (as a provider of vocational training) and the university as its alleged agent. The proceedings against the university were discontinued when it contended that it had to be sued in the County Court. The employment tribunal went on to hold that it lacked jurisdiction to hear the claim against the trust because Ms Blackwood's placement with the trust was arranged by the university, where she was a student. Accordingly, it was clear from s.56(5) of the Equality Act 2010 that her case against the trust fell within the education provisions of the Act and must be pursued in the County Court. The tribunal's reasoning was that Ms Blackwood was undertaking training or guidance "to which the governing body" of the university had "power to afford access". In this respect the tribunal interpreted "power" as "the ability to do something", and noted that the university was "clearly able to provide students with placements in hospital trusts" and had so placed Ms Blackwood. The EAT dismissed Ms Blackwood's appeal. However, the Court of Appeal overturned the EAT decision and held that s.56(5) should be construed so as to give effect to the Equal Treatment Framework Directive (2000/78/EC). The starting point is to identify whether the claim concerns discriminatory access to a work placement or whether it concerns discrimination occurring during the work placement. If the claim was that the university had failed to provide a work placement at all or had provided a work placement in a discriminatory way, such a claim could be brought only in the county court, under s.91 of the Equality Act 2010. In contrast, where the claim concerns discrimination by the work placement provider, in this case the trust, this should be brought under s.55 of the Equality Act 2010 and, therefore, in the employment tribunal. Where the alleged act of discrimination is committed by the provider as the agent of the university, the Court of Appeal held that "both the provider and the university will be liable by virtue of ss.109(2) and 110(1) [of the Equality Act 2010] respectively, but the liability will still arise under s.55, so that the employment tribunal will still be the correct forum whether the claimant chooses to proceed against only one of them or against both". The Court of Appeal concluded that "s.56(5) did not in this case operate to deprive the employment tribunal of jurisdiction to determine the appellant's complaint" (Blackwood v Birmingham & Solihull Mental Health NHS Foundation Trust [2016] IRLR 878 CA).

In X v Mid Sussex Citizens Advice Bureau and others [2011] EWCA Civ 28 CA, the Court of Appeal held that an unpaid volunteer at the Citizens Advice Bureau was not undertaking vocational training within the meaning of the Equal Treatment Framework Directive.

Territorial scope

The Equality Act 2010 is silent as to the territorial scope of its employment provisions. The Equality Act 2010 explanatory notes explain at para.15 that this follows the precedent of the Employment Rights Act 1996 by leaving it "to tribunals to determine whether the law applies, depending for example on the connection between the employment relationship and Great Britain". This means that case law determining the territorial scope of the Employment Rights Act 1996 is relevant in determining the territorial scope of the Equality Act 2010 (see Termination of employment > Unfair dismissal > Employees excluded from the right).

This approach was adopted in Clyde & Co LLP and another v Bates Van Winkelhof [2012] EWCA Civ 1207 CA. The Court of Appeal considered whether or not the employment tribunal had jurisdiction to hear claims of sex discrimination and/or pregnancy discrimination made by a former partner in a limited liability partnership, who "worked primarily outside the jurisdiction in Tanzania". The Court of Appeal referred to several authorities, which mainly addressed the territorial scope of certain claims under the Employment Rights Act 1996. Summarising the principles from case law, the Court of Appeal reaffirmed that, where the employee "is employed wholly abroad", it will be appropriate for the tribunal "to carry out a comparative exercise in which the factors which point towards a connection with Great Britain are compared with the factors pointing in favour of another jurisdiction". However, where the employee "lives and/or works for at least part of the time in Great Britain", as in the case of Ms Bates Van Winkelhof, it is not necessary to apply the comparative test as between the two jurisdictions. In the latter situation, the tribunal must be satisfied that the connection is "sufficiently strong to enable it to be said that Parliament would have regarded it as appropriate for the tribunal to deal with the claim" (Ravat v Halliburton Manufacturing and Services Ltd [2012] IRLR 315 SC). In Clyde & Co LLP, the Court of Appeal held that the tribunal was not required to carry out the comparative exercise and was correct in deciding that it had jurisdiction to hear the discrimination claims.

The test established under the Employment Rights Act 1996 may not be wide enough for the purposes of discrimination law rights, many of which are derived from EU law. This was recognised in Bleuse v MBT Transport Ltd and another [2008] IRLR 264 EAT in which the Employment Appeal Tribunal (EAT) stated that, in respect of contracts governed by English law "an English court properly exercising jurisdiction must seek to give effect to directly effective rights derived from an EU Directive by construing the relevant English statute, if possible, in a way which is compatible with the right conferred". While acknowledging this issue, the Court of Appeal declined to address it in Clyde & Co LLP and another v Bates Van Winkelhof [2012] EWCA Civ 1207 CA as it was not necessary for its decision.

However, in R (on the application of Hottak and another) v Secretary of State for Foreign and Commonwealth Affairs and another [2016] IRLR 534 CA, the Court of Appeal did not consider that Parliament had intended the territorial scope of the employment-related discrimination provisions in part 5 of the Equality Act 2010 to extend further than the territorial reach of s.94(1) of the Employment Rights Act 1996 (ie the provisions on unfair dismissal). R (on the application of Hottak and another) concerned two Afghan nationals who were "locally employed staff" in Afghanistan and who sought judicial review of alleged discriminatory failures by the respondents. The Court of Appeal concluded that the fact that the claims were for discrimination did not require the court to "look upon the territoriality problems with greater sympathy than if they were unfair dismissal claims". The Court of Appeal added that "the cases in which s.94(1) (and therefore part 5) will extend to the employment contract of the foreign based employee are…truly exceptional".

In Ministry of Defence v Wallis and another [2011] EWCA Civ 231 CA, the Court of Appeal held that the employment tribunal was correct to decide that it had jurisdiction to hear claims of unfair dismissal and sex discrimination by two British employees who worked for the Ministry of Defence (MoD) in Belgium and the Netherlands. It stated that: "the claimants were employed by the MoD overseas in unusual circumstances that connected their employment with Great Britain to a degree that was sufficiently strong to bring them within the scope of protection of the British unfair dismissal legislation". The Court of Appeal also held that Mrs Wallis was entitled to effective judicial protection of her directly enforceable rights under the Equal Treatment Directive (76/207/EEC) (now the recast Equal Opportunities and Equal Treatment Directive (2006/54/EC)).

In Duncombe and others v Secretary of State for Children, Schools and Families (No. 2) [2011] IRLR 840 SC, the Supreme Court held that teachers who were employed in European schools outside Great Britain were entitled to bring unfair dismissal claims because they had an "overwhelmingly closer connection with Britain and with British employment law than with any other system of law".

In Pervez v Macquarie Bank Ltd (London Branch) and another [2011] IRLR 284 EAT, the EAT rejected the proposition that while an employee who was seconded to work in London by a Hong Kong-based employer was notionally protected under the Employment Rights Act 1996, the employment tribunal lacked jurisdiction to hear the employee's complaint because reg.19(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (SI 2004/1861) requires that "the respondent ... resides or carries on business in England and Wales". Overturning the tribunal on this point, the EAT held that "in the particular context of reg.19 a company can 'carry on business' in England and Wales by seconding an employee to work at an establishment here, even if the supply of workers to third parties is not part of its ordinary business".

In Fuller v (1) United Healthcare Services Inc (2) Radkiewicz EAT/0464/13, where, according to the EAT, the employment tribunal found on the facts that an "employment relationship was overwhelmingly American in nature and that the work carried out in the UK did not alter that" the tribunal was correct to hold that the situation "was not within the territorial reach of … the Equality Act 2010".

In Jeffery v British Council; Green v SIG Trading Ltd [2019] IRLR 123 CA, the Court of Appeal dismissed the appeal and upheld Jeffery v The British Council [2016] IRLR 935 EAT. In Jeffery, the employee, who worked on a "truly expatriate" basis, latterly as a teaching centre manager in Bangladesh, was found by the EAT to have an "overwhelmingly closer connection with Great Britain and with British employment law than any other system" and was therefore able to pursue his claims under the Equality Act 2010. The main factors that the EAT identified that established "a quite exceptional degree of connection with Great Britain and British employment law" are set out below:

  • The employee was "a UK citizen recruited in the UK to work for a UK organisation".
  • The contract of employment provided for English law to apply.
  • The employee was entitled to a civil service pension, which the EAT commented was "a remarkable feature to find in the contract of employment of an expatriate employee". The EAT observed that this "[created] another strong link to the UK and to UK employment law".
  • The employee's "salary was subject to a notional deduction for UK income tax to maintain comparability with the position if he were working in the UK". The EAT again commented that this was "an exceptional provision to find in the contract of an expatriate employee".
  • The "nature of the Respondent ... [which is] recognised as playing such a part in the life of the nation that it is right to afford a civil service pension to their employees".

The Equality Act 2010 contains a power to specify the territorial application of its employment provisions in relation to ships, hovercraft and offshore work. The Equality Act 2010 (Offshore Work) Order 2010 (SI 2010/1835) applies part 5 of the Act - which sets out the provisions relating to work - to offshore work, replacing similar provisions in previous legislation. The order does not apply to ships in navigation or those engaged in fishing or dredging. The Equality Act 2010 (Work on Ships and Hovercraft) Regulations 2011 (SI 2011/1771) prescribe the circumstances in which part 5 of the Equality Act 2010 applies to seafarers working on UK ships and hovercraft, or on ships and hovercraft from other EEA states. In Hasan v Shell International Shipping Services (Pte) Ltd and others EAT/0242/13, Mr Hasan, a British national with a British passport, whose normal place of residence (when not on board ship) is in England, failed in his attempt to pursue a race discrimination claim against the respondents. The EAT upheld the tribunal decision that, on the facts of Mr Hasan's employment, it lacked jurisdiction to hear his claim.

Further guidance on the territorial scope of the Act appears in chapter 10 of the Employment statutory code of practice.

Who is liable?

Those who may be liable for prohibited conduct under the Equality Act 2010 include:

  • Employers, in relation to job applicants, employees, ex-employees (in some cases), where:
    • the employer discriminates against a job applicant, or discriminates against, harasses or victimises an employee in its employment;
    • the employer's employees discriminate against a worker during the course of their employment, unless the defence of having taken "all reasonable steps" to prevent discrimination applies; or
    • the employer's agent discriminates, unless the reasonable steps defence applies.
  • Employees who discriminate during the course of their employment, who will be personally liable even if the employer has a defence.
  • Principals (ie those who make work available for individuals employed by someone else) when:
    • they discriminate against contract workers; or
    • the principal's agent discriminates.
  • A person who knowingly helps another person to do an unlawful act of discrimination.

Employers

Employers are liable under the Equality Act 2010 for direct and indirect age discrimination and victimisation in relation to recruitment, terms and benefits, detrimental treatment during employment, and dismissal. Employers are also liable for harassment of job applicants and employees and, in some circumstances, for discrimination, harassment or victimisation after employment. The act of discrimination, harassment or victimisation may be:

  • done by the employer itself;
  • done by its employees in the course of their employment, whether or not the act is done with the employer's knowledge or approval; or
  • done by an agent of the employer with the express or implied authority of the employer (whether given before or after the act).

Employers will have a defence against an act done by one of their employees or agents if they can show that they took all reasonable steps to prevent such conduct (see Reasonable steps defence).

Prior to 1 October 2013, the employer could be liable under s.40(2) to (4) of the Equality Act 2010 for an act done by a third party against an employee who (the employer knew) had been subjected to third-party harassment on at least two previous occasions where the employer had failed to take reasonably practicable steps to prevent it. However, s.40(2) to (4) was repealed with effect from 1 October 2013 (see Third-party harassment for further information).

Employers' liabilities for employees' acts

An employer will be liable for discrimination, harassment or victimisation carried out by employees in the course of employment unless the employer has taken all reasonable steps to prevent such conduct. Using arguably stronger wording than under previous legislation, the Equality Act 2010 states that anything done by an employee in the course of employment "must be treated as also done by the employer". "Course of employment" has been interpreted widely in race and sex discrimination cases. In Jones v Tower Boot Co Ltd [1997] IRLR 168 CA, a racial harassment case decided under the now repealed Race Relations Act 1976, the Court of Appeal held that "in the course of employment" could cover even acts of torture to which workers had subjected a colleague in the workplace. The term should be interpreted in the broad sense in which it is employed in everyday speech. It may cover discrimination that occurs outside work provided that there is a close link to the work, eg a work outing, a Christmas party or a work trip abroad.

In Chief Constable of the Lincolnshire Police v Stubbs and others [1999] IRLR 81 EAT, the Employment Appeal Tribunal (EAT) upheld a finding that two incidents that occurred in a pub after work occurred in the course of employment and were unlawful under the now repealed Sex Discrimination Act 1975. The tribunal had held that the incidents were connected to work and the workplace; they would not have happened but for the applicant's work; and work-related social functions are an extension of employment. The EAT said that when there is a social gathering of work colleagues it is appropriate for a tribunal to consider whether or not the circumstances show that what was occurring was an extension of their employment. Whether a person is or is not on duty and whether or not the conduct occurred on the employer's premises are two of the factors that will need to be considered by the tribunal, but are not conclusive. Each situation is a question of fact for the tribunal.

In Forbes v LHR Airport Ltd EAT/0174/18, a racial harassment case, one of the claimant's colleagues shared an image of a golliwog on her Facebook account. The claimant was not a Facebook friend of the colleague, but another employee brought it to his attention. The EAT upheld the tribunal decision that the employer was not vicariously liable for racial harassment because the claimant's colleague had not been acting in the course of her employment when she shared the image. The EAT held that a lay person would not consider that the sharing of an image on a private, non-work Facebook page, with a list of friends that included very few colleagues, was an act done "in the course of employment". Other relevant factors were that she was not at work when the image was posted, her post made no reference to the employer or any of its employees, and she did not use the employer's equipment when sharing the image.

In Mohamud v WM Morrison Supermarkets plc [2016] IRLR 362 SC, a case that may have implications for discriminatory behaviour by employees towards colleagues or third parties, the Supreme Court held that the employer was vicariously liable for a violent assault on a customer by one of its employees. The Supreme Court noted that the case addressed the question of in what manner the conduct of an individual has to be related to the relationship between that individual and the defendant employer for vicarious liability to be imposed on the employer. In Mohamud, the Supreme Court held that the employee's actions, although a gross abuse of his position, were "in connection with the business in which he was employed to serve customers" and that the employer "should be held responsible".

In Bellman v Northampton Recruitment Ltd [2019] IRLR 66 CA, a personal injury case that may also have implications for discriminatory behaviour by employees towards colleagues or third parties, the Court of Appeal held that an employer was vicariously liable for a managing director's assault of an employee during a drinking session after the work Christmas party. Following the principles in Mohamud v WM Morrison Supermarkets plc [2016] IRLR 362 SC, the Court found that the employee, as managing director, was authorised to act on behalf of his employer and that he had been given a wide remit. In the Court's view, there was "sufficient connection" between his field of activities and the assault to render it just that the employer should be vicariously liable for the managing director's actions.

In Unite the Union v Nailard [2018] IRLR 730 CA, the Court of Appeal considered the union's liability for sexual harassment by two of its elected branch officers against a paid employed officer. The Court of Appeal held that the union was liable for the acts of its elected branch officers because they were acting as its agents, but that the union was not liable for failures by its employed union officials to prevent discrimination by the third-party elected branch officers.

Additional resources on employers' liabilities for employees' acts

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"How to" guidance

Third parties

An employer may be liable in connection with a third party's conduct towards an employee if the employer fails to intervene to prevent or stop the conduct because of the employee's age. In Macdonald v Advocate General for Scotland; Pearce v Governing Body of Mayfield School [2003] IRLR 512 HL, the House of Lords said that an employer will not be liable for subjecting an employee to discrimination by a third party other than an employee, unless the reason for the failure to take action to prevent or reduce the discrimination is related to the employee's sex, race, etc, or the third party was acting as the employer's agent. Macdonald was decided under the repealed Sex Discrimination Act 1975 but employers would be advised to assume that they should protect employees from all types of discrimination by third parties.

In a case that may have implications for discriminatory behaviour by third parties, the Supreme Court held that the Ministry of Justice was vicariously liable for the conduct of a prisoner whose negligence caused a prison officer employee to suffer a back injury while working in the prison kitchen (Cox v Ministry of Justice [2016] IRLR 370 SC). The Supreme Court noted that the case addressed the question of "what sort of relationship has to exist between an individual and a defendant before the defendant can be made vicariously liable in tort for the conduct of that individual".

Prior to 1 October 2013, the employer could be liable under s.40(2) to (4) of the Equality Act 2010 if an employee was harassed by a third party during the course of employment, in circumstances where the employer knew that the employee concerned had been subjected to such "third-party" harassment on at least two other occasions (whether by the same or a different third party) but had failed to take reasonably practicable steps to prevent it. The third-party harassment provisions in the Equality Act 2010 were repealed with effect from 1 October 2013 by s.65 of the Enterprise and Regulatory Reform Act 2013.

Additional resources on third parties

FAQs

"Reasonable steps" defence

An employer will have a defence to anything done by one of its employees in the course of employment if it can prove that it took all reasonable steps to prevent the employee from doing that thing, or from doing anything of that description. Guidance from sex and race discrimination cases suggests that having an appropriate policy covering the type of behaviour, such as an equal opportunities or dignity at work policy, will be an essential part of proving a reasonable steps defence, but will be insufficient in itself. The policy must be properly implemented, which will include making employees aware of the policy and the provision of training. If a particular risk has been identified, eg from a particular employee, some additional steps may be required if the employer is to be able to establish a reasonable steps defence to any act of discrimination by that employee: Canniffe v East Riding of Yorkshire Council [2000] IRLR 555 EAT. Canniffe was decided under the repealed Sex Discrimination Act 1975, which required employers to take "such steps as were reasonably practicable" (as opposed to "all reasonable steps") to prevent the employee's conduct. It remains to be seen whether or not the omission of the word "practicable" from s.109(4) of the Equality Act 2010 will have any effect on the availability of the defence.

In Unite the Union v Nailard [2018] IRLR 730 CA, the Court of Appeal noted an "apparent anomaly" in that this defence "is available only to employers and not principals".

