Age Discrimination in Employment

Age Discrimination in Employment: Comparative Lessons

Report for the Changing Ageing Partnership (CAP) Institute of Governance, School of Law Queen’s University Belfast

Authors: Rory O’Connell and Julie McBride

September 2010

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Age Discrimination in Employment: Comparative Lessons Table of Contents 1. Summary of Conclusions ............................................................................... 4 2. Introduction ................................................................................................. 7 2.1GB and NI Context ............................................................................................. 7 Northern Ireland ..................................................................................................... 10 2.2 Comparative Scope of the Report .................................................................... 12 2.3 Rationale for prohibiting age discrimination ................................................... 13 3. Justifying Age Discrimination ............................................................................ 14 3.1 EU context........................................................................................................ 14 3.2 UK legislation Pre 2010 ................................................................................... 15 3.3 The Equality Act 2010 ..................................................................................... 18 3.4 Comparative context. ....................................................................................... 20 3.5 Conclusion ....................................................................................................... 26 4. Justification: General Principles in case law ...................................................... 28 4.1 General Principles ............................................................................................ 28 EU ...................................................................................................................... 28 UK ...................................................................................................................... 30 Canada ................................................................................................................ 33 Ireland ................................................................................................................ 35 4.2 Conclusions on general principles ................................................................... 35 5. Justification: Retirement .................................................................................... 39 5.1 Legislative framework ..................................................................................... 39 5.2 Retirement in the ECJ case law ........................................................................ 40 5.3 Early UK case law on retirement and age discrimination ................................ 43 5.4 Heyday / Age UK decision .............................................................................. 45 5.5 Irish case law on retirement ............................................................................. 47 5.6 Canadian case law on retirement...................................................................... 49 5.7 Conclusions on retirement................................................................................ 57 Excursus on dignity ................................................................................................ 58 6. Justification: Other cases ....................................................................................... 59 6.1 Recruitment/Promotion .................................................................................... 59 6.2 Redundancy Procedures ................................................................................... 62 6.3 Early Retirement / Severance ........................................................................... 64 6.4 Conclusions ...................................................................................................... 66 7 Positive Action ........................................................................................................ 67 7.1 UK Position pre 2010 Act ................................................................................ 67 7.2 EU position on positive action ......................................................................... 68 7.3 Positive Action in Ireland................................................................................. 70 7.4 Positive Action in Canada ................................................................................ 70 7.5 Positive Action in the Equality Act 2010 ......................................................... 71 7.6 Conclusion ....................................................................................................... 72 8 Reasonable accommodation duty............................................................................ 73 8.1 UK, Ireland and Europe ................................................................................... 73 8.2 Canada .............................................................................................................. 74 8.3 Conclusions ...................................................................................................... 77 Authors ....................................................................................................................... 79 List of Abbreviations .................................................................................................. 80

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1. Summary of Conclusions Single Act All of the comparator jurisdictions have now chosen to adopt a single act approach to equality, treating of age discrimination in the same legislative measure as other forms of discrimination. In the case of Ireland and Canada, the single act approach may well facilitate accessibility of the law. This is not so obviously the case in Britain where the 2010 Act runs to 250 pages and includes many schedules, cross references and the like, leaving accessibility an issue. The 2010 Act also does not entirely codify the law on non-discrimination – for example, it still leaves intact at least part of the Age Regulations (pending abolition of the default retirement age). Further the 2010 Act also demonstrates that it is possible to have a single act and yet retain very different regulations for the grounds of discrimination, notably age discrimination. Whilst a single act is an attractive option, its real attraction depends on the content of the measure.

Difference in principle as to whether age discrimination is subject to different justification Ireland and Canada do not draw the sharp distinction found in the UK’s Age Regulations that direct age discrimination can be justified whereas other forms of direct discrimination cannot be justified (unless they fall in a narrow range of exceptions). The GB Equality Act appears to retain the distinction between direct age discrimination and other forms of direct discrimination (that is direct age discrimination can be justified). However this depends on the interpretation of the new occupational requirement exception in the 2010 Act. The General Framework Directive also retains the distinction between age discrimination and other forms of discrimination by allowing direct age discrimination to be justified if proportionate to certain social policy aims. Yet at least as far as the legislature is concerned the Directive allows the states to adopt

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measures which are directly discriminatory provided they are necessary in a democratic society to protect a range of public interests or the rights and freedoms of others. These qualifications in the 2010 Act and the General Framework Directive suggest that the stark distinction in the pre-2010 regulations is being eroded. That being the case it may be clearer to move the Irish or Canadian position and do away with the special exception for direct age discrimination.

Default Retirement Age The High Court has laid down a clear indicator that the use of 65 as a default retirement age needs to be reconsidered. The Conservative Liberal Democrat Government has somewhat gone beyond the High Court judgement in deciding to do away with a default retirement age and is currently consulting on this proposal. While the default retirement age will disappear, it will still be possible for employers to justify retirement ages. While there is little case law on the legality of retirement ages from Ireland, Canada offers a wealth of guidance. Helpfully or otherwise the Canadian cases frequently explore in depth both sides of the arguments about retirement ages, with some recent cases suggesting the arguments in favour of any retirement age are weakening. This indeed is also the logic of the Government consultation paper on the default retirement age which points out that only a minority of employers actually use a retirement age.1

Dignity We noted that the value of dignity is sometimes invoked in age discrimination cases, with the twist that is may be invoked both to defend and criticise the same type of age based distinction. This points to the malleable nature of dignity, and may suggest that caution is justified before expecting this value to play a useful role in discrimination law and especially age discrimination cases. 1

Department for Business Innovations and Skills (BIS) and Department for Work and Pensions (DWP), Phasing Out the Default Retirement Age (2010) paragraph 7.2.3.

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Positive Action Northern Ireland’s legislation on positive action ‘exceptions’ to the antidiscrimination law appear much more limited than the Irish, Canadian and new British rules in the 2010 Act. This has already caused some problems as regards the accessibility of certain courses for older persons. The restrictive approach in the NI regulations to positive action now appears quite stark. It would be very unfortunate if workplaces throughout the Britain and Ireland had the possibility to adopt positive action to address disadvantage – or in Britain to achieve a diverse and proportionately balanced workforce – but workplaces in Northern Ireland were limited to a narrow range of outreach type measures.

Reasonable Accommodation While Northern Ireland could consider emulating the British approach to positive action in the 2010 Act, the Canadian examples suggest that it may be possible to go further. Canadian law, initially due to judicial interpretation, but now due to explicit statutory provision, makes a duty of reasonable accommodation apply across all grounds of discrimination. The Government consultation on abolishing the default retirement age does not mention the idea of reasonable accommodation. It does however refer warmly to the need for constructive dialogue between employer and employee and leaves open the possibility for measures to promote this dialogue. The consultation paper does not propose any specific employee rights to move to flexible or part-time work, though that is indicated as the type of measure that might be adopted after a dialogue. A stronger position to protect workers, in particular older workers, would be to revisit the idea of reasonable accommodation. Even if this were not adopted in the British legislation, equality law remains largely a devolved matter and this would be a possible avenue for Northern Ireland to reclaim its place as a trendsetter in equality and discrimination law in these islands.

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2. Introduction This report examines the approach in Northern Ireland and Britain to age discrimination in employment. The report discusses the European Union background to age discrimination developments and also places UK measures in a comparative context by looking at age discrimination law in Ireland and Canada.

2.1GB and NI Context This paper focuses on age discrimination in employment. Before concentrating on this issue it is necessary to outline briefly the development of equality law in Great Britain and in Northern Ireland, touching on the relationship between them. Equality law in Great Britain Prior to the 1970s, there were occasional statutory provisions or vague judicial pronouncements on equality. In the 1970s, influenced by membership of the then EEC, concerns about race relations, and the US example of anti-discrimination law, Britain adopted statutes dealing with sex discrimination (Equal Pay Act 1970, Sex Discrimination Act 1975) and race discrimination (Race Relations Act 1976). These did not address age discrimination, even though the US had adopted the Age Discrimination in Employment Act as long ago as 1967. These laws contained the main anti-discrimination rules, until supplemented by new laws in the 1990s and 21st Century. In 1995, the Disability Discrimination Act was passed. In 1998, Parliament adopted the Human Rights Act, which came into force in 2000. The Human Rights Act 1998 gives further effect to the European Convention on Human Rights (ECHR) rights in domestic law; Article 14 ECHR prohibits discrimination in the enjoyment of convention rights on a range of grounds or any other status, which implicitly includes age. In 2003, Ministers drafted regulations giving effect to the European Union ‘General Framework’ directive.2 These regulations prohibited sexual orientation3 and

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Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (27/11/00) 2000 http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2000:303:0016:0022:EN:PDF. 3 Employment Equality (Sexual Orientation) Regulations 2003, No. 1661 of 2003, http://www.opsi.gov.uk/si/si2003/20031661.htm.

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religious4 discrimination in employment. The same Directive also required regulations on disability and age discrimination. To give effect to this last requirement, in 2006 Ministers adopted the Employment Equality (Age Discrimination) Regulations No. 1031 of 2006.5 In 2006, Parliament also passed the Equality Act.6 This created a new Commission for Equality and Human Rights in Britain, and introduced a large variety of amendments to the laws on sex, race, sexual orientation and religious discrimination. In 2006, Parliament created a Commissioner for Older People in Wales.7 These developments led to a very complex body of law; one expert said bluntly there was too much law.8 Recognising this situation, the Government commissioned two major reports on Equality9 and Discrimination10 in 2007, published a consultation paper in 200811 and finally introduced the Equality Bill into Parliament in April 2009.12 This became law as the Equality Act 2010, though the majority of its provisions will only come into force when a Minister so orders.13 The Equality Act 2010 introduces a ‘single equality’ framework to replace much of the existing legislation. The new framework will cover age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.14 The Equality Act applies for the most part to England and Wales, and Scotland; only a few provisions apply to Northern Ireland.15 Equality is largely a devolved matter as far as Northern Ireland is concerned, but not Scotland. The Equality Act aims to make amends for the lack of protection from discrimination because of age, both in

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Employment Equality (Religion or Belief) Regulation 2003 No. 1660 of 2003, http://www.opsi.gov.uk/si/si2003/20031660.htm . 5 Available at http://www.opsi.gov.uk/si/si2006/20061031.htm . 6 http://www.opsi.gov.uk/acts/acts2006/ukpga_20060003_en_1. 7 http://www.opsi.gov.uk/acts/acts2006/ukpga_20060030_en_1. 8 Bob Hepple, Mary Coussey and Tufyal Chowdhoury, Equality: A New Framework (Oxford: Hart, 2000), p. 21. 9 Equalities Review, Fairness and Freedom: The Final Report of the Equalities Review (OPSI, 2007) 10 Discrimination Law Review, A Framework for Fairness: Proposals for a Single Equality Bill for Great Britain, A Consultation Paper (London: Communities and Local Government, 2007) . 11 Government Equalities Office, Framework for a Fairer Future - the Equality Bill, CM 7431 (London: Government Equalities Office, 2008). 12 http://www.equalities.gov.uk/equality_bill.aspx 13 Equality Act 2010, s 216. The Government Equalities Office details which provisions will come in to force and when at http://www.equalities.gov.uk/equality_act_2010.aspx 14 Equality Act 2010 s 4. 15 Section 217.

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the provision of services16 and in the exercise of public functions in the existing law (though the Conservative-Liberal Democrat Government is still considering these provisions). Part 2 establishes the characteristics to be protected; these include age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. Reference to an age group is a reference to a group of persons defined by reference to age, whether by reference to a particular age or to a range of ages.17 For people whatever their age (except persons below the age of 18, who are specifically excluded), the Act provides protection against age discrimination in the provision of goods, facilities and services and the exercise of public functions.18 Section 13 defines direct discrimination as being discrimination ‘because of a protected characteristic’. This term presumably offers protection for persons who associate with people with the protected characteristics and protection of people who are wrongly perceived to possess those characteristics. The effect of the Act is therefore to extend protection based on association and perception to these protected characteristics across all fields. Section 13(2) also provides that in the case of age discrimination, different treatment that is justified as a ‘proportionate means of achieving a legitimate aim’ is not direct discrimination – this retains the distinction that direct age discrimination can be justified. Sections 20-22 provide a ‘reasonable adjustment’ requirement in disability discrimination. The reasonable adjustment requirement does not extend to the other protected characteristics. A general public sector equality duty (section 149), is inserted, which will mean that the public authorities to which the duty applies will need, when thinking about or reviewing new or existing policies, programmes and services, to factor in the impact of their decisions on people with the protected characteristics. Public authorities will need to have ‘due regard to the need to’ eliminate discrimination and other prohibited conduct; advance equality of opportunity in related to the protected characteristics; and foster good relations as between people with the protected characteristics and people without. This is a British version of Section 75, though the proposed good

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Section 29. Section 5. 18 Section 29. 17

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relations duty covers all the protected characteristics, unlike Section 75(2) of the Northern Ireland Act 1998. Section 1 of the Equality Act adds a new statutory duty on certain public authorities, when making strategic decisions, to have ‘due regard’ to the ‘desirability’ to exercise them so as to ‘reduce the inequalities of outcome which from socio-economic disadvantage’. This is another provision which the Government is still considering.

Northern Ireland Within the United Kingdom, there are three major legal jurisdictions: England and Wales, Scotland, and Northern Ireland (it is possible Wales will emerge as a separate jurisdiction). Therefore, the law of Northern Ireland is not necessarily the same as in England and Wales, or as in Britain (England and Wales and Scotland). Nevertheless, the Westminster Parliament may legislate for any or all of these jurisdictions. With the creation of Northern Ireland in 1921, the Government of Ireland Act 1920 section 5 prohibited religious discrimination by the NI legislature. The modern successor of this is the Northern Ireland Act 1998: sections 6 and 76 prohibit religious or political discrimination by the Assembly or public authorities. During the 1970s, the Northern Ireland Parliament adopted the Equal Pay (NI) Act 1970 to replicate the British Equal Pay Act; and in 1976, the UK Government introduced the Sex Discrimination (NI) Order which is the equivalent of the 1975 Sex Discrimination Act. The UK Parliament also passed the Fair Employment Act in 1976, banning political and religious discrimination in employment in Northern Ireland. Parliament introduced a new Fair Employment Act in 1989. The 1995 Disability Discrimination Act applies in Northern Ireland, while in 1997 race discrimination legislation was belatedly introduced to NI. 19 In 1998, the laws on political and religious discrimination were amended by the Fair Employment and Treatment Order (FETO), while Section 75 of the Northern Ireland Act 1998 imposed a statutory duty on public authorities to have ‘due regard to the need to promote equality of opportunity’ as between people of different religious beliefs, political opinion, racial group, age, marital status or sexual orientation; between men 19

Race Relations (Northern Ireland) Order 1997 Statutory Instrument 1997 No. 869 (N.I. 6).

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and women; between people with a disability and people without and finally as between people with dependents and people without.20 This was the first mention of age in an equality measure in NI. The Northern Ireland Act also created a single Equality Commission.21 In the 21st Century, to implement the EU ‘General Framework’ directive, Northern Ireland had to adopt new measures on sexual orientation discrimination (2003)22 and age discrimination (2006).23 The Age Regulations NI largely follow the British ones. In 2003, the Secretary of State created a Commissioner for Children and Young People.24 In December 2008, Dame Joan Harbison was appointed as the Older People’s Advocate.25 OFMdFM has held a consultation on legislation for an Older Person’s Commissioner.26 As might be imagined, Northern Ireland suffers from the same excess of legislation as the rest of the UK prior to the coming in to force of the Equality Act 2010. The Equality Commission NI lists several dozen pieces of legislation which regulation equality in NI.27 OFMdFM published a consultation paper on a single equality bill in 2004,28 but the work on this seems to have stalled: the Programme for Government makes no mention of it.29 The OFMdFM website does not refer to any consultations more recently than 2005.30 Northern Ireland may have to implement EU directives on equality, and may also be inspired by the example of the GB Equality Act 2010 to review its own equality laws. It is hoped this report will contribute to any discussion on amending equality law in Northern Ireland. 20

Northern Ireland Act 1998 s 75. Northern Ireland Act 1998 s 73. 22 Employment Equality (Sexual Orientation) (Northern Ireland) Regulations 2003 http://www.opsi.gov.uk/Sr/sr2003/20030497.htm 23 Employment Equality (Age) Regulations (Northern Ireland) 2006, Statutory Rule 2006 No. 261 2006 http://www.opsi.gov.uk/Sr/sr2006/20060261.htm 24 Commissioner for Children and Young People (Northern Ireland) Order 2003 http://www.opsi.gov.uk/si/si2003/20030439.htm. 25 http://www.ofmdfmni.gov.uk/index/equality/age.htm last accessed on 12 June 2009. 26 OFMdFM Consultation to establish an Office of a Commissioner for Older People (Belfast: OFMDFM, 2009) http://www.ofmdfmni.gov.uk/index/equality/age/older-peoples-commissioner.htm. The Commissioner for Older People Bill is being debated in the Assembly during late 2010, see http://www.niassembly.gov.uk/legislation/primary/assleg10.htm. 27 See: http://www.equalityni.org/sections/default.asp?cms=The%20Law_The%20legislation&cmsid=4_278 &id=278&secid=5 28 OFMDFM, A Single Equality Bill for Northern Ireland (Belfast: OFMDFM, 2004) 29 OFMDFM, Programme for Government (Belfast: OFMDFM, 2008) available at http://www.pfgbudgetni.gov.uk/ 30 http://www.ofmdfmni.gov.uk/index/equality/single-equality-bill.htm last accessed on 15 June 2009. 21

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2.2 Comparative Scope of the Report The report is based on an analysis of the law on age discrimination in the following jurisdictions. This report will continue to make reference to the Age Regulations 2006. However the Equality Act 2010, when brought in to force will revoke these regulations in Britain though not the NI regulations. Equality and discrimination law are devolved matters.

