Employer defences to discrimination claims
An employer can escape liability for discriminatory treatment of older workers on two main grounds:
• where the less favourable treatment is proportionate and aimed at achieving a legitimate aim; and
• where the less favourable treatment is to do with a genuine occupational qualification or requirement.
As set out earlier, with regard to age, the employer can justify direct as well as indirect discrimination.
Service-related pay scales can be justified where length of service goes “hand-in-hand” with experience, which generally enables a worker to perform his or her duties better.
Under Part 1, Schedule 9 of the EA 2010 employers can justify discrimination where there is a genuine occupational requirement (GOR) for the job. This could be, where for reasons of authenticity, a theatre wants to hire a young actor to play a young character.
The Acas guidance, Age and the workplace — Putting the Equality Act 2010 and the removal of the default retirement age (DRA) 2011 into practice www.acas.org.uk/CHttpHandler.ashx?id=588&p=0, gives the following example in relation to older workers:
“An organisation advising on and promoting rights for older people may be able to show that it is essential that its chief executive — who will need to be able to empathise with the issues faced by older people and be the public face of the organisation — is of a certain age. The age of the holder of the post may be an occupational requirement.”
Age and the workplace (Acas guidance)