IER Equality and Discrimination Conference Justifying Direct Age Discrimination January 2013

Introduction Repeal of DRA since October 2011 Compulsory retirement of a worker on reaching a certain age is directly discriminatory because of age What does this mean for unions who have a compulsory retirement age in collective agreements? What about those who want to work beyond a compulsory retirement age? Can length of service, as a criterion for determining entitlement to enhanced benefits, still apply?

Justifying Age Discrimination S.13(2) Equality Act If the protected characteristic is age, A does Not discriminate against B if A can show A’s treatment of B to be a proportionate means of achieving a legitimate aim

Legitimate Aim (1) Seldon v Clarkson Wright and Jakes [2012] ICR 716 Need to retain associates by giving them the opportunity of partnership; Enable workforce planning by knowing when vacancies will arise; Limit the need to expel partners on performance grounds.

Legitimate Aim (2) Intergenerational fairness; Preserving dignity Facilitating access to employment by young people; Enabling older people to remain in employment; Sharing limited opportunities to work in a particular profession between the generations; and Promoting diversity and the interchange of ideas between younger and older workers. Avoiding the: Need to discriminate older workers because of their performance; Need for costly debates about capacity or worker performance.

Legitimate Aim (3) Costs: –In Woodcock v Cumbria Primary Care NHS Trust CA costs plus –Fuchs v Land Hessen C – budgetary considerations of a social policy Health and Safety –Prigge and others v Deutsche Lufthansa [2011] IRLR 1052

Is the aim legitimate in the circumstances? Does it encourage recruitment of younger workers? Are there performance procedures in place? Hampton v Lord Chancellor [2008] IRLR 258

Proportionality Are the means to achieving the legitimate aim appropriate and necessary? Involves balancing the reasonable business needs of the employer (e.g. economic or administrative efficiency) against the discriminatory impact. The more discriminatory the impact the greater the business need will have to be in order to be able to justify it.

Some EU Examples Rosenbladt v Oellerking Gebaudereinigingsges mBh [2011] IRLR 51 –Contract collectively negotiated –Employee will receive a pension –Compulsory retirement widespread without effects on level of employment Fuchs and Köhley v Land Hessen [2011] EqLR 990

Action Points for Unions 1.Revisit collective agreements; 2.Review retirement age; 3.Consider alternative retirement age(s); 4.Check if there is support amongst the workforce.

Working beyond Retirement Age? Alternatives Cambridge University Georgiev v Tehnicheski universitet-sofia, filial Plovdiv [2011] EqLR 84

Length of Service EqA 2010 Sch 9 part 2 para 10 (1)It is not an age contravention for a person (A) to put a person (B) at a disadvantage when compared with another (C) in relation to the provision of a benefit, facility or service in so far as the disadvantage is because B has a shorter period of service than C” (2)If B’s period of service exceeds 5 years, A may rely on sub paragraph (1) only if A reasonably believes that doing so fulfils a business need

Conclusion Check Collective agreements Financial cushion Evidence in support