The United Kingdom The focus is on the Age Regulations introduced in order to comply with the EU General Framework Directive.31 Reference will also be made where appropriate to Article 14 of the European Convention on Human Rights. As explained in the previous section, there are different legal jurisdictions in the UK, so sometimes it will be more appropriate to refer to Northern Irish law, the law of England and Wales, British or UK law.

European Union The key instrument here is the so called General Framework Directive which requires EU states to introduce measures prohibiting discrimination on grounds of age, disability, religion and sexual orientation.32

Ireland The Irish Constitution contains a general equality clause, guaranteeing equality before the law, though not specifically mentioning age. There are statutes specifically

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Employment Equality (Age Discrimination) Regulations No. 1031 of 2006 available at http://www.opsi.gov.uk/si/si2006/20061031.htm. These will be cited as the Age Regulations 2006. Employment Equality (Age) Regulations (Northern Ireland) 2006, Statutory Rule 2006 No. 261 2006 available at http://www.opsi.gov.uk/Sr/sr2006/20060261.htm 32 Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (27/11/00) 2000 http://europa.eu.int/comm/employment_social/news/2001/jul/directive78ec_en.pdf

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prohibiting age discrimination (among other grounds) in employment. These are the Employment Equality Act 1998, as amended by the Equality Act 2004.

Canada As in Ireland, there are constitutional provisions on discrimination found in the 1961 Bill of Rights and the much more significant 1982 Charter of Rights and Freedoms. There are also anti-discrimination laws at both the federal and provincial levels. Many of the Canadian anti-discrimination laws are called Human Rights Acts; they should not be confused with the UK Human Rights Act.

2.3 Rationale for prohibiting age discrimination As noted above, prohibitions on age discrimination are recent innovations in the UK and EU. When the EU adopted the General Framework Directive, states were given an extra three years to implement the age and disability grounds. As will become clear, age discrimination laws frequently allow more exceptions than do other discrimination laws. All this indicates an underlying concern over the nature and purpose of age anti-discrimination laws. Age anti-discrimination laws can be seen as any other anti-discrimination measure, being about tackling prejudice and stereotyping.33 This may mean tackling irrational attitudes which overlook individual merit; or may also mean tackling systemic disadvantage and discrimination which leave vulnerable groups excluded from the full and equal enjoyment of society’s benefits. Age anti-discrimination laws may also be justified on rational economic grounds: they encourage decisions based on merit and facilitate the productive employment of all. These different approaches frequently encounter the consideration that age discrimination is perceived to be different from other forms of discrimination: sometimes it may be rational and reasonable to use age as a ground for distinction. However deciding when this is rational and reasonable and when it is not, is not easy. For this reason Bamforth et al stress the need to justify any such distinctions.34 33

Nicholas Bamforth, Maleiha Malik and Colm O Cinneide, Discrimination Law: Theory and Context, Text and Materials (Sweet and Maxwell, London 2008) p. 1103-1119. 34 Ibid, p. 1120.

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3. Justifying Age Discrimination Perhaps the most interesting aspect of age discrimination law in the EU and UK is that direct age discrimination may be lawful if it can be shown to be justified. This differs from the traditional approach to direct discrimination on other grounds.

3.1 EU context The EU General Framework Directive is the basis for the UK Age Regulations. It includes the possibility for a general justification clause for direct age discrimination and other more specific exceptions. As regards general justification the General Framework Directive provides that distinctions based on age can be permitted if: 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. 35 The General Framework Directive then gives a lengthy description of the sorts of exceptions that would be permitted.36 Nevertheless it is uncertain what is covered by the term ‘legitimate employment policy’.37

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Article 6. Article 6 continues: ‘Such differences of treatment may include, among others: (a) the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection; (b) the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment; (c) the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement. 2. Notwithstanding Article 2(2), Member States may provide that the fixing for occupational social security schemes of ages for admission or entitlement to retirement or invalidity benefits, including the fixing under those schemes of different ages for employees or groups or categories of employees, and the use, in the context of such schemes, of age criteria in actuarial calculations, does not constitute discrimination on the grounds of age, provided this does not result in discrimination on the grounds of sex.’ 37 Malcolm Sargeant, ‘The Employment Equality (Age) Regulations 2006: A Legitimisation of Age Discrimination in Employment’ (2006) 35 (3) Industrial Law Journal 209-227, 210. 36

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The General Framework Directive does not provide for this sort of general justification clause for direct discrimination in relation to the other grounds of discrimination covered in the Directive. It does provide a general justification test for indirect discrimination for all the grounds in the Directive; permitting exceptions where practices, policies or criteria are ‘objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary’.38 The Directive provides a general exception for ‘genuine and determining occupational requirements’ across all the grounds,39 allows for positive action in respect of all the grounds,40 and provides a duty to provide reasonable accommodation for employees with disabilities.41 The Directive also provides for a general exception across the grounds for legislation that is ‘necessary in a democratic society’ to safeguard public interests such as public health, public order, health, and protecting the rights of others.42

3.2 UK legislation Pre 2010 (The Age Regulations in NI largely mirror those in the rest of the UK, being based on the same EU directive). The UK law on age discrimination permits both indirect and direct age discrimination to be justified if it can be shown to be a ‘proportionate means of achieving a legitimate aim.’43 This language provides a general possibility for justification. This is very unusual in UK law. In addition the Age Regulations 2006 provide for many specific exceptions from the prohibition on discrimination. The prohibition does not apply to: 

Someone who has reached the employer’s normal retirement age or (if there is no such age), the age of 65. 44

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Article 2(2)(b). Article 4. 40 Article 7. 41 Article 5. 42 Article 2(5) of the Directive. 43 Age Regulations 2006, Regulation 3(1); Regulation 3(1) of the NI equivalent at http://www.opsi.gov.uk/Sr/sr2006/20060261.htm#3 44 Regulation 7(4). Regulation 7(4) of the NI equivalent. The Equality Act 2010 provides that it will not be discrimination to refuse to appoint someone who would be or approaching 65 or the normal retirement age (whichever is the greater): Sch 9 Pt 2 para 9. 39

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The ‘dismissal of a person to whom this regulation applies at or over the age of 65 where the reason for the dismissal is retirement.’45 There is a procedure to follow to consider requests to work beyond retirement.46

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An age related characteristic that is a ‘genuine and determining occupational requirement’ if is proportionate to apply it.47

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An act ‘done in order to comply with a requirement of any statutory provision’48 or ‘for the purpose of safeguarding national security.’49 The Northern Ireland equivalent to this last exception is broader than national security: it includes acts done to protect public safety or public order.50 The Northern Ireland regulations also provide for the Secretary of State to certify that acts were done for the purposes of protecting national security, public safety and public order.51



‘Positive action’.52 Positive action in the pre 2010 laws is primarily limited to ‘outreach’ type measures. This means it is permissible to provide training for people of a certain age, or to encourage applications from people of a certain age but only where such training or encouragement ‘prevents or compensates for disadvantages linked to age suffered by persons of that age or age group doing that work or likely to take up that work’.



The payment of a lower wage to someone on a different national minimum wage.53

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Regulation 30. Regulation 32 of the NI equivalent. The Equality Act 2010 retains this exception: Sch 9 Pt 2 para 8. 46 Regulation 47 and Schedule 6. Regulation 51 and Schedule 5 of the NI equivalent. The Equality Act 2010 allows for the revocation of all of the Age regulations except for Sch 6 and Sch 8. 47 Regulation 8. Regulation 9 of the NI equivalent. The exception for ‘occupational requirements’ that are ‘proportionate means of achieving a legitimate aim’ is recognised in the Equality Act 2010: Sch 9 Pt 1 para 1. 48 Regulation 27. Regulation 28 of the NI equivalent. The Equality Act 2010 provides that it is not age discrimination to do something that is required by an enactment: Sch 22 para 1. 49 Regulation 28. See Equality Act 2010 s 192 which allows for proportionate measures to safeguard national security. Note s 197 of the 2010 Act which allows a Minister to make exceptions to the prohibition of age discrimination except in relation to work, further or higher education. 50 Regulation 29 of the NI equivalent. 51 Regulation 30 of the NI equivalent. 52 Regulation 29. Regulation 31 of the NI equivalent. Sections 158 and 159 of the 2010 Act contain sweeping new positive action powers. 53 Regulation 31. Regulation 33 of the NI equivalent. This is retained in the Equality Act 2010 Sch 9 Pt 2 para 11.

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

The provision of benefits based on length of service.54 If however the disadvantaged employee has worked for the employer for more than five years then it must reasonably appear that the benefit fulfils a business need.

There are also exceptions relating to redundancy payments55 and to life assurance cover.56 In a UK employment discrimination context, the age discrimination rules are unusual. It is the only anti-discrimination law where it is possible to justify direct discrimination using a general justification clause. In relation to all the other employment anti-discrimination laws (covering sex, race, religion, disability and sexual orientation), direct discrimination is only permitted if it falls under a specific exception57 such as being a genuine occupational requirement.58 As part of the consultation process surrounding the NI regulations, ECNI said that it was ‘deeply concerned’ at the ‘considerable scope’ for permitted direct age discrimination.59 Rather than such a general justification test for direct discrimination, the Commission would have preferred the legislature to list examples of permitted direct discrimination.60 The language used in respect of justifying direct age discrimination in the Regulations is different from the language in the Directive. The Age Regulations speak of exceptions permitted to the ban on age discrimination where the distinctions are ‘proportionate means of achieving a legitimate aim’ whereas the Directive says that age based distinctions can be permitted ‘if objectively and reasonably justified by a legitimate aim’ and that indirect discrimination is permitted if ‘objectively justified by a legitimate aim and the means of achieving that aim are appropriate and 54

Regulation 32. Regulation 34 of the NI equivalent. This is retained in the Equality Act 2010 Sch 9 Pt 2 para 10. 55 Regulation 33.Regulation 35 of the NI equivalent. This is retained in the Equality Act 2010 Sch 9 Pt 2 para 13. 56 Regulation 34.Regulation 36 of the NI equivalent. This is retained in the Equality Act 2010 Sch 9 Pt 2 para 14. 57 It used to be possible to justify direct disability discrimination but this possibility has disappeared since the Disability Discrimination (Amendment) Regulations, SI No. 1673/2003 2003 available at http://www.opsi.gov.uk/si/si2003/20031673.htm#3. Note that disability discrimination is asymmetrical, i.e. it is lawful to discriminate against someone on the grounds that he or she has no disability. 58 See e.g. section 7 of the Sex Discrimination Act 1975, section 5 of the Race Relations Act 1976. 59 Equality Commission for Northern Ireland, Commission response to OFMDFM Age consultation paper, (Belfast: ECNI, 2005) p. 6. 60 Equality Commission Northern Ireland, Commission response to OFMDFM Age consultation paper, (Belfast: ECNI, 2005) p. 7.

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necessary.’ This language is slightly different, though it is not clear that the meaning of ‘objective and reasonable’ and ‘objective, appropriate and necessary’ means differs significantly from ‘proportionate’ in the Age Regulations. The Government explained that the European Court of Justice used the terms ‘proportionate’ and ‘appropriate and necessary’ interchangeably, though Sargeant suggests that ‘proportionate’ suggests more of a balancing exercise.61 Terms like ‘objective’ and ‘necessary’ do suggest a more stringent test. However any argument that the Directive’s language is tighter than the Age Regulations’ would seem to be undermined by the generous understanding of justified age discrimination envisaged in the commentary and examples in Article 6 of the Directive: ‘legitimate employment policy, labour market and vocational training objectives’ do not at first glance appear to be limited concepts. To reiterate, both EU and UK law treat age discrimination differently from the other grounds of discrimination in that they allow for direct age discrimination to be justified under a general justification test. Direct discrimination in relation to the other grounds cannot be justified unless brought under the heading of a specific exception.

3.3 The Equality Act 2010 How does the Equality Act 2010 change matters in Britain (when it is brought in to force)? The Act is intended to harmonise and strengthen equality law. 62 The Act in many ways replicates the existing law. However there are changes in language which may be important and there is a very important change in relation to positive action. The 2010 Act retains much that is familiar. It prohibits direct and indirect discrimination.63 It retains the special exception for direct age discrimination, allowing for direct age discrimination to be justified if it is a ‘proportionate means of achieving a legitimate aim’.64 The 2010 Act retains the general approach to

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Malcolm Sargeant, ‘The Employment Equality (Age) Regulations 2006: A Legitimisation of Age Discrimination in Employment’ (2006) 35 (3) Industrial Law Journal 209-227, 220. 62 Explanatory notes to the Equality Act 2010, paragraph 10. Available at http://www.opsi.gov.uk/acts/acts2010/en/ukpgaen_20100015_en.pdf. 63 Sections 13 and 19. Section 13 uses a new formulation to identify direct discrimination – this is discrimination ‘because of’ a protected characteristic, rather than ‘on grounds of’ a characteristic. This change was introduced to make the act more user friendly: Explanatory Notes paragraph 61. 64 Section 13(2).

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retirement,65 appointment of someone approaching retirement age,66 consultation on allowing an employee to work beyond retirement (bizarrely - in a harmonising measure - by keeping in place Schedule 6 to the 2006 Age Regulations), seniority related benefits,67 nationality minimum wage,68 redundancy69 and so on. As well as allowing these age specific exceptions in work related matters, the Act permits age specific exceptions in relation to good, services and public functions: a Minister can amend the 2010 Act to provide that certain conduct shall not be age discrimination.70 So although the aim of the Act is to harmonise the law, in practice age-specific exceptions remain. Some of the disability related differences also remain – disability discrimination remains asymmetrical (it is not illegal to discriminate against someone because he or she has no disability)71, and the reasonable accommodation duty still applies only to disability.72 The 2010 Act retains the general exceptions for national security73 and acts done pursuant to an enactment.74 The Act also retains the exception for a genuine and determining occupational requirement, though using new language. The new language refers to an ‘occupational requirement’ which is a ‘proportionate means of achieving a legitimate aim’.75 This exception seems potentially broader than that found in the old Sex and Race Discrimination laws; in particular the Act does not use the qualifiers ‘genuine and determining’ found in the General Framework Directive.76 This exception has always been understood narrowly, but if the test is a proportionality one, then it looks as if direct discrimination across all grounds can now be justified (at least where there is a requirement to have a particular characteristic). Such a broad interpretation however might fall foul of EU law; it will be necessary for the courts to clarify the scope of the newly worded occupational requirement exception. 65

Sch 9 Pt 2 para 8. Sch 9 Pt 2 para 9. 67 Sch 9 Pt 2 para 10. 68 Sch 9 Pt 2 para 11. 69 Sch 9 Pt 2 para 13. 70 Section 197. 71 Section 13(3). 72 Section 20. 73 Section 192. 74 Sch 22 para 1. 75 Sch 9 Pt 1 para 1. 76 Article 4 General Framework Directive. 66

19

While much of this is a similar story to that under the 2006 Regulations, what is new is the approach to promoting equality, with a high level strategic duty to ‘have due regard’ to the ‘desirability’ to reduce the consequences of socio-economic inequality,77 a Section 75 type statutory duty to have ‘due regard to the need’ to eliminate discrimination, advance equality of opportunity and foster good relations,78 and finally a sweepingly permissive approach to positive action. Section 158 allows someone to take proportionate measures to overcome or minimise disadvantage, to meet group specific needs or to encourage participation. Section 159 allows the use of tie-breaker rules in recruitment. This is a much broader approach than that typically79 found in UK law which traditionally only recognised ‘outreach’ type measures (eg invitations to apply, training). What has not changed is that the rules are ‘symmetrical’. If men or heterosexuals or white people face a disadvantage or unequal participation or have special needs, then positive action is also permitted for them.

