From 1 October, the government will bring into force the provisions within the Equality Act 2010 (EA 2010) which prohibit age discrimination in the field of goods and services by virtue of the Equality Act 2010 (Commencement No 9) Order 2012. This means that commercial, charitable and public sector organisations will be required to eliminate unequal treatment on the grounds of age in respect of the provision of goods and services.
However, there are a myriad of exceptions contained in both the EA 2010 and the draft statutory instrument entitled the Equality Act 2010 (Age Exceptions) Order 2012 (Age Exceptions Order) which is expected to be laid before parliament shortly. These were formulated following a detailed consultation exercise carried out in 2011 but in our view they introduce uncertainty in various areas which will inevitably lead to litigation.
The Government Equalities Office published guidance on 3 August to help organisations understand the implications of the change to the existing law. Links to the new guidance will be found at the end of this article. This change in the law is an interesting development because the ban on age discrimination does not have the same European context as other forms of discrimination. There is no directive currently prohibiting age discrimination in the field of goods and services. It is however a well-established and fundamental principle of community law that there should be equality of treatment. This is further enshrined within article 19 of the Treaty of the Functioning of the European Union (TFEU) in the context of age.
This gives rise to a number of challenging but extremely important questions: should the prohibition on age discrimination in goods and services in the EA 2010 be construed in the light of the ‘European’ approach towards discrimination law? Does the approach in cases such as Seldon v Clarkson, Wright and Jakes, which relied heavily on the Equality Directive (2000/78), have any application in goods and services cases? Does the debate concerning ‘costs plus’ and the test of objective justification, which has arisen in the context of EU derived rights, have any relevance in this context?
We hope to be able to provide lawyers with an accessible introduction to the forthcoming ban on age discrimination in goods and services. At the same time, we will highlight those areas where there is likely to be litigation and the questions with which the courts will be required to grapple over the coming years.
The principle of non-discrimination on the grounds of age in the context of service providers is contained in sections 13, 19, 26, 27 and 29 of the EA 2010. Only those over 18 are afforded protection. As explained by the guidance, this means that organisations can continue to operate ‘no children’ hotels and holidays. However, service providers should proceed with some caution because treating under-18s more favourably might lead to litigation by older age groups.
Service-providers are defined as persons concerned with the provision of services, goods or facilities to the public or a section of the public, regardless of whether or not a payment is provided and regardless of whether or not the relevant persons are exercising a public function. It follows that a wide range of activities will fall within the scope of section 29 from the provision of medical treatment by the NHS to the sale of finance products by private banks.
In broad terms, the EA 2010 prohibits service-providers from:
- Direct or indirect discrimination against a person because of age by withholding a service or in respect of the terms on which a service is provided, the termination of the service or subjecting that person to any other detriment;
- Harassing a person because of age who requires the service or uses the service; and
- Victimising a person because of age by withholding the service or in respect of the terms on which a service is provided, the termination of the service or subjecting that person to any other detriment.
The scope of indirect age discrimination in the context of age discrimination is not altogether obvious. However, the new guidance offers a useful example, suggesting that indirect age discrimination would arise where an optician restricts eligibility to payment by instalments to those in work, thereby placing pensioners at a disadvantage.
A further common scenario will be the provision of special deals or discounts to students. As they are more likely to belong to a younger age group, this might well give rise to potential claims of indirect age discrimination by older groups. The EA 2010 also renders it unlawful to provide a service either in a different way or in an inferior way because of a person’s age. An example provided by the new guidance is where a salesperson in a computer store serves an older customer less courteously by making jokes or perhaps offensive comments on the assumption that the customer is less knowledgeable about technology because of his or her age.
Importantly, where an employer organises for a third party to provide a service only to the employer’s employees, the third party will be a ‘service provider’ and the employees will be classed as a ‘section of the public’ so as to engage section 29 of the EA 2010. The employer would not be classed as a service provider, but any discriminatory activities might fall under part 5 of the EA 2010, which governs the employment relationship. One common scenario caught within this section would be the provision of IT services or occupational health services by an external organisation.
A private club or association would not fall under section 29 of the EA 2010, but sections 100-102 and section 107 of the EA 2010 contain similar provisions in respect of access, membership, termination and guests in cases where the association has at least 25 members. There is a long list of exceptions to section 29 of the EA 2010, both in the act itself and the Age Exceptions Order. The areas likely to be most relevant to employment and discrimination lawyers are financial products, concessions, holidays, age verification, sports, charities, schools and positive action.