Additional resources on "reasonable steps" defence

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Liability for and of agents

An employer may also be liable for discrimination, harassment or victimisation carried out by its agents, such as an employment agency through which members of staff are appointed. In this context, the employer is referred to as "the principal", which has a different meaning to a person who engages the services of a worker who is employed by someone else (see Principals below). It does not matter whether or not the employer knew of or approved the agent's conduct. In Lana v Positive Action Training in Housing (London) Ltd [2001] IRLR 501 EAT (a case decided under the repealed Sex Discrimination Act 1975, which, prior to the implementation of the Equality Act 2010, covered discrimination on the grounds of pregnancy and maternity), the respondent placed the claimant with a company, which terminated the arrangement soon after the claimant said that she was pregnant. The respondent then terminated its training contract as it did not have any work for the claimant. The EAT held that the respondent, which had agreed to provide the claimant with work experience, and contracted with another company (its agent) to provide her with a work experience placement, would be liable itself if its agent had terminated the work experience placement because the trainee was pregnant. The agent had the authority to terminate the engagement of the trainee and, if that were done in circumstances in which it constituted discrimination, the principal would be liable. The agent would also be liable. The same principles would be applicable to an age discrimination case under the Equality Act 2010.

In Bungay and others v Saini and others EAT/0331/10 (decided under the repealed Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660)), the EAT followed the approach adopted in Lana v Positive Action Training in Housing (London) Ltd [2001] IRLR 501 EAT, holding that Mr Bungay and Mr Paul (the other appellant) "were managing the centre as part of their authority as its directors and so the tribunal was entitled to conclude that [they] were acting as its agents even though they performed their duties in a discriminatory manner".

In Commissioner of Police of The Metropolis v Weeks EAT/0130/11, the EAT upheld the employment tribunal decision that a civilian employee who alleged that she had been subjected to sex discrimination by a police officer (who it seems was not to be regarded as an employee in the circumstances, under s.17 of the now repealed Sex Discrimination Act 1975) was entitled to rely on s.41(2) of the Sex Discrimination Act 1975, which provided that: "Anything done by a person as agent for another person with the authority ... of that other person shall be treated for the purposes of this Act as done by that other person as well as by him", to bring her claim against the Commissioner of Police. As the EAT observed, the Equality Act 2010 (in s.42) retains the same principles with regard to the police (in s.17 of the Sex Discrimination Act 1975) and (in s.109) with regard to the liability of employers and principals (in s.41(2) of the Sex Discrimination Act 1975).

An employer's potential liability for acts committed by an agency worker in its workforce was considered by the EAT in Mahood v Irish Centre Housing Ltd EAT/0228/10. The EAT stated that: "an employer would be liable for the acts of an agency worker exercising authority, or controlled by the [employer] or who has the [employer's] authority to do the acts in question where those acts are done in a discriminatory manner but are just as capable of being done in a lawful manner". The EAT remitted the case to the same employment tribunal to reconsider it on this basis. Mahood was decided under the repealed Race Relations Act 1976 and the repealed Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660) but the principle is likely to remain relevant under the Equality Act 2010.

In Kemeh v Ministry of Defence [2014] EWCA Civ 91 CA (decided under the Race Relations Act 1976), Mr Kemeh, a cook in the British army, was racially abused in the mess by Ms Ausher who was a civilian employed by Sodexo as a butcher. The Court of Appeal noted that the material agency provisions of the repealed Race Relations Act 1976 were "almost identical" to those in the Equality Act 2010, and found that the Ministry of Defence (MoD) could not be held liable for Ms Ausher's conduct, stating that: "Whatever the precise scope of the legal concept of agency, and whatever difficulties there may be of applying it in marginal cases, I am satisfied that no question of agency arises in this case. In my view, it cannot be appropriate to describe as an agent someone who is employed by a contractor simply on the grounds that he or she performs work for the benefit of a third party employer. She is no more acting on behalf of the employer than his own employees are, and they would not typically be treated as agents" - although in some circumstances they might be. The Court of Appeal held that "Ms Ausher's contract with Sodexo is the source of any authority she has to make decisions relating to the butcher's department in the mess. It may be ... that ultimately the MoD would have the right to veto her presence, at least for good reason. But that limited degree of control comes nowhere near constituting an authorisation by the MoD to allow Ms Ausher to act on its behalf with respect to third parties." Recognising that this probably left Mr Kemeh without a cause of action the Court of Appeal commented that "Parliament may wish to consider this lacuna, although if it provides a remedy, it will have to decide whether it is the immediate employer rather than the end user of the services who should bear the legal responsibility."

In Unite the Union v Nailard [2018] IRLR 730 CA, the Court of Appeal upheld the employment tribunal decision that two elected branch officers were acting as agents for the union because they carried out work on its behalf "in their dealings with local members, officers, other trade unions and employers". The Court of Appeal upheld the tribunal decision that the union was liable under s.109 of the Equality Act 2010 for the sexual harassment of the claimant (a union employee) by its elected officers.

In Peninsula Business Service Ltd v Baker [2017] IRLR 394 EAT, the employer (the "principal") arranged for a third party (the "agent") to conduct covert surveillance of an employee. When the employee was informed of this, he alleged that the surveillance had been arranged in response to protected acts he had done, and that it amounted to victimisation. The agent was unaware of any of the alleged protected acts. The EAT acknowledged that s.109(2) of the Equality Act 2010 provides that anything done by an agent for a principal, with the authority of the principal, must be treated as also done by the principal. The EAT went on to state that s.109 "only makes the principal liable for a breach of the [Equality Act 2010] ... if what the agent does is, itself, a breach of the Act". As the agent had not victimised the employee, the EAT held that the principal could not be held liable either.

Personal liability of employees

Section 110 of the Equality Act 2010 expressly provides that an employee will be personally liable for acts of discrimination, harassment or victimisation carried out against other workers during the course of their employment. This reflects the previous position as demonstrated in cases such as Yeboah v Crofton [2002] IRLR 634 CA, which was decided under the now repealed Race Relations Act 1976, but as the Equality Act 2010 explanatory notes make clear, s.110 "take[s] a more direct approach". Thus, an employee may be named as a respondent in a discrimination claim and be ordered to pay compensation even if the employer can show that it satisfied the reasonable steps defence. In Gilbank v Miles [2006] IRLR 538 CA, a case decided under the repealed Sex Discrimination Act 1975, an award of £25,000 was made personally against a manager (who was a director and the main shareholder of the company) after she discriminated against a pregnant employee. It is not necessary to show that the employee knew that the act was unlawful, but liability will be avoided if the employee is able to establish that they reasonably relied on a statement by the employer that the act was not unlawful (s.110(3) of the Equality Act 2010).

In Barlow v Stone EAT/0049/12 (decided under the repealed Disability Discrimination Act 1995), Mr Barlow issued disability discrimination proceedings against his employer. Mr Barlow's colleague, Mr Stone, then made a complaint about Mr Barlow to the police. Mr Barlow alleged that this was an act of victimisation perpetrated by both Mr Stone and their mutual employer. However, proceedings were not issued against the employer in relation to this issue. Overturning the employment tribunal decision, the EAT held that the tribunal had jurisdiction to hear Mr Barlow's victimisation claim against Mr Stone even though Mr Barlow had not issued proceedings against the employer in relation to this issue.

Trustees and managers of occupational pension schemes

The Equality Act 2010 prohibits discrimination, harassment and victimisation by trustees and managers of occupational pension schemes, and by employers whose employees are, or may be, members of such a scheme.

Principals

A principal is defined, by s.41(5) of the Equality Act 2010, as a person who, under a contract to which the principal is a party, makes work available for an individual who is employed and supplied by another person (whether or not that other person is a party to the contract). The Act therefore codifies existing case law by making it clear that there does not have to be a direct contractual relationship between the principal and the employer of the contract worker as established in Abbey Life Assurance Co Ltd v Tansell [2000] IRLR 387 CA (a case decided under the now repealed Disability Discrimination Act 1995).

Principals are liable under the Equality Act 2010 for age discrimination or victimisation in whether to allow the contract worker to do, or continue to do, the work, in the terms on which the worker is allowed to do the work, in relation to access to benefits, or in relation to any other detrimental treatment, including some discrimination after the working relationship has come to an end. Principals are also liable for harassment of contract workers, which may extend to conduct after the working relationship has ended. The act of discrimination, harassment or victimisation may be:

  • done by the principal itself;
  • done by the principal's employees in the course of their employment, whether or not the acts are done with the principal's knowledge or approval; or
  • done by an agent of the principal with the express or implied authority of the principal (whether given before or after the act).

The same approach to "course of employment", the "reasonable steps" defence to acts done by the principal's employees and liability for the acts of an agent will apply as described above. In addition, the individual will be protected from discrimination by his or her employer.

Employees, agents and others who "knowingly help" contraventions of the Equality Act 2010

Under s.112 of the Equality Act 2010, it is unlawful to knowingly help someone to discriminate against, harass or victimise another person or to knowingly help to instruct, cause or induce discrimination. In certain circumstances liability for such conduct may extend beyond the end of the employment relationship. Liability is avoided if it can be established that reasonable reliance was placed on a statement by the person to whom assistance was given to the effect that the act was not unlawful. The Equality and Human Rights Commission (EHRC) has published guidance in the form of the Employment statutory code of practice, which cites the example of a clerical worker who is asked by a company manager, who wishes to be surrounded by female staff, to let him know the sex of all of the applicants for a particular post so that he may filter out the male candidates, in circumstances where such information is not apparent from the application forms in accordance with the company's equal opportunities policy. The EHRC considers that "it may be unlawful for the clerical worker to give the manager this help" even if the manager were unsuccessful in his attempt to exclude male applicants.

While the wording in the Equality Act 2010 (ie knowingly help) differs to that used in previous discrimination legislation (ie knowingly aid), the principles established in previous case law may remain relevant. In Anyanwu and another v South Bank Students' Union and South Bank University [2001] IRLR 305 HL, a case that concerned the phrase "knowingly aid" from the now repealed Race Relations Act 1976, the claimants, two black students who were employed by the student union, claimed that the university aided their dismissal by the student union when the university expelled them and barred them from the union premises. The House of Lords held that a person aids another if the person helps or assists, or cooperates or collaborates with them. It does not matter who the "prime mover" is. Aiding must be done knowingly. It requires more than a general attitude of helpfulness or cooperation; it must be shown that another is aided to do the unlawful act in question: Hallam and another v Cheltenham Borough Council and others [2001] IRLR 312 HL (also decided under the repealed Race Relations Act 1976). In Gilbank v Miles [2006] IRLR 538 CA, an award of £25,000 was made personally against a manager (who was a director and the main shareholder of the company) after she discriminated against a pregnant employee, contrary to the now repealed Sex Discrimination Act 1975.

Others who may be liable

The Equality Act 2010 has special provisions setting out the circumstances in which other bodies may be liable for discrimination, harassment and victimisation, including:

  • partnerships or proposed partnerships (s.44);
  • limited liability partnerships (LLPs) or proposed LLPs (s.45);
  • employment-service providers (s.55); and
  • barristers (s.47).

In Michalak v General Medical Council and others [2018] IRLR 60 SC, the Supreme Court held that the employment tribunal had jurisdiction to hear a claim against a qualification body (the General Medical Council) in respect of discrimination committed in the course of the body carrying out its functions. The availability of judicial review did not preclude this because that process does not constitute "proceedings in the nature of an appeal" for the purposes of s.120(7) of the Equality Act 2010. (Section 120(7) of the Act excludes from the jurisdiction of the employment tribunal, cases concerning qualification bodies where the discriminatory act complained of may, by law, "be subject to an appeal or proceedings in the nature of an appeal".)

Prohibited conduct

The Equality Act 2010 prohibits the types of conduct listed below.

  • Direct discrimination, ie less favourable treatment because of the protected characteristic of age. This covers less favourable treatment because of a person's association with someone who has or is believed to have the protected characteristic ("discrimination by association"), or because a person is wrongly thought to have the protected characteristic ("discrimination by perception") (see Direct discrimination).
  • Indirect discrimination, ie where a person of a particular age group and others who share that age group are, or would be, disadvantaged by the unjustified application of a provision, criterion or practice (PCP) when compared with others to whom the PCP is, or would be applied, and who do not share that age group (see Indirect discrimination and Justification).
  • Harassment, ie unwanted conduct related to age that has the purpose or effect of violating the victim's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them (see Harassment).
  • Victimisation, ie where a person is subjected to detriment because they have done, or the employer believes that they have done, or may do, a "protected act" (see Victimisation).

Prohibited conduct in the employment context

As with previous discrimination legislation, prohibited conduct as defined in the Equalit Act 2010 is unlawful only if it occurs in specified circumstances. In the employment context, part 5 of the Equality Act 2010 prohibits discrimination and victimisation in the fields of employment and vocational training.

Under s.39(1) and (3) of the Act, an employer (A) must not directly or indirectly discriminate against, or victimise a person (B):

  • in the arrangements A makes for deciding to whom to offer employment;
  • as to the terms on which A offers B employment; or
  • by not offering B employment.

Under s.39(2) and (4) of the Act, an employer (A) must not directly or indirectly discriminate against, or victimise an employee of A's (B):

  • as to B's terms of employment;
  • in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training, or for receiving any other benefit, facility or service;
  • by dismissing B; or
  • by subjecting B to any other detriment.

Section 39(7) and (8) of the Equality Act 2010 provide that "dismissal" includes constructive dismissal and the expiry and non-renewal of a fixed-term contract.

Under s.40 of the Act, it is also unlawful for an employer (A), in relation to employment by A, to harass a person (B):

  • who is an employee of A's; or
  • who has applied to A for employment.

Under s.41 of the Act, direct and indirect discrimination and victimisation by principals is unlawful:

  • as to the terms on which the principal allows the contract worker to do work;
  • by not allowing a contract worker to do, or continue to do, the work;
  • in the way the principal affords the contract worker access, or by not affording the worker access, to opportunities for receiving a benefit, facility or service; or
  • by subjecting the contract worker to any other detriment.

It is also unlawful for a principal to harass a contract worker.

In X v Mid Sussex Citizens Advice Bureau and others [2011] EWCA Civ 28 CA, a disability discrimination case with implications for comparable age discrimination cases, the Court of Appeal upheld the employment tribunal decision that the employer's volunteering arrangements did not constitute "arrangements which [the employer] makes for the purpose of determining to whom he should offer employment" (under the now repealed Disability Discrimination Act 1995).

"Detriment" is likely to be interpreted in the same way as it was in sex and race discrimination cases decided under the repealed Sex Discrimination Act 1975 and Race Relations Act 1976, of which the following are examples. An individual can suffer a detriment even if they were unaware of the conduct complained of at the time: Garry v London Borough of Ealing [2001] IRLR 681 CA. Being subject to a "detriment" was interpreted as meaning put at a disadvantage: Jeremiah v Ministry of Defence [1979] IRLR 436 CA. In Bayode v The Chief Constable of Derbyshire EAT/0499/07, the EAT agreed with the employment tribunal that the mere act of making a written record could not give rise to a justified sense of grievance on the part of the claimant so as to constitute a detriment. No physical or economic consequence is necessary: Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 HL. Hurt feelings may be enough for there to be detriment, at least provided that the victim's view of the treatment is not unreasonable or unjustified.

A gay employee was subjected to a detriment when, while looking through an archived file, he discovered homophobic comments in a memo that he had not been intended to see (Bivonas LLP and other v Bennett EAT/0254/11). Although Bivonas LLP was decided under the repealed Employment Equality (Sexual Orientation) Regulations 2003 (SI 2003/1661) it is relevant to discrimination cases decided under the Equality Act 2010.

In a case decided under the now repealed Employment Equality (Age) Regulations 2006 (SI 2006/1031), Keane v Investigo and others EAT/0389/09, the EAT upheld an employment tribunal finding that a job applicant whose applications were not genuine had not suffered a detriment. Therefore her claims for direct and indirect age discrimination failed. Similarly, in Cordant Security Ltd v Singh and another [2016] IRLR 4 EAT, the EAT held that an employee did not suffer a detriment by reason of his employer's failure to investigate an allegation of race discrimination because the "allegation was fabricated" and, had it been investigated, "it would have been found to be untrue". Although the employment tribunal was entitled to conclude on the evidence that the employer's failure to investigate amounted to less favourable treatment because of race, the employee's claim that it amounted to unlawful direct discrimination in breach of s.39(2)(d) of the Equality Act 2010 (the requirement not to subject an employee to a detriment) failed at the EAT because he was required to establish both less favourable treatment and that he had been subjected to a detriment.

The detriment to which an employee is subjected under s.39 of the Equality Act 2010 must occur in the employment field. In London Borough of Waltham Forest v Martin EAT/0069/11 (which was decided under the now repealed Race Relations Act 1976, but is likely to remain relevant under the Equality Act 2010), the EAT held that a local authority's decision to instigate a criminal prosecution against a resident, who was also one of its employees, for alleged benefit fraud was not a matter that fell within the employment field. Accordingly, the employment tribunal had no jurisdiction to hear the claimant's claim.

An employment tribunal will decide, on a balance of probabilities, whether or not there has been unlawful discrimination. The burden of proof provision in the Act has the effect that a tribunal must find unlawful discrimination where the complainant proves facts from which the tribunal could conclude that the respondent has committed unlawful discrimination, unless the respondent provides a satisfactory non-discriminatory explanation for the treatment.

Neither direct nor indirect age discrimination will be unlawful if justified - see Justification. In limited circumstances, jobs can be restricted on age grounds - see Occupational requirements. There are general exceptions where age discrimination will not be unlawful in relation to:

Additional resources on prohibited conduct in the employment context

FAQs

Prohibited conduct after the working relationship has come to an end

An act of discrimination or harassment committed after the working relationship has come to an end will be unlawful if it would have been unlawful during the course of the working relationship, where the discrimination or harassment arises out of or is closely connected to that former relationship. It appears that post-employment victimisation is also unlawful in similar circumstances.

Thus, a complaint could be brought about any age discrimination or victimisation during the course of an appeal against dismissal, although the employment ended with the dismissal. It is clear also that any age discrimination or victimisation in the refusal to give a reference or in the form of a reference given within a reasonable time after employment has ended will fall within the employment provisions of the Act, and it is likely that a complaint could be brought about references even after a much longer period if the employer would still normally provide a reference after such an interval in the form sought. If an employer normally provides benefits to ex-employees, whether this is a contractual entitlement or otherwise, a complaint could be brought about discrimination or victimisation in the provision of such benefits after employment has ended.

Acts of discrimination and harassment of this type committed after the working relationship has come to an end will be unlawful if they are committed on or after 1 October 2010 when the Equality Act 2010 came into force, even if the working relationship came to an end before that date.