3.4 Comparative context. Ireland The Irish Employment Equality Act 1998 is a ‘single equality act’ measure covering discrimination in employment on grounds of sex, marital status, sexual orientation, religion, age,80 disability, race and traveller status. There is a separate Equal Status Act covering discrimination in relation to services. The Employment Equality Act 1998 has been amended by the Equality Act 2004. The Employment Equality Act prohibits both direct81 and indirect discrimination82 across all the grounds. The Employment Equality Act 1998 has a general test to justify indirect discrimination across all the grounds, which, as amended by the Equality Act 2004, follows EU law in permitting provisions which are ‘objectively justified by a 77

Section 1. Section 149. 79 Though not exclusively: the 50:50 recruitment policy for the PSNI and the rules on election candidates provide for more demanding types of positive action. 80 In the 1998 Act, the prohibition on age discrimination only applies to those people between the ages of 18 and 65: s 6(3). This has been amended in the 2004 Act. By Section 4 of the 2004 Act (amending section 6 of the 1998 Act), the prohibition of age discrimination applies to anyone over the statutory age for leaving school. 81 Employment Equality Act 1998 s 6. These has been modified by section 4 of the Equality Act 2004. 82 Employment Equality Act 1998 s 22 (gender) and s 31 (other grounds), as amended by the Equality Act 2004 s 13 and s 20. 78

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legitimate aim and the means of achieving that aim are appropriate and necessary.’83 Unlike the EU Directive and the UK Age Regulations, there is no general justification test for direct discrimination on the age ground (or on any of the grounds). There are a number of specific exceptions to the prohibition on direct discrimination, some of which apply to all the grounds, and some are specific to age. Exceptions that apply generally include: 

Genuine and determining occupational requirements,84 with a special reference to the police force.85



Positive action.86 In the 1998 Act, positive action was only permitted for people over 50, people with a disability and Travellers. The 2004 Act has extended this so that positive action may benefit any person affected by discrimination linked to any of the grounds specified in the Act.87



Exceptions relating to complying with certain statutory requirements.88

Exceptions that are specific (more or less) to the age ground are the following: 

In relation to age and disability, the 1998 Act permitted distinctions if there was ‘clear actuarial or other evidence that significantly increased costs would result’ otherwise.89 The 2004 Act, to respect the terms of the General Framework Directive, has amended this significantly. The relevant section now provides for an exemption from the age discrimination ground only, in respect of occupational benefits schemes.90 Occupational benefits schemes include those for illness, death or redundancy but not retirement.91



In relation to age, there is the possibility to create exemptions for the emergency services, police or prisons service.92

83

Employment Equality Act 1998 s 22 (gender) and s 31 (other grounds), as amended by the Equality Act 2004 s 13 and s 20. 84 S 25 of the 2004 Act, amending section 37 of the 1998 Act., 26, 37(2) . 85 S 37 (3) as amended by S 25 of the 2004 Act. 86 S 33 of the 1998 Act. 87 S 33 of the 1998 Act as amended by S 22 of the 2004 Act. 88 S 17 as amended by S 10 of the 2004 Act. 89 S 34(3) of the 1998 Act. 90 S 34(3) of the 1998 Act, as amended by S 23 of the 2004 Act. 91 S 34(3A) as inserted by S 23 of the 2004 Act. 92 S 37(4) as amended by S 25 of the 2004 Act.

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

In relation to age and disability, there is an exemption for the Defence Forces.93



Fixing of different ages of retirement.94



Setting maximum ages for recruitment, where this reflects training needs or need for the employee to have a reasonable time in the job.95



Differences based on seniority or experience.96

Although the Irish Act includes several specific exemptions for age discrimination, it is noteworthy that it broadly adopts the position that direct discrimination is prohibited on all grounds (unless there is a specific exemption) while indirect discrimination on all grounds is subject to a general justification test.

Canada: Federal Level 1982 Canadian Charter of Rights and Freedoms The Charter of Rights and Freedoms 1982 is a constitutional document. The equality clause in the Charter embodies a strong commitment to substantive equality. Section 15(1) reads: Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. Section 15(2) specifies that affirmative action programmes do not violate the right to equality: Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

93

S 37(5) as amended by S 25 of the 2004 Act. S 34(4). The 2004 Act does not amend this sub section. 95 S 34(5). The 2004 Act does not amend this sub section. 96 S 34(7) The 2004 Act does not amend this sub section. It adds a subsection 7A, which provides that when service would otherwise be equal, then age can be used to decide on seniority if this is provided for in a collective agreement. 94

22

Any measure which violates a Charter right can nevertheless be held to be compatible with the Charter if it satisfies the test in Section 1 that allows for ‘reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’. Section 15 explicitly lists age as one of the prohibited grounds of distinction, and some of the early Charter cases concerned age discrimination in employment.97

Canadian Federal Human Rights Act The Canadian Human Rights Act 1976 covers discrimination across the grounds of ‘race, national or ethnic origin, colour, religion, age, sex, marital status, family status, disability or conviction for an offence that has been pardoned’.98 It prohibits discrimination in employment and provision of services.99 It permits distinctions which are based on a ‘bona fide occupational requirement’,100 refusal of employment because the applicant is below the legal minimum age or above the legal maximum age,101 or has reached retirement age.102 There is also an exception for pension funds.103 The Canadian Human Rights Act also permits affirmative action ‘special’ programmes designed to prevent, eliminate or reduce disadvantage based on any of the prohibited grounds, where the programme will improve opportunities in relation to the group.104 The Canadian Human Rights Commission is given a role in making recommendations and giving advice about such programmes.105 The Human Rights Act does not provide for a neat distinction between direct and indirect discrimination, though Canadian courts traditionally used the distinction (indirect discrimination was termed adverse effect discrimination106). Direct 97

McKinney v Board of Governors of the University of Guelph [1990] 76 Dominion Law Reports 4th 545, [1990] 3 SCR 229. 98 S 2. 99 S 7 ff. 100 S 15 (a). 101 S 15 (b). 102 S 9(2), S 15(c) 103 S 15(d). 104 S 16(1). 105 S 16(2). 106 Ontario Human Rights Commission and O'Malley v Simpson Sears [1985] 2 S.C.R. 536, (1985) 23 D.L.R. (4th) 321; Bhinder v Canadian National Railway Co. [1985] 2 S.C.R. 561, (1985) 23 D.L.R. 4th 481.

23

discrimination could be justified under the bona fide occupational requirement test, while indirect discrimination could be justified if it was shown to be a neutral practice that was rationally related to the job, and if the standard could not be changed without undue hardship.107 In 1999, the Supreme Court of Canada decided that this bifurcated test was too complicated. The distinction between directly and indirectly discriminatory situations was too artificial108 and different results flowed as to the remedy depending on the original artificial classification.109 Further the distinction was based on the unrealistic assumption that the people adversely affected by a neutral standard would be a numerical minority.110 The bifurcated analysis confused the question of the employer’s defences.111 Furthermore, the distinction was inconsistent with both the purpose and wording of the human rights acts,112 as well as out of step with the approach under the Canadian Charter of Rights and Freedoms.113 The Supreme Court accordingly adopted a single test to apply whether a situation was seen as directly or indirectly discriminatory. An employer must show that the standard was adopted for a ‘purpose rationally connected to the performance of the job’, that the employer was acting honestly and in good faith, and finally that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.114 Importantly this unified test applies across all the grounds. That is to say, like the Irish Act, the Canadian test treats age discrimination broadly on a par with the other grounds of discrimination.

107

British Columbia Government and Service Employer's Union v Government of the Province of British Columbia Meiorin, [1999] 3 S.C.R. 3 (1999) 176 D.L.R. 4th 1 paragraphs 20-23. 108 Meiorin paragraph 27-29. 109 Meiorin paragraphs 30-31. 110 Meiorin paragraphs 32-36. 111 Meiorin paragraphs 37-38. 112 Meiorin paragraphs 43-46. 113 Meiorin paragraphs 47-49 . 114 Meiorin paragraph 54.

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Canada: The Provinces The provincial legislatures in Canada have also adopted specific anti-discrimination legislation in their own human rights acts. These Acts adopt a ‘single equality’ approach covering many grounds. Some or all of the following grounds are covered: Race,

colour, Religion, creed Sex,

ethnic

gender, Disability,

pregnancy

mental

background or

physical,

origin

handicap

or

Age or

perceived race/origin Ancestry

Place of origin

Marital status

Source

of Family status

income Sexual

Nationality or Political belief Social

Aboriginal

orientation

national origin

origin

or

political condition

association

or

political activity an

irrational Place of origin

fear

Language115

of

contracting an illness

Receipt public

of Civil

Status,

citizenship

assistance

or

disease,

Except for British Colombia, all the provincial human rights acts specify age as a prohibited ground of discrimination. They all cover discrimination in employment and a range of services. Adopting a ‘single equality’ approach, they prohibit discrimination on any of the grounds. The provincial acts permit distinctions if these are based on bona fide occupational requirements (across the grounds). In addition to this general exception there are specific exceptions in relation to the prohibition on age discrimination: 115

Quebec only.

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

Bona fide retirement or pension plans116



Bona fide group or employee insurance plans117



Bona fide scheme based on seniority118



By virtue of an enactment with an age limit119



Salary distinctions based on merit, seniority or quantity to quality of performance120



In an insurance or pension contract, a social benefits plan, a retirement, pension or insurance plan, or a public pension or public insurance plan, a distinction, exclusion or preference based on age, sex or civil status is deemed non-discriminatory where the use is warranted and the basis is based on actuarial data121



Seniority.122

3.5 Conclusion The general approach to age discrimination in Northern Ireland is increasingly unusual. Canada, Ireland and Britain have all adopted single equality measures covering age discrimination as well as other grounds. Further the Northern Irish approach is different from the Irish and Canadian approaches in another respect. The Northern Irish approach regards direct age discrimination as being subject to justification but this is not possible for the other grounds of discrimination. The Irish and Canadian approaches do not distinguish between age and the other grounds in this way. While the Northern Ireland position appears similar in content if not form to the GB Equality Act 2010, this will depend

116

Alberta Human Rights, Citizenship and Multiculturalism Act, British Columbia Human Rights Code, New Brunswick Human Rights Act, Nova Scotia Human Rights Act, Saskatchewan Human Rights Code. 117 Alberta Human Rights, Citizenship and Multiculturalism Act, British Columbia Human Rights Code, New Brunswick Human Rights Act, Saskatchewan Human Rights Code. 118 British Columbia Human Rights Code. 119 Prince Edward Island Human Rights Act. 120 Prince Edward Island Human Rights Act. 121 Quebec Charter of Human Rights and Freedoms. 122 Saskatchewan Human Rights Code.

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on how the newly worded ‘occupational requirement’ exception in the 2010 Act is interpreted by the courts. Despite these differences, it remains the case that all these jurisdictions see the need to retain special exemptions for age.

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4. Justification: General Principles in case law

4.1 General Principles EU The European Court of Justice (ECJ) has started to develop its case law on age discrimination, though the number of cases is still small and covers age discrimination both against younger and older employees. The ECJ has considered a number of different exceptions to the prohibition on age discrimination. Some of these are general exceptions applying across all the grounds, such as the exception for protection of health (Article 2(5) discussed in Petersen) and exceptions based on a ‘genuine and determining occupational requirement’ (Article 4(1) discussed in Wolf). The ECJ has also discussed the special exception for direct age discrimination provided in Article 6 of the Directive (Petersen, Kücükdeveci, Hutter, Palacios de la Villa, Heyday). These exceptions provide for many different possible legitimate aims for distinctions based on age. A maximum recruitment age for fire fighters might for instance be adopted for the legitimate aim to enable the fire services to function properly and on a sensible financial basis; this can serve as a genuine and determining occupational requirement.123 Protecting patients from the declining skills of aging dentists may be a legitimate public health aim.124 As regards the special age exception for Article 6(1), the ECJ has stressed that the aims being pursued under that exception are limited to social policy type aims and not merely protecting the particular interests of an employer (see later discussion of Palacios de la Villa and Heyday in Chapter Four). Such social policy type aims might include facilitating access for the younger generation to a particular profession,125 strengthening the protection of workers depending on their length of service,126 possibly affording employers ‘greater flexibility in personnel management’ by reducing the protections available to

123

Wolf v Stadt Frankfurt am Main C-229/08, [2010] IRLR 244, 12 January 2010. Petersen v. Berufungsausschuss für Zahnärzte für den Bezirk Westfalen'Lippe C-341/08, [2010] IRLR 254, 12 January 2010. 125 Petersen. 126 Kücükdeveci v Swedex GmbH & Co. KG C-555/07, [2010] IRLR 346, 19 January 2010 paragraph 41. 124

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younger workers,127 integrating young persons in to the labour market,128 and not disadvantaging young persons who choose to pursue academic studies rather than vocational studies.129 Whilst all of these are possible legitimate aims, the ECJ insists that the national measures be shown to be consistent, appropriate and necessary (the different exceptions use slightly different language). For example, Germany imposed an age limit of 68 on dentists working under a statutory health scheme but imposed no such limit on dentists working privately. Such inconsistency indicated that public health could not be a plausible justification for the restriction.130 In Kücükdeveci, the ECJ found a measure inappropriate where the state argued it was protecting employees with long service by giving them better notice periods, but excluded employees whose long service commenced before the age of 25.131 The ECJ requires evidence to show the proportionality of measures. In Wolf, the State was able to adduce medical evidence about declining levels of fitness in order to help justify the age restrictions on recruiting fire fighters.

In Petersen, the ECJ

left it to the national court to decide whether a retirement age for dentists was necessary to allow for younger people to access the profession but indicated it would have to examine whether there was a genuine problem of an oversupply of dentists.132 Similarly if the ECJ thinks there is another, less discriminatory way to achieve the legitimate aim of the state, then the distinction will not be necessary: in Hutter, the ECJ noted that the state could have chosen to protect the interests of young persons who followed a specific education route by protecting that group directly, rather than using age as a proxy.133

127

Kücükdeveci paragraph 39. Hutter v Technische Universität Graz Case C-88/08, [2009] All ER (D) 99, 18 July 2009. 129 Hutter. 130 Petersen. 131 Paragraph 41. 132 Paragraph 74. 133 Hutter, paragraph 48. 128

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UK In the UK the age discrimination ground is unusual because both direct and indirect discrimination can be justified under the regulations.134 The EAT has indicated in Seldon it does not believe that in principle a stricter justification test applies in direct discrimination cases than applies in indirect discrimination cases.135 However it would be appropriate to acknowledge that the discriminatory effect might be greater in a direct discrimination case. 136 In the Court of Appeal, the view was expressed even more briefly that there was no difference between justification in these two cases.137 The justification test means that a distinction can be lawful if it is shown to be a ‘proportionate means of achieving a legitimate end’.138 First there must be a legitimate aim; second the means of achieving it must be proportionate. In saying that there must be these two elements however, we should note the warning by the EAT that it may not always be easy to distinguish between means and aims, and that introducing artificial distinctions (‘metaphysical inquiries’) should not detract from the need to carry out an overall balancing exercise.139

Legitimate aim As to legitimate aim, this is understood broadly. In Seldon, the EAT accepted that creating a congenial and collegiate working environment was a legitimate aim.140 The EAT rejected the argument that only business needs narrowly construed were legitimate aims: environmental or charitable aims are also acceptable. The Seldon case was appealed to the Court of Appeal. Before this took place, the ECJ and Administrative Court rulings in Heyday (now called Age UK) were handed

134

Loxley v BAE UKEAT/0156/08/RN, 29 July 2008paragraph 17. Seldon v Clarkson, Wright and Jakes UKEAT/0063/08, 19 December 2008 paragraphs 36-7, 50. See also Loxley v BAE UKEAT/0156/08/RN, 29 July 2008 paragraph 20. 136 Seldon v Clarkson, Wright and Jakes UKEAT/0063/08,19 December 2008 paragraph 42. 137 Court of Appeal, paragraph 28. 138 Regulation 3(1) of the Age Regulations. 139 Pulham v London Borough of Barking and Dagenham [2010] IRLR 184 paragraph 15. 140 Seldon v Clarkson, Wright and Jakes UKEAT/0063/08, 19 December 2008 paragraphs 66-7. 135

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down and gave rise to questions about this broad understanding.141 Both the ECJ and the High Court referred to the ‘social aim’ the Government might have in justifying direct age discrimination, the ECJ distinguishing it from the particular aim of an employer. In Seldon, the Court of Appeal held that an employer may well have ‘slightly mixed motives’ for a discriminatory policy such as retirement, but that was important was whether the employer’s aim was compatible with Government policy, e.g. by providing jobs for young people and encouraging promotion, or by providing for a ‘happy work place’ by encouraging collegiality.142 A more recent example of a possible legitimate aim is found in the Pulham case: protecting the legitimate expectations of staff who have received a benefit under a discriminatory reward system.143 Can economic cost be a ground for justifying age discrimination? In Rainbow v Milton Keynes CouncilI an Employment Tribunal held that it could, provided that it was supported by evidence and not the sole ground.144 The EAT has recently indicated a limit to the extent that ‘economic cost’ can be cited as a justification. In Pulham the EAT accepted that a tribunal should look at questions of cost when deciding on justification questions. However in that case, the Tribunal had referred to the fact that the respondent council has used up the monies it had allocated to pay for equality claims. The EAT took exception to this reasoning: an employer could not ‘automatically justify a failure to eliminate discrimination by allocating the costs of doing so to a particular budget and then declaring the budget to be exhausted.’145 Since it was the defendant council that decided how to allocate its budget this would give it a very secure means of limiting its legal liability!

141

Age Concern v Secretary of State for Business, Enterprise and Regulatory Reform Case C-388/07, 5 March 2009 (ECJ) at paragraph 46; R (Age UK) v Secretary of State for Business, Innovation and Skills [2009] EWHC 2336 (Admin), [2009] IRLR 1017, 25 September 2009. 142 Paragraphs 20 and 22. 143 Pulham v London Borough of Barking and Dagenham [2010] IRLR 184 [18] 144 Rainbow v Milton Keynes 2 June 2008, report by Nicholas Jew, in Personnel Today, 26 September 2008, http://www.personneltoday.com/articles/2008/09/26/47606/indirect-discrimination-rainbow-vmilton-keynes-council.html accessed on 4 December 2008. 145 Pulham v London Borough of Barking and Dagenham [2010] IRLR 184 [42].

