I was looking back over past notes recently (I do really need to get out more!) when I came across a talk that I had delivered around the time that the Age Discrimination Regulations were introduced. Within that talk I discussed the fact that unlike the other forms of discrimination direct age discrimination could be objectively justified. I noted that this had been very unpopular due to concerns that it could enable employers to avoid liability for age discriminatory acts. It was hoped at the time that “objective justification” would be interpreted strictly.
Over three years on, it would seem that both our domestic courts and the European Court of Justice will, in fact, readily find objective justification thus enabling an employer to defend age discriminatory behaviour.
In MacCulloch v ICI Plc and Loxley v BAE Systems Limited the EAT held that the two contractual redundancy schemes did discriminate on the grounds of age, but that the discrimination could be objectively justified. In MacCulloch the EAT endorsed the tribunal’s view that rewarding loyalty and encouraging turnover of staff were capable of being legitimate aims that might be furthered by increased payments to older workers.
In Loxley the EAT accepted that excluding an employee from a redundancy scheme because he was entitled to benefits under the pension scheme, could also, potentially, be objectively justified.
In Pulham & Others v London Borough of Barking and Dagenham the EAT held that unlike in the case of sex discrimination and equal pay, age discrimination pay protection arrangements are always potentially justifiable.
In Europe the ECJ have upheld the German Government’s policy of barring anyone over the age of 30 from applying for the fire service (Wolf v Stadt Frankfurt am Main) The ECJ accepted that older people would be less likely to be physically capable of fighting fires.
The ECJ has also upheld the German Government’s age limit of 68 applied to dentists practicing in the national health service on the grounds that it enabled younger dentists to move into that sector (Petersen v Berfungasusschuss für Zahnärzte für den Beezirk Westfalen-Lippe).
It would seem that it is in fact fairly easy for an employer to provide a reason why discrimination should not be deemed unlawful. Whilst this does sometimes benefit employees, my concern is that what it in fact suggests is that age discrimination is perhaps not perceived to be as serious as other types of discrimination. The explanation for that could be that it is the only type of discrimination likely to affect us all at one stage or another.
I think that most people would also agree that there is nothing objectionable in principle about older, long-serving employees receiving a better deal in a redundancy situation.
The danger however, especially in the light of the two above ECJ cases, is that objective justification enables preconceived ideas about older people to perpetuate. Why should it be assumed that all older people (and I am talking anyone over 30) is not fit enough to be a fire fighter? Surely a non-discriminatory fitness test could resolve the issue. Why should older individuals be forced out of a job to allow a younger person to step in? How does that tally with our ageing population? The issue, I guess, is as always a question of balance. But at the moment it seems to me that the balance is not being successfully struck.
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