Direct discrimination

Section 13 of the Equality Act 2010 defines direct discrimination as being where, because of a protected characteristic (eg age), person A treats person B less favourably than person A treats or would treat other persons. There must be no material difference between the circumstances of B's case and that of their actual or hypothetical comparator(s) (s.23 of the Act).

The less favourable treatment can relate to B's actual or perceived age, even where the perception is wrong. A will be liable for treating B less favourably because they consider B to be too young or too old, even if A is mistaken about B's age. B will not be required to disclose their age in order to bring a claim.

The discrimination could also relate to someone else's age. In EAD Solicitors LLP and others v Abrams [2015] IRLR 978 EAT, the Employment Appeal Tribunal (EAT) held that a limited company could bring a claim of direct discrimination under the Equality Act 2010 because of the protected characteristic of someone with whom it was associated.

Section 24 of the Equality Act 2010 provides that the alleged discriminator's characteristics are irrelevant. This means that it is no defence to a claim of direct discrimination that A is of the same age group as B. The Equality Act 2010 explanatory notes state that the wording of s.24 is wide enough to cover cases of discrimination based on association or perception.

Determining whether or not there has been direct discrimination under the Equality Act 2010 requires a similar approach to that previously taken in cases of sex or race discrimination under the repealed Sex Discrimination Act 1975 and repealed Race Relations Act 1976. In Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 HL (a sex discrimination case decided under the Sex Discrimination (Northern Ireland) Order 1976) the House of Lords suggested that, although it may be helpful in some cases to divide the test for direct discrimination into two elements of less favourable treatment and whether or not this was on the prohibited ground, in other cases the less favourable treatment issue cannot be resolved without deciding on the reason for the treatment. This is most likely to be the case where there is no actual comparator in the same or not materially different relevant circumstances. Where a hypothetical comparator has to be relied on, determining the reason for the treatment may determine how a hypothetical comparator would have been treated.

However, the EAT in Olalekan v Serco Ltd EAT/0189/18 (a race discrimination case) said that "a Shamoon-style comparator is only one means of constructing a hypothetical comparator, and the tribunal was not bound to adopt that means in place of all others". In the EAT's view, the employer could be liable for discriminatory treatment meted out to different employees in similar circumstances even though different decision-makers were involved. However, on the facts of the claimant's case, the EAT held that the tribunal was entitled to dismiss his claim because the circumstances of his comparators were not truly similar and the tribunal did engage with his arguments on hypothetical comparators to a sufficient extent.

In Geller and another v Yeshurun Hebrew Congregation EAT/0190/15, a sex discrimination case, the EAT noted that "in some cases of alleged direct discrimination, the discrimination alleged is inherent in the act complained of and there will be no need to enquire further into the mental process, conscious or unconscious, of the alleged discriminator". However, in other cases "discrimination is not inherent in the act complained of as it does not by its nature strike at the protected characteristic, but the act complained of may be rendered discriminatory by the motivation, conscious or unconscious, of the alleged discriminator". The EAT explained that "in the latter class of cases the employment tribunal asks itself what the reason for the alleged discriminator's act was, and if the reason is that [the victim] possessed the protected characteristic, then direct discrimination is made out". The EAT held that Mrs Geller's case was the latter class of case and fell within the same category as the example in Nagarajan v London Regional Transport [1999] IRLR 572 HL, in which the House of Lords held that the motivation of the person committing an act of direct race discrimination may be conscious or unconscious. In Geller and another, the EAT also emphasised that "in neither case is a benign motive relevant; nor is it relevant whether the alleged discriminator thought the reason for his or her treatment of the person with the protected characteristic, was that characteristic".

Provisions on the application of the burden of proof require that, where a claimant proves facts from which the tribunal could conclude that the respondent has contravened a relevant provision of the Equality Act 2010, the tribunal must uphold the complaint unless the respondent provides an adequate non-discriminatory explanation for the treatment. For further information see Employment tribunals and dispute resolution > Tribunal procedures and penalties > Burden of proof in discrimination cases.

In R (on the application of Unison) v First Secretary of State [2006] IRLR 926 HC (judicial review proceedings concerning the Local Government Pension Scheme), the High Court considered that the "85 year rule", whereby local government employees could draw an unreduced pension from the age of 60 provided that their age and number of years' service totalled at least 85 years, constituted age discrimination. As part of its decision, the High Court held that the Government - which argued that this rule was discriminatory - was entitled to conclude that it was not justified and remove it. The rule was directly discriminatory as it produced different outcomes depending on the age of employees. A 63-year-old with 22 years' service would be entitled to an unreduced pension, while a 61-year-old with the same service would not. The High Court did not accept Unison's argument that the rule was justified because it rewarded loyalty.

In Clements v (1) Lloyd's Banking plc (2) Shawcross (3) Guthrie EAT/0474/13, the employment tribunal found on the facts that discriminatory remarks were not material in a cumulative course of conduct that eventually gave rise to a constructive dismissal. During a meeting on 5 January 2012 with the claimant (who was a senior employee in his 50s) his manager had twice said "You're not 25 anymore". The employee was subsequently moved to a different role at the bank and resigned on three months' notice in July 2012. The tribunal found that he had been constructively dismissed by reason of a breach of the implied term of mutual trust and confidence but that, although the remarks of 5 January 2012 amounted to direct age discrimination, by the time of the employee's decision to resign the discriminatory remarks "did not form a material contributing element of the cumulative treatment undermining trust and confidence which led to that decision". Accordingly, the tribunal "concluded that the constructive dismissal was not tainted by age discrimination". The EAT upheld the tribunal's decision.

In Court v Dennis Publishing Ltd [2007] ET/2200327/07 (decided under the repealed Employment Equality (Age) Regulations 2006 (SI 2006/1031)), the employment tribunal found that the employer had directly discriminated against a 55-year-old employee on the grounds of his age when selecting him for redundancy. This was inferred from a general culture that younger, cheaper employees were preferable to older, more expensive staff, and a failure to consider for redundancy any other employees, all of whom were at least 20 years younger than the selected employee.

In Wilkinson v Springwell Engineering Ltd ET/2507420/07 (decided under the repealed Employment Equality (Age) Regulations 2006), the employment tribunal found that an employer directly discriminated against a teenage employee on the grounds of her age when it dismissed her because she was "too young for the job". It did not accept that there was evidence to support the employer's contention that the reason for the dismissal was capability.

In Live Nation (Venues) UK Ltd and other appeals EAT/0234/08, EAT/0235/08 & EAT/0236/08 (decided under the repealed Employment Equality (Age) Regulations 2006), the EAT held that the employment tribunal had been wrong to infer that Mr Hussain had been subjected to direct age discrimination because of an (arguably) unjustified or unreasoned belief on the part of management that Mr Hussain had ageist tendencies, coupled with a supposition on the part of the tribunal that the employer thought that he was too old to change his attitudes. The tribunal had also adopted an incorrect approach to the shifting burden of proof, in that it had failed to ask itself whether or not there was a genuine reason, other than age, that caused the employer to dismiss Mr Hussain. Had it asked that question, the tribunal would have concluded that the reason was Mr Hussain's conduct towards two colleagues. It was immaterial that the dismissal itself was not conducted fairly.

In Kücükdeveci v Swedex GmbH & Co KG [2010] IRLR 346 ECJ, the European Court of Justice (ECJ) held that a German law that disregards periods of employment under the age of 25 for the purposes of calculating a worker's service-related notice entitlement could not be justified, and the practice was incompatible with the prohibition on age discrimination set out in the Equal Treatment Framework Directive (2000/78/EC). The ECJ held that it is for the national court to disapply national legislation that is incompatible with the principle of non-discrimination on the ground of age, irrespective of whether or not it requests a preliminary ruling of the interpretation of that principle from the ECJ.

In Rosenbladt v Oellerking Gebäudereinigungsges mbH [2011] IRLR 51 ECJ, the ECJ held that a German law allowing employers to agree with employees under a collective agreement that they must retire when they become entitled to a pension could be justified under art.6(1) of the Equal Treatment Framework Directive provided that the retired employees are not deprived of continued protection against age discrimination.

In Mayor and Burgesses of the London Borough of Tower Hamlets v Wooster [2009] IRLR 980 EAT (decided under the repealed Employment Equality (Age) Regulations 2006), the EAT held that an employer committed direct age discrimination against an employee when it made him redundant at the age of 49 in order to avoid paying an early retirement pension to which he would be entitled if he left employment when he was aged 50 or over.

Additional resources on direct discrimination

Line manager briefings

Less favourable treatment

What constitutes less favourable treatment is a matter for the tribunal to decide. The Employment statutory code of practice states that to decide whether or not an employer has "treated a worker 'less favourably', a comparison must be made with how they have treated other workers or would have treated them in similar circumstances". The code explains that: "If the employer's treatment of the worker puts the worker at a clear disadvantage compared with other workers, then it is more likely that the treatment will be less favourable: for example, where a job applicant is refused a job." It goes on to state that less favourable treatment "could also involve being deprived of a choice or excluded from an opportunity."

It is usually necessary that a complainant show that they have suffered an actual detriment, although as the code states: "The worker does not have to experience actual disadvantage (economic or otherwise) for the treatment to be less favourable. It is enough that the worker can reasonably say that they would have preferred not to be treated differently from the way the employer treated - or would have treated - another person."

The Equality Act 2010 requires complainants alleging direct discrimination to compare themselves with either an actual or a hypothetical comparator when showing less favourable treatment. So a complainant would have to show that they had been less favourably treated than another individual of a different age group in similar circumstances either had or would have been treated.

In Lockwood v Department for Work and Pensions and another EAT/0094/12 (decided under the repealed Employment Equality (Age) Regulations 2006 (SI 2006/1031)), the employee (who was aged 26 and had eight years' service) received a voluntary redundancy payment of £10,849.04. However, under the rules of the scheme she would have been entitled to a further sum of £17,690.58, had she been over the age of 35, with the same period of service. The EAT upheld the employment tribunal finding that there were material differences between the employee's age group (35 or under) and the comparator group on which she relied (over 35). The conclusion that the two groups were "not truly comparable" was based on evidence "showing that the purpose of the different payments was to reflect the comparative difficulty of loss of employment suffered by the older workers (finding another job; family financial commitments) when compared with those in the younger age group". However, in Lockwood v Department for Work and Pensions and another [2013] IRLR 941 CA, the Court of Appeal held that the tribunal, and subsequently the EAT, had failed to conduct the comparison exercise properly. The Court of Appeal held that the tribunal was wrong "to factor into the comparison exercise considerations that were either directly related to [the employee's] age, or were consequent upon, linked or connected to her age". Such considerations included: the employee's age; the fact that she was less likely to have family ties and/or a mortgage; and the fact that she would have less difficulty in finding new employment because she was younger than the comparator. Accordingly, the Court of Appeal overturned the EAT decision and held that the employee had suffered less favourable treatment, although it also held that such treatment was objectively justified. The EAT in Budgen and Smith v Ministry of Justice and others EAT/0308/12 and EAT/0309/12 relied on Lockwood in holding that the real reason why the claimants who were both over 60 received lower voluntary redundancy payments under the Civil Service Compensation Scheme 1994 than their colleagues who were under 60 was because of their age, and "the view that any explanation that such a person is getting a lesser sum in compensation because he is getting more in his pension is irrelevant at this stage". The EAT remitted the case to the employment tribunal to determine the issue of objective justification.

A similar finding was reached in Donkor v Royal Bank of Scotland [2016] IRLR 268 EAT. Unlike two colleagues aged under 50, Mr Donkor (who was aged over 50 at the relevant time) was not offered the opportunity to apply for voluntary redundancy. It seems that the underlying reason for this was that Mr Donkor was eligible to apply for early retirement, and the significant costs involved necessitated a referral for higher level approval. Allowing Mr Donkor's appeal against the employment tribunal decision that he had not been less favourably treated, the EAT stated that the question was not why the employer had taken into account the employee's age, but whether it did so. As Mr Donkor's age was the reason why his employer failed to extend to him the same opportunity to apply for voluntary redundancy as it had extended to his younger comparators, the EAT found that he had been less favourably treated. It substituted a finding that there was a prima facie case of direct discrimination and remitted the issue of objective justification for consideration by the same employment tribunal.

The EAT has emphasised that where an employer relies on differences between the claimant and the comparators to explain their dissimilar treatment, the difference must be "material" to the case (CP Regents Park Two Ltd v Ilyas EAT/0366/14 (a race discrimination case)).

Where there is no actual comparator in similar circumstances and there is some evidence to support an inference of discrimination, the tribunal must construct a hypothetical comparator to show how a person of the other racial group would have been treated: Balamoody v United Kingdom Central Council for Nursing, Midwifery and Health Visiting [2002] IRLR 288 CA (decided under the now repealed Race Relations Act 1976). A tribunal can draw an inference of how a hypothetical comparator would be treated from evidence of how the employer treated actual non-identical, but not wholly dissimilar cases: Chief Constable of West Yorkshire v Vento [2001] IRLR 124 EAT (decided under the repealed Sex Discrimination Act 1975).

Because of age

The second hurdle in a claim of direct age discrimination is to show that the reason the treatment was less favourable was "because of the protected characteristic" of age. The protected characteristic of age does not have to have been the sole reason for the less favourable treatment but it must have been an important or substantial reason. This was emphasised in Alam v London Probation Trust EAT/0199/14 (a race discrimination case), in which the EAT stated that: "What is required is not that the treatment is solely because of a protected characteristic but that the protected characteristic is an 'effective cause' of the treatment".

The Equality Act 2010 explanatory notes state that the use of the words "because of" instead of the words "on grounds of" used in the Employment Equality (Age) Regulations 2006 is not intended to change the legal definition of direct discrimination. As such, it is likely that reference will continue to be made to certain cases that addressed how less favourable treatment was established under previous discrimination legislation.

The approach to direct discrimination was addressed in Amnesty International v Ahmed [2009] IRLR 884 EAT (decided under the repealed Race Relations Act 1976). The EAT stated that while in "some cases the ground, or the reason, for the treatment complained of is inherent in the act itself" (for example, a sign saying "No blacks admitted"), in others "the act complained of is not in itself discriminatory but is rendered so by a discriminatory motivation, ie other 'mental processes' (whether conscious or unconscious) which led a putative discriminator to do the act. Establishing what those processes were is not always an easy inquiry, but tribunals are trusted to be able to draw appropriate inferences from the conduct of the putative discriminator and surrounding circumstances (with the assistance where necessary of the burden of proof provisions). Even in such a case, however, it is important to bear in mind that the subject of the inquiry is the ground of, or reason for, the putative discriminator's action, not his motive: just as a ... benign motive is irrelevant."

In HM Revenue and Customs v Saldanha EAT/0067/17 EAT, a race discrimination case, the employee successfully applied for a posting in Italy, but HM Revenue and Customs (HMRC) withdrew its offer when it received the employee's psychological resilience assessment that indicated that, given his ethnicity, he could suffer stress if faced with any racism in Italy. The tribunal found that both the assessment and the withdrawal of the posting were acts of unlawful race discrimination. Applying Amnesty International, the EAT held that the tribunal was entitled to find that the nature of the discrimination arose from a criterion rather than a mental process as the acts complained of were based on race and inherently discriminatory. As HMRC had adopted the third party's psychological assessment, its decision taking was also "tainted" by race. Therefore, the tribunal did not need to investigate the mental processes of the third party or HMRC.

In Geller and another v Yeshurun Hebrew Congregation EAT/0190/15, the employment tribunal held that the employer's treatment of Mrs Geller "was based on non-sex related factors" which led to the tribunal's conclusion that "the treatment was non-sex related". Upholding the employee's appeal and remitting the case to the employment tribunal, the EAT stated that the tribunal had incorrectly relied on the employer's "genuine beliefs" and had overlooked the very important point that discrimination can be unconscious or subconscious, a principle applied by the House of Lords in Nagarajan v London Regional Transport [1999] IRLR 572 HL.

The Court of Appeal has held that, where it is necessary to consider motive, it is the motive of the individual who carried out the asserted discriminatory act that is relevant, rather than someone else's motive. In CLFIS (UK) Ltd v Reynolds [2015] IRLR 562 CA, the alleged discriminatory act of a sole decision-making employee was influenced by information supplied, or views expressed, by another employee whose motivation was asserted to be discriminatory. Referring to such a situation as a "tainted information case", the Court of Appeal took the view that: "liability can only attach to an employer where an individual employee or agent for whose act he is responsible has done an act which satisfies the definition of discrimination. That means that the individual employee who did the act complained of must himself have been motivated by the protected characteristic." The Court added that there was no basis for asserting that that employee's act could be said to be discriminatory on the basis of someone else's motivation, and that, in a tainted information case, the correct approach is to treat the conduct of the person supplying the information as a separate act from that of the person who acted on it, meaning that it should be the subject of a separate claim.

Indirect discrimination

Section 19 of the Equality Act 2010 defines indirect discrimination as being where person A applies to person B a provision, criterion or practice that is discriminatory in relation to a relevant protected characteristic of B's.

A provision, criterion or practice is discriminatory in relation to B's age, if:

  • A applies, or would apply it, to people who are not of the same age group as B;
  • it puts, or would put, people who are in the same age group as B at a particular disadvantage when compared with others who are not in that age group;
  • it puts, or would put, B at that disadvantage; and
  • A cannot justify the provision, criterion or practice by showing that it is a proportionate means of achieving a legitimate aim (see Justification).

Indirect age discrimination will not be unlawful if it is justified - see Justification.

The Employment statutory code of practice explains that a 25-year old female employee could be viewed as sharing the protected characteristic of age with a number of different age groups. These may include "25 year olds", "the under 30s", "the over 20s" and "younger workers".

The EHRC guidance What equality law means for you as an employer: dismissal, redundancy, retirement and after a worker has left advises, for example, that an employer needs to be cautious when using length of service as a criterion in a redundancy selection matrix. The guidance states that this could result in "younger people who will not have built up as long an employment record" being in the pool in greater numbers, and so could give rise to indirect age discrimination. However, the use of such a criterion might be justified as one of several criteria (see Justification).

