The age of equality

After years of campaigning, the provisions within the