However, service providers will still be able to defend allegations of age discrimination falling outside of this list of exceptions provided that they can justify the discriminatory treatment pursuant to sections 13 and 19 of the EA 2012. However, as we shall explore later, the scope of this defence is presently unclear.
The Equality Directive (2000/78) which prohibits age discrimination applies in an employment context only. There is at present no directive regulating age discrimination for the provision of goods and services, although the Gender Directive (2004/11) specifically prohibits sex discrimination in that context. In July 2008, the European Community adopted a proposal for a directive which provides for protection from discrimination on grounds of age, disability, sexual orientation and religion or belief beyond the workplace, and consultation continues. Given that the proposal is four years old, progress has hardly been speedy. There remains a perception (voiced by the Equality and Human Rights Commission in its reply to the consultation) that there is a two-tier hierarchy for EU discrimination – race and sex on the top and the other forms below.
In the absence of a directive, which would require the UK courts to interpret the EA 2010 consistently with European law, the question remains open as to the proper approach to be taken by the UK courts in interpreting the new legislation.
Our view is that the law will be developed along one of the following lines:
- A black letter, literal interpretation without any recourse to European law on the basis that the ban on age discrimination in goods and services is entirely home grown. This approach has been adopted by the UK courts with the 2006 TUPE regulations and the home-grown concept of the ‘service provision change’ where the courts adopted a ‘straightforward and commonsense application of the relevant statutory words to the individual circumstances before them’.
- A ‘European’ interpretation applying the controversial fundamental principle of equality identified in Mangold, and also enshrined in article 13 of the TFEU. To complicate matters further, the use of this form of interpretation may differ dependent upon whether a claim is against an emanation of the state or a private organisation or individual.
- A harmonised interpretation of the discrimination provisions as applied by the Court of Appeal in Manchester NHS v Fecitt where, in reference to whistleblowing anti-victimisation provisions (which did not enact a directive), Elias LJ said: ‘However, the reasoning which has informed the European Union analysis is that unlawful discriminatory considerations should not be tolerated and ought not to have any influence on an employer's decisions. In my judgment, that principle is equally applicable where the objective is to protect whistleblowers, particularly given the public interest in ensuring that they are not discouraged from coming forward to highlight potential wrongdoing.’ This would have the practical effect that courts would construe sections 13 and 19 in the context of goods and services in exactly the same way as they would when addressing European derived rights such as the principle of non-discrimination in the employment field.
- Finally, there is the possibility that the courts will take account of the fact that parliament has enacted the ban on age discrimination in goods and services using the same language for the same ban in the employment field and therefore will apply parity of interpretation on the basis that parliament must have intended there to be consistency.
We are unaware of any prospective or actual attacks on the Exemption Age Orders by way of judicial review based upon incompatibility with European law, but it is not impossible that such a challenge could be brought by aggrieved individuals or pressure groups relying on the fundamental community law principle of equality and its corollary that any differences in treatment should be objectively justified. We will explore the exceptions in greater detail later, but it is arguable that some of the exceptions are not justifiable derogations from the fundamental principle of equality enshrined within European law, as there is no obvious rationale for departing from the principle of equality in those circumstances.
Finally, we should also add that there is possible scope for a ‘European’ interpretation where goods and services are provided in an employment or quasi-employment context because it is arguable that the Equality Directive (2000/78) will be engaged.
General defence of justification
Apart from the specific exemptions from the principle of non-discrimination because of age, it will always be possible to defend direct and indirect age discrimination pursuant to sections 13 and 19 of the EA 2010 in context of goods and services by showing that the service provider’s action was a ‘proportionate means’ of achieving a ‘legitimate aim’.
The guidance provides the following examples of possible legitimate aims: enabling particular social groups to socialise together, to enjoy activities together or to enjoy peace and quiet. The Supreme Court in Seldon (direct age discrimination) and Homer v Chief Constable of Yorkshire (indirect age discrimination) recently addressed the proper interpretation of broadly identical provisions to sections 13 and 19 of the EA 2010 under the old Age Regulations 2006. However, both of these cases fell within the scope of the Equality Directive (2000/78). As explored above, it is at present unclear whether the UK courts will construe the EA 2010 in light of the European case law which has developed around this directive or whether they will adopt a literal, black-letter approach.
In the event that the courts adopt the European approach, then notwithstanding the apparently straightforward language of section 13 EA 2010, Seldon establishes that there is a high burden on defendant organisations to justify direct age discrimination. In broad terms, the burden of proof would be on the defendant to provide positive answers to each of the following questions:
- Can the defendant identify a legitimate aim which existed at the time of the less favourable treatment?