31

Proportionate The proportionality aspect of justification is more demanding than the legitimate aim requirement. In the UK case of MacCulloch,146 the Employment Appeal Tribunal has outlined the key principles in the justification test, drawing together strands from earlier cases. According to the EAT the following are the key principles: (1) The burden of proof is on the respondent to establish justification.... (2) The classic test was set out in Bilka-Kaufhas GmbH v Weber Von Hartz (Case 170/84) [1984] IRLR 317 in the context of indirect sex discrimination. The ECJ said that the court or tribunal must be satisfied that the measures must ‘correspond to a real need … are appropriate with a view to achieving the objectives pursued and are necessary to that end’ (para 36). This involves the application of the proportionality principle, which is the language used in regulation 3 itself. It has subsequently been emphasised that the reference to ‘necessary’ means ‘reasonably necessary’:.... (3) The principle of proportionality requires an objective balance to be struck between the discriminatory effect of the measure and the needs of the undertaking. The more serious the disparate adverse impact, the more cogent must be the justification for it.... (4) It is for the employment tribunal to weigh the reasonable needs of the undertaking against the discriminatory effect of the employer’s measure and to make its own assessment of whether the former outweigh the latter. There is no ‘range of reasonable response’ test in this context...147 In Loxley a fifth principle is added to this list: (5) In analysing the issue of justification, the Tribunal must carry out a critical examination and reflect that analysis in its reasoning:... In the MacCulloch case itself, the EAT criticised the first instance Employment Tribunal for not carrying out the proportionality inquiry clearly and rigorously. The Employment Tribunal had based its decisions on an assessment of the legitimacy of

146 147

MacCulloch v Imperial Chemicals UKEAT/0119/08/RN, 22 August 2008. MacCulloch v Imperial Chemicals UKEAT/0119/08/RN, 22 August 2008 paragraph 10.

32

the purported aims, without considering the necessity (or reasonable necessity) of the means used to achieve those aims, and without balancing the aims against the discriminatory effect on the claimant. The EAT has reiterated the need for this careful analysis in later cases.148 Any analysis of proportionality must be a critical one. It must not be based on mere assumptions about age or one’s abilities at a certain age.149 In Seldon, the EAT held that if a partnership has an age for compulsory retirement then it must be able to demonstrate that it has given serious thought to why it should be that age and not another; it need not however produce scientifically rigorous research on the matter.150 However the Court of Appeal disagreed on this - the partnership could rely on Regulation 30 as indicating 65 as a ‘fair and proportionate cut off point’.151 This is a good example of the tendency, identified by Sargeant, to accept the legitimacy and proportionality of age based distinctions without relying on ‘good empirical evidence’.152 As well as being a critical examination, it is one the relevant court must carry out for itself. Thus while a court may give some weight to the consideration that a particular policy has been approved in a collective agreement or other negotiations with trade unions, this should not be used as an excuse to abdicate the responsibility for carrying out the proportionality inquiry.153

Canada In Canada, the principles regarding justification of age discrimination have been considered both in relation to constitutional documents like the Charter and in relation to the statutory human rights codes. The landmark case on age discrimination under the Charter is McKinney v University of Guelph, concerning a university’s policy of mandatory retirement at 65.154 A plurality of the court held that 148

Loxley v BAE UKEAT/0156/08/RN, 29 July 2008 paragraph 34. Seldon v Clarkson, Wright and Jakes UKEAT/0063/08, 19 December 2008 paragraphs 71-76. 150 Seldon v Clarkson, Wright and Jakes UKEAT/0063/08, 19 December 2008 paragraphs 76-76. 151 Paragraph 39. 152 M Sargeant, 'The Default Retirement Age: Legitimate Aims and Disproportionate Means' (2010) 39 (3) Industrial Law Journal 244, 263. 153 Pulham v London Borough of Barking and Dagenham [2010] IRLR 184 [40]. 154 McKinney v Board of Governors of the University of Guelph (1990) 76 Dominion Law Reports 4th 545, [1990] 3 SCR 229. 149

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the Charter did not apply to universities, but nevertheless considered the question of whether a mandatory retirement policy was lawful.155 The plurality thought the policy violated Section 15 of the Charter but could be justified under Section 1. This requires consideration of whether there are legitimate objectives for the discrimination, and whether the discrimination is proportionate to achieve those objectives. In McKinney the plurality said that the objectives of promoting excellence and academic freedom were legitimate objectives.156 Turning to proportionality, the plurality reiterated the three parts of the so-called Oakes test on proportionality: any restriction on a right must be rationally related to the legitimate aim; it must restrict the right ‘as little as possible’ (minimal impairment) and must not ‘so severely trench’ on the right as to outweigh the benefits of the legitimate aim.157 Under the Canadian Human Rights Act, slightly different language applies. As discussed above the Supreme Court of Canada has consolidated the justification test in Meiorin. An employer must show that the standard was adopted for a ‘purpose rationally connected to the performance of the job’, that the employer was acting honestly and in good faith, and finally that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.158 Note that as part of the justification test, the SCC has built in a requirement of reasonable accommodation – an employer must show that it is impossible to accommodate the needs of the claimant.

155

McKinney v Board of Governors of the University of Guelph (1990) 76 Dominion Law Reports 4th 545, [1990] 3 SCR 229, 275, per La Forest J. 156 McKinney v Board of Governors of the University of Guelph (1990) 76 Dominion Law Reports 4th 545, [1990] 3 SCR 229, 281, per La Forest J. 157 McKinney v Board of Governors of the University of Guelph (1990) 76 Dominion Law Reports 4th 545, [1990] 3 SCR 229, 282, per La Forest J. 158 Meiorin paragraph 54.

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Ireland In the Republic of Ireland the case law relies on provisions contained within the Employment Equality Act 1998, but similar principles to Canada and the United Kingdom emerge. In indirect discrimination cases, there needs to be a legitimate aim. For instance, the Irish Labour Court has accepted that maintaining harmonious industrial relations was a legitimate aim, and accepted than an employer could refuse to rehire for part time work an ex-employee who had accepted voluntary severance. The Labour Court considered that such a policy was appropriate and necessary (though did not discuss this issue at any length).159 The Irish courts also apply a proportionality principle when approaching the question of justification of indirect discrimination. Measures must be appropriate with a view to achieving the objectives pursued and are necessary to that end. McLoughlin v Bus Eireann concerns the proportionality principle and involved a voluntary severance package availed of by predominantly older workers. The employer argued that the package was objectively justified by a legitimate aim – a pressing need to achieve redundancies in the company. The Labour Court ruled that the means chosen to induce

redundancies

was

both

appropriate

and

necessary.

In

assessing

proportionality, an objective balance must be struck between the discriminatory effect of the measure and the needs of the undertaking.160 Finally, echoing UK case law, in analysing the issue of justification, the Tribunal must carry out a critical examination and reflect that analysis in its reasoning.161

4.2 Conclusions on general principles The guidance on age discrimination from the European Court of Justice is still fairly sparse. However some comments in the Heyday case do raise some issues for the

159

Brian McLoughlin v Bus Eireann. Brian McLoughlin v Bus Eireann: Balance between the needs of the individual and the business must be struck. McLoughlin (Brian) v Bus Eireann Dec-E-2004-059; and EDA0516. 161 John Gillen v Department of Health and Children. The fact that a particular policy was approved by the trade union did not indicate that it was non-discriminatory and would not require examination by the ET. Gillen (John) v Department of Health and Children DEC-E2003-035; EDA0412. 160

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approach adopted in the UK regulations and for the preliminary approach of the courts. First, the Seldon case has indicated that the courts do not believe a stricter justification test applies in relation to direct discrimination as compared to indirect discrimination. In the Heyday case, the Court of Justice did not disagree with this: 65

However, since the referring court is uncertain as to the existence

of a difference in the application of the criteria set out in Article 2(2)(b) of Directive 2000/78 as compared with the application of the criteria in Article 6(1), it must be stated that the latter provision gives Member States the option to provide, within the context of national law, that certain forms of differences in treatment on grounds of age do not constitute discrimination within the meaning of that directive if they are ‘objectively and reasonably’ justified. Although the word ‘reasonably’ does not appear in Article 2(2)(b) of the directive, it must be observed that it is inconceivable that a difference in treatment could be justified by a legitimate aim, achieved by appropriate and necessary means, but that the justification would not be reasonable. Accordingly, no particular significance should be attached to the fact that that word was used only in Article 6(1) of the directive. However, it is important to note that the latter provision is addressed to the Member States and imposes on them, notwithstanding their broad discretion in matters of social policy, the burden of establishing to a high standard of proof the legitimacy of the aim pursued.162 However the Heyday ruling leaves certain other difficult questions to be resolved by the High Court. The UK regulations adopt a very economical approach to justifying direct and indirect age discrimination: there is no difference whatsoever.163 The Court of Justice indicates there is a significant difference in the Directive. Article 2(b)(i) allows for indirect discrimination to be justified for any of the grounds specified in the Directive. In respect of age discrimination, there is a special provision, Article 6(1), which allows for direct age discrimination to be justified. The

162

Age Concern v Secretary of State for Business, Enterprise and Regulatory Reform Case C-388/07, 5 March 2009 paragraph 65. 163 Regulation 3(1), especially the last line.

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Court of Justice emphasises that this provision is directed at the Member States, allowing them an opportunity to establish exceptions form the prohibition on direct age discrimination.164 Further that possibility is an exception to the general prohibition on discrimination and so is ‘strictly limited’ by the terms of Article 6(1).165 Given these comments, it might be thought that it was not open to member states to simply allow private employers to decide when direct age discrimination is justified. However the Court of Justice did not seem to object to the scheme in Regulation 3(1). It stated in particular that the mere fact Regulation 3(1) does not specify the types of legitimate aim permitted was not necessarily objectionable in itself.166 That does not mean that that Regulation 3(1) is satisfactory. The Court of Justice has left it to the national courts to decide this issue. The only legitimate aims permitted in respect of direct age discrimination are ‘social policy’ type aims such as ‘employment policy, the labour market or vocational training’.167 The Court of Justice stressed that these aims are different from those ‘particular to the employer’s situation, such as cost reduction or improving competitiveness’; it continued however that a national rule may recognise some flexibility for employers. 168 The Court of Justice leaves many questions to the national court, specifically: ‘to determine whether and to what extent a provision which allows employers to dismiss workers who have reached retirement age is justified by ‘legitimate’ aims within the meaning of Article 6(1) of Directive 2000/78’ ‘whether the aims contemplated by Regulation 3 of the Regulations are legitimate within the meaning of Article 6(1) of Directive 2000/78, in that they are covered by a social policy objective such as those related to employment policy, the labour market or vocational training.’ ‘to ascertain, in the light of all the relevant evidence and taking account of the possibility of achieving by other means such legitimate social policy objective as may be identified, whether Regulation 3 of the 164

Paragraph 61. Paragraph 62. 166 Paragraphs 44, 52. 167 Paragraph 46. 168 Paragraph 46. 165

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Regulations, as a means intended to achieve that aim, is, according to the actual wording of Article 6(1) of Directive 2000/78, ‘appropriate and necessary’.’ 169 This accorded the national court considerable latitude. The High Court gave its answer to these questions on 25 September 2009.170 Its answer on the question of a default retirement age will be considered later. The first issue the High Court considered was whether Reg 3, which permitted justified direct age discrimination, was valid. The High Court concluded that the Government, in adopting Reg 3, was acting to protect the ‘integrity of the labour market’.171 However the High Court also insisted that there was a distinction between the margin of appreciation accorded to the state and that accorded to the private employer.172 The individual employer had a ‘much more rigorous task’173 than the Government in justifying an individual decision – it would not be sufficient to say that it was cheaper to discriminate. 174 On the other hand the High Court seemed to accept that an employer could advance the sort of business necessity arguments that had been considered acceptable in indirect discrimination cases.175 However an employer could not simply say that it was ‘cheaper to discriminate than to address the issues’ of discrimination;176 an employer could not simply claim the wide margin of appreciation enjoyed by the state.177 More recently the Court of Appeal seems to have downplayed any suggestion that an employer’s motives must be purely based on a social aim; it seems to accept that employers will have mixed motives for their policies.178 Having set out in this chapter the general principles regarding justification in age discrimination, the next chapter will examine the question of justifying a retirement age.

169

Paragraphs 47-50. R (Age UK) v Secretary of State for Business, Innovation and Skills [2009] EWHC 2336 (Admin), 25 September 2009. 171 Paragraph 90. 172 Paragraph 92. 173 Paragraph 97. 174 Paragraph 93. 175 Paragraph 92. 176 Paragraph 93. 177 Paragraph 97. 178 Seldon. 170

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5. Justification: Retirement The question of retirement and retirement ages is a critical one and has given rise to significant litigation. Most recently the Conservative Liberal Democrat Government has announced that it will abolish the default retirement age of 65. Whilst welcome in ending one form of discrimination against older employees, it does not strictly prohibit the practice of retirement at 65: employers will still be able to adopt a retirement age if they can show it is a proportionate means of achieving a legitimate aim.

5.1 Legislative framework The Preamble of the General Framework directive says that it is ‘without prejudice to national provisions laying down retirement ages.’179 The operative parts of the Directive are not so explicit. Article 6(1) permits age based distinctions ‘if, within the context of national law, they are objectively and reasonably justified by a legitimate aim’. Article 6(2) allows for age based distinctions in occupational social security schemes for admission to retirement or invalidity benefits. The UK’s Age Regulations have an exception for retirement. Employers may establish a ‘normal retirement age’ and may choose not to offer employment to someone over that age (if there is no specified retirement age then a default age of 65 applies).180 It is not unlawful to dismiss someone over the age of 65 where the reason for dismissal is retirement.181 There is a duty on employers to consider allowing an employee to work beyond retirement.182 If an employer wants to have a retirement age less than 65 then this is direct age discrimination, which must be justified. The use of a default retirement age has given rise to controversy. Sargeant says it was ‘extraordinary’ that it was adopted at all.183 ECNI opposed it during the consultation on the NI regulations, arguing in favour of

179

At Recital 14. Regulation 7(4). 181 Regulation 30. 182 Regulations 47, 48, Schedules 6 and 7. 183 M Sargeant, 'The Default Retirement Age: Legitimate Aims and Disproportionate Means' (2010) 39 (3) Industrial Law Journal 244, 249. 180

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... a system based on worker choice and the worker’s financial circumstances. Indeed we would welcome an approach that had at its heart a drive for greater ‘flexibility in choice’ and phased withdrawal for the labour market. This we believe can be achieved with the combined approach

of

non-discrimination,

reasonable

accommodation

and

affirmative/positive action, which will provide a proper alternative to a ‘default age’.184

5.2 Retirement in the ECJ case law The ECJ has already considered the effects of the General Framework Directive on retirement policies, in Palacios de la Villa185

and Heyday.186 The applicant in

Palacios de la Villa was dismissed upon reaching the retirement age of 65. National law permitted an employee to be dismissed at 65 if this was provided for in a collective agreement and if the employee had made sufficient contributions to be entitled to benefits. A national court asked the ECJ whether such a national measure was incompatible with the General Framework Directive and, if it was, should the national court disapply the national measure. The Advocate General to the ECJ advised the Court to rule that the Directive did not apply at all to retirement because of recital 14.187 The Court ruled that the Directive did apply to retirement; recital 14 recognised the competence of states to set retirement ages, but did not prevent the Directive applying to dismissals for reason of retirement.188 National legislation which terminates employment at a certain age directly discriminates on grounds of age.189 The question was then whether Article 6 of the Directive allowed the measure to be justified. The Court found that the measure had the legitimate aim of promoting access to employment (even though 184

Equality Commission for Northern Ireland, Commission response to OFMDFM Age consultation paper, (Belfast: ECNI, 2005) p. 11. 185 Palacios de la Villa v Cortefiel Servicios SA Case 411/05, [2007] ECR I-8531, [2008] 1 CMLR 16, [2007] IRLR 989. 186 Age Concern v Secretary of State for Business, Enterprise and Regulatory Reform Case C-388/07, 3 May 2009. 187 Palacios de la Villa v Cortefiel Servicios SA Case 411/05, [2007] ECR I-8531, [2008] 1 CMLR 16; [2007] IRLR 989 at AG67 (paragraph 67 of the AG’s opinion). 188 Palacios de la Villa v Cortefiel Servicios SA Case 411/05, [2007] ECR I-8531, [2008] 1 CMLR 16; [2007] IRLR 989 at paragraph 44. 189 Paragraph 51.