The employees in Braithwaite and others v HCL Insurance BPO Services Limited EAT/0152/14 and Edie and others v HCL Insurance BPO Services Ltd EAT/0152/14 were transferred to the employer (HCL) under the Transfer of Undertakings (Protection of Employees) Regulations 2006 (SI 2006/246) and retained the benefit of better contractual terms than HCL's pre-existing employees. HCL was experiencing losses and decided to move all employees on to the same terms and conditions, which employees were required to accept or be dismissed. The transferred employees complained that HCL had applied to them a provision, criterion or practice (PCP) that was indirectly discriminatory on the ground of age within the meaning of s.19 of the Equality Act 2010. The employment tribunal found that HCL had applied a PCP that if employees wished to remain in employment with HCL "they were required to enter into a new contract … under which they would not have contractual entitlements to private health insurance, carer days and enhanced redundancy payments and in which their working hours would be 37 hours per week and annual leave would be 25 days a year". That PCP put older workers at a particular disadvantage because they had built up "greater entitlements by virtue of longer service". However, the tribunal found that the introduction of the new terms was justified in that it was a proportionate means of achieving HCL's "legitimate aim which was to reduce staff costs to ensure [HCL's] future viability and to have in place market competitive, non-discriminatory terms and conditions". The EAT upheld the employment tribunal decision.

In Rainbow v Milton Keynes Council [2008] ET/1200104/07 (decided under the repealed Employment Equality (Age) Regulations 2006 (SI 2006/1031)), a local authority's advertisement for candidates "in the first five years of their career" was held to be indirectly discriminatory against a teacher with 34 years' teaching experience. The employer's argument that it was justified in seeking less experienced employees on the grounds of cost was rejected.

In Homer v Chief Constable of West Yorkshire Police [2012] IRLR 601 SC (decided under the repealed Employment Equality (Age) Regulations 2006), the Supreme Court held that a requirement that employees obtain a law degree before they could be promoted to the highest grade was indirect age discrimination against the claimant, who did not have enough time to complete a degree before he reached the employer's retirement age. It sent the case back to the employment tribunal to decide whether or not the employer's actions were justified as a proportionate means of achieving a legitimate aim. A newly constituted tribunal found that the requirement was not justified and the police force had discriminated against the claimant (Homer v Chief Constable of West Yorkshire Police ET/1803238/2007).

In (1) ABN Amro Management Services Ltd (2) Royal Bank of Scotland v Hogben EAT/0266/09 (decided under the repealed Employment Equality (Age) Regulations 2006), a change in policy relating to the payment of discretionary bonuses to redundant employees meant that they were no longer automatically considered for the receipt of a pro-rated bonus; they were considered only where proof of exceptional circumstances existed. The employee argued that the change was indirectly discriminatory. However, the EAT struck out the employee's claim, and held that it would be artificial and unnatural to describe the change from one substantive policy to another as a provision, criterion or practice.

In ABN Amro Management Services Ltd, the employee also argued that the requirement that he sign a compromise agreement (now known as a settlement agreement) and waive his right to pursue an age discrimination claim in order to receive an enhanced redundancy payment was indirectly discriminatory. The EAT disagreed and stated that the requirement did not put employees in any given age group at a particular disadvantage because it affected all dismissed employees in the same way. The EAT went on to state that, even if the requirement was found to be discriminatory, it could be justified as a proportionate way of achieving the employer's legitimate aim of achieving a binding compromise of all of the possible claims arising out of the dismissal of an employee.

In Tyrolean Airways Tiroler Luftfahrt Gesellschaft Mbh v Betriebsrat Bord Der Tyrolean Airways Tiroler Luftfahrt Gesellschaft Mbh [2012] IRLR 781 ECJ, a collective agreement provided that only length of service with the particular employer was taken into account for pay grading purposes: identical experience with airlines in the same group was irrelevant. The European Court of Justice held that this criterion was not directly or indirectly related to age. Accordingly, the criterion was not discriminatory within the meaning of the Equal Treatment Framework Directive (2000/78/EC).

Additional resources on indirect discrimination

Line manager briefings

The pool for comparison

The claimant must be able to show that the application of the provision, criterion or practice disadvantages or would disadvantage persons of the relevant age group. The choice of the appropriate pool for deciding disadvantage is a matter for the tribunal but it should be sufficiently wide to include all those who may be affected by the provision, criterion or practice. The Employment statutory code of practice states that: "In general, the pool should consist of the group which the provision, criterion or practice affects (or would affect) either positively or negatively, while excluding workers who are not affected by it, either positively or negatively." Jones v University of Manchester [1993] IRLR 218 CA was decided under the now repealed Sex Discrimination Act 1975 at a time when the test for indirect discrimination concerned whether or not the persons to whom a particular requirement or condition was applied "could comply" with that requirement or condition. Nevertheless, the decision in Jones is still of some background relevance to the choice of "pools for comparison" under the Equality Act 2010. In Jones, the Court of Appeal held that the appropriate pool for comparison in a recruitment case was all those people who could comply with the other selection criteria, apart from the requirement at issue.

Once the pool for comparison has been selected, to assess its potential discriminatory effect it is necessary to ascertain whether or not people of the same age group are disadvantaged by the provision, criterion or practice. The Employment statutory code of practice advises: "Looking at the pool, a comparison must be made between the impact of the provision, criterion or practice on people without the relevant protected characteristic, and its impact on people with the protected characteristic."

Disadvantage

The claimant must show that the provision, criterion or practice in question puts or would put people of the same age group at a particular disadvantage when compared with people not of that age group. The claimant must also establish that it puts or would themselves at that disadvantage. As explained in the Employment statutory code of practice the phrase "would put" "allows challenges to provisions, criteria or practices which have not yet been applied but which would have a discriminatory effect if they were". Disadvantage is not defined in the Equality Act 2010, but it is usually understood to be a similar concept to "detriment". According to the code, disadvantage could involve the denial of an opportunity or choice, deterrence, rejection or exclusion, but would exclude "an unjustified sense of grievance".

In the words of the EAT "It is not sufficient that the practice puts, or would put, only the [complainant] at a particular disadvantage". In Greenland v Secretary of State for Justice EAT/0323/14 (a race discrimination case), Mr Greenland complained that a practice of paying higher fees to parole board members who were judges indirectly discriminated against black non-judicial members of the board. However, while all 36 judicial members were white, there was no evidence that there were any black members apart from Mr Greenland himself among the group of 113 non-judicial members. The EAT stated that: "The wording and purpose of s.19 of the [Equality Act 2010] point to consideration of the potential impact of the practice on the appellant and other non-judicial members of the parole board who share his protected characteristics (not hypothetical, potential future members of the parole board)." The EAT assumed (without deciding) that it would be sufficient if there were at least one other person who shared Mr Greenland's "protected characteristic and that 'persons' in s.19(2)(b) includes the singular as well as the plural". However, if Mr Greenland was in fact the only black non-judicial member, the EAT opined that "this would properly raise the question of whether s.19(2)(b) permitted a hypothetical black person to be included amongst the group for the purposes of the comparison". The EAT concluded that: "On the facts of the present case, there is no scope for including hypothetical persons, that is persons who are not members of the parole board, within the group for comparison. We do not consider that the phrase 'puts or would put persons' includes, in the context of this case, non-existent or hypothetical persons who are not yet members of the parole board." In any event (having regard to s.23 of the Equality Act 2010), on the facts there were material differences "between the retired judges who were members of the parole board and the non-judicial members" which rendered comparison impermissible. The EAT took the view that such an approach "is consistent with the decision of the Court of Appeal in Eweida v British Airways Plc [2010] IRLR 322 CA".

In Essop and others v Home Office (UK Border Agency) [2017] IRLR 558 SC, the Supreme Court held that claimants in indirect discrimination claims are not required to explain the reason why the provision, criterion or practice (PCP) puts, or would put, the affected group at a particular disadvantage, stating that: "It is enough that it does." In Essop, the PCP was the requirement for all staff to pass an assessment test to be eligible for promotion. Statistical evidence indicated that candidates from black and minority ethnic (BME) backgrounds and candidates over 35 were disproportionately likely to fail the test, although no reason was identified to explain the differential. Mr Essop, along with other unsuccessful candidates, claimed that they suffered a disadvantage compared with white and younger candidates. Overturning the Court of Appeal decision (Essop and others v Home Office (UK Border Agency) [2015] IRLR 724 CA) and upholding the EAT decision (Essop & others v Home Office (UK Border Agency) EAT/0480/13), the Supreme Court held that there is no requirement for the PCP to "put every member of the group sharing the particular protected characteristic at a disadvantage". The Court noted that "The fact that some BME or older candidates could pass the test is neither here nor there. The group was at a disadvantage because the proportion of those who could pass it was smaller than the proportion of white or younger candidates [who could pass the test]."

The Supreme Court decision in Essop is more in line with the European Court of Justice (ECJ) decision in CHEZ Razpredelenie Bulgaria AD v Komisia za Zashtita ot Diskriminatsia [2015] IRLR 746 ECJ (a race discrimination case that did not concern, but is likely to impact on, employment law). In CHEZ, the claimant, who was an occupant in an urban district mainly inhabited by persons of Roma origin, but who was not herself of Roma origin, made a complaint of discrimination that the Roma majority district received less favourable treatment in that their electricity meters were deliberately installed at inconvenient heights in comparison to districts in which the inhabitants were not majority Roma origin where the meters were installed at head height. The ECJ held that it is not necessary for the claimant to share the same characteristic as the protected group to bring a complaint of indirect race discrimination under the Race Directive (2000/43/EC). The ECJ further stated that art.2 of the Race Directive "must be interpreted as precluding a national provision under which, in order for there to be indirect discrimination on the grounds of racial or ethnic origin, the measure in question is required to have been adopted for reasons of racial or ethnic origin".

Justification

Both direct and indirect age discrimination are capable of being justified. Less favourable treatment because of age will not amount to unlawful direct age discrimination if the treatment is shown to be a proportionate means of achieving a legitimate aim. Similarly, a provision, criterion or practice that is indirectly discriminatory in relation to age will not be unlawful if the employer can show that the provision, criterion or practice is a proportionate means of achieving a legitimate aim. While this test is not defined in the Equality Act 2010 itself, it embodies principles derived from EU law.

The Employment statutory code of practice states that the aim of the provision, criterion or practice "should be legal, should not be discriminatory in itself and must represent a real, objective consideration" to constitute a "legitimate aim".

The code states that EU law "views treatment as proportionate if it is an 'appropriate and necessary' means of achieving a legitimate aim". However, the code points out that "necessary" in this context does not mean that the provision, criterion or practice must be the only possible way of achieving the legitimate aim: "it is sufficient that the same aim could not be achieved by less discriminatory means". In practice, this requires balancing the discriminatory effect of the provision, criterion or practice against the employer's reasons for applying it, taking into account all relevant facts.

In Rosenbladt v Oellerking Gebäudereinigungsges mbH [2011] IRLR 51 ECJ, the European Court of Justice (ECJ) held that a German law allowing employers to agree with employees under a collective agreement that they must retire when they become entitled to a pension could be justified under art.6(1) of the Equal Treatment Framework Directive (2000/78/EC), which provides that member states may provide that differences of treatment on grounds of age "shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary". The ECJ noted that its approval of the German law does not mean that such clauses in a collective agreement are exempt from any review by the courts; the collective agreement itself must be objectively justified.

In Prigge and others v Deutsche Lufthansa AG [2011] IRLR 1052 ECJ, the ECJ held that air traffic safety does not constitute a legitimate aim within the meaning of art.6(1) of the Equal Treatment Framework Directive because such aims must be "social policy objectives, such as those related to employment policy, the labour market or vocational training". Nor was a provision in a German airline collective agreement that required airline pilots to retire at the age of 60 necessary for public security and the protection of health within the meaning of art.2(5) of the Directive, given that under international law and German domestic law pilots may continue to carry out their activities, under certain restrictions, between the ages of 60 and 65.

In Braithwaite and others v HCL Insurance BPO Services Limited EAT/0152/14 and Edie and others v HCL Insurance BPO Services Limited EAT/0153/14, the employer (HCL) applied a provision, criterion or practice (PCP) requiring all of its employees to move to a single set of terms and conditions, which disadvantaged transferred employees (and particularly those older employees with long service) who lost the benefit of more favourable contractual terms. The EAT agreed with the employment tribunal that the PCP was justified in that it was a proportionate means of achieving HCL's "legitimate aim which was to reduce staff costs to ensure [HCL's] future viability and to have in place market competitive, non-discriminatory terms and conditions".

In Chief Constable of West Midlands Police and others v Harrod and others [2015] IRLR 790 EAT, the EAT dismissed police officers' claims for indirect discrimination on the ground of age. The employment tribunal (in Harrod and others v Chief Constable of West Midlands Police and others ET/1307406/2011) held that the blanket practice of requiring the retirement of officers under reg.A19 of the Police Pensions Regulations 1987 (SI 1987/257) is not a proportionate means of achieving a legitimate aim and accordingly, not justified. However, the EAT held that the tribunal had erred in law in holding that the discrimination was not justified. The EAT stated that the tribunal "wrongly concentrated on the process, and reasoning, adopted by the forces when deciding to utilise reg.A19, rather than enquiring whether at the date of the hearing before the tribunal the use of reg.A19 was proportionate (and hence justified, objectively)". The discriminatory element arose from statute and not the force's application of the regulation. The Court of Appeal, in Chief Constable of West Midlands Police and others v Harrod and others [2017] IRLR 539 CA, dismissed the officers' appeal. It stated that it was the method of achieving the reduction in the number of police officers that must be justified, and not the number of compulsory retirements. The forces' use of the power under reg.A19 was justified because no other method of selection was lawful.

It is likely that, as in sex discrimination cases, cost alone will not justify the imposition of a discriminatory provision, criterion or practice, but may be one of the factors taken into account in the balancing exercise: Cross and others v British Airways plc [2005] IRLR 423 EAT (which was decided under the now repealed Sex Discrimination Act 1975). In Woodcock v Cumbria Primary Care Trust [2011] IRLR 119 EAT, the Employment Appeal Tribunal (EAT) held that the decision to dismiss Mr Woodcock before he reached the age of 50 to prevent him from getting a pension "windfall" and avoid the corresponding loss to the trust was a legitimate aim that went beyond the mere wish to reduce costs. The EAT went on to question the current orthodoxy that an employer cannot justify discrimination on the ground of cost alone, and stated that cost alone may be a sufficient justifying factor where the cost of avoiding or rectifying the discriminatory impact of a measure or state of affairs would be "disproportionately high". The EAT noted that in many cases the discriminatory impact will be such that the employer "must avoid or correct it whatever the cost" but in other cases the discriminatory impact will be trivial and the cost of avoiding it enormous. The Court of Appeal dismissed Mr Woodcock's appeal (Woodcock v Cumbria Primary Care Trust [2012] IRLR 491 CA). It noted that almost every decision made by an employer will have regard to costs and observed that the relevant legislation was silent as to "the extent to which considerations of cost may feature in the justification exercise" and concluded from this that the correct question is whether or not treatment that would otherwise be discriminatory "may be justified if it was 'a proportionate means of achieving a legitimate aim'". The Court of Appeal concluded, after reviewing the relevant authorities including decisions of the ECJ, that although "the guidance of the Court of Justice is that an employer cannot justify discriminatory treatment 'solely' because the elimination of such treatment would involve increased costs, that guidance cannot mean more than that the saving or avoidance of costs will not, without more, amount to the achievement of a 'legitimate aim'". Accordingly, had the employer's treatment of Mr Woodcock been "no more than treatment aimed at saving or avoiding costs" it would not have been justifiable, but his dismissal notice was "genuinely served, with the aim of giving effect to the trust's genuine decision to terminate his employment on the grounds of his redundancy". This was a legitimate aim and it was also legitimate for the trust "to ensure that, in giving effect to it, the dismissal also saved the trust the additional element of costs that, had it not timed the dismissal as it did, it would be likely to have incurred". Woodcock was concerned with the attempted justification of direct age discrimination under the repealed Employment Equality (Age) Regulations 2006 (SI 2006/1031), but it is likely to remain relevant under the Equality Act 2010.

In Sturmey v Weymouth and Portland Borough Council EAT/0114/14, the EAT commented that Woodcock does not set out, nor was it "intended by the Employment Appeal Tribunal or the Court of Appeal to set out, any general principle as to whether omitting or eliding stages in the redundancy process to save pension costs will always achieve a legitimate aim or will always be a proportionate means of doing so". In Woodcock, the Court of Appeal recognised the "very particular circumstances" of the case, whereas in Sturmey the EAT was concerned with an employee "of more ordinary financial status" who just happened to be "in her 54th year when the re-organisation struck". She was "part of a general re-organisation where one might expect budgetary allowance to be made for those who happen to be 55 or reach the age of 55 during the process". The EAT remitted the case to the employment tribunal, which it stated "ought to have considered and given reasons for its conclusion on proportionality without effectively saying that Woodcock was decisive".

A case brought under the Part-Time Workers Directive (Directive 97/81/EC) which was transposed into domestic law by the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551) has implications for attempted justification on costs grounds under the Equality Act 2010. Following a reference to the ECJ (O'Brien v Ministry of Justice Case C-393/10 ECJ), the Supreme Court held, contrary to a specific provision in the Regulations, that a part-time fee paid judge was a "worker" and as such entitled to the protection of the Regulations. Further, the exclusion of part-time judges from the judicial pension scheme amounted to less favourable treatment that was not objectively justified. The Supreme Court held that "the unequal treatment of different classes of employees must be justified by the existence of precise, concrete factors, characterising the employment condition concerned in its specific context and on the basis of objective and transparent criteria". Commenting on the "pure budgetary consideration" that the pensions payable to full-time judges may have to be reduced if part-time judges receive a pension, the Supreme Court continued: "the fundamental principles of equal treatment cannot depend upon how much money happens to be available in the public coffers at any one particular time or upon how the state chooses to allocate the funds available between the various responsibilities it undertakes". Although the Supreme Court found it "unnecessary ... to express a view upon whether the case of Woodcock was rightly decided" it is clear that Woodcock v Cumbria Primary Care Trust [2012] IRLR 491 CA must now be interpreted in the light of O'Brien (O'Brien v Ministry of Justice (formerly Department for Constitutional Affairs) [2013] IRLR 315 SC).

In HM Land Registry v Benson and others [2012] IRLR 373 EAT (decided under the repealed Employment Equality (Age) Regulations 2006), the EAT, overturning the decision of the employment tribunal, held that a "cheapness criterion" applied by the employer during the selection process when implementing a voluntary redundancy/early retirement exercise was justified, although indirectly discriminatory on the basis of age. Mrs Benson was refused early retirement because she was of an age that made it more expensive to grant her application. The EAT found that it was legitimate for the employer to impose a budget on the amount to be spent on such schemes, stating that: "Like any business, it was entitled to make decisions about the allocation of its resources." The EAT found that, on the facts, the adoption of the cheapness criterion was a proportionate means of selection to meet the financial limit imposed.