- Is the aim in fact legitimate in the context of the defendant’s business or activities?
- Is the measure adopted by the defendant to pursue its legitimate aim appropriate in the context of its business or activities?
- Is the measure adopted by the defendant to pursue its legitimate aim necessary in the context of its business or activities?
Conversely, should the courts take a more conservative approach, focusing upon the strict language of sections 13 and 19 of the EA 2010, we anticipate that defendants will find it easier to justify discrimination treatment, given that, historically, Europe has taken a much more rigorous approach towards discrimination than the UK. There is a great deal of judicial confusion over the degree to which ‘costs plus’ is necessary and what constitutes the ‘plus’. Authorities such as Cross v British Airways and Woodcock v Cumbria PCT suggest that ‘cost’ alone cannot be a legitimate aim, instead defendants must be able to identify an element additional to cost.
In Cross, Burton J isolated two separate strands of European authorities. In the first, a state with a ‘notionally bottomless purse’ cannot justify a discriminatory social policy on the basis of cost. See Roks as approved in paragraph 60 of Kutz-Bauer and paragraph 67 of Steinicke and paragraph 85 of Schonheit. The other strand is where an employer seeks to justify discrimination against his employees. In Hill and Stapleton v Revenue Commissioners the European Court of Justice said that an employer could not rely ‘solely on the ground that avoidance of such discrimination would involve increased costs’. However, the costs-plus rule has been doubted by Underhill J in Land Registry v Benson, although in O’Brien v MOJ the ECJ suggested that budgetary considerations could not justify discrimination. It is unclear how, or even whether those tests would apply in a non-employment context concerning provision of goods and services as these debates are premised on European concepts of objective justification which, as we have explored, may not be relevant when construing the EA 2010 in the context of goods and services.
During the 2011 consultation process, there was a detailed debate concerning the provision of healthcare and whether exemptions should permit organisations such as the NHS to discriminate because of age, but the government decided not to carve out an exception for healthcare providers. As a result, any decisions taken because of age or which place specific age groups at a particular disadvantage will have to be justified under sections 13 or 19 of the EA 2010.
We consider that this is one area where there will be significant litigation. As the government acknowledged during the consultation process, evidence suggests that elderly patients can receive poor treatment. Moreover, in an age of austerity, difficult funding decisions will inevitably need to be made which may impact directly or indirectly on older patients. The NHS has already taken preliminary steps aimed at avoiding discrimination claims; for example, the NHS Commissions Board (NHSCB) Authority published an Equality Analysis at the beginning of 2012. However, we still anticipate that this will be an area which will prompt claims under the EA 2010.
The principle of non-discrimination because of age does not apply to (i) the provision of insurance or (ii) a related financial service or (iii) a service relating to membership of or (iv) benefits under a personal pension scheme if the provision is in furtherance of arrangements made by an employer for the service-provider to provide the service to the employer’s employees and other persons as a consequence of employment.
Similarly, it will not apply to the insurance business in relation to existing insurance policies as of 1 October. More radically, it will not apply to the provision of financial services which includes a service of a banking, credit, insurance, personal pensions, investment or payment nature. This proved to be one of the major grounds of contention in the consultation process. However, a risk assessment based on the age of (potential) customer will only be exempted from the EA 2010 in so far as it is carried out by reference to information which is both ‘relevant’ to the assessment of the risk and from a source which would be ‘reasonable’ to rely on.
Frustratingly, the new guidance provides no additional detail as to the meaning of either ‘relevant’ or ‘reasonable’. Because of the fluid nature of these concepts, we anticipate that there will be a significant amount of litigation in this sector. Organisations providing these types of services will be well advised to review their operations in this area to ensure that their information is properly sourced and substantiated.
No doubt in order to appease organisations concerned that financial service providers would be broadly exempt from the principle of non-discrimination on the grounds of age, the government has lent its support to voluntary industry-operated schemes which aim to introduce transparency in this area.
The principle of non-discrimination because of age does not apply to the provision of concessions to specific age groups. This is defined as ‘a benefit, right or privilege’ which means that the service or the terms of the service are offered in a way which is more favourable than that ordinarily offered to the public or a section of the public. The new guidance clarifies that this exception will apply to any sort of discount, special arrangement or offer. For example, it specifically notes that practices such as offering cheaper access to pensioners to museums or theatres will be lawful by virtue of this provision.