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this was not explicit in the national measure it was clear from the entire context).190 Having decided the aim was legitimate, the next question was whether the means were ‘appropriate and necessary’. The Court first stressed the ‘broad discretion’ available to member states when deciding on social and employment policy. 191 It concluded that it was not ‘unreasonable’ for national authorities to decide that such a measure was appropriate and necessary.192 The Court was influenced by two further factors: that the legislation made sure the individual was entitled to a retirement pension and that the measure was adopted by means of a collective agreement thus involving the social partners and allowing for conditions at the individual firm to be considered.193 The Court’s reference to ‘broad discretion’ in relation to social and employment policy calls for a word of warning. This broad discretion should only be available to States, not to individual employers. Even the States do not enjoy unreviewable discretion; the Court considered the measure to be a carefully designed one with safeguards for the individual’s interests and with mechanisms for involving the social partners. The ECJ revisited retirement in the Heyday reference.194 This case was brought by Age Concern England who argued that the UK Age Regulations improperly transposed the General Framework Directive. The trial court decided to pose some questions to the ECJ to clarify the meaning of the Directive. The ECJ offered some useful guidance, but also very clearly put the ball back in the national courts. The ECJ confirmed that the Directive applied to retirement laws notwithstanding recital 14.195 It also said that the Age Regulations could not be criticised merely because they did not include a list of the forms of direct age discrimination that could be justified, provided the ‘underlying aim’ of the national measure could be determined from the ‘general context’.196 The ECJ did provide some guidance on the types of aims that could be legitimate. The aims in Article 6 of the Directive were

190

Paragraphs 62-66. Paragraph 68. 192 Paragraph 72. 193 Paragraphs 73-74. 194 Age Concern v Secretary of State for Business, Enterprise and Regulatory Reform Case C-388/07, 3 May 2009. 195 Paragraph 25. 196 Paragraphs 44-45. 191

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social policy objectives, such as those related to employment policy, the labour market or vocational training. By their public interest nature, those legitimate aims are distinguishable from purely individual reasons particular to the employer's situation, such as cost reduction or improving competitiveness, although it cannot be ruled out that a national rule may recognise, in pursuit of those legitimate aims, a certain degree of flexibility for employers.197 While the national authorities had broad discretion in matters of social policy, this was not to the extent of frustrating the implementation of the principle of non-discrimination on grounds of age. Mere generalisations concerning the capacity of a specific measure to contribute to employment policy, labour market or vocational training objectives are not enough to show that the aim of that measure is capable of justifying derogation from that principle and do not constitute evidence on the basis of which it could reasonably be considered that the means chosen are suitable....198 The ECJ also addressed the question as to whether the tests for justification of indirect discrimination (Article 2) and justification of direct age discrimination were the same. This question the ECJ did not so clearly answer. While saying that ‘no particular significance’ should be attached to the use of the term ‘reasonably’ in Article 6, the ECJ also stressed that Article 6 was addressed to Member States, and while it allowed them to derogate from the prohibition of direct age discrimination, it also imposed a burden of ‘establishing to a high standard of proof the legitimacy of the aim pursued’.199 The Heyday ruling did not hold that retirement provisions were outside the scope of the Directive (as originally argued by the UK Government), nor did it accept that the UK regulations inadequately transposed the Directive (as argued by Age Concern). The ECJ returned the case to the national courts and left them to decide the difficult question of whether the Age Regulations, in so far as they permit direct age

197

Paragraph 46. Paragraph 51. 199 Paragraph 65. 198

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discrimination, are ‘objectively and reasonably justified by a legitimate aim’ and whether the means used are ‘appropriate and necessary’ to achieve that aim. Since Heyday the ECJ has also considered retirement ages in the Petersen case. Here Germany required dentists working under a statutory scheme to retire at the age of 68. There was no such regulation for dentists working outside the statutory scheme. A number of reasons were put forward to justify this either under Article 2(5) (public health) or Article 6(1) (the special exception for age discrimination). The ECJ rejected any argument that the declining abilities of aging dentists required the measure: if that were so there was no justification for limiting it to dentists working under the statutory scheme. However there were two further rationales which the ECJ said could be acceptable, depending on how the national court viewed the evidence. These were to protect the financial well being of the dental service (which could be a public health aim) or to allow for the entry of members of the younger generation to the profession (an article 6(1) argument). Both these issues were left to the national court to decide.200

5.3 Early UK case law on retirement and age discrimination Even prior to the coming into force of the Age Regulations, the courts have considered discrimination cases in relation to retirement, but these were indirect sex discrimination cases. The Rutherford case concerned a claim that denying the possibility for people over 65 to claim unfair dismissal and redundancy payments was a form of indirect sex discrimination.201 The EAT noted that the government put forward three legitimate aims for its policy: to allow employers to meet ‘the legitimate expectations of younger employees for advancement’, to enable employers to predict their future workforce needs, and finally to allow an employee to leave work at 65 with dignity rather than be expelled after some sort of performance review.202 The EAT found these aims to be legitimate.203 Neither the Court of Appeal

200

Petersen v Berufungsausschuss für Zahnärzte für den Bezirk Westfalen'Lippe C-341/08, [2010] IRLR 254, 12 January 2010. 201 Secretary of State for Trade and Industry v Rutherford [2006] UKHL 19, [2006] 4 All ER 577, [2006] ICR 785; on appeal from Secretary of State for Trade and Industry v Rutherford [2004] EWCA Civ 1186, [2004] 3 CMLR 54, [2005] ICR 119. 202 Paragraphs 143-4 of the EAT decision, available at [2005] ICR 119. 203 Paragraph 202 of the EAT decision, available at [2005] ICR 119.

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nor the House of Lords considered the question of justification, as both courts held there was no indirect sex discrimination and so no need to consider justification. The EAT also commented that the case was somewhat artificial since it was an age discrimination case masquerading as a sex discrimination case.204 Since 2006, there is no longer any need for this masquerade. Age discrimination can now be addressed under the Age Regulations 2006. The EAT decision in Seldon concerned the policy of law firm partnership to provide for retirement of partners at age 65. Being a partnership, the retirement exception in Regulation 30 of the Age Regulations did not apply. The partnership therefore had to rely on the possibility in Regulation 3(1) to justify direct age discrimination as being a ‘proportionate means of achieving a legitimate aim’. The Employment Tribunal (ET) at first instance identified three legitimate aims: to discourage associates from leaving the firm, to facilitate planning, and to promote a collegiate and congenial atmosphere. The ET rejected three other aims: ensuring a turnover so any associate could expect to become a partner, enabling partners to plan for retirement, and protecting the partnership model of the firm.205 The EAT rejected the argument that the justification test in Article 6 of the Directive (direct age discrimination) was stricter than the justification test in Article 2 (indirect discrimination).206 (This has now been confirmed by the ECJ in Heyday.) The EAT accepted that a respondent could advance a legitimate aim for direct age discrimination even if the specific aim was not made explicit at the time of adopting the measure.207 Where a firm adopts such a retirement policy it is the policy that has to be justified, not (usually) the individual application of the policy.208 The EAT discussed whether ‘collegiality and congeniality’ were legitimate aims. The EAT held that the Age Regulations did not seek to establish the legitimate aims that an employer could invoke. A business might designate business need as a legitimate aim, but also charitable or environmental ones if it wished.209

204

Paragraphs 217-225 of the EAT decision, available at [2005] ICR 119. Seldon v Clarkson, Wright & Jakes UKEAT/0063/08, 19 December 2008 paragraph 17-18. 206 Seldon v Clarkson, Wright & Jakes UKEAT/0063/08, 19 December 2008 paragraph 36-37. 207 Seldon, paragraph 50. 208 Seldon, paragraph 57. 209 Seldon, paragraph 67. 205

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The EAT did overrule the ET on one point: accepting that collegiality and congeniality were legitimate aims, and could justify a retirement policy so as to avoid performance reviews, the ET should have demanded some evidence as to why the age of 65 was the appropriate age210 and should not have relied on a ‘stereotyped assumption’.211 The EAT referred the case back to the ET to reconsider this point. However before the ET could consider this there was an appeal to the Court of Appeal. The Court of Appeal disagreed with the EAT on this last point. The Court of Appeal held that the partnership did not need to specifically justify the choice of 65 rather than some other age; indeed the partnership could point to the use of 65 in the Age Regulations to justify their selection of this age.212 The Seldon case shows the approach of the EAT to retirement in legal partnerships. Since Regulation 30 of the Age Regulations does not cover this situation, the EAT analysed the firm’s policy under Regulation 3(1). Regulation 3(1) permits a respondent to justify direct or indirect discrimination. The EAT rejected the argument that the justification test was stronger in relation to direct discrimination than indirect discrimination, and, we have seen that the ECJ in Heyday has agreed with this to a point.

5.4 Heyday / Age UK decision The High Court handed down the Heyday (the case is now called Age UK) decision on 25 September 2009.213 As noted above the High Court upheld the Regulation 3 provision allowing employers to engage in direct age discrimination if this was justified. The High Court also handed down important rulings on the adoption of a default retirement age in Regulation 30. The High Court considered whether there was a social policy aim for the Regulation, whether any such aim was based on generalisations, whether a designated retirement age was a proportionate response, and if so whether a designated retirement age of 65 was proportionate.214 It is

210

Seldon, paragraph 71. Seldon, paragraph 74. 212 Seldon, CA, paragraphs 38-39. 213 R (Age UK) v Secretary of State for Business, Innovation and Skills [2009] EWHC 2336 (Admin), 25 September 2009. 214 Paragraph 100. 211

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important to note that shortly before the case was heard the Government announced it was bringing forward to 2010 its review of the retirement age. The High Court accepted that the retirement age was adopted for a legitimate social policy: protecting the ‘integrity of the labour market and its short term competitiveness’.215 The High Court rejected the argument that the Government had acted on the basis of age stereotypes.216 The High Court accepted that a designated retirement age was a rational response which tried to deal with different issues,217 especially given the opinion of European Advocates General that age was not quite as suspect as other grounds218; a designated retirement age simply indicated that the time was coming to consider retirement plans; it was not a stamp of ‘social worthlessness’.219 The High Court had much more difficulty with the final submission – that an age of 65 was disproportionate. There were cogent reasons to adopt a higher age. First it would have signalled a need to change employment culture and separate the retirement age from the pension age.220 Second, there seemed to be no problems with people under 70 staying in most employment.221 Third, the adoption of a higher age would still serve the purposes of allowing for workforce planning and ensuring vacancies (especially as direct discrimination would still be justifiable under regulation 3).222 The adoption of 65 affected persons’ dignity and autonomy.223 Against this, the Government could point to the lack of enthusiasm for a retirement age of 70,224 and the diverse European rules on retirement.225 The High Court concluded that if these regulations had been introduced in 2009, then they would be invalid as in 2009 the necessity of selecting 65 as the retirement age could not be justified. However in 2006, the selection of 65 was within the margin of discretion left to the State.226 The High Court indicated that if the Government had not already

215

Paragraph 105. Paragraph 108. 217 Paragraph 109. 218 Paragraph 111. 219 Paragraph 12. 220 Paragraph 117. 221 Paragraph 118. 222 Paragraph 119. 223 Paragraph 122. 224 Paragraph 124. 225 Paragraph 125. 226 Paragraphs 128-129. 216

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announced its plans to review the retirement age, then this would not have saved the regulations.227 This decision clearly signalled a need to rethink the default retirement age, or at least the selection of 65 as the age. The Labour Government even prior to the High Court decision, announced that it would review the retirement age during 2010. That review has now been overtaken by the Programme for Government of the new Conservative-Liberal Democrat Government (see concluding section). Before we consider that, we will review the limited case law on retirement from Ireland and the more elaborate material from Canada.

5.5 Irish case law on retirement The Irish case law on age discrimination and retirement is very sparse. There is the High Court decision in McCarthy v. Calor Teoranta228 which concerned the lawfulness of a contractual mandatory retirement age. The Complainant claimed that he had been forced to retire upon his 60th birthday, while other colleagues were permitted to work until they were 65 years of age. He had signed a pension contribution agreement in 1987 which provided for retirement at 60 years of age, with the intention of taking retirement at that age. However, the Complainant was made voluntarily redundant in 1994 and remained in the firm as a casual worker under the Defined Contribution Scheme, under the alleged understanding that he would be entitled to remain in employment in this capacity up to age 65. The Respondent confirmed that retirement at 65 was possible for those in the Defined Contribution Scheme, but this operated at the company’s discretion and employment beyond the age of 60 would be permitted only if the skills of the person were required in the company. This was not this case with the Complainant, who was retired under the normal framework – at age 60. At the first instance, the Equality Officer found that age 60 was the retirement age fixed by the Respondent. She went on to hold that Mr McCarthy was required to retire on reaching that age and that the fixing of a retirement age was saved by Section 34(4) of the Employment Equality Act, 1998 and did not constitute 227 228

Paragraph 129. McCarthy v Calor Teoranta ADE/07/33 EDA089

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discrimination on the age ground. Section 34 permits the fixing of different ages for the retirement (whether voluntarily or compulsorily) of employees or any class or description of employees. Mr McCarthy appealed to the Labour Court. In the ruling, the Labour Court noted the Palacios decision,229 as the judgment had been handed down since the determination of the Equality Officer. The Complainant submitted that, in light of that decision, Section 34(4) of the Employment Equality Act could not be applied to the facts of this case in so far as that section purports to remove the imposition of a retirement age from the ambit of the Act,230 therefore breaching Article 6 of the 2000 Directive. The Complainant further argued that, in the application of the terms of the Directive, there was no evidence of objective justification of the discrimination in this case. The Respondent contended that Palacios could be distinguished on its facts from the instant case. The Court noted that the Palacios decision raised significant questions concerning the extent to which Section 34(4) of the Employment Equality Act complied with the terms of Article 6 of the Directive.231 It also found that there was no need to refer the situation to the ECJ as the case could be determined on the basis of the parties’ submissions. The Court ruled that the Respondent had discriminated against the Complainant on the grounds of age in contravention of s. 8 of the Employment Equality Acts 1998. The representation made to the Complainant to the effect that he could continue working until age 65 was a representation in the nature of a warranty which was intended to have contractual effect. When the Respondent terminated the Complainant’s employment on 1st January, 2005, it did so on grounds of his age. He was thus treated differently than a person in a comparable position who had not attained the age of 60 would have been treated, constituting unlawful discrimination. (An appeal to the High Court was unsuccessful.232) The conclusion in this case meant the court did not need to examine section 34 of the Employment Equality Act 1998. Section 34(4) allows employers to fix different ages of retirement (voluntary or compulsory) for employees or any group of employees.

229

McCarthy at p. 7 McCarthy at p. 8 231 McCarthy at p. 9 232 Calor Teoranta v McCarthy [2009] IEHC 139, 19 March 2009. 230

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These retirement ages may become the focus of future Irish cases. The former chief executive of the Irish Equality Authority commented: Age limits in the workplace are the focus for many of these allegations including fixed retirement ages. It is clear from the casefiles that there are significant numbers of older people who do not want to be forced to retire. The emergence of the age ground as the highest area of casefiles under the Employment Equality Acts underpins the urgency in tackling the ageism that is all too prevalent in society.233

5.6 Canadian case law on retirement The compatibility of retirement laws with age discrimination law has been considered in Canadian cases, including the landmark McKinney decision. First Charter Cases McKinney concerned the policy of retirement at age 65 for university staff. The Supreme Court of Canada agreed that compulsory redundancy at 65 violated the Section 15 right to equality; the judges then discussed whether the rules could be saved as a proportionate restriction under Section 1 of the Charter. The general principles of the Oakes test on proportionality were accepted by all the judges,234 though applied with different degrees of rigour. La Forest J (two judges concurring) thought that the objectives of the policy were to allow for flexibility and faculty renewal while also upholding academic freedom and a collegiate atmosphere by avoiding performance reviews. These aims were legitimate, even ‘admirable’ and of ‘pressing and substantial importance’.235 He thought that mandatory retirement was rationally linked to a guarantee of tenure system, itself necessary to protect academic freedom.236 La Forest J. considered that that the issue was one of competing legitimate interests, which called for some

233

Equality Authority, Age Discrimination Dominates Equality Authority Workplace Casefiles (Dublin: Equality Authority, 2008) http://www.equality.ie/index.asp?docID=733. 234 See the dissenting opinion of L’Heureux-Dube J. McKinney v Board of Governors of the University of Guelph (1990) 76 Dominion Law Reports 4th 545, [1990] 3 SCR 229, 424. 235 McKinney v Board of Governors of the University of Guelph (1990) 76 Dominion Law Reports 4th 545, [1990] 3 SCR 229, 281. 236 284-286.

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deference to legislative choice.237 La Forest J. drew attention to the argument that staff renewal was important to allow for young academics to get jobs, and to ensure a mix of old and young staff.238 Further this was a ‘polycentric’ case where different legitimate interests were involved. Bearing in mind all these factors, La Forest J thought that universities might reasonably believe this policy satisfied both the ‘minimal impairment’ test and the disproportionate effects test.239 As well as the University policy of mandatory retirement, the Court considered the statutory rules on the upper limit of age discrimination, which allowed for such policies. Here La Forest J. stressed that the objective was one of fairly resolving complex interrelated questions of the rights and benefits workers expect at 65; he was dismissive of the alleged objective of firing older workers to make way for younger ones.240 The legislation was rationally connected to this aim.241 La Forest J stressed once again the complex issues involved, and also that government was not imposing a retirement age, but permitting employers and unions to agree one.242 Again government might reasonably have thought that the permissive measure met the minimal impairment and disproportionate effects tests.243 Wilson J, dissenting, stressed the minimal impairment test, rejecting the argument that the university was promoting the interests of a vulnerable group (young academics).244 Wilson J believed that another means was available to achieve the legitimate aim: voluntary retirement with incentives to retire.245 L’Heureux-Dube J disagreed with the plurality on the question of whether mandatory retirement was rationally related to the purported legitimate aims; possible incompetence, not age was the problem.246 Despite worries about intrusive performance review, universities already had a host of review mechanisms.247 Further there was no real evidence that 237

285-286. 287-288. 239 288-289. 240 303. 241 304. 242 310-312. Sopinka J. stressed the point that it was for democratic bodies, employers and unions, not courts, to decide on retirement policies: 446. 243 315-317. 244 McKinney v Board of Governors of the University of Guelph (1990) 76 Dominion Law Reports 4th 545, [1990] 3 SCR 229, 401, per Wilson J. 245 McKinney v Board of Governors of the University of Guelph (1990) 76 Dominion Law Reports 4th 545, [1990] 3 SCR 229, 405, per Wilson J. 246 McKinney v Board of Governors of the University of Guelph (1990) 76 Dominion Law Reports 4th 545, [1990] 3 SCR 229, 426-429 per L’Heureux Dube J. 247 427. 238

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large numbers of academics would work after 65248 nor was there any evidence that 65 was a logical cut off point (the retirement age for judges after all was 75). 249 Compulsory retirement might be damaging to self esteem in a work oriented society, and deny the elderly opportunity for participation.250 L’Heureux-Dube J. thought the majority underplayed the financial difficulties facing retirees (especially women).251 She concluded that to deny people over 65 any protection under anti-discrimination law was unacceptable.252 The effect of McKinney is that the state (or provinces) may adopt rules that permit mandatory retirement laws, or prohibit them, or indeed allow for them to be assessed on a case by case basis.253 This last option was the solution in the Alberta Individual Rights Protection Act (IRPA): mandatory retirement laws (like any other discriminatory measure) could be justified if shown to be ‘reasonable and justifiable in the circumstances’.