In Heskett v Secretary of State for Justice EAT/0149/18, the EAT upheld the employment tribunal decision that an age discriminatory pay policy that placed probation officers under the age of 50 at a material disadvantage in comparison with those over 50 was justified. The EAT found that, through no fault of its own, the Ministry of Justice had been "compelled to find a way of squaring a circle" brought about by government policy following the financial crisis. The EAT said that there is a distinction between an absence of means and reliance solely on cost and, it is clear from Benson and Edie and others v HCL Insurance BPO Services Ltd EAT/0152/14, that it is legitimate for an organisation to make decisions about the allocation of its resources.

In Seldon v Clarkson Wright & Jakes (a partnership) [2012] IRLR 590 SC (decided under the repealed Employment Equality (Age) Regulations 2006), the Supreme Court provided guidance on the correct approach to the test for justifying direct age discrimination. After reviewing the applicable provisions of the Equal Treatment Framework Directive and relevant European authorities, the Supreme Court concluded that the correct application of those principles to UK domestic legislation meant that "the approach to justifying direct age discrimination cannot be identical to the approach to justifying indirect discrimination and that reg.3 [which sets out the test for discrimination on the ground of age] (and its equivalent in s.13(2) of the Equality Act 2010) must be read accordingly". The Supreme Court noted that to "justify direct age discrimination under art.6(1), the aims of the measure must be social policy objectives, such as those related to employment policy, the labour market or vocational training". These are of a public interest nature, which is "distinguishable from purely individual reasons particular to the employer's situation, such as cost reduction or improving competitiveness". The Supreme Court considered that the UK Government had given employers "the flexibility to choose which objectives to pursue", provided that:

  • these objectives can count as legitimate objectives of a public interest nature within the meaning of the Directive;
  • they are consistent with the social policy aims of the state; and
  • the means used are proportionate, that is both appropriate to the aim and (reasonably) necessary to achieve it.

It appeared to the Supreme Court that European case law had identified two different kinds of legitimate objective, namely "inter-generational fairness" and "dignity". The Court was satisfied that, in this case, the employer, a law firm, had legitimate aims in requiring the mandatory retirement of Mr Seldon, a partner, at the age of 65. This was because the firm's aims of staff retention and workforce planning were "directly related to the legitimate social policy aim of sharing out professional employment opportunities fairly between the generations". The third aim of "limiting the need to expel partners by way of performance management" related to the "dignity aims" accepted previously by the ECJ in other cases.

However, although the Supreme Court agreed that the firms's aims were legitimate, it remitted the case to the employment tribunal to consider the proportionality of a retirement age of 65 because "there is a difference between justifying a retirement age and justifying this retirement age". In Seldon v Clarkson Wright & Jakes ET/1100275/2007, the employment tribunal held that the firm's retirement age of 65 was appropriate and necessary to achieve the retention and planning aims. The age had been in the partnership deed without disagreement for as long as anyone could remember. The fact that the law firm could have chosen a different retirement age did not mean that the retirement age of 65 was not appropriate and necessary. The tribunal concluded that the firm's retirement age for partners was justified. However, before dismissing Mr Seldon's claim, the tribunal stated that the position might have been different if the facts had arisen after the abolition of the default retirement age on 6 April 2011 "and after the planned changes in the state pension age". The EAT rejected Mr Seldon's appeal (Seldon v Clarkson Wright & Jakes EAT/0434/13).

In National Union of Rail, Maritime and Transport Workers (RMT) v Lloyd EAT/0281/18, the RMT operated an age discriminatory rule that prohibited members from standing for election to the National Executive Committee if they would reach the age of 65 before the end of the three-year term. The EAT agreed with the tribunal that the aim of acting consistently with the union's "long-established policy of campaigning to lower the retirement age" was not, following Seldon, "consistent with the social policy aims of the state" and therefore was not legitimate.

In Lord Chancellor and another v McCloud and others; Ministry of Justice v Mostyn and others; Secretary of State for the Home Department and others v Sargeant and others [2019] IRLR 477 CA, the Court of Appeal held that the Government's view that "it felt right" to protect older workers with transitional provisions when making changes to pension schemes for judges and firefighters was insufficient to defend direct age discrimination claims. In relation to the judges, the Court of Appeal held that the tribunal had not erred in concluding that the aims relied on by the Government did not stand up to scrutiny, given the lack of evidence that older judges required protection against financial disadvantage more than younger judges. The Court also acknowledged the tribunal's dim view of the Government's stated aim of consistency with other public-sector pension schemes. This contention was "based on generalisation rather than hard evidence" and the judges' position is so different from that of other public servants that true comparisons cannot be made. Regarding the firefighters, the Court of Appeal concluded that, if the Government's view that older firefighters needed additional protection was based on something more than "visceral instinct", it needed to explain its reasons to the tribunal, which could assess the legitimacy of the chosen aims. While the Government can have moral and political aims in mind, their justification must be supported by evidence. The Court of Appeal accepted that, in the absence of evidence supporting the claimed legitimacy of the aims, the firefighters' direct age discrimination case must succeed. 

In Air Products plc v Cockram [2018] IRLR 755 CA, the employer refused to allow the claimant to take stock options on leaving his employment because he was under the age of 55. The Court of Appeal held that limiting the advantage enjoyed by one age group over another is "a legitimate social policy aspect of intergenerational fairness" and Seldon does not say anything to the contrary. Having weighed up the factors, the Court of Appeal found that the provision was a proportionate means of achieving a legitimate aim.

However, the aim of intergenerational fairness did not amount to a legitimate aim in National Union of Rail, Maritime and Transport Workers (RMT) v Lloyd EAT/0281/18. The EAT agreed with the tribunal finding that the directly discriminatory rule operated by the RMT was not "having any effect whatsoever" in promoting intergenerational fairness. The EAT found that, on the contrary, the effect of the rule "if anything, is to ensure that the composition of the [National Executive Committee] is steadfastly middle aged". The EAT rejected the RMT's submission that the "evidence of effectiveness" was relevant only to the issue of proportionality on the basis that, if the evidence shows that the rule has been ineffective, it is potentially relevant to the issue of whether or not the aim is legitimate.

In Hörnfeldt v Posten Meddelande AB [2012] IRLR 785 ECJ, the ECJ upheld the Swedish law that allows an employer to terminate an employee's contract of employment on the sole ground that they have reached the age of 67, taking no account of the pension that the employee will receive, as justified.

In European Commission v Hungary Case C-286/12 ECJ, the Hungarian Government sought to justify its adoption of a legislative provision that lowered the compulsory retirement age for judges, prosecutors and notaries from 70 to 62. Hungary relied on two objectives, the first related broadly to the standardisation of the compulsory retirement age in the public sector, and the second centred on the establishment of a "more balanced age structure" facilitating access for young lawyers into the professions in question. The ECJ held that the standardisation aim was legitimate and, in principle, the means adopted were appropriate. However, it noted that the abrupt and significant change to the retirement age was introduced without any transitional measures to protect the legitimate expectations of those affected by the change, and that Hungary had failed to adduce evidence as to whether or not more lenient measure would have sufficed. Against that background the ECJ held that the measures were not necessary to achieve the first aim. The second aim was also legitimate but the "apparently positive" but "short-term effects" called "into question the possibility of achieving a truly balanced age structure in the medium and long-terms" and thus the method was not appropriate. Accordingly, the ECJ found that the provision was not justified.

In Bloxham v Freshfields Bruckhaus Deringer [2007] ET/2205086/06 (decided under the repealed Employment Equality (Age) Regulations 2006), the employment tribunal held that transitional arrangements for the reform of a partners' pension scheme were less favourable treatment on grounds of age. However, the treatment was a proportionate response to the need to tackle intergenerational unfairness whereby a large proportion of the profits of younger, active partners were going towards the pensions for retired partners. Taking into account the need to redress the balance between older and younger partners, and the fact that even after lengthy consultation no less discriminatory alternative was proposed, the tribunal found that the arrangements were justified.

In MacCulloch v Imperial Chemical Industries plc [2008] IRLR 846 EAT (decided under the repealed Employment Equality (Age) Regulations 2006), the tribunal had found that a redundancy scheme that discriminated against younger employees was justified by the employer's aims of encouraging and rewarding loyalty and of reflecting the vulnerability of older workers in the job market. The EAT held that the tribunal had failed to consider properly whether or not the employer's method of achieving its (legitimate) aims was proportionate: the tribunal should have analysed whether or not the significant disadvantage caused to the employee by the operation of the scheme was reasonably necessary to achieve its objectives. The issue of justification was remitted to the same tribunal.

In Lockwood v Department for Work and Pensions and another EAT/0094/12 (decided under the repealed Employment Equality (Age) Regulations 2006 (SI 2006/1031)), the employee (who was aged 26 and had eight years' service) received a voluntary redundancy payment of £10,849.04. However, under the rules of the scheme she would have been entitled to a further sum of £17,690.58, had she been over the age of 35, with the same period of service. The EAT upheld the employment tribunal finding that the employee's age group (35 or under) and the comparator group (over 35) were not truly comparable, but even if they were, the tribunal had been entitled to find that the employer adopted proportionate means to achieve its legitimate aim of producing "a proportionate financial cushion for workers until alternative employment is found when balanced against the disparate treatment of younger workers". In Lockwood v Department for Work and Pensions and another [2013] EWCA Civ 1195 CA, the Court of Appeal overturned the EAT decision and held that the employee had suffered less favourable treatment. However, it agreed that the treatment was objectively justified.

Although preventing a "windfall" may constitute a legitimate aim of a redundancy payments scheme, a tribunal erred in failing to consider whether or not an employee's exclusion from the scheme (on the grounds that he was entitled to an immediate occupational pension from the age of 60) was proportionate to any disadvantage he thereby sustained (Loxley v BAE Systems (Munitions & Ordnance) Ltd [2008] IRLR 853 EAT, decided under the repealed Employment Equality (Age) Regulations 2006)). The EAT remitted the issue of justification to a fresh tribunal. However, in Kraft Foods UK Ltd v Hastie EAT/0024/10 (which was also decided under repealed the Employment Equality (Age) Regulations 2006), the EAT held that a redundancy payment scheme that incorporated an age-related cap on payments was a proportionate means of achieving the legitimate aim of preventing employees from receiving a windfall and was not discriminatory.

In BAE Systems (Operations) Ltd v McDowell EAT/0318/16, the employer's enhanced redundancy scheme applied a cap whereby employees who are aged 65 and over, and who have an immediate entitlement to an occupational pension, do not receive an enhanced redundancy payment. The employer conceded that the cap had a discriminatory impact, but argued that such discrimination was justified. The EAT found that the tribunal had given careful consideration to the fact that Mr McDowell's potential financial hardship was mitigated by his immediate entitlement to a pension and it was entitled to conclude that this did not justify the cap. However, the EAT held that, in assessing the employer's justification defence, the tribunal had failed to adopt a holistic approach and consider the age-related cap on redundancy payments within the broader context and held that the tribunal's conclusion was unsafe on this basis.

In Rolls Royce plc v Unite the Union [2009] IRLR 49 HC (decided under the repealed Employment Equality (Age) Regulations 2006), the employer argued that a length of service criterion that formed part of a redundancy selection matrix contained in two collective agreements entered into before the age discrimination legislation came into force now gave rise to unlawful indirect age discrimination. The union argued that the length of service criterion reflected the loyalty and experience of the workforce and gave a measure of protection to older workers, who were more vulnerable in the job market after redundancy. The High Court held that the criterion was justified under reg.3 of the now repealed Employment Equality (Age) Regulations 2006. The legitimate aim was "the advancement of an employment policy which achieves a peaceable process of [redundancy] selection agreed with the recognised union", and the criterion was a proportionate means of achieving this aim. In any event, the Court was satisfied that points awarded for long service in a redundancy selection matrix constituted a "benefit" within reg.32, which was justified in relation to workers with more than five years' service (see Service-related benefits). The Court of Appeal upheld the High Court's decision that the criterion is lawful under the age discrimination legislation (Rolls Royce plc v Unite [2009] EWCA Civ 387 CA). (Benefits based on length of service are now dealt with in para.10 of sch.9 to the Equality Act 2010.)

In Pulham and others v London Borough of Barking & Dagenham [2010] IRLR 184 EAT (decided under the repealed Employment Equality (Age) Regulations 2006), the EAT held that, contrary to the position with sex discrimination, pay protection arrangements that are discriminatory on the ground of age are always potentially justifiable.

In (1) ABN Amro Management Services Ltd (2) Royal Bank of Scotland v Hogben EAT/0266/09 (decided under the repealed Employment Equality (Age) Regulations 2006), the employee claimed that weighting given to length of service in the employer's enhanced redundancy payment scheme indirectly discriminated against older workers. The EAT refused to strike out the employee's claim, and went on to state that in relation to the issue of justification "what has to be justified is the feature of the scheme which is complained of as impacting on the claimant", and if that feature can be justified, it is immaterial that other features of the scheme may discriminate against other age groups unless the employer's justification involves reliance on those other features.

Additional resources on justification

Line manager briefings

Harassment

Under s.26 of the Equality Act 2010, harassment occurs where person A engages in unwanted conduct related to the protected characteristic of age, which has the purpose or effect of:

  • violating person B's dignity; or
  • creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

The Employment statutory code of practice makes clear that if "unwanted" conduct (which according to the code means "unwelcome" or "uninvited") is engaged in with the purpose of violating the dignity of another person or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person, that amounts to harassment irrespective of its effect on the person concerned. However, in many cases, unintentional conduct, or even conduct that is intended to be amusing or friendly, may amount to harassment. The code advises that, where there is no intention to create one of the environments described above, each of the following, in accordance with s.26(4) of the Equality Act 2010, must be taken into account in determining whether or not the conduct amounts to harassment:

  • B's perception.
  • The other circumstances of the case.
  • Whether or not it is reasonable for the conduct to have that effect (which is an objective test).

Where an employment tribunal is satisfied that the conduct in question has brought about the proscribed effect, by reference to the employee's perception, then "the question of whether or not it is reasonable for the conduct to have that proscribed effect is effectively determinative" of whether or not the conduct amounts to harassment. In Ahmed v Cardinal Hume Academies EAT/0196/18, a disability discrimination case, the employee sought to persuade the Employment Appeal Tribunal (EAT) that "there may be circumstances where it would be open to the tribunal to conclude that conduct is to be regarded as having the proscribed effect notwithstanding that it might not be reasonable for it to have that effect". The EAT disagreed, stating that the correct approach to the application of s.26(4)(c) is as set out in Pemberton v The Right Reverend Richard Inwood [2018] Civ 564 CA. In Pemberton, the Court of Appeal made it clear that "the relevance of the objective question" in s.26(4)(c) "is that if it was not reasonable for the conduct to be regarded as violating the claimant's dignity or creating an adverse environment for him or her, then it should not be found to have done so".

In Bakkali v Greater Manchester Buses (South) Ltd (t/a Stage Coach Manchester) [2018] IRLR 906 EAT, the Employment Appeal Tribunal (EAT) considered the test that should be applied when determining whether or not the unwanted conduct is "related to" a protected characteristic. The EAT held that "related to" requires a consideration of the context of the offending words or behaviour and the "mental processes" of the alleged harasser. The EAT upheld the tribunal decision that asking a Muslim employee of Moroccan origin whether or not he supported IS did not amount to harassment because, given the context, the offending comment was not "related to" his religious belief or race. The tribunal had found that the comment had been made after the employee had informed his colleague about some "positive sounding comments" from a journalist about IS.

The employer will be liable for acts of employees carried out in the course of employment. In Jones v Tower Boot Co Ltd [1997] IRLR 168 CA (decided under the repealed Race Relations Act 1976), the Court of Appeal held that "in the course of employment" could cover even acts of torture to which workers had subjected a colleague in the workplace.

In Unite the Union v Nailard [2018] IRLR 730 CA, the Court of Appeal upheld the employment tribunal decision that the union was vicariously liable for the behaviour of elected officers of the union on the basis that its failure to deal properly with allegations of sexual harassment by them of a paid union official also amounted to harassment under s.26 of the Equality Act 2010.

The harassment can relate to person B's actual or perceived age, even where the perception is wrong. B would not be required to disclose their actual age in order to bring a claim. It will be enough that B has been harassed because of assumptions made about their age. The harassment could also relate to someone else's age, for example B's spouse or partner.

In a departure from previous legislation, the harassment no longer needs to be "on grounds of" age, but only "related" to it. Therefore it is now clear that B does not have to be, or even be believed to be, the age that is the subject of the unwanted conduct. This was confirmed in Noble v (1) Sidhil Ltd (2) Moore EAT/0375/14 in which the EAT stated: "it is clear that it is not necessary for a person to share the protected characteristic before he may be harassed or discriminated against".

In Timothy James Consulting Ltd v Wilton EAT/0082/14; EAT/020414 & EAT/0205/14 (a sex discrimination case), the EAT stated that "it is important … to give effect to the words that Parliament has used and not to substitute alternative words for them". It also stated: "It is also important that the statutory language should not become encrusted with a judicial gloss. The words used by Parliament are that the conduct must be 'related to' the relevant protected characteristic. The tribunal's task was to apply those words to the facts of the particular case before it." The EAT noted that "prior acts of harassment may give rise to a constructive dismissal". However, it went on to note that "the act of constructive dismissal does not in itself fall within the meaning of harassment as defined by the Equality Act. It was therefore not open to the tribunal as a matter of law to find that the constructive dismissal ... was in itself an unlawful act of harassment."

The Employment statutory code of practice states that: "Unwanted conduct covers a wide range of behaviour, including spoken or written words or abuse, imagery, graffiti, physical gestures, facial expressions, mimicry, jokes, pranks, acts affecting a person's surroundings or other physical behaviour".

Additional resources on harassment

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Policies and documents

"How to" guidance

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Third-party harassment

An employer may be liable in connection with a third party's conduct towards an employee if the employer fails to intervene to prevent or stop the conduct because of the employee's age. In Macdonald v Advocate General for Scotland; Pearce v Governing Body of Mayfield School [2003] IRLR 512 HL, the House of Lords said that an employer will not be liable for subjecting an employee to discrimination by a third party other than an employee, unless the reason for the failure to take action to prevent or reduce the discrimination is related to the employee's sex, race, etc, or the third party was acting as the employer's agent. Macdonald was decided under the repealed Sex Discrimination Act 1975 but employers would be advised to assume that they should protect employees from all types of discrimination by third parties.

