Age discrimination: a lesser form of discrimination?
Author: Darren Newman
Consultant editor Darren Newman hypothesises about the generous approach to justifying age discrimination taken by the tribunals and courts.
It is becoming increasingly clear that the courts do not regard age discrimination as being anywhere near as serious as discrimination based on the other protected characteristics. In Lockwood v Department for Work and Pensions and another [2013] IRLR 941 CA, the Court of Appeal upheld a voluntary redundancy scheme in which a 26-year-old received a severance payment that was less than half what she would have received had she had the same service but been just nine years older.
The reason for the difference, according to the employer's evidence, was that the scheme was aimed at recognising the particular difficulties faced by older workers made redundant. They find it harder to find new work after redundancy and are more likely to have financial commitments such as a mortgage or children. Both the employment tribunal and the Employment Appeal Tribunal (EAT) were so persuaded by the differences between 26-year-olds and 35-year-olds that they held that they were not in comparable situations and that the voluntary severance scheme did not in fact discriminate at all on the grounds of age.
That was always a baffling finding. As the Court of Appeal pointed out, the only reason that a 35-year-old would get paid more under the scheme than a 26-year-old was age. All of the differences relied on by the employment tribunal and the EAT were age based. The voluntary redundancy scheme was most certainly directly discriminatory on the grounds of age; indeed it is one of the most straightforward examples of direct discrimination imaginable.
For any other protected characteristic, a finding of direct discrimination would have been enough for the claimant to win her case. Uniquely however, direct discrimination based on age is not unlawful if the employer can show that it is "a proportionate means of achieving a legitimate aim". The Court of Appeal was satisfied that the tribunal had correctly decided that the voluntary severance scheme met this test.
There are a number of problems with the justification put forward by the employer. The statistics could certainly have been subjected to more sceptical scrutiny than they were, but even if we accept them as valid, it is difficult to see how they could justify such a huge difference in redundancy pay. Ms Lockwood received £10,849.04. However, if she had been 35, she would have received a further £17,690.58. Could such a huge additional sum really be "proportionate" to the need to recognise the difficulties faced by those aged 35 and above?
It is almost impossible to imagine the Court of Appeal being so blasé about a justification defence for sex discrimination. Of course, justification is available in only indirect rather than direct sex discrimination cases, but on the face of it the test is the same as for age discrimination - "a proportionate means of achieving a legitimate aim". If anything, the test in direct age discrimination cases should be harder to meet because the legitimate aim in question needs to be based on some sort of social or labour-market policy, as set out by the Supreme Court in Seldon v Clarkson Wright & Jakes (a partnership) [2012] IRLR 590 SC. There is no such limitation in relation to justifying indirect sex discrimination.
Imagine a voluntary severance scheme that gave part-time workers a disproportionately lower redundancy payment than full-time workers. Quite apart from potentially giving rise to a claim under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551), this would be likely to amount to indirect sex discrimination because women are more likely to work part time than men. Would the courts be likely to find that a policy of that sort was justified? Suppose the employer could show that it was easier to find part-time work following redundancy than full-time work; that those who worked full time were more likely to be the principal earner in the family; and that those working part time were more likely to have a partner's income to fall back on. It is hard to imagine any court or tribunal holding that those figures were sufficient to justify the discrimination. It is also hard to imagine an employer structuring a redundancy package around assumptions about the career ambitions and family circumstances of part-time workers.
Why then does a scheme that is based on age-related assumptions about employees attract such sympathy from the judiciary that they are prepared to find that any discrimination is justified?
I think there are two main reasons. The first is that age discrimination is a relatively new concept. It has been around for only approximately seven years, which in legal terms is quite a short time. Many of us can remember a time in our professional lives when age discrimination was perfectly lawful and scarcely even frowned on. Perhaps it simply takes some time for the cases to start reflecting a shift in attitudes so that age discrimination is regarded as inherently wrong and difficult to justify.
The other reason that age discrimination does not attract the same opprobrium as discrimination based on other characteristics may simply be that our age is always changing. Someone discriminated against for being too young will grow older. Someone discriminated against for being too old used to be young. Perhaps subconsciously the judiciary feel that, over the long term, it all evens out. As we move through life, we both suffer from and benefit from age discrimination in equal measure and that makes it less serious than discrimination based on characteristics that are more rigid and unchanging.
Over time, this attitude may shift. HR professionals from America or Australia - where age discrimination laws have been part of the landscape for much longer - are often taken aback by the casual way in which age discrimination is accepted as normal in the UK. As our outlook on age discrimination matures, we may look back on these early years of case law and be surprised ourselves.