Retirement in the anti-discrimination laws. Having examined the position in the Federal Charter, we need to look at the treatment of retirement under the Canadian anti-discrimination laws. Here the case law antedates the McKinney case. The landmark case is the Etobicoke decision in 1982.254 The case concerned the mandatory retirement of firemen at the age of 60 and whether this was compatible with the Ontario Human Rights Code. The Code protected people from age discrimination if between the ages of 40 and 65; mandatory retirement at 60 therefore had to satisfy the bona fide occupational qualification and requirement exception. The Supreme Court, McIntyre J., giving judgment, summarised this test as having a subjective and an objective component. The subjective element was that the requirement should be ‘imposed honestly, in good faith, and in the sincerely held

248

McKinney v Board of Governors of the University of Guelph (1990) 76 Dominion Law Reports 4th 545, [1990] 3 SCR 229, 430 per L’Heureux Dube J. 249 429. 250 431. 251 433. 252 437. 253 Dickason v University of Alberta [1992] 2 SCR 1103, per Sopinka J. 254 Ontario Human Rights Committee v Etobicoke [1982] 1 Supreme Court Reports 202, (1982) 132 D.L.R. 3rd 14.

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belief that such limitation is imposed in the interests of the adequate performance of the work involved with all reasonable dispatch, safety and economy, and not for ulterior or extraneous reasons’. The objective component was that ‘it must be related in an objective sense to the performance of the employment concerned, in that it is reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees and the general public’.255 McIntyre J added some important comments on the second part of the test. Noting that person’s ‘functional’ age differed from their chronological age, McIntytre J. suggested that it would rarely be possible to justify a general mandatory retirement age on grounds of diminished productivity. Where the concern was the economic success of a company and there were no special skills that diminished with age, or any risk to others that increased with age, then there was no reason not to have individualised procedures.256 Where this is an issue of public safety then a retirement age below 65 may be easier to justify, but there must still be evidence that the age selected is rational, in that it is a reasonable proxy for the threat to safety.257 The lower courts had disagreed on whether the employer had put forward enough objective support for the policy. The Supreme Court agreed with the first instance Board of Inquiry, that the employer had not done so. McIntyre J said that what was required was an examination of the post, the working conditions, and the effect of those conditions on workers. He explained that ‘statistical and medical evidence’ was preferable to an ‘impressionistic’ view that fire-fighting was a young man’s game.258 Finally McIntyre J dismissed the argument based on the existence of a collective agreement endorsing this policy; people could not ‘contract out’ of antidiscrimination law due to public policy.259 The Supreme Court further clarified this test in the Saskatoon City case.260 In line with a collective agreement, the employer required a Fire Prevention Officer working for the fire service to retire at the age of sixty. Sopinka J., speaking for the Court, explained that the general rule of anti-discrimination law was that persons were to be assessed as individuals, and not on the basis of certain characteristics. The bona fide 255

208 per McIntyre J. 209. 257 209-210. 258 212. 259 214. 260 Saskatchewan (Human Rights Commission) v Saskatoon (City) [1989] 2 S.C.R. 1297. 256

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occupational requirement test was an exception to this general rule and was based on ‘general characteristics reasonably applied’. This does not mean the employer must assess each individual.261 Individual testing is not required by the bona fide occupational requirement test; however an employer must be able to show why individual testing is impractical; if there is a practical alternative to the requirement then it should be used.262 The first instance Board found that there was no practical alternative to the general rule, and that finding could not be disturbed.263 In the post McKinney case of Dickason, the Supreme Court of Canada revisited mandatory retirement, considering this time whether it could be justified under the Alberta IRPA.264 The Supreme Court stressed that the justification test should be applied differently when assessing action by employers under anti-discrimination legislation, than when assessing Government action under the Charter. There is no reason to give the same degree of deference to the choices of a private actor as may be appropriate to a democratic legislature striving to balance different legitimate interests.265 Once that was taken into account, it was still possible to use the Oakes proportionality test to guide the justification test under IRPA,266 though it should not be thought that the case was determined by McKinney.267 So far the Court was in broad agreement. However this agreement did not survive. The majority thought it was important to note that the retirement policy was rooted in a collective agreement, the result of a fair bargaining process. 268 According to the majority, this was fair because age, unlike the other grounds of discrimination would affect all union members; further the scheme was negotiated in the context of a system of secure tenure.269 The majority concluded there were legitimate aims behind the policy (preserving the tenure system, academic renewal, employment planning and the right to retire with dignity).270 Mandatory retirement was rationally

261

1309. 1313. 263 1314-5. 264 Dickason v University of Alberta [1992] 2 SCR 1103. 265 Dickason v University of Alberta [1992] 2 SCR 1103, 1123 per Cory J. 266 1124 per Cory J. 267 1128 per Cory J. 268 1130 per Cory J. 269 1132-3 per Cory J. 270 1134 per Cory J. 262

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related to these aims.271 The majority thought that other options would either be less effective or would undermine the tenure system and so the minimal impairment test was satisfied.272 L’Heureux-Dube J delivered the dissenting opinion for herself and McLachlin J. She agreed that the justification test in anti-discrimination statutes was similar to the section 1 test in the Charter and also agreed that private parties could not benefit from the flexibility shown to government in some Charter cases (though she thought the test should be applied strictly rather than flexibly).273 However she was much more sceptical of the importance of collective agreements: parties were not able to contract out of equality rights.274 She was sceptical of the idea that young workers identify with older ones, simply because they too age. 275 Whilst accepting that there were pressing and substantial reasons for the policy, she then examined its proportionality. Once again she disputed that there was any rational connection between the legitimate aim and the policy of mandatory retirement; if the aim was to get rid of incompetent staff then it was clearly irrational.276 There was no evidence from territories where mandatory retirement was abolished that it caused any problems.277 She was critical of the arguments offered to defend the policy, believing they were often rooted in stereotypes. She also dismissed the argument from staff renewal – many elder people had made important contributions.278 L’Heureux Dube dismissed the ‘retirement with dignity’ argument as being especially based on a stereotype of older academics living in fear of assessment.279 Unlike the majority, she found that there were other acceptable systems for achieving the legitimate aims (peer evaluations and encouraging early retirement).280 In terms of the effects of the policy; the benefits for the university were unclear, while the disadvantages for people over 65 were serious. The elderly were 10% of the population but 42% of the

271

1137 per Cory J. 1138 per Cory J. 273 1161-1165 per L’Heureux-Dube J. See also 1195-1196 per Sopinka J. (dissenting). 274 1169-1170 per L’Heureux-Dube J. Sopinka J (dissenting) agreed that little weight was to be attached to the fact a policy was found in a collective agreement (1197). 275 1173. 276 1178. 277 1180-1181. 278 1182. 279 1188. 280 1189-1190. 272

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poor; women were particularly affected.281 The judge also stressed the importance of work as an aspect of self-worth.282

21st Century Charter case law The Canadian case law examined above demonstrates a strong divide among Canadian judges over the compatibility of mandatory retirement laws with the right to equality. Both sides marshalled strong and sophisticated arguments which may be relevant in a UK context. In the cases cited above the majority came down in favour of the validity of the mandatory retirement rules. However cases during the 21 st Century have seen an important shift in some of the lower courts and tribunals. The case of Vilven v Air Canada concerned two Air Canada pilots who were forced to retire at age 60, in accordance with the mandatory retirement policy of the company. The pilots complained before the Human Rights Tribunal which ruled that the policy was covered by a statutory exemption for the ‘normal age of retirement’ in any sector. The Tribunal also ruled that the statutory exception did not violate Section 15 of the Charter because it could not be said to have impaired the dignity of the pilots.283 The pilots sought a review of this in the Federal Court. The Federal Court ruled that the Tribunal had misunderstood the test for deciding whether Section 15 was violated; the SCC had only recently (in the 2008 case of Kapp 284) clarified that test, downplaying the role assigned to ‘dignity’ in earlier case law.285 The Federal Court ruled that the exemption violated Section 15: most notably it perpetuated stereotypes and pre-existing disadvantage, had a serious negative impact on the people affected; did not correlate with the needs and circumstances of the group affected and could not be said to be an ameliorative affirmative action type measure.286 The Federal Court sent the case back to the Human Rights Tribunal to decide whether the exemption was nevertheless justified under the Section 1 Charter test.

281

1191. 1192. 283 Human Rights Tribunal, 17 August 2007, http://chrt-tcdp.gc.ca/search/files/t1176_5806t1177_5906-t1079_6005ed17august07.pdf. 284 R v Kapp 2008 SCC 41, 27 June 2008. 285 Federal Court, April 9 2009, http://decisions.fct-cf.gc.ca/en/2009/2009fc367/2009fc367.html. 286 Paragraphs 267-293. 282

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The Human Rights Tribunal handed down its decision in August 2009.287 The Tribunal reviewed the case law on mandatory retirement discussed above. It noted however that the Charter calls for a context sensitive analysis and that the context had changed significantly since the McKinney era. Australia and New Zealand had abolished mandatory retirement, while most Canadian provinces had either abolished it or only permitted it as a bona fide occupational requirement, or as part of a bona fide pension plan.288 The Tribunal inquired whether there was a pressing and substantial reason for the rule and concluded that there wasn’t: most of the fears associated with abolishing mandatory retirement had proved to be groundless, while with an aging workforce there was more need for strengthening anti-discrimination laws.289 Further even if there was a legitimate reason, the measure failed the proportionality test. The exception was irrational as it allowed one dominant company to set the rules, while it included no requirement for a collective agreement (assuming allowing employers and unions to collectively organise the workplace was an aim).290 The exemption failed the minimal impairment wing of the test as a less restrictive measure was open: to allow retirement if it was a bona fide occupational requirement (the solution adopted in the US, New Zealand, Australia and most Canadian provinces).291 The third aspect of proportionality requires a court to balance the benefits of a measure against the harms. The Tribunal acknowledged that there were benefits for unions and employers, but the harms were very harsh for people who could not afford to retire at 65, a group disproportionately composed of women and immigrants.292

287

28 August 2009, http://chrt-tcdp.gc.ca/aspinc/search/vhtmleng.asp?doid=979&lg=_e&isruling=0#1000777. 288 Paragraphs 22 and 27. The exception for bona fide pension plans was examined in New Brunswick (Human Rights Commission) v Potash Corporation of Saskatchewan [2008] SCC 45. 289 Paragraphs 47-50. 290 Paragraphs 54-55. 291 Paragraph 62. 292 Paragraph 71.

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5.7 Conclusions on retirement The UK’s implementation of the Age Discrimination regulations allows employers to take advantage of the possibility to retire employees at age 65 or above, or to establish their own retirement age below 65 provided this can be justified. To reiterate what was said above, the Heyday ruling left many questions for the High Court to answer. The High Court upheld the introduction of a default retirement age, but indicated that the selection of 65 as the default retirement age needed to rethought. Indeed the Labour Government announced that it would bring forward a review of the retirement age to 2010. However, since then the Conservative Liberal Democrat Government has announced its intention raise the State Pension Age and to phase out the Default Retirement Age from 2011.293 The Government has identified several benefits to this latter reform, including financial benefits for the individual and society, health and social benefits for the individual and benefits for the employer in doing away with the current procedure for retirement.294 When introduced the change will mean that employers may still adopt a retirement age however it will need to be shown to be justified. Further employers will still be able to dismiss employees for other reasons than retirement (capacity, conduct, redundancy, etc.).295 The Government indicates that most employers do not use a retirement age, and that when they do, they are accommodating of employee requests to stay on. Further the Government wants to support dialogues between employees and employers over how to handle the retirement process.296

The Government

consultation includes questions on how this dialogue might be encouraged.297 Given that the Government intends to retain the possibility for employers to justify the use of mandatory retirement as a form of justified direct discrimination, the Canadian case law becomes important. As we have seen the Canadian courts have considered retirement policies in many cases, and have frequently split on how to deal with them. The Canadian judges show that there are strong arguments against retirement ages and this is especially important when the UK and EU judges seem 293

Consultation paper published by the Department for Business Innovation and Skills and the Department for Work and Pensions, Phasing Out the Default Retirement Age (July 2010). 294 Paragraphs 2.1.2-7.1.5. 295 Paragraphs 7.2.1-7.2.2. 296 Paragraphs 7.2.3. – 7.2.4. 297 Section 7.3.

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prepared to accept relatively unproblematically the possibility that retirement ages might be justified to preserve ‘collegiality’ or to allow access to professions for members of the younger generation.

Excursus on dignity The case law on retirement makes occasional reference to one of the great moral principles alongside equality itself: dignity. This is important since many persons have argued that dignity should be given a greater role in equality law.298 However dignity is by no means a straightforward concept and there can be difficulties in applying the concept in case law.299 The case law discussed in this chapter show how dignity can be used to make arguments on both sides of a case. Some advocates of retirement ages suggest that they allow employees to leave employment with dignity rather than having to undergo embarrassing competency hearings and dismissal. On the other hand, some judges clearly label mandatory retirement an interference with dignity. That dignity can be invoked on both sides in these cases indicates its malleable nature. We can go further and suggest that dignity may be especially problematic in age discrimination cases. This may well be because of the popular sense that age discrimination is not quite the same as other types of discrimination. The malleable concept of dignity allows judges both to give way to this sense or to challenge it. It is notable that two troublesome decisions of the Canadian Supreme Court both involved age discrimination and the argument that the claimant’s dignity was not violated by the age based distinction at issue. One was a distinction allowing children to be subject to physical chastisement;300 the other was a measure reducing the benefits available to young welfare recipients.301

298

Evadne Grant and Joan Small, 'Disadvantage and Discrimination: the emerging jurisprudence of the South African Constitutional Court' (2000) 51 Northern Ireland Legal Quarterly 174; G. Moon and R. Allen, 'Dignity Discourse in Discrimination Law: A Better Route to Equality?' (2006) (6) European Human Rights Law Review 610; Sandra Fredman, Human Rights Transformed: Positive Rights and Positive Duties (Oxford University Press, Oxford 2008). 299 Rory O'Connell, 'The Role of Dignity in Equality Law: Lessons from Canada and South Africa' (2008) (2) International Journal of Constitutional Law 267. 300 Canadian Foundation for Children Youth and the Law v Canada [2004] [2004] 1 S.C.R. 76 [2004] 234 D.L.R. (4th) 257. 301 Gosselin v Attorney General of Quebec [2003] 221 D.L.R. 4th 257, [2002] 4 S.C.R. 429.

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6. Justification: Other cases This chapter reviews some of the age discrimination case law outside of retirement, including questions of recruitment or promotion, redundancy, and severance.