In Conteh v Parking Partners Ltd EAT/0288/10 (decided under the now repealed Race Relations Act 1976), the Employment Appeal Tribunal (EAT) upheld the employment tribunal decision that the employer was not liable in respect of the harassment of one of its employees by a person who was employed by a third party over whom the claimant's employer had no control.

In a case that may have implications for discriminatory behaviour by third parties, the Supreme Court held that the Ministry of Justice was vicariously liable for the conduct of a prisoner whose negligence caused a prison officer employee to suffer a back injury while working in the prison kitchen (Cox v Ministry of Justice [2016] IRLR 370 SC). The Supreme Court noted that the case addressed the question of "what sort of relationship has to exist between an individual and a defendant before the defendant can be made vicariously liable in tort for the conduct of that individual".

Prior to 1 October 2013, an employer could be liable under s.40 of the Equality Act 2010 if:

  • an employee was harassed by a third party during the course of their employment;
  • the employer knew that the employee concerned had been subjected to harassment by a third party on at least two other occasions (whether by the same or a different third party); and
  • the employer had failed to take such steps as would have been reasonably practicable to prevent the third party from harassing the employee.

The third-party harassment provisions in s.40 of the Equality Act 2010 were repealed with effect from 1 October 2013 with the result that no claim for alleged third-party harassment can be made under s.40 in respect of acts that took place on or after that date.

Additional resources on third-party harassment

FAQs

Protection from Harassment Act 1997

Under the Protection from Harassment Act 1997, an employer may be vicariously liable for a course of conduct by one of its employees that amounts to "harassment". The harassment may consist of bullying, intimidation or harassment, and does not need to be on a prohibited ground (Majrowski v Guy's and St Thomas's NHS Trust [2006] IRLR 695 HL). In Majrowski the claimant argued his manager had bullied him because he was gay. This included being excessively critical of and strict about his time-keeping and his work; isolating him by refusing to talk to him; being rude and abusive in front of other staff; and imposing unrealistic targets for his performance and threatening him with disciplinary action if he did not achieve them.

In Hammond v International Network Services UK Ltd [2007] EWHC 2604 HC, the High Court held that to succeed under the Protection from Harassment Act 1997 an employee must show that there was an element of real seriousness to the harassment. The actions must be calculated in an objective sense to cause alarm and distress and must be capable of being objectively judged to be oppressive and unreasonable. Irritating, annoying and upsetting conduct, such as shouting and swearing by a supervisor, will not necessarily be a breach of the Act. The High Court found that the matters complained of by Mr Hammond were trivial or could be traced back to reasonable operational decisions taken by the employer.

However, in Green v DB Group Services (UK) Ltd [2006] IRLR 764 HC the High Court awarded a claimant damages of £852,000 after she suffered a "relentless campaign of mean and spiteful behaviour" by four women who worked closely with her, and in respect of a male co-worker's behaviour, which was found to be "domineering, disrespectful, dismissive, confrontational and designed to undermine and belittle her in the view of others". Although each incident viewed separately was not of major significance, it was their cumulative effect that was important. The bank was found liable for the bullying. This also amounted to harassment under the Protection from Harassment Act 1997. The High Court found that a reasonable employer would have intervened as soon as it was aware of the bullying, but managers in this case had closed their eyes to it.

This emphasises the need for employers to ensure that they have in place an anti-bullying policy that is well publicised to all workers and properly enforced. As soon as an employer is aware that bullying is occurring it should take steps to deal with it. In Rayment v Ministry of Defence [2010] IRLR 768 HC, the High Court referred to Veakins v Kier Islington Ltd [2010] IRLR 132 CA, in which the Court of Appeal held that, since Majrowski v Guy's and St Thomas's NHS Trust [2006] IRLR 695 HL, courts have had to consider whether or not the conduct complained of is 'oppressive and unacceptable' as opposed to merely unattractive, unreasonable or regrettable. In Rayment, the High Court awarded the claimant damages under the Protection from Harassment Act 1997, of £5,000 for injury (the exacerbation of the claimant's existing depression) and distress caused by 'oppressive and unacceptable conduct' and £500 for distress caused by the display of photographs in a restroom that was used only by the claimant.

In Levi and another v Bates and others [2015] EWCA Civ 206 CA, the Court of Appeal held that a claim under the Protection from Harassment Act 1997 can be brought by someone who is not the target of the conduct complained of, "if he or she is foreseeably likely to be directly alarmed or distressed by it".

Victimisation

Section 27 of the Equality Act 2010 defines victimisation as where a person (A) subjects another person (B) to a detriment because:

  • B does a protected act; or
  • A believes that B has done, or may do, a protected act.

The following are protected acts:

  • bringing proceedings under the Equality Act 2010;
  • giving evidence or information in connection with proceedings under the Act;
  • doing any other thing for the purposes of or in connection with the Act; or
  • making an allegation (whether or not express) that A or another person has contravened the Act.

In Aston v The Martlet Group Ltd EAT/0274/18, the Employment Appeal Tribunal (EAT) confirmed that the concept of bringing proceedings under s.27 "should be construed as embracing a decision to continue with proceedings" and that the protected act is not restricted to the commencement of proceedings (see Ongoing claims).

Section 77(4) of the Act provides that the following are also to be treated as protected acts:

  • seeking a "relevant pay disclosure";
  • making or seeking to make a relevant pay disclosure; or
  • receiving information disclosed in a relevant pay disclosure.

A "relevant pay disclosure" is one made "for the purpose of enabling the person who makes it, or the person to whom it is made, to find out whether or to what extent there is, in relation to the work in question, a connection between pay and having (or not having) a particular protected characteristic" (s.77(3)) (see Equality and human rights > Equal pay).

Most claims of victimisation will be made where the employee has made an earlier complaint of age discrimination. It will not matter whether or not the original underlying claim was successful. In a complaint of victimisation the age discrimination is not in issue, it is the conduct of the employer in consequence of the employee bringing a claim or assisting another to bring a claim. An individual is protected from victimisation even if the allegation turns out to be wrong, provided that it was not made in bad faith (see Bad faith).

No comparator necessary

Under the victimisation provisions of the Equality Act 2010, the complainant does not need to compare their treatment to that of another real or hypothetical person to establish victimisation. The complainant simply needs to show that they were subjected to a detriment because they had done or may do a protected act.

Detriment

An employee will be treated as having been subjected to a detriment if they suffer a disadvantage that causes harm, damage or loss. The test for detriment is whether or not a reasonable worker would feel that they have been disadvantaged at work (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 HL).

In Rank Nemo (DMS) Ltd and others v Coutinho [2009] IRLR 672 CA (decided under the Race Relations Act 1976), the Court of Appeal held that the non-payment of a tribunal award to a former employee may constitute victimisation.

In Bouabdillah v Commerzbank AG ET/2203106/2012, the employment tribunal found that an employee was victimised by being dismissed from her new post because she had brought sex discrimination proceedings against her former employer.

In Das v Ayrshire and Arran Health Board EATS/0021/14, Mr Das was not offered an interview for the job that he had applied for even though he was the only applicant. The employment tribunal found that the decision to withdraw the post was an act of victimisation because the belief that Mr Das might "bring proceedings in the tribunal was a substantial influence in the decision to depart from the ordinary recruitment process". However, the tribunal went on to find on the facts that Mr Das "had only a slender chance of being appointed even though he was the only candidate". It assessed this as a 10% chance and reduced his compensation by 90%. The EAT upheld the tribunal decision.

Bad faith

Under s.27(3) of the Equality Act 2010, giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.

The Employment statutory code of practice states that "if a worker gives evidence, provides information or makes an allegation in good faith but it turns out that it is factually wrong, or provides information in relation to proceedings which are unsuccessful, they will still be protected from victimisation".

In Saad v Southampton University Hospitals NHS Trust [2018] IRLR 1007 EAT, the EAT held that the primary question, when deciding if an employee acted in bad faith under s.27(3), is whether or not the employee acted honestly in making the discrimination allegation, not the employee's ulterior purpose. The EAT found that, although the employee may have raised his race discrimination allegation with the ulterior purpose of delaying a performance assessment, he had not made the allegation dishonestly as he had a genuine belief that it was true. The EAT was satisfied that, while the employee's motivation might be relevant to the question of remedy, it was not sufficient for a finding of bad faith.

However, in HM Prison Service and others v Ibimidun [2008] IRLR 940 EAT, a case decided under the now repealed Race Relations Act, the EAT held that an employee, who was dismissed because he had brought tribunal proceedings solely in order to harass his employer and colleagues, had not carried out a bona fide protected act and was not covered by the victimisation provisions. In Elegbede v Nexen Petroleum UK Ltd EAT/0298/10 (also decided under the repealed Race Relations Act 1976), the EAT upheld an employment tribunal decision that Mr Elegbede had not been victimised. While the tribunal found that Mr Elegbede had suffered less favourable treatment in one limited respect with regard to a complaint that he had made during his employment, it concluded that "since the allegation underlying that complaint was made falsely and in bad faith" the victimisation claim could not succeed.

It will not be victimisation where an employer can show that the employee was subjected to the detriment for a reason unrelated to the employee having made a protected act.

In Martin v Devonshires Solicitors EAT/0086/10 (decided under the repealed Sex Discrimination Act 1975 and Disability Discrimination Act 1995), the EAT confirmed that, where an employer dismisses an employee in response to their protected act, the employer may not have unlawfully victimised the employee where the reason for dismissal is some feature of the protected act that can be treated as separable. The EAT stated that, in dismissing the employee's victimisation claims, the tribunal had, in effect, found that the reason for the dismissal "had nothing to do with the fact, as such" that she had complained of discrimination, but was because she "was mentally ill and ... the significance of the complaints was as evidence of that fact". 

In Woodhouse v West North West Homes Leeds LTD [2013] IRLR 773 EAT, the EAT overturned the employment tribunal decision that an employee who was dismissed following multiple race discrimination and related grievances, which had not been made in bad faith, was not victimised. The EAT held that the employer's position that the employee "was dismissed because he had lost trust and confidence in the organisation, when coupled, as the employment tribunal found it to be, with the avoidance of further repetition of grievances ... is no more than the [employee] being dismissed, if not because of past protected acts, then because of the belief of the likelihood of future protected acts". On the tribunal's own factual findings, "that amounted to victimisation within the scope of s.27(1)" of the Equality Act 2010 and any other conclusion was an error of law. The EAT warned against using Martin as a "template" for identifying "genuinely separable features" in alleged victimisation cases. Describing Martin as an "exceptional" case, the EAT continued "very few cases will have grievances based on paranoid delusions about events that never happened".

The motivation of the person committing the act of victimisation may be conscious or unconscious: Nagarajan v London Regional Transport [1999] IRLR 572 HL (decided under the repealed Race Relations Act 1976). The claim of victimisation related to the rejection of Mr Nagarajan's application for employment. He had previously brought claims of racial discrimination against the respondent company and believed that that was the reason for its rejecting his application. The House of Lords allowed the appeal and held that the key question for victimisation, as well as direct discrimination, is why the complainant received less favourable treatment. The House of Lords held that "if the answer to this question is that the discriminator treated the person victimised less favourably by reason of his having done [a protected act]", the case falls within the definition of victimisation. The House of Lords emphasised that the less favourable treatment still constitutes victimisation "even if the discriminator did not consciously realise that, for example, he was prejudiced because the job applicant had previously brought claims against him under the Act". The House of Lords found that a subconscious influence could be a substantial cause of victimisation.

However, those committing the alleged act of victimisation must have knowledge of the protected act: Scott v London Borough of Hillingdon [2001] EWCA Civ 2005 CA (decided under the repealed Race Relations Act 1976).

In Chief Constable of Greater Manchester Police v Bailey [2017] EWCA Civ 425 CA, the employee claimed that the termination of his secondment (which had come about because he had previously brought a successful race discrimination claim against the employer) was an act of victimisation. The employment tribunal upheld the claim, noting that the employee was only on secondment because of the agreement he had made with his employer, "an agreement which is inextricably linked to, and arises out of, his protected act of bringing his previous proceedings". The Court of Appeal held that the employment tribunal had erred in applying the "but for" test, rather than the "reason why" test, which applies to both direct discrimination and victimisation claims. Allowing the employer's appeal, the Court of Appeal held that, although "it is self-evidently the case that there would have been no secondment to terminate if the claimant had not brought his earlier claims ... that kind of 'but for' causative link does not mean that the termination was 'because of' his earlier claims in the relevant sense". The Court acknowledged that this point has been made in a number of cases and referred to Ahmed v Amnesty International [2009] EAT/0447/08, in which the EAT held that "the fact that a claimant's sex or race is a part of the circumstances in which the treatment complained of occurred, or of the sequence of events leading up to it, does not necessarily mean that it formed part of the ground, or reason, for that treatment".

In Pasab Ltd t/a Jhoots Pharmacy & Jhooty v Woods EAT/0454/11, decided under the repealed Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660), the employment tribunal found that the employer dismissed the employee because it believed that she had referred to the employer as being "a little Sikh club" and it regarded this as a racist comment. The EAT held that it was not open to the tribunal to find that the employee's dismissal was an act of victimisation because "if the remark was viewed not as a protected act but an offensive racist comment ... then the reason for dismissal was not that the claimant had done a protected act, but some other feature genuinely separable from the implicit complaint of discrimination". The Court of Appeal upheld the EAT decision (Woods v Pasab Ltd (t/a Jhoots Pharmacy) and another [2013] IRLR 305 CA).

Ongoing claims

Under previous legislation, to constitute victimisation, the act of victimisation had to be "by reason that" the claimant has done the protected act. In Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830 HL, which was decided under the repealed Race Relations Act 1976, the House of Lords held that the refusal to supply a reference to support promotion applications while race discrimination proceedings were in progress was not victimisation. The reference was not withheld "by reason that" the claimant had brought discrimination proceedings, but rather due to the employer's temporary need to preserve its position in the outstanding proceedings. The Equality Act 2010 uses the word "because" rather than "by reason that" but it is suggested that the same principles will apply and that Khan would be decided in the same way under the Act.

The EAT in Commissioners of Inland Revenue and another v Morgan [2002] IRLR 776 EAT (decided under the Race Relations Act 1976) read Khan as creating a specific exception to victimisation where the act complained of is an honest and reasonable step in the proper conduct of the respondent's defence.

However, in St Helens Metropolitan Borough Council v Derbyshire and others [2007] IRLR 540 HL, which was decided under the now repealed Sex Discrimination Act 1975, the House of Lords held that unpleasant letters sent to 39 equal pay claimants pointing out that they might be responsible for the loss of colleagues' jobs if they won had crossed the line between taking those reasonable steps and subjecting the claimants to a detriment.

In Croad v University and College Union EAT/0012/11 (decided under the repealed Disability Discrimination Act 1995), the EAT upheld the employment tribunal decision that the union had not victimised the member by withdrawing legal support from her in connection with a claim against her employer at a time when she had accused the union of disability discrimination. On the facts, which involved a history of "antipathy" between the member and the union, the tribunal was satisfied that the union "did not act as it did because the [member] gave notice of or brought proceedings but because the bringing of proceedings created a conflict of interest".

Post employment

Section 108 of the Equality Act 2010 deals with prohibited conduct after the end of the working relationship. Section 108(1) and (2) prohibit post-employment discrimination and harassment respectively, while s.108(7) states that "conduct is not a contravention of this section in so far as it also amounts to victimisation of B by A". However, this anomaly was resolved by the Court of Appeal in Rowstock Ltd and another v Jessemey [2014] IRLR 368 CA. The Court of Appeal held that the apparent exclusion of post-employment victimisation was the result of an inadvertent drafting error and that the Equality Act 2010 can be interpreted to cover post-employment victimisation. Further, the EHRC guidance states that, if a worker's former employer refuses to give them a reference because they supported someone else's claim for sexual harassment, this would almost certainly be victimisation (What equality law means for you as an employer: dismissal, redundancy, retirement and after a worker has left). The guidance goes on to say that: "It does not matter how long ago the person worked for you, as long as the worker could show that any unlawful discrimination arises out of and is closely connected to the previous employment relationship."

In Aston v The Martlet Group Ltd EAT/0274/18, the EAT commented that s.108 does not "mean that there is jurisdiction to entertain any and every claim of discrimination or victimisation presented by an ex-employee". The EAT drew attention to the fact that Parliament had not merely stipulated that the conduct must be something that "arises out of" the past relationship, but also that it must be "closely connected" to it. The EAT said that both tests must be satisfied, and the second must add something to the first.

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Burden of proof

Section 136 of the Equality Act 2010 deals with the application of the burden of proof and provides that, where an applicant proves facts from which the tribunal could conclude that the respondent had committed a discriminatory act, the tribunal must uphold the complaint unless the respondent provides an adequate non-discriminatory explanation for the treatment. For further information see Employment tribunals and dispute resolution > Tribunal procedures and penalties > Burden of proof in discrimination cases.

Occupational requirements

Paragraph 1 of sch.9 to the Equality Act 2010 contains an exception from direct age discrimination in recruitment; opportunities for promotion, transfer or training; or dismissal where a requirement to have a particular protected characteristic applies.

An occupational requirement will apply where, having regard to the nature or context of the work, the employer applying the requirement shows that:

  • being of a particular age group is an occupational requirement;
  • the application of the requirement is a proportionate means of achieving a legitimate aim; and
  • either the person to whom the requirement is applied is not of the required age group or the employer has reasonable grounds for not being satisfied that the person is of the required age group.

The Equality Act 2010 explanatory notes state that while this provision replicates previous exceptions, it differs in that "it makes clear that the requirement must pursue a legitimate aim and that the burden of showing that the exception applies rests on those seeking to rely on it".

The explanatory notes to the Act state that the: "need for authenticity or realism might require someone of a particular ... age for acting roles ... or modelling jobs".

In Wolf v Stadt Frankfurt Am Main Case C-229/08 ECJ, the European Court of Justice (ECJ) held that a German law restricting applicants to the fire service to individuals under the age of 30 is permissible as a genuine occupational requirement. The ECJ held that the age restriction does not go beyond what is necessary to achieve the legitimate aim of ensuring "the operational capacity and proper functioning of the professional fire service".

The requirement that it must be proportionate to apply the requirement to be of a particular age group in a particular case may mean that, even if an occupational requirement applies to some of the duties of a job, the exception could not be relied on if there were others of the required age group who could do these duties, if the work were redistributed or reorganised.

