Employer’s defence justifying direct age discrimination 




Not all direct discrimination (less favourable treatment) due to age can be justified. Instead, the employer must show that the treatment, while disadvantageous to one age group, is a “proportionate means of achieving a legitimate aim” (section 13(2), EA 10). The first step is for the employer to identify its aims and show that they are legitimate. 



The Supreme Court has ruled that the employer’s justification of age discrimination must be in the “public interest”, as opposed to their own private interests (Seldon v Clarkson Wright & Jakes [2012] ICR 71). That is, the employer’s reason must fulfil a valid social policy aim. For example, an employer is not allowed to justify treating one age group (or individual) differently from another just because they want to “streamline” the workforce, or make it more efficient and competitive. In particular, “cost” alone cannot be used to justify age discrimination. The law does not allow employers to pay less to one age group than another just because there is not enough money to go around. Cost factors can sometimes contribute to an employer’s justification, but only if there are other good social policy justifications for the discriminatory treatment. 
 



Here are some examples of aims that have been accepted as valid social policy objectives capable of justifying direct age discrimination: 



• promoting “inter-generational fairness”, including providing access to employment for younger workers and sharing employment opportunities across the generations;



• promoting workforce diversity;



• mixing generations to foster exchanges of ideas and experience;



• rewarding experience and loyalty; 



• efficient workforce planning (departure and recruitment);



• helping workers to prepare for retirement;



• cushioning the financial blow for older employees who may find it harder to find new work if made redundant;



• avoiding disputes over the “capability” or fitness to work of older workers. (This aim has been challenged by national charity Age UK, on the basis that it reflects outmoded and stereotypical assumptions about older people at work); and



• legitimate health and safety concerns for the workforce and the wider public. 



Valid health and safety concerns can justify age discrimination but only if the employer’s approach is fair and balanced, given the type of work and the risks involved. Employers should not make generalised stereotypical judgments about fitness based on age where less discriminatory approaches are available. Even so, sometimes a general safety-based policy can be justified. In Fries v Lufthansa City Line GmbH [2017] IRLR 1003, the ECJ accepted that some physical capabilities inevitably decline with age. In that case, a blanket retirement age of 65 for commercial airline pilots, rather than a system of individual testing, was justified.



To avoid breaking the law, an employer’s justification of age discrimination must not be generalised or abstract. Instead, the employer must produce concrete, credible evidence, based on conditions at their own workplace. In reality, it is usually much better to tackle ageist policies and practices by taking a collective approach, through the union where one is recognised, while the policy is still being formulated, rather than through individual tribunal claims after the event. Only a tiny fraction of age discrimination claims ever reach the employment tribunal. It is worth challenging the employer to produce hard facts and figures when an age discriminatory policy is put forward. There is case law to show that a policy that impacts negatively on one age grouping is less likely to be judged unlawful if it is the product of proper consultation with the workforce through their union (HM Land Registry v Benson [2012] ICR 627).

Where the employer is the state (for example, a government department) tribunals allow the government some discretion in forming its social policy aims and in choosing the measures it uses to implement them. However, tribunals must still engage in close scrutiny to ensure that both aims and means are proportionate and are based on credible evidence. The tribunal will take into account the negative impact of the discriminatory policy on the disadvantaged group of workers. Union-backed challenges to age discrimination by government bodies can be a very effective way of forcing the government to think again. For a recent good example, see the successful challenge by firefighters to transitional pension provisions, supported by the FBU in the case of Secretary of State for the Home Department v Sargeant [2018] EWCA Civ 2844 summarised on page 249-251.