6.1 Recruitment/Promotion The use of an age limit in recruitment was directly at issue in the ECJ case of Wolf. Here the applicant was denied appointment as a fire fighter because he was over 30. The ECJ approached this as a type of ‘genuine and determining occupational requirement’. The key issue was not that persons over 30 were insufficiently fit for the role, but that there was evidence that persons approaching 50 were. The respondent’s policy was to move these employees on to less strenuous duties at this age. However this meant that the fire service had to manage the age profile of the workforce to ensure fire fighters could work for an appropriate period of time (approximately twenty years) before being moved on to other duties. If the service did not manage the age profile carefully it would have too many employees for the less strenuous posts. The ECJ accepted that the legitimate aim could be described as maintaining the operational capacity and proper functioning of this emergency service and that this was a valid occupational requirement.302 The effect of the Age Regulations was to make any age specific qualifications for appointments or promotions suspect (subject as ever to the possibility of justification). While age specific criteria - as in Wolf - might be easily recognised, a more subtle issue is raised by a requirement to have certain qualifications. This was the issue in Chief Constable of West Yorkshire Police v Homer.303 The claimant worked for the Police National Legal Database; he was appointed to the position even though he had no law degree because of the experience he had.304 The employer offered to pay for the claimant to study law part time, but he declined; at the time he had no reason to think his pay would be affected by the absence of a law

302

Wolf v Stadt Frankfurt am Main C-229/08, [2010] IRLR 244, 12 January 2010. Chief Constable of West Yorkshire Police v Homer UKEAT/0191/08/RN, [2009] ICR 223. 304 Paragraph 4. 303

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degree.305 Following restructuring the claimant was denied access to the highest grading because he did not have a law degree. The first instance tribunal held that this was indirect age discrimination and that it was not justified. The tribunal saw no evidence that a law degree contributed to the quality of the work. According to the tribunal the employer could have allowed for experience and skills equivalent to a law degree. On appeal, the EAT concluded there was no discrimination. The requirement of a degree was not limited to people based on age,306 nor is it more difficult for an older person to get a degree.307 The EAT pointed out that no discrimination arose simply from the fact that older employees would have less time to enjoy a benefit than younger ones.308 Any disadvantage is the ‘inevitable consequence of age; it is not a consequence of age discrimination.’309 The EAT did say that if the requirement had been discriminatory then it would not have been justified: applying it to existing employees aged over 60 would not assist any particular legitimate aim.310 Despite this the EAT thought the tribunal had misapplied the proportionality test. It was unrealistic to expect hard evidence that the introduction of a law degree contributed to the quality of the intake: there must be a ‘reasoned and rational judgment’ and there must not be any ‘subjective impression or stereotyped assumptions’, but hard evidence was too much. Anyway there was not enough time to assess the impact (two years).311 Nor was the Tribunal on solid ground in suggesting an ad hoc exception could have been made.312 The EAT concluded with a note of reluctance – it was plainly sympathetic to the employee’s situation and saw no reason why an exception could not be made. That however was no reason to find age discrimination. The Court of Appeal dismissed the applicant’s appeal, broadly agreeing with the approach of the EAT.313 The Court of Appeal agreed that there was no prima facie indirect discrimination because there was no ‘particular disadvantage’ based on age; 305

Paragraph 7-8. Paragraph 35. 307 Paragraph 36. 308 Paragraph 37. 309 Paragraph 39. 310 Paragraph 45. 311 Paragraph 48. 312 Paragraph 49. 313 [2010] EWCA Civ 419, 27 April 2010. 306

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any disadvantage was down to the fact that the applicant would have insufficient time to gain a law degree by part time study before retiring. There was no issue as to whether people of the applicant’s age group were less likely to have a law degree; that was not the issue.314 The actual barrier here was not a ‘disguised’ age barrier but rather the impending stopping of work due to retirement.315 One of the Lord Justices stressed that the aim of the legislation was not to prohibit ‘the general unfairness of age’ but specifically age discrimination.316 A fellow judge even described the applicant’s claim as one of ‘more favourable treatment on account of age’.317 There is a similar case from Ireland, dealing with qualifications required for an appointment. This is An Employee v A Government Department.318 The complainant was a senior civil servant who applied for the post of Deputy Legal Advisor; in the past this post had been filled on the basis of seniority. The complainant objected to the change in the appointment system and to the alleged emphasis on academic qualifications over professional experience. The Department had decided on the procedures in consultation with the union; one of its aims had been to ensure all four of the current assistant legal advisors could apply. The Equality Tribunal judged that the employer could use a competition to fill the post: this was decided upon in consultation with unions; different selection methods had been used in the past. Further thus use of ‘seniority and suitability’ could be indirect age discrimination.319 The Tribunal concluded that the Department could legitimate seek to widen the pool within the Department by reducing the amount of experience required to apply for the post.320 Eligibility criteria have to be shown to be discriminatory and there was no evidence that the criterion of academic qualifications was discriminatory; further the complainant was able to apply for the post and be interviewed.321 In relation to the complainant’s argument that he was the best qualified candidate, the Tribunal noted that the employer was entitled to emphasise a particular area of expertise (public international law) and that the

314

Paragraph 45, per Mummery LJ. Paragraph 47, per Mummery LJ. 316 Paragraph 48, per Mummery LJ. 317 Paragraph 34, per Maurice Kay LJ. 318 DEC- E-2002-056. 319 Paragraph 5.6. 320 Paragraph 5.8. 321 Paragraph 5.10. 315

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successful appointee appeared to be better qualified in that area.322 Further, if the employer had made a postgraduate qualification in international law a requirement, there is no reason a person of the complainant’s age might not acquire one.323 The Tribunal did express its concern at the lack of a marking system or interview notes.324

6.2 Redundancy Procedures The ECJ has considered an age discrimination case concerning the period of notice for dismissal. That case involved discrimination against younger workers: Kücükdeveci.325 The measure at issue recognised increased notice periods depending on the length of service, but excluded periods before the employee was 25. This measure had been adopted in 1926 when it was thought older workers with longer service were less flexible than younger ones and so less likely to be able to find a new post quickly. Subsequently the German courts suggested that the aim of the measure was to give the employer ‘greater flexibility in personnel management’. The ECJ did not regard either aim as illegitimate but did indicate the measure adopted was not appropriate to achieve either. The aim of protecting employees with a long period of service was not served by ignoring periods of employment prior to the age of 25.

The aim of flexibility was not appropriately served because the measure

applied irrespective of the age of the employee at the time of dismissal.326 Turning from the European case law, the domestic Age Discrimination regulations may also have implications in terms of redundancy procedures. Regulation 33 (35 in the NI Regulations) contains certain provisions allowing an employer to pay a greater amount of redundancy to one worker than to another, provided the amounts are calculated in the same way. If an employer chooses to make an employee redundant, and selects the employee on grounds of age, then this is direct age discrimination. The GB Equality and Human Rights Commission (EHRC) has warned employers not to avail of the current 322

Paragraph 5.20. Paragraph 5.20. 324 Paragraphs 5.21, 6.2. 325 Kücükdeveci v Swedex GmbH & Co. KG C-555/07, [2010] IRLR 346, 19 January 2010. 326 Kücükdeveci, paragraphs 39-42. 323

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economic crisis to make older workers redundant, as this would be a failure to fully utilize the pool of talent available to employers.327 The EHRC is not alone in urging greater equality during the economic crisis: the Council of Europe’s Commissioner for Human Rights has made the same call.328 It will be direct age discrimination, where the decision is not explicitly based on age but a claimant establishes a prima facie case of age discrimination. For instance in Court v Dennis Publishing, the owner of the respondent company had published a book in which he explained young workers could be underpaid while senior workers were only worth their pay for a year or two. The prima facie case was further strengthened by the fact that the employee selected for redundancy was 20 years older than his colleagues, and a new appointment was a person 20 years younger than the claimant. There was also some internal documentation suggesting age was a factor in the redundancy decision. That being so, the Tribunal found an unrebutted instance of age discrimination.329 The Court of Appeal of England and Wales has recently considered one redundancy case, Rolls Royce v UNITE.

330

The case came before the Court in an unusual way,

not being based on litigation in Tribunals, but instead being based on an employer’s request for a declaration for the High Court. The judges therefore are tentative in their decision. However some useful points may be gleaned from the judgments. The case concerned a redundancy scheme in a collective agreement negotiated between the employer and the Union. To decide on redundancy selection, the scheme awarded points to workers. Some points were awarded for length of service. Subsequently the employer decided that its business needs had changed and it might need to emphasise retaining more flexible workers.331 It sought a declaration that the length of service criterion breached the Age Discrimination Regulations. A majority of the Court of Appeal thought that a length of service criterion in a redundancy agreement constituted indirect discrimination against younger workers. The question was whether it could be justified as being necessary to achieve a 327

Equality and Human Rights Commission, Age diversity can help business recover from the downturn, says Commission (20 March 2009) . 328 Commissioner for Human Rights Council of Europe, ‘‘The response to the crisis must include a shift towards more equality’’ (2009) http://www.coe.int/t/commissioner/viewpoints/090511_EN.asp. 329 Court v Dennis Publishing UKEAT 2200327/2007. 330 Rolls Royce v UNITE [2009] EWCA Civ 387, [2009] (2009/05/14). 331 Rolls Royce v UNITE [2009] EWCA Civ 387 paragraph 158 per Arden LJ.

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legitimate aim. The majority thought that rewarding length of service and so encouraging loyalty and stability was a legitimate aim.332 Was the criterion proportionate? The High Court judge had unfortunately not explicitly addressed this aspect of justification, but the Court of Appeal majority thought that the use of the criterion was proportionate. The majority gave different though consistent reasons for this finding. Wall LJ stressed that the criterion was only one among many, that it was not the determinative factor and that the workers appeared to accept it was a fair system.333 Arden LJ found the criterion to be proportionate because it was based on a negotiated compromise between the employer and union, it did not seek to disadvantage any group, the criterion was only one among many; long serving employees were the ones who would have most difficulty finding jobs; all employers benefitted from having an agreed procedure and all might benefit from this criterion; the scheme was not an employer imposed policy and finally it was not as drastic as a simple Last In, first Out, scheme.334

6.3 Early Retirement / Severance The EAT has also considered the issue of age discrimination in cases of redundancy in Loxley v BAE Systems Land Systems.335 According to the EAT, preventing an employee from obtaining a ‘windfall’ can constitute a legitimate aim for the purposes of the justification test. The aim of a redundancy scheme is to ‘cushion workers from the effects of losing their income.’336 Where an employee is also entitled to a pension at the same time, then it is not necessary to provide the same level of support.337 This also provides equity between those in retirement and those close to retirement. The EAT did say that each set of schemes would need to be examined on a case by case basis.338 Sometimes it may be justifiable to exclude someone entitled to a pension from redundancy payments as well.339 The EAT added that it was legitimate to consider whether there was union support for the proposal, though that would not 332

Rolls Royce v UNITE [2009] EWCA Civ 387 paragraph 95 per Wall LJ, [156] per Arden LJ. Rolls Royce v UNITE [2009] EWCA Civ 387 paragraph 100 per Wall LJ. 334 Rolls Royce v UNITE [2009] EWCA Civ 387 paragraph 162 per Arden LJ. 335 Loxley v BAE UKEAT/0156/08/RN. 336 Paragraph 37. 337 Ibid. 338 Paragraph 39. 339 Paragraph 40. 333

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render an otherwise unlawful scheme, lawful.340 Further both employers and unions might be influenced by ‘traditional assumptions’ and so there must be a critical examination.341 One Irish case considered the position of a Bus Eireann driver who accepted an early voluntary severance offer: Bus Eireann v McLoughlin.342 The claimant sought employment in another capacity after accepting the package. The company refused on the grounds it was company policy not to hire employees who severed their links with the company. The claimant argued this was age discrimination as the majority of people affected by the policy were over 50. The Equality Tribunal found against the company, who appealed to the Labour Court. The Labour Court accepted that the policy was indirectly discriminatory. It considered the question of the appropriate pool for consideration, deciding that the court should focus on the disadvantaged group. In this case the people who accepted voluntary severance were mostly (96%) over 50. The policy excluded them and so indirectly discriminated against the over 50s. The question was then whether it was objectively justified. The Labour Court thought that the aim of preserving industrial harmony was a legitimate aim. It said that the mere existence of a collective agreement could not justify discrimination by itself, but was relevant to the underlying reasons constituted objective justification. The Labour Court also accepted the means were appropriate and necessary. The employer had pointed to the anomaly of having ex-employees who had accepted voluntary severance working alongside employees and possibly earning more money than the employees thanks to pension rights. Redundancy was also considered in the case of O’Dwyer v Coillte Teoranta. The respondent company introduced an early redundancy scheme but the benefits for employees over 60 were severely curtailed. Employees under 60 could receive 18 months salary as a severance gratuity, while those over 60 could only receive 6 months. The Equality Tribunal found there was age discrimination, but it was justified under the Employment Equality Act, section 34(3) as otherwise the employer would have faced ‘significantly increased costs’. Both parties appealed to 340

Paragraph 42. Paragraph 43. 342 Bus Eireann v McLoughlin (Brian), Determination No. EDA0516, (Labour Court) 21 November 2005. 341

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the Labour Court. On appeal, the Labour Court dismissed the argument that the discrimination was based on service and not age. The central issue was the application of section 34(3). The Labour Court concluded there was no ‘clear actuarial or other evidence’ that foregoing the discriminatory treatment would lead to significantly increased costs, since the complainant was the only person who had sued, and any other claims would now be statute barred due to time limits. The Labour Court ordered compensation over 40000 Euros (the difference between the complainant’s package and the amount a 59 year old employee would have received).

6.4 Conclusions The cases on qualifications from the UK and Ireland demonstrate a strong commitment to the merit principle and a reluctance to second guess employers’ decisions as to the requirements for a post. In both cases the courts accepted the employer’s determination that a particular qualification or expertise was required. In both cases, the courts accepted that there was no reason an elder person could not acquire a particular qualification or expertise (to hold otherwise might be thought to perpetuate stereotypes about older people). In the UK context, this is slightly problematic since the prohibition on age discrimination does not (yet) apply to the provision of services. The attachment to the merit principle is even clearer in the Irish Tribunal’s acceptance of a competition system; a system based on seniority might have been open to challenge on the grounds of discrimination against younger employees. Anticipating the discussion in Chapter Six, let us note that the Homer case may demonstrate a need for a reasonable accommodation requirement.

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7 Positive Action The terms ‘affirmative action’ ‘positive action’ ‘positive discrimination’ are often ambiguous and cover many different types of action. They range from controversial policies (quotas, ground specific preferences) to less tendentious policies (outreach efforts, general social policies).343 Generally speaking, prior to the 2010 Act, UK law only accepted the more limited forms of positive action. Typically these are outreach type measures.

7.1 UK Position pre 2010 Act The Age Regulations 2006 resemble most other UK anti-discrimination laws in this way. Regulation 29 provides that it is lawful to afford persons of a particular age or age group the opportunity to train for particular work, and it is lawful to encourage persons of a particular age or age group to ‘take advantage of opportunities for doing particular work’. These actions are only lawful if it ‘reasonably appears’ ‘that it prevents or compensates for disadvantages linked to age suffered by persons of that age or age group doing that work or likely to take up that work.’ Although the provisions of the Age Regulations on positive action are narrow in scope, there is another route to uphold positive action measures in respect of age. Direct age discrimination is subject to a general justification test: it is lawful if it can be shown to be a ‘proportionate means of achieving a legitimate aim’.344 It is not certain that positive action would constitute a legitimate aim for the purpose of justifying direct discrimination under the regulations. The unclarity regarding the possibility to justify positive action in respect of age has already caused problems in Northern Ireland. Some colleges withdrew their policy of reduced fees for older people, apparently in the belief that such a policy was direct discrimination as regards vocational training. The colleges apparently do not believe they can take advantage of the possibility to justify direct discrimination provided by

343 344

Christopher McCrudden, 'Rethinking Positive Action' (1986) 15 Industrial Law Journal 219. Regulation 3.

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Article 3(1) or of the possibility to invoke the positive action exception in Regulation 31 of the NI Regulations.345 It is not certain that the colleges’ position is the best interpretation of either the objective justification regulation or the positive action regulation. However it is an understandable misinterpretation at worst, and may even be the interpretation that gets accepted by the courts. It might well be argued that the special regulation on positive action means that Article 3(1) should be interpreted as not to include positive action as a form of objective justification; further it is certainly arguable that as an exception to the prohibition of direct discrimination, the regulation on positive action should be interpreted narrowly. The general approach of UK courts towards positive action has been a negative one. This is the hallmark of a formalist approach to equality. A formalist approach to equality regards distinctions made on certain grounds as being suspect and therefore tends to allow only limited scope for positive action. Such an approach is typically ‘symmetrical’ in that it regards any distinctions based on (eg) age or race as being suspect, even where those distinctions advantage a previously disadvantaged group. The traditional UK approach here is distinctive and has the effect of impeding the adoption of positive action and pro-diversity measures.346 It should be noted the ‘traditional UK’ approach is also incoherent347 as stronger forms of affirmative action are permitted in special cases such as election candidates or PSNI recruitment.

7.2 EU position on positive action The General Framework Directive provisions on positive action are much wider than the Age Regulations’ provisions on positive action. The Preamble refers to the need to ‘promote the social and economic integration of elderly and disabled people’

345

Northern Ireland Assembly Debates, College Courses for Older People, Tuesday June 9, 2009 http://www.niassembly.gov.uk/record/reports2008/090609.htm#6. 346 Colm O’Cinneide, Thinking about Positive Duties and Positive Action (Belfast: Equality Commission Northern Ireland, 2007) available at www.equalityni.org p 12-13. 347 Colm O’Cinneide, Thinking about Positive Duties and Positive Action (Belfast: Equality Commission Northern Ireland, 2007) available at www.equalityni.org p 15.

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(recital 6) and ‘the need to pay particular attention to supporting older workers, in order to increase their participation in the labour force’ (recital 8).348 The General Framework Directive Article 7 allows for measures ‘to prevent or compensate for disadvantages linked to any of the grounds referred’. This is much broader than the positive action exception in the pre 2010 UK regulations. First, the measures are not limited to outreach type policies. Article 7 does not specifically envisage or proscribe any specific type of policy; it should be noted though that the European Court of Justice has at times adopted a very critical approach to positive action measures in the area of sex discrimination.349 Second, the Article 7 exception comes into play whenever there is any effort to prevent or compensate for disadvantage linked to one of the grounds. The UK regulations are more specific: the positive action exception comes into play when there are ‘disadvantages linked to age suffered by persons of that age or age group doing that work or likely to take up that work’ (Article 29(1)). ECNI in its response to the consultation on the NI Age regulations said that it preferred the broader language used in the Directive to the more restrictive approach in the draft regulations.350 Further the General Framework Directive also allows direct age discrimination to be justified where appropriate and necessary to meet a legitimate aim. The Directive gives examples of some legitimate forms of direct age discrimination: the very first one is to promote the ‘vocational integration’ of the young, the old and people with caring responsibilities, and to protect them. This does suggest that positive action to promote vocational integration of the elderly is an example of direct age discrimination that can be justified.