In Prigge and others v Deutsche Lufthansa AG [2011] IRLR 1052 ECJ, the ECJ considered how art.4(1) of the Equal Treatment Framework Directive (2000/78/EC), which deals with occupational requirements, applies to airline pilots. The ECJ stated that possessing particular physical capabilities may be considered a "genuine and determining occupational requirement" for acting as an airline pilot, within the meaning of art.4(1). However, the ECJ went on to state that, in fixing the age limit at 60 while national and international legislation authorises pilots to continue to fly under certain conditions until the age of 65, the collective agreement imposed on those pilots applied a disproportionate requirement within the meaning of art.4(1). Therefore the provision gave rise to age discrimination.

In Sorondo v Academia Vasca de Policía (C-258/15) [2017] IRLR 162 ECJ, the ECJ held that the Equal Treatment Framework Directive (2000/78/EC) does not preclude national legislation that provides that candidates for police posts must be under 35. The ECJ accepted that there could be an occupational requirement because the duties relating to the protection of people and property, the arrest and guarding of offenders and preventive patrolling may require the use of physical force. On this basis, the ECJ accepted that an age cap for the recruitment of police officers in the Basque region is lawful.

Recruitment

Employers cannot discriminate in recruitment on age grounds unless:

"Employee" for the purpose of the exception permitting employers to dismiss on grounds of retirement does not have the same wide meaning as in the Equality Act 2010 generally. This exception applies only to employees (within the meaning of s.230(1) Employment Rights Act 1996), those in Crown employment and House of Lords and House of Commons staff. It does not for example, apply to admission to partnership. Refusal of admission to partnership on age grounds will be lawful only if the age grounds can be objectively justified.

In McCoy v James McGregor & Sons Ltd & ors Case Ref: 237/07 (decided under the Employment Equality (Age) Regulations (Northern Ireland) 2006 (SR 2006/261)), which have not been repealed), a Northern Ireland industrial tribunal held that an employer discriminated against a 58-year-old job applicant on the grounds of age when it decided not to offer him employment. The job advert had called for someone with "youthful enthusiasm" and the applicant was asked questions about his drive and motivation, and if he was hungry enough to succeed.

It is not advisable to ask a candidate questions about their age during a recruitment exercise as this may be relied on to show that a failure to appoint was based on the candidate's age (Cunningham v BMS Sales 1 February 2007 Irish Equality Tribunal).

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Retirement

Employers that compulsorily retire employees, or attempt to pressurise them to retire, are at risk of direct age discrimination and unfair dismissal claims. Therefore, employers should treat older employees with care and ensure that managers avoid making stereotypical assumptions about the abilities or performance of older employees or their future intentions to "wind down".

However, employers may, in limited cases, apply an "employer-justified retirement age" (EJRA). Section 13(2) of the Equality Act 2010 provides that, in relation to the protected characteristic of age, less favourable treatment will not amount to age discrimination if the perpetrator can show that the treatment is a proportionate means of achieving a legitimate aim. This means that employers potentially can compulsorily retire employees if the retirement is objectively justified. Further, the dismissal may be potentially fair provided that a fair dismissal procedure that satisfies the requirements of the Employment Rights Act 1996 is followed. Where there is an EJRA, a retirement dismissal will be deemed to be a dismissal for "some other substantial reason" (s.98(1)(b) of the Employment Rights Act 1996). For further information, see Termination of employment > Retirement.

Prior to 6 April 2011, employers were able to rely on the provisions in the Equality Act 2010 (and prior to that, the Employment Equality (Age) Regulations 2006 (SI 2006/1031)) that provided an exception to age discrimination and unfair dismissal, if the statutory retirement procedure was followed when retiring employees who had reached the default retirement age of 65. Both the default retirement age and the statutory retirement procedure were abolished by the Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011 (SI 2011/1069), which came into force on 6 April 2011.

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Employer-justified retirement ages

Since retirement at a particular age takes account only of the age of an individual and not their personal capabilities or job performance, the circumstances in which employers can compulsorily retire employees are rare.

Employers will have to demonstrate that retirement at a particular age is "a proportionate means of achieving a legitimate aim" within the meaning of s.13(2) of the Equality Act 2010. This is known as the objective justification test. This test is not further defined in the Act itself, but embodies principles derived from EU law (see Justification).

Legitimate aim

To establish objective justification under s.13(2) of the Equality Act 2010, the employer must first prove that its retirement policy or decision meets a legitimate aim. If the employer cannot establish this then the defence of justification will fail and the retirement dismissal will amount to direct age discrimination contrary to s.13(1) of the Act.

The Employment statutory code of practice (on the EHRC website) gives the following examples of aims that might be considered legitimate:

  • the facilitation of workforce planning, by providing a realistic long-term expectation as to when vacancies will arise; and
  • the provision of sufficient opportunities for promotion, thereby ensuring staff retention at more junior levels.

The code points out that the legitimacy of such aims would depend on all the circumstances of the case and the employer's aim will need to be supported by evidence: "assertions alone will not be enough".

Although the code was written in connection with compulsory retirements prior to the abolition of the default retirement age and associated statutory retirement procedure, it is likely to remain relevant.

Proportionate means

Where an employer is able to establish that a legitimate aim exists, it must go on to demonstrate that retiring an employee at a particular age is a proportionate way of meeting the aim. The employer will need to show that it has considered whether or not the aim could be achieved by another method that does not discriminate as much or at all. For example, where the employer seeks to rely on health and safety as a legitimate aim, it should consider if there are other effective ways of addressing the issue, such as health and fitness tests. If such a method would not be effective in addressing the employer's aim, it will need to show why this is the case. If the measures chosen to achieve the employer's legitimate aim are not proportionate, the justification defence will fail and the retirement dismissal will amount to direct age discrimination contrary to s.13(1) of the Equality Act 2010.

The Employment statutory code of practice states that: "In determining [proportionality], a balance must be struck between the discriminatory effect of the retirement and the employer's need to achieve the aim - taking into account all the relevant facts." The code goes on to state that an employer will need to produce evidence supporting its decision if it is challenged in the employment tribunal.

In a Spanish case, Palacios de la Villa v Cortefiel Servicios SA [2007] IRLR 989 ECJ, the European Court of Justice (ECJ) ruled that, although the Equal Treatment Framework Directive (2000/78/EC) applies to a Spanish law permitting clauses in collective agreements that allow employees to be compulsorily retired when they reach a specified age, since the law was introduced with the aim of promoting full employment and encouraging recruitment it was objectively justified. In Fuchs and another v Land Hessen [2011] IRLR 1043 ECJ, the ECJ held that German legislation that requires civil servants to retire at 65 can, in principle, be justified by reference to the legitimate aims of establishing an age structure that balances young and older civil servants to encourage the recruitment and promotion of young people, improve personnel management and prevent possible disputes concerning employees' fitness to work beyond a certain age. The ECJ stressed that, while a compulsory retirement age can be justified by reference to such legitimate aims, it must be "appropriate and necessary".

In Prigge and others v Deutsche Lufthansa AG [2011] IRLR 1052 ECJ, the ECJ held that, while the aim of guaranteeing air traffic safety was a legitimate objective within the meaning of art.4(1) of the Equal Treatment Framework Directive, which deals with occupational requirements, a clause in a German airline collective agreement that required airline pilots to retire at the age of 60 was disproportionate, given that under international law and German domestic law pilots may continue to carry out their activities, under certain restrictions, between the ages of 60 and 65. The ECJ also held that the measure did not constitute a legitimate aim within the meaning of art.6(1) of the Directive, which deals with justification, because such aims must be "social policy objectives, such as those related to employment policy, the labour market or vocational training". Further, the clause was not necessary for public security and protection of health within the meaning of art.2(5). Therefore the compulsory retirement provision gave rise to age discrimination.

In Hampton v Lord Chancellor and another [2008] IRLR 258 ET, the employment tribunal held that the policy of forcing Recorders (part-time judges and "office holders" within the meaning of reg.12 of the repealed Employment Equality (Age) Regulations 2006) to retire at the age of 65 is unlawful age discrimination. It rejected the argument that it is necessary for a reasonable flow of new appointments.

In Seldon v Clarkson Wright & Jakes ET/1100275/07 (also decided under the repealed Employment Equality (Age) Regulations 2006), the tribunal held that the retirement of a partner in a law firm was direct age discrimination. However, it was justified as the firm needed a compulsory retirement age for partners to ensure that associates had the opportunity to become a partner after a reasonable period. It also avoided confrontation with underperforming partners who were close to retirement. Allowing Mr Seldon's appeal, the Employment Appeal Tribunal (EAT) held that part of the tribunal's decision on justification rested on the assumption that, as partners reach the age of 65, there is a significantly greater risk that they will underperform. However, there was no factual evidence to support this assumption, which the EAT held was unjustified and discriminatory. It remitted the case to the same tribunal to consider whether or not the other legitimate aims of the compulsory retirement rule are sufficient to justify it (Seldon v Clarkson Wright & Jakes [2009] IRLR 267 EAT). On appeal, the Court of Appeal held that it could be legitimate for a law firm to have a cut-off age after which partners are required to retire to avoid forcing an assessment of their drop in performance, thus maintaining a confrontation-free workplace (Seldon v Clarkson Wright and Jakes and Secretary of State for Business, Innovation and Skills [2010] IRLR 865 CA). Mr Seldon appealed to the Supreme Court. The Supreme Court's decision would appear to narrow the circumstances in which employers will be able to impose a compulsory retirement age (Seldon v Clarkson Wright & Jakes (a partnership) [2012] IRLR 590 SC). The Supreme Court (having reviewed the applicable provisions of the Equal Treatment Framework Directive and relevant European authorities) concluded that the correct application of those principles to UK domestic legislation meant that "the approach to justifying direct age discrimination cannot be identical to the approach to justifying indirect discrimination and that reg.3 [which sets out the test for discrimination on the ground of age] (and its equivalent in s.13(2) of the Equality Act 2010) must be read accordingly". The Supreme Court noted that to "justify direct age discrimination under art.6(1), the aims of the measure must be social policy objectives, such as those related to employment policy, the labour market or vocational training". These are of a public interest nature, which is "distinguishable from purely individual reasons particular to the employer's situation, such as cost reduction or improving competitiveness". The Supreme Court considered that the UK Government had given employers "the flexibility to choose which objectives to pursue, provided always that (i) these objectives can count as legitimate objectives of a public interest nature within the meaning of the Directive and (ii) are consistent with the social policy aims of the state and (iii) the means used are proportionate, that is both appropriate to the aim and (reasonably) necessary to achieve it". It appeared to the Supreme Court that European case law had identified two different kinds of legitimate objective, namely "inter-generational fairness" and "dignity". The Court was satisfied that, in this case, the employer's aims of staff retention and workforce planning were legitimate in that they were "directly related to the legitimate social policy aim of sharing out professional employment opportunities fairly between the generations". The third aim of "limiting the need to expel partners by way of performance management" related to the "dignity aims" accepted previously by the ECJ in other cases.

Although the Supreme Court agreed that the employer's aims were legitimate, it remitted the case to the employment tribunal on the issue of justification. Further, in noting that: "There is a difference between justifying a retirement age and justifying this retirement age" the Court suggested that, as well as addressing justification of the third aim, the tribunal might re-visit the question of "whether the choice of a mandatory age of 65 was a proportionate means of achieving the first two aims".

In Hörnfeldt v Posten Meddelande AB [2012] IRLR 785 ECJ, the ECJ upheld the Swedish law that allows an employer to terminate an employee's contract of employment on the sole ground that he or she has reached the age of 67, taking no account of the pension that the employee will receive, as justified.

In European Commission v Hungary Case C-286/12 ECJ, the Hungarian Government sought to justify its adoption of a legislative provision that lowered the compulsory retirement age for judges, prosecutors and notaries from 70 to 62. Hungary relied on two objectives, the first related broadly to the standardisation of the compulsory retirement age in the public sector, and the second centred on the establishment of a "more balanced age structure" facilitating access for young lawyers into the professions in question. The ECJ held that the standardisation aim was legitimate and, in principle, the means adopted were appropriate. However, it noted that the abrupt and significant change to the retirement age was introduced without any transitional measures to protect the legitimate expectations of those affected by the change, and that Hungary had failed to adduce evidence as to whether or not more lenient measure would have sufficed. Against that background the ECJ held that the measures were not necessary to achieve the first aim. The second aim was also legitimate but the "apparently positive" but "short-term effects" called "into question the possibility of achieving a truly balanced age structure in the medium and long-terms" and thus the method was not appropriate. Accordingly, the ECJ found that the provision was not justified.

The lawfulness of the now abolished default retirement age, and the principles of objective justification, were also discussed in R (on the application of the Incorporated Trustees of the National Council on Ageing (Age Concern England)) v Secretary of State for Business, Enterprise and Regulatory Reform [2009] IRLR 373 ECJ and R (on the application of Age UK) v Secretary of State for Business, Innovation and Skills [2009] EWHC 2336 HC both of which were unsuccessful challenges to the legality of the default retirement age. See Justification for further decisions dealing with justification.

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Situations where there is no employer-justified retirement age

If an employer is unable to establish an employer-justified retirement age (see Employer-justified retirement ages), the purported "retirement" dismissal of an employee will amount to direct age discrimination under s.13(1) of the Equality Act 2010 in respect of which the employee will be able to seek compensation from an employment tribunal. It is likely that the employee will also have a successful claim for unfair dismissal - irrespective of the procedure used - since the employer is unlikely to be able to establish that the employee's retirement dismissal constituted "some other substantial reason" under s.98 of the Employment Rights Act 1996.

Employers must treat employees consistently. For example, if an employer does not operate a compulsory retirement age but finds that an older employee is underperforming, the employer should address that matter with that particular employee as a capability issue in the normal way. Failing to address the employee's underperformance could result in an age discrimination claim from a younger employee whose underperformance is dealt with under the capability procedure. As with employees of any age, should the older employee's performance fail to achieve a satisfactory standard through the application of the capability procedure, the employer may eventually decide to dismiss the employee by reason of capability, which is a potentially fair reason for dismissal under s.98 of the Employment Rights Act 1996.

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Pay or benefits linked to experience or service indirectly discriminate against younger employees. Paragraph 10 of sch.9 to the Equality Act 2010 contains a specific exception to allow employers to use length of service as a criterion for the provision of a benefit, facility or service. However, where the employee who is put at a disadvantage has more than five years' service (which can be the total time the employee has worked for the employer or the length of time the employee has been doing work at a particular level), it must reasonably appear to the employer that the way in which it uses the criterion of length of service, in relation to the award of the benefit, facility or service fulfils a business need of its undertaking, for example by encouraging the loyalty or motivation, or rewarding the experience, of some or all of its employees.

A service criterion of five years or less is, therefore, lawful without the employer having to provide individual justification. An employer may be able to justify a service criterion of longer than five years by reference to a business need, but this will not automatically be the case. The Employment statutory code of practice states that this test of "fulfilling a business need" is "less onerous than the general test for objective justification for indirect discrimination" (see Justification). The code goes on to state that "an employer would still need evidence to support a reasonable belief that the length of service rule did fulfil a business need".

Any benefits linked directly to age, for example where there is a minimum or maximum age for providing a benefit, would have to be objectively justified in accordance with the general test of justification.

In Rolls Royce plc v Unite the Union [2009] IRLR 49 HC (decided under the repealed Employment Equality (Age) Regulations 2006 (SI 2006/1031)), the High Court was satisfied that points awarded under a length of service criterion that formed part of a redundancy selection matrix constituted a "benefit" within reg.32 that was justified in relation to workers with more than five years' service. The Court of Appeal upheld the High Court decision that the criterion was lawful under the age discrimination legislation (Rolls Royce plc v Unite [2009] EWCA Civ 387 CA).

This potential exception does not apply to payments that are made to an employee on leaving his or her employment because such payments are not a reward for experience from which an employer can benefit. A separate provision deals with redundancy payments (see Redundancy payments).

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National minimum wage

The Equality Act 2010 contains an exception from unlawful age discrimination to permit employers to base their pay structures on the national minimum wage legislation.

This exception cannot be relied on by employers that do not base their pay structures on the national minimum wage legislation. For further information see Pay and benefits > The national minimum wage > Age discrimination legislation.

Redundancy payments

Paragraph 13 of sch.9 to the Equality Act 2010 contains an exception that allows enhanced company redundancy payments linked to length of service where the provisions of the company scheme mirror provisions in the statutory redundancy scheme.

The exception allows employers applying the statutory calculation method to enhance it by:

  • treating a week's pay as being uncapped, or subject to a maximum amount above that set out in s.227 of the Employment Rights Act 1996 - £525 from 6 April 2019 (previously £508); and/or
  • multiplying the appropriate amount allowed for each year of employment by a figure of more than one.

Regardless of whether either or both of the previous enhancements have been applied, the employer may also apply a multiple to the total redundancy payment.

Additional resources on redundancy payments

FAQs

Policies and documents

Quick Reference

Insurance and related financial services

Paragraph 14 of sch.9 to the Equality Act 2010, as amended with effect from 6 April 2011, provides an exception to the age discrimination provisions of the Act to allow employers to stop providing access to group risk insured benefits, such as income protection, life assurance, private medical cover and permanent health insurance, to employees when they reach age 65. This age restriction will rise in accordance with any increase to the state pension age from age 65. Other benefits are not subject to this exemption and should be offered to all employees regardless of age (subject to any other qualifying requirements).

Additional resources on insurance and related financial services

FAQs

Other exceptions

National security

Section 192 of the Equality Act 2010 contains an exception from unlawful age discrimination for acts done for the purpose of safeguarding national security, if the acts are proportionate for that purpose.

Statutory authority

The Equality Act 2010 contains an exception from unlawful age discrimination for acts done in order to comply with a requirement of an enactment.

In Heron v Sefton Metropolitan Borough Council EAT/0566/12, Ms Heron, who was aged over 60 at the time of her dismissal for redundancy, received a redundancy payment that was half the sum payable "to a similar employee similarly dismissed" but who was under the age of 60. The Employment Appeal Tribunal (EAT) overturned the employment tribunal decision upholding the employer's defence of statutory authority, stating that the Civil Service Compensation Scheme (the statutory authority relied on) "provides for the difference in treatment between employees dismissed by reason of redundancy who are over and under 60 at the date of dismissal, but it does not require that difference to be respected". The EAT stated that: "A requirement is something which means that the person subject to it cannot do otherwise". The EAT upheld Ms Heron's claim that she had been subjected to unjustified direct age discrimination.