The principle of non-discrimination because of age does not apply to package holidays which last for at least 24 hours or includes the provision on overnight accommodation. However, this is subject to the stipulations that the provider only offers holidays to a certain age group and that an ‘essential feature’ of the holiday is the bringing together of persons of that age group ‘with a view to facilitating their enjoyment of facilities or services designated with particular regard to persons of that age group’. Moreover, to qualify for the exemption, a written statement must be produced stating that the holiday is only available to a particular age group.
This exemption is much narrower than that originally anticipated in the draft Age Exception Order used during the consultation process. In particular, the requirement that the holiday must be ‘with a view to facilitating their enjoyment of facilities or services designated with particular regard to persons of that age group’ is new. It is not entirely clear what this will mean in practice and the guidance provides no additional details. To fall within this provision, does the service provider simply need to demonstrate that it created the package holiday with ‘particular regard’ to a certain age group?
Or does it need to go one step further and show that objectively speaking the facilities and services are suitable or appeal to a certain age group? Will a package holiday specialising in white-water rafting for the over 60s fall outside of the exemption because that type of activity is not typically associated with the over 60s? There are questions which are bound to be litigated in the coming years.
Bizarrely, the guidance does suggest that a holiday provider can take advantage of this exception even if its age-specific holidays are actually provided to people outside the target audience. However, we consider that if holiday providers were routinely to allow access to their holidays outside the target age range, they will inevitable have difficulties demonstrating that they fell within the exception in the first place.
Lastly, it is important to note that holiday providers who do not fall within the narrow exception can still discriminate on the grounds of age provided that they can show an objective justification for their policy. The scope of this general defence is considered in greater detail below.
The principle of non-discrimination because of age does not apply to age challenges where a customer appears to be younger than the particular age to whom the service can legally be provided. An obvious example is the sale of alcohol or tobacco. However, the retailer must clearly display that they will ask for proof of age in these circumstances.
The principle of non-discrimination because of age does not apply to certain sports, specifically, sports classed as ‘an age-banded activity’. This is defined as ‘a sport, game or other activity of a competitive nature in circumstances in which the physical strength, stamina, physique, mobility, maturity or manual dexterity of average persons of a particular age group would put them at a disadvantage compared to average persons of another age group as competitors in events involving the activity’. We take the view that this definition is so broad as to apply to almost any sport.
Service providers will be able to do ‘anything in relation to participation of another competitor’ if it is necessary to secure fair competition, safety or competitors or to comply with the rules of a national or international competition. Again, this category of safe activities is so broad that it seems service providers would have little difficulty falling within this exception. However, we anticipate that there will be litigation where the rules of a national or international competition are discriminatory and cannot be objectively justified in their own right.
The principle of non-discrimination because of age does not apply to the provision of benefits to persons of a particular age or age group by a charity provided that the purpose is to prevent or compensate for a disadvantage linked to age. We anticipate that the courts will take a generous approach towards construing this exception so as to ensure that charities will be able to operate without fear of litigation.
The principle of non-discrimination because of age does not apply to the curriculum, admission, transportation to and from a school or the establishment, alteration or closure of a school. As section 29 of the EA 2010 does not protect persons under 18, it is difficult to imagine that this exception will be particularly significant.
Positive action which has the effect of treating people differently on the grounds of age is acceptable provided that it can be objectively justified in circumstances where the service provider has identified that a particular age group is disadvantaged, that the age group has different needs from other age groups or that there is underrepresentation of that age group. The guidance indicates that positive action in the form of ‘silver surfer’ sessions at libraries, designed to encourage older people to use the internet, might well be capable of objective justification.
The government was keen to stress that ‘the vast majority of businesses and organisations will be able to continue to operate as usual and certain areas will be exempt from the ban altogether’. In our view, this is probably correct. However, there are a number of industries where there is likely to be a significant amount of litigation and that litigation will be particularly complex and time consuming because of the lack of clarity concerning the way in which sections 13 and 19 should be construed in the context of goods and services.
In particular, we predict that the financial services industry will be subject to close scrutiny, especially as the government has so far failed to provide an adequately precise definition of the circumstances in which age discrimination will be permissible. We also anticipate that the provision of healthcare will be another area where there will be a significant amount of litigation around the defence of general justification to age discrimination. It was recognised during the consultation process that there were concerns over the provision of healthcare for older groups. Should these problems continue, litigation is bound to follow.
Daphne Romney QC and Dee Masters, Cloisters