348

Recital 28 refers to the non-regression principle: the introduction of regulations to implement the directive should not justify any diminution in the existing position. Arguably the NI colleges’ interpretation of the Regulations discussed above violates this principle. 349 Catherine Barnard, 'The Principle of Equality in the Community Context: P, Grant, Kalanke, and Marshall: four uneasy bedfellows' (1998) 57 Cambridge Law Journal 352. 350 Equality Commission for Northern Ireland, Commission response to OFMDFM Age consultation paper, (Belfast: ECNI, 2005) p. 7.

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7.3 Positive Action in Ireland In Ireland, Section 33 of the Employment Equality Act 1998, as amended by Section 22 of the Equality Act 2004, deals with positive action. Section 33 makes it lawful for employers to adopt practices: (a) to prevent or compensate for disadvantages linked to any of the discriminatory grounds (other than the gender ground351), (b) to protect the health or safety at work of persons with a disability, or (c) to create or maintain facilities for safeguarding or promoting the integration of such persons into the working environment. It should again be noted that this is somewhat broader than the UK regulations in that it is not limited to two specific types of outreach measure.

7.4 Positive Action in Canada In Canada, affirmative action is regarded as part and parcel of substantive equality. This is an important and different approach to that taken in the UK regulations. Affirmative action is not seen as an exception to a rule on equality, but rather as something required by equality. The Charter provides an explicit saver for affirmative action programmes in Section 15(2). The Canadian Human Rights Act also permits affirmative action, termed ‘special programmes’ which are designed to prevent, eliminate or reduce disadvantage based on any of the prohibited grounds, where the programme will improve opportunities in relation to the group.352 The Canadian Human Rights Commission is given a role in making recommendations and giving advice about such programmes.353

351

Section 15 of the Equality Act 2004 amends section 24 of the Employment Equality Act 1998 on positive action in respect of gender. 352 S 16(1). 353 S 16(2).

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7.5 Positive Action in the Equality Act 2010 The Equality Act 2010 includes important modifications to the law on positive action in GB. Sections 158 and 159 deal with positive action. Section 158 permits ‘action which is a proportionate means of’ 

‘enabling or encouraging persons’ to overcome or minimise a disadvantage linked to a prohibited ground



meeting needs related to the ground



‘enabling or encouraging’ persons to participate in an activity

where it reasonably appears to the person taking the action that 

persons suffer a disadvantage linked to a ground



persons having a ground related characteristic have special needs, or



persons having a ground related characteristic do not participate proportionately in a certain activity.

Section 159 provides specific rules on positive action in recruitment and employment. It allows the use of ‘tie-break’ rules to recruit or promote persons from a disadvantaged or underrepresented group, provided the beneficiary is as qualified as any person not advantaged. These clauses would expand the scope for positive action in GB. Whilst not as parsimonious in language as the Irish or Canadian measures, they allow for much wider measures than hitherto permitted in the UK. Arguably the GB measures might go beyond the Irish or Canadian provisions: as well as permitting positive action to alleviate, prevent or compensate for disadvantage, the GB clauses would also permit positive action to meet the needs of persons having a protected characteristic or to combat disproportionate under representation. This would appear to permit a person to take positive action to achieve diversity in the sense of proportionate representation. The GB clauses retain the symmetrical ‘colour blind’ approach that is typical of UK anti-discrimination legislation. So much so that one of the first examples of positive

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action offered in the accompanying explanatory notes is the provision of supplementary classes for white males.354

7.6 Conclusion This is one of the areas where NI law will fall very far behind the rest of the UK and Ireland if the regulations are not amended. This is true not only of the Age Regulations but of all the anti-discrimination grounds (except for disability). The Irish Equality Act 2004 and the Canadian legislation are very permissive of positive action, while the GB Equality Act 2010 considerably expands the scope of positive action. The example given of the concern colleges have over providing discounts to elderly persons demonstrates the effect that the traditional UK approach to discrimination may have.

354

Explanatory Notes to the Equality Bill 2009 http://services.parliament.uk/bills/200809/equality.html paragraph 505.

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8 Reasonable accommodation duty

8.1 UK, Ireland and Europe UK (and European) law recognise a duty of ‘reasonable accommodation’ in respect of people with disabilities. However this duty only applies to disability. The UK’s Age Regulations do not explicitly provide for a duty of reasonable accommodation in respect of age. The Equality Act 2010 continues this situation: ‘reasonable adjustments’ must be made for people with disabilities but that is all. 355 Similarly, in Ireland, Section 16 of the Employment Equality Act 1998, as amended by Section 9 of the Equality Act 2004, provides that employers must make reasonable accommodation for people with disabilities, unless this would disproportionately burden the employer. In deciding what would be a disproportionate burden, one must look at the costs involved, the scale and resources of the employer’s business and the availability of public funding. As in the UK, the reasonable accommodation duty only applies to the disability ground. The UK and Irish rules reflect the position in the EU General Framework Directive: there is a provision requiring reasonable accommodation for people with disabilities, unless this would impose a disproportionate burden on the employer.356 There are people who argue against limiting the reasonable accommodation duty to disability. ECNI argued during the consultation process on the Age Regulations that there was a role for reasonable accommodation, and said that there should be a duty of reasonable accommodation where an employee wanted to work past 65, rather than merely a duty to consider such a request. 357 Drawing on the Canadian example, Gay Moon has argued that there is merit in extending the reasonable accommodation duty to the other grounds.358 Specifically in relation to age, Moon identifies that such

355

Section 20. Article 5 of the Directive, available at http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2000:303:0016:0022:EN:PDF. 357 Equality Commission for Northern Ireland, Commission response to OFMDFM Age consultation paper, (Belfast: ECNI, 2005) p. 14. 358 G. Moon, ‘From Equal Treatment to Appropriate Treatment: What Lessons can Canadian Equality Law on Dignity and on Reasonable Accommodation teach the United Kingdom?’ (2006) (6) European human rights law review 695-721. 356

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a duty ‘could facilitate those at the beginning and end of their working life being able to reduce their hours, work flexi-time or work in art from home.’359 This suggestion has been rejected by the Discrimination Law Review consultation document, A Framework for Fairness.360 The authors of the document explain that there are already specific accommodation duties where needed (e.g. for pregnant women, carers). Further such a duty would make the situation more unclear for employer and service providers and possibly reduce the accommodation that could be made for people with disabilities. Such a duty would also raise issues about the compatibility with the law on indirect discrimination and possibly violate European Union law which tends to take a restrictive approach to ‘positive discrimination’.361 We will return to these objections once we have examined some of the Canadian case law.

8.2 Canada As Moon notes, the position in Canada is different. Reasonable accommodation is a major feature of the legislation, across all grounds.362 The Supreme Court of Canada effectively read this into the legislation in the Meiorin case. In order to justify direct or indirect discrimination, the SCC announced a three part test discussed earlier. The third part of the test was that the employer had to show that it was impossible for the employer to accommodate the individual claimant.363 The employer had to consider alternative ways of doing the job that still satisfied the employer’s legitimate requirements. The SCC suggested that a court should inquire whether the employer investigated other approaches? If there were other approaches, why were they not pursued? Was it necessary that all employees meet a particular standard? Was there a less discriminatory way of doing the job? Was the standard devised so as not to place

359

Ibid, page 717. Discrimination Law Review, A Framework for Fairness: Proposals for a Single Equality Bill for Great Britain, A Consultation Paper (London: Communities and Local Government, 2007) available at http://www.communities.gov.uk/documents/corporate/pdf/325332.pdf. 361 Paragraphs 4.39 – 4.43. 362 Canadian Human Rights Commission., Bona Fide Occupational Requirements and Bona Fide Justifications under the Canadian Human Rights Act – The Implications of Meiorin and Grismer (Ottawa: Human Rights Commission, 2007) 363 Meiorin [1999] 3 S.C.R. 3, (1999) 176 D.L.R. 4th 1, paragraph 54. 360

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an undue burden on individuals? How did the employer, employee and union play their roles?364 The SCC has revisited the Meiorin comments more recently, to emphasise that the use of the term ‘impossible’ in that case was not meant to mean literally impossible, but was the idea that undue hardship would occur if the employer tried to accommodate the individual claimant.365 An employer is not obliged to change fundamentally how the workplace is organised but is obliged to arrange the employee’s workplace and duties to accommodate him or her.366 Such steps might include authorising absences, modifying workstations, reassigning tasks, etc.367 Section 15(2) of the Human Rights Act now requires that for any defence of a ‘bona fide occupational requirement’ to be acceptable, the employer must make every effort to accommodate the needs of the applicant, to the extent that this does not impose an ‘undue hardship’ on the employer. The Canadian Human Rights Commission has published a factsheet and FAQ on the duty to accommodate. 368 The guidance does not specifically address age. Most of the provincial Human Rights Acts do not discuss reasonable accommodation. There are some exceptions. Section 9(1) of the Manitoba Human Rights Code defines discrimination as including a ‘failure to make reasonable accommodation for the special needs of any individual or group, if those special needs are based upon any’ listed characteristic. Section 11(2) of the Ontario Human Rights Code provides that a defence to a complaint of discrimination can only be made if no accommodation of the complainant’s needs can be made without undue hardship.

364

Meiorin paragraph 65. Hydro-Québec v Syndicat des employées de techniques professionnelles et de bureau d'HydroQuébec, section locale 2000 (SCFP-FTQ) 2008 SCC 43. 366 Hydro-Québec paragraph 16. 367 Hydro-Québec paragraph 17. 368 Canada Human Rights Commission, Duty to Accommodate (Canada: Canadian Human Rights Commission, 2006) http://www.chrc-ccdp.ca/pdf/duty_factsheet_en.pdf last access on August 15 2009; Canada Human Rights Commission, Duty to Accommodate - Frequently Asked Questions (Canada: Canadian Human Rights Commission, 2005) http://www.chrc-ccdp.ca/pdf/dta_faq_en.pdf last accessed on August 15 2009. 365

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The Ontario Human Rights Commission has offered some guidance on reasonable accommodation due to age.369

The Commission notes that workers may need

accommodation due to disability or caring responsibilities and these may correlate with age; further older employees may need flexibility as they begin the transition to retirement. The Commission suggests policies such as flexible hours, part time work, job sharing, and employing retirees as consultants. The Commission also suggests that if an employee finds certain non-essential tasks to be too demanding physically, then an employer should consider reassigning the task to another employee. The case law on reasonable accommodation tends to focus on disability discrimination, but the Canadian cases demonstrate that it is relevant to other grounds such as religion370 and indeed age. The Canadian Human Rights Tribunal addressed the question of reasonable accommodation on grounds of age in the Vilven case.371 This was the case where the Tribunal found that the rule in the Human Rights Act permitting mandatory retirement at the ‘normal age of retirement’ in a sector violated the right to equality in the Canadian Charter. The ‘normal age’ exception not being open to Air Canada, the airline argued that the mandatory retirement age of 60 was a bona fide occupational requirement. The HRT had to apply the Meiorin principles; while the first two principles were quickly dealt with, the questions as to whether the airline could accommodate the claimants required lengthier consideration. Air Canada argued that until 2006 it would be in breach of international standards if it allowed pilots over 60 on international flights, and to arrange its pilot roster to accommodate such pilots would be a financial and administrative burden.372

The Tribunal was not convinced that there was an

insurmountable scheduling problem.373 The Tribunal also considered the effect on other younger pilots who would be denied certain benefits because of the use of a seniority system in the airline. The Tribunal concluded that younger pilots might

369

Ontario Human Rights Commission, Policy on Discrimination against Older Persons because of Age (Canada: Ontario Human Rights Commission, 2007) http://www.ohrc.on.ca/en/resources/Policies/agepolicyen/pdf last accessed on 15 August 2009. 370 Renaud v Central Okanagan Board of School Trustees [1992] 2 SCR 970, Commission des droits de la personne et des droits de la jeunesse v Garderie éducative Le Futur de l'enfant inc 2008 QCTDP 25 2 October 2008. 371 Vilven v Air Canada 28 August 2009 Canadian HRT. 372 Vilven, Paragraph 88. 373 Vilven, Paragraph 122-127.

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have longer to wait to acquire higher salaries but this was at most a question of months not years.374

8.3 Conclusions As already noted the Northern Irish provisions do not have the same generous approach to positive action as found in the Irish, Canadian, or GB provisions. However the Canadian example suggests it may be possible and desirable to go beyond merely permitting types of positive action. The Canadians require reasonable accommodation to be made across all the grounds of discrimination, including age. There may well be reasons why persons of a certain age require reasonable accommodation, either to deal with changing physical needs, or to accommodate changing caring requirements.375 As noted earlier, the Discrimination Law Review rejected the suggestion of extending the reasonable accommodation duty for five reasons. The first reason was that specific accommodation duties already existed. While this is desirable, there is also merit in having a general reasonable accommodation duty to cover cases where the legislature has not provided a specific duty. The report also suggested that such a duty might introduce unclarity and new burdens on employers and service providers, however it appears that the Canadian jurisdictions manage this without serious problems. Regarding the suggestion that accommodating persons on grounds other than disability might undermine reasonable accommodation for persons with disabilities, it is not obvious why this is so – Moon notes that there is no evidence for this from Canada.376 On the more legal arguments about EU law and indirect discrimination: as Moon has pointed out, the General Framework Directive allows for positive action so as to achieve ‘full equality in practice’.377 Further Article 2(5) of the General Framework Directive allows the state to adopt legislation which is ‘necessary in a democratic society’ ‘for the protection of the rights and freedoms of 374

Vilven, paragraphs 134-140. A report for the Equality and Human Rights Commission highlights concerns about heath and caring: Deborah Smeaton, Sandra Vegeris and Melahat Sahin-Dikmen, Older Workers: employment preferences, barriers and solutions (Manchester: EHRC, 2010) Chapter 8. 376 Moon, ‘From Equal Treatment to Appropriate Treatment: What Lessons can Canadian Equality Law on Dignity and on Reasonable Accommodation teach the United Kingdom?’ (2006) (6) European human rights law review 695-721, page 721. 377 Moon, ibid, page 708, referring to Article 7 of the General Framework Directive. 375

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others’. In relation to the objection that it is unclear how a reasonable accommodation duty would interact with the indirect discrimination principle, the Canadian courts have shown one way forward: they treat reasonable accommodation as an aspect of showing whether an indirectly discriminatory provision is necessary for a legitimate aim. If reasonable accommodation can be made that would allow an employee to work then any restriction on the employee cannot be considered necessary. Despite the rejection of this suggestion by the Discrimination Law Review, recent Government policy may suggest it needs to be reconsidered. The decision of the Government to end the default retirement age and thus open up the possibility for more people to work past the age of 65 may mean that there is even greater need to require employers to accommodate the specific needs of such workers.

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Authors Rory O’Connell BCL (European Legal Studies), University College Dublin, 1992 LL.M, University College Dublin, 1993 PhD, European University Institute, Florence 1997 Rory O’Connell has been a member of the Human Rights Centre, School of Law since 2001. Rory’s research and teaching interests are in the areas of Human Rights and Equality, Constitutional Law and Legal Theory. His publications include Legal Theory in the Crucible of Constitutional Justice (2000) and articles in Ratio Juris, the International Journal of Constitutional Law and other journals. Several of his research projects have been supported by grants from the British Academy, Nuffield Foundation and Changing Aging Partnership. Rory is a Fellow of the Higher Education Academy, and teaches at both undergraduate and postgraduate level. He teaches on the LLM programme in n Human Rights, and is actively involved in PhD supervision. He has also taught on human rights training programmes.

Julie McBride BCL (Law with French Law) University LLM (International Law) Trinity College Dublin

College

Dublin

Julie McBride is a PhD student at Queen’s University of Belfast. Julie graduated from UCD in 2005 and went on to study for her LLM in Trinity College Dublin, where her studies focused on Human Rights and Reform of the United Nations. Her PhD research examines the development of the crime of child solder recruitment.

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List of Abbreviations All ER All England Reports DLR Dominion Law Reports EAT Employment Appeal Tribunal ECJ European Court of Justice ECNI Equality Commission of Northern Ireland EU European Union EWCA Civ Court of Appeal of England and Wales (Civil Division) EWHC High Court of England and Wales HRT Human Rights Tribunal ICR Industrial Cases Reports IEHC High Court of Ireland IRLR Industrial Relations Law Reports GB Great Britain NI Northern Ireland OFMdFM Office of the First and deputy First Minister para paragraph S section Sch Schedule SCR Supreme Court Reports

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The research presented in this report was supported by: A Changing Ageing Partnership (CAP) Research Seed Grant

Cap is a Partnership between: Queen’s University Belfast (Institute of Governance) Age NI Workers’ Educational Association Cap’s vision is of a strong informed voice capable of challenging attitudes and approaches to ageing.

www.changingageing.org

Cap is funded by The Atlantic Philanthropies

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