Armed forces

In relation to the protected characteristic of age, the employment provisions of the Equality Act 2010 do not apply to service in the armed forces (para.4 of sch.9 to the Act).

Childcare

Paragraph 15 of sch.9 to the Equality Act 2010 introduced a new exception to the prohibition on age discrimination pertaining to benefits relating to the provision of childcare, and to which access is restricted to children of a particular age group. The Equality Act 2010 explanatory notes point out that following the decision of the ECJ in the Coleman v Attridge Law and another [2008] IRLR 722 ECJ (a disability discrimination case), employers that provide childcare where access is limited by reference to a child's age could potentially be liable for treating an employee less favourably because of the age of the employee's child (see Equality and human rights > Disability discrimination > Direct discrimination). This exception allows employers to provide, make arrangements for, or facilitate the provision of, care for children of a particular age group up to and including the age of 16 without contravening relevant provisions of the Act.

Facilitating the provision of care for a child includes:

  • "paying for some or all of the cost of the provision;
  • helping a parent of the child to find a suitable person to provide care for the child;
  • enabling a parent of the child to spend more time providing care for the child or otherwise assisting the parent with respect to the care that the parent provides for the child" (para.15(3) of sch.9 to the Act).

It is clear from s.212(1) of the Equality Act 2010 that "parent" covers not only natural parents, but all those with parental responsibility for a child.

Contributions to personal pension schemes

Exceptions to the non-discrimination rule in relation to age in respect of employer contributions to personal pension schemes previously set out in sch.2 to the Employment Equality (Age) Regulations 2006 (SI 2006/1031) have been revoked. Paragraph 16 of sch.9 to the Equality Act 2010 confers power on a government minister to provide "that it is not an age contravention for an employer to maintain or use, with respect to contributions to personal pension schemes, practices, actions or decisions relating to age which are of a specified description". No regulations have yet been issued.

Terms

Unenforceable terms

Section 142 of the Equality Act 2010 renders unenforceable against a person contractual terms that constitute, promote or provide for treatment, of that person or another person, that is prohibited under the Act. Section 143 of the Act provides that the county court may order that a term rendered unenforceable by s.142 is removed or modified.

No contracting out

Section 144 of the Equality Act 2010 prohibits contracting out from its provisions, except where the contract in question settles a complaint and is either made with the assistance of a conciliation officer or constitutes a qualifying settlement agreement (previously referred to as a compromise contract).

Positive action

General positive action

Section 158 of the Equality Act 2010 allows a person (P) to take action in the following circumstances:

  • Where P reasonably thinks that persons who share a protected characteristic suffer a disadvantage connected to that characteristic, P may take any action that is a proportionate means of enabling or encouraging persons to overcome or minimise that disadvantage.
  • Where P reasonably thinks that persons who share a protected characteristic have needs that are different from the needs of persons who do not share it, P may take any action that is a proportionate means of meeting those needs.
  • Where P reasonably thinks that participation in an activity by persons who share a protected characteristic is disproportionately low, P may take any action that is a proportionate means of enabling or encouraging persons who share that protected characteristic to participate in that activity.

This would allow an employer to take measures in relation to persons from a particular age group, but only where one of the above conditions is met. The measures taken must be proportionate, having regard to the seriousness of the disadvantage etc, because, as the Equality Act 2010 explanatory notes make clear, positive action measures in relation to one group "may result in people not having the relevant characteristic being treated less favourably".

Chapter 12 of the Employment statutory code of practice discusses positive action in detail, and the subject is also covered in vol.1 of EHRC guidance: What equality law means for you as an employer: when you recruit someone to work for you. The code cites mentoring, shadowing and training targeted at specified disadvantaged groups as examples of the measures that may be taken. The guidance states that positive action steps before or at the application stage "could include encouraging particular groups to apply, or helping people with particular protected characteristics to perform to the best of their ability (for example, by giving them training or support not available to other applicants)". In addition, the Equality Act 2010 contains a power permitting the Government to make regulations setting out what action is, and is not, permitted under s.158 in order to provide greater legal certainty about what action is likely to be regarded as proportionate. No regulations have yet been issued.

Additional resources on general positive action

FAQs

Positive action in recruitment and promotion

Section 159 of the Equality Act 2010, which came into force on 6 April 2011, permits an employer, in defined circumstances, to appoint or promote a person (A) with a protected characteristic in preference to another person (B) who does not have the protected characteristic.

Section 159(1) provides that an employer is permitted to take positive action only where it reasonably thinks that persons who share a protected characteristic suffer a disadvantage connected to that characteristic (s.159(1)(a)); or participation in an activity by persons who share a protected characteristic is disproportionately low (s.159(1)(b)). The Government Equalities Office has issued guidance on taking positive action (Equality Act 2010: What do I need to know? A quick start guide to using positive action in recruitment and promotion), and that guidance states that some: "information or evidence will be required to indicate to the employer that one of those conditions exists [ie disadvantage or under-representation] - but it does not need to be sophisticated statistical data or research". The guidance goes on to state that the employer may, for example, look at the profile of its own or a comparable workforce, or consult national data such as labour force surveys.

The positive action must be a proportionate means of the employer enabling or encouraging persons who share the protected characteristic to overcome or minimise the disadvantage or participate in the activity (s.159(4)(c)). The Government Equalities Office guidance Equality Act 2010: What do I need to know? A quick start guide to using positive action in recruitment and promotion states that, in order to ensure that positive action is proportionate, an employer "will need to balance the seriousness of the disadvantage suffered or the extent to which people with a protected characteristic are under-represented against the impact that the proposed action may have on other people". The guidance advises employers to: "consider if the proposed action is the only way to address the under-representation or disadvantage effectively, or if it would it be possible to achieve the same effect by other actions that are less likely to result in the less favourable treatment of other people."

Section 159(4) of the Act provides that an employer may take positive action only if:

  • A is as qualified as B to be recruited or promoted; and
  • the employer does not have a policy of treating persons who share the protected characteristic more favourably in connection with recruitment or promotion than persons who do not share it.

The Equality Act 2010 does not set out what is meant by "as qualified as". However, the Equality Act 2010 explanatory notes state that "the question of whether one person is as qualified as another is not a matter only of academic qualification, but rather a judgment based on the criteria the employer uses to establish who is best for the job which could include matters such as suitability, competence and professional performance". The Government Equalities Office guidance Equality Act 2010: What do I need to know? A quick start guide to using positive action in recruitment and promotion) refers to candidates being "of equal merit" to each other, not "as qualified as" each other. The guidance advises that: "Employers should establish a set of criteria against which candidates will be assessed when applying for a job". The guidance states that this can take into account: "a candidate's overall ability, competence and professional experience together with any relevant formal or academic qualifications, as well as any other qualities required to carry out the particular job ... [but] employers should ensure that any criteria do not indirectly discriminate against people who share a protected characteristic".

The absence of a statutory definition of "as qualified as" in the Equality Act 2010 means that case law will be required to clarify what is meant by this requirement. It is unclear whether or not "as qualified as" will be interpreted to extend to "equal merit" as assumed by the Government Equalities Office guidance.

Section 159 does not require an employer to take positive action and taking such action is not without risk. An employer that favours one applicant over another because he or she has a protected characteristic may be exposed to a claim of direct discrimination under s.13 of the Equality Act 2010 by the rejected applicant. The rejected applicant may argue that the employer has failed to satisfy all of the criteria required to trigger the application of, and protection afforded by, s.159. In Furlong v Chief Constable of Cheshire Police ET/2405577/2018, the first case in which the employment tribunal has given substantive consideration to the application of s.159, a white heterosexual man without a disability, applied to become an officer with Cheshire Police Force. After he had passed the assessment and interview stage, he was told that his application was unsuccessful. The force had a nationwide police initiative to improve diversity, which included applying positive action after the interview stage of its recruitment process.The tribunal accepted that, while the force had the "laudable aim" of improving diversity, applying positive action to a large-scale recruitment exercise at this stage was not a proportionate means of achieving the legitimate aim of improving diversity. Other diversity initiatives were already bearing fruit and the police force could not justify such a "radical and substantial" change to its recruitment process in the name of positive action. The tribunal found that the police force had committed discrimination in its recruitment exercise. If the police force had not applied positive action after the interview stage, the chances are that the claimant, who was a "relatively strong candidate", would have been recruited.

Additional resources on positive action in recruitment and promotion

FAQs

Pensions and other employment benefits

Occupational pension schemes

Section 61 of the Equality Act 2010 provides that an occupational pension scheme must be taken to include a non-discrimination rule.

A non-discrimination rule means that a responsible person (A) (ie a trustee or manager of the scheme; an employer whose employees are, or may be members of the scheme; or a person exercising an appointing function in relation to an office the holder of which is, or may be a member of the scheme) must not:

  • discriminate against another person (B) in carrying out any of A's function in relation to the scheme;
  • in relation to the scheme, harass B; or
  • in relation to the scheme, victimise B.

The provisions of an occupational pension scheme take effect subject to the non-discrimination rule, although the rule does not apply to a person who is a pension credit member of the scheme. Section 62 of the Equality Act 2010 confers a power on the trustees and managers of such a scheme to alter its rules by resolution (in certain circumstances) in order to conform with the s.61 non-discrimination rule.

The Equality Act 2010 explanatory notes state that the non-discrimination rule "does not apply to pension rights built up or benefits payable for periods of service before the commencement of this section" (which was on 1 October 2010). The notes go on to state that periods of service prior to this date will be subject to previous discrimination legislation. Occupational pension schemes were required to have non-discrimination rules in respect of age prior to the implementation of the Equality Act 2010. Exceptions to the non-discrimination rule in respect of age previously set out in sch.2 to the Employment Equality (Age) Regulations 2006 (SI 2006/1031) have now been revoked, but s.61 provides that it will not be a breach of the non-discrimination rule for an employer or the trustees or managers of a scheme "to maintain or use in relation to the scheme rules, practices, actions or decisions relating to age which are of a description specified" in secondary legislation. Relevant secondary legislation has been passed (the Equality Act 2010 (Age Exceptions for Pension Schemes) Order 2010 (SI 2010/2133)) (see Pensions > Occupational pensions and employment law > Occupational pension schemes and age discrimination).

In HK Danmark acting on behalf of Kristensen v Experian A/S Case C-476/11 ECJ, which was referred to the ECJ from Denmark, it held that the principle of non-discrimination on grounds of age set out in the Equal Treatment Framework Directive (2000/78/EC) and, in particular, arts.2 and 6(1) of that Directive, must be interpreted as not precluding an occupational pension scheme under which an employer pays, as part of pay, pension contributions that increase with age, provided that the resulting difference in treatment on grounds of age is appropriate and necessary to achieve a legitimate aim, which is a matter for the national court to establish.

Public authorities

Section 149 of the Equality Act 2010, which came into force on 5 April 2011, sets out the general public sector equality duty. The first arm of the duty applies to all of the protected characteristics, while the second and third arms apply to all of the protected characteristics except for marriage and civil partnership.

A public authority must, in the exercise of its functions, take account of the three matters specified in the general equality duty. First, a public authority must have due regard to the need to eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Equality Act 2010 (s.149(1)(a)).

Second, a public authority must have due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and those who do not share it (s.149(1)(b)). This involves taking into account the need to:

  • remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
  • take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; and
  • encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.

Third, a public authority must foster good relations between persons who share a relevant protected characteristic and those who do not (s.149(1)(c)). This involves taking into account the need to tackle prejudice and promote understanding.

Section 149(6) of the Equality Act 2010 provides that compliance with the general equality duty may involve treating some persons more favourably than others, but not where such conduct would otherwise be prohibited by or under the Act.

The general equality duty applies to public authorities that are listed in sch.19 to the Equality Act 2010. The list includes government departments, local authorities, NHS bodies, schools and other educational bodies and the police.

A person who is not a public authority but who exercises public functions must also, in the exercise of those functions, comply with the general duty (s.149(2)). A public function is one that is of a public nature for the purposes of the Human Rights Act 1998 (s.150(5)). The Equality and Human Rights Commission's (EHRC) Essential guide to the public sector equality duty (revised fourth edition, January 2014) explains that such bodies "will include private bodies or voluntary organisations which are carrying out public functions on behalf of a public authority", and gives the example of a private company running a prison on behalf of the Government. The guide goes on to state that "the company would, however, only be covered by the general equality duty with regard to its public functions, but not for other work, like providing security services for a supermarket".

In January 2013, the EHRC issued technical guidance on the public sector equality duty for England, Scotland and Wales, which "explains the three aims of the [duty], outlines the requirements of the Equality Act 2010 and the specific duty regulations and provides practical approaches to complying with the public sector equality duty". The guidance states that it "provides an authoritative, comprehensive and technical guide to the detail of the law". Although the guidance is not in the form of a statutory code of practice issued under s.14 of the Equality Act 2006, it may be used as evidence in legal proceedings and a body subject to the duty would need to justify a departure from it. The guidance is available on the EHRC website: Equality Act 2010 technical guidance on the public sector equality duty: England, Equality Act 2010 technical guidance on the public sector equality duty: Scotland and Equality Act 2010 technical guidance on the public sector equality duty: Wales.

The EHRC has issued other revised guidance for public authorities in England (and bodies with non-devolved functions in Scotland and Wales) which is available on the EHRC website: Meeting the equality duty in policy and decision-making (third edition revised October 2014) and Engagement and the equality duty (revised September 2014).

Specific public sector equality duties

The general duty is underpinned by specific duties, designed to support the functioning of the general duty. Under the Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017 (SI 2017/353), there are three specific duties: to publish equality information, to publish equality objectives and to publish gender pay gap information. The Regulations apply to public authorities in England and to the non-devolved functions of public authorities in Scotland and Wales. The relevant public authorities are listed in sch.2 to the Regulations. These specific public sector equality duties are intended to enable public authorities better to perform, and demonstrate their compliance with, the general public sector equality duty.

The Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017 (SI 2017/353) revoked and replaced the previous Equality Act 2010 (Specific Duties) Regulations 2011 (SI 2011/2260) on 31 March 2017. The 2017 Regulations expanded the specific duties to introduce the gender pay gap reporting duty for public authorities.

In October 2011, the Government Equalities Office published a quick start guide to the specific duties: Equality Act 2010: Specific duties to support the equality duty. A quick start guide for public sector organisations.

The duty to publish equality information

Under the specific duty to publish equality information, a public authority listed in sch.2 to the 2017 Regulations must publish information to demonstrate its compliance with the general equality duty under s.149(1) of the Equality Act 2010, including, in particular, information relating to persons who share a relevant protected characteristic who are: its employees; and other persons affected by its policies and practices. The requirement to publish information about employees does not apply to public authorities with fewer than 150 employees. Public authorities must publish this information at intervals of no more than one year.

The EHRC has published Equality Information and the Equality Duty: A Guide for Public Authorities. The guidance recommends that public authorities with at least 150 employees publish:

  • the race, disability, gender, age breakdown and distribution of the workforce at different grades, and whether they are full or part time;
  • an indication of likely representation on sexual orientation and religion or belief, provided that no individuals can be identified as a result;
  • an indication of any issues for transsexual staff, based on engagement with transsexual staff or voluntary groups;
  • gender pay gap information (the EHRC guidance was published prior to the introduction of the specific gender pay gap reporting duty);
  • information about occupational segregation;
  • grievance and dismissal information for people with relevant protected characteristics;
  • complaints about discrimination and other prohibited conduct from staff;
  • details and feedback of engagement with staff and trade unions;
  • quantitative and qualitative research with employees, eg staff surveys;
  • records of how the authority has had due regard to the aims of the duty in decision-making with regard to employment, including any assessments of impact on equality and any evidence used; and
  • details of policies and programmes that have been put into place to address equality concerns raised by staff and trade unions.

The EHRC guidance says that it would also be useful for authorities to publish information broken up by protected group on:

  • return-to-work rates after maternity leave;
  • success rates of job applicants;
  • take-up of training opportunities;
  • applications for promotion and success rates;
  • applications for flexible working and success rates;
  • other reasons for termination such as redundancy and retirement;
  • length of service/time on pay grade, and;
  • pay gap for employees with other protected characteristics.

The duty to publish equality objectives

A public authority listed in sch.2 to the 2017 Regulations must also prepare and publish one or more "specific and measurable" objectives that it thinks it should achieve to comply with any part of the general equality duty. This information must be published at intervals of not greater than four years.

The information required under regs.4 and 5 must be published "in a manner that is accessible to the public", which could include "publication within another published document" (reg.6).

The EHRC has published Objectives and the Equality Duty: A Guide for Public Authorities, which includes guidance on engaging with members of the public, trade unions and other organisations to identify objectives, and on how to prioritise and select final objectives.

Specific public sector equality duties in Scotland and Wales

The 2017 Regulations apply to specified public authorities in England, specified cross-border Welsh authorities and specified public authorities operating across Great Britain in relation to non-devolved functions. There are separate provisions that apply to public authorities in Scotland (see Equality and human rights > Key differences in Scotland and Northern Ireland for further information) and Wales.

The Equality Act 2010 (Statutory Duties) (Wales) Regulations 2011 (SI 2011/1064), which set out the specific duties for public authorities in Wales in relation to their devolved public functions, came into force on 6 April 2011. The specific duties for relevant Welsh public authorities are significantly more detailed than those that are applicable to English public authorities, and include duties to carry out impact assessments on policies and practices, to publish strategic equality plans and to report on compliance with the general equality duty. Technical guidance on the equality duty for the Welsh public sector is available on the EHRC website.

Additional resources on specific public sector equality duties

FAQs

Key references

Legislation

Sex Disc rimination Act 1975
Race Relations Act 1976
Protection from Harassment Act 1997
Equality Act 2010
Equal Treatment Framework Directive (2000/78/EC)
Employment Equality (Age) Regulations 2006 (SI 2006/1031)
Employment Equality (Age) (Amendment No.2) Regulations 2006 (SI 2006/2931)
Equality Act 2010 (Offshore Work) Order 2010 (SI 2010/1835)
Equality Act (Age Exceptions for Pension Schemes) Order 2010 (SI 2010/2133)
Employment Equality (Repeal of Retirement Age Provisions) 2011 (SI 2011/1069)

Codes of practice

Employment statutory code of practice

Guidance

Equality Act 2010: What do I need to know? A quick start guide to using positive action in recruitment and promotion
A step by step practical guide to using positive action when making appointments