Critically Evaluate That The Law Will Continue To Do Little To Prevent Age Discrimination

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


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


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Date authored: 7 th July, 2014

  The current law on discrimination is laid down in the Equality Act 2010. Age is one of the protected characteristics within the Act. 1 The term ”Age” refers not only to a person’s age, but also to persons in a particular age group.2 The Equality Act stipulates that direct discrimination occurs where a person treats less favourably another due to the latter’s protected characteristic. 3 Thus, there must be a comparator to compare with. If one does not exist, the court would create an imaginary comparator. The comparator must be in the same or not in a materially different position from the plaintiff in all aspects with the exception of being a member of the protected class.4 The comparison exercise must be reasonable.5 The Tribunal applies an objective test for less favourable treatment. 6 Indirect discrimination can be claimed where there is an ostensibly neutral provision, criterion or practice which indirectly discriminates against the claimant.7 The indirect discrimination provisions are aimed to tackle ”disguised age barriers” rather than barriers stemming from retirement. Thus, the fact that an individual cannot obtain a qualification needed for a promotion before retirement does not mean that he has been discriminated against. 8 In contrast to other forms of direct discrimination, direct age discrimination can be justified. Although the motive for discriminating is irrelevant, 9 the employer could raise a defence that the discriminatory acts were proportionate means of achieving a legitimate aim.10 Legitimate aims and proportionality are distinct issues which must be examined by separately by the Tribunal.11 Indirect discrimination is justified using the same principle. The Tribunal must strike an objective balance between the discriminatory effect of the provision and the reasonable needs of the business. There must be a need for the provision and it must be reasonably necessary. 12 The peculiarities of age as a protected characteristic should be pointed out. Age discrimination includes a wide range of objective justifications unlike sex discrimination where there are very few and race discrimination where there are virtually none. This is logical given the fact that age discrimination is related to many complex issues such as retirement, business needs or working culture. Such peculiarities superficially imply that in most occasions, the employer’s policies would be justifiable and age discrimination claims should be a response only to the most heinous conduct. Even though direct discrimination claims are becoming a rare phenomenon as most companies have developed solid equal opportunities policies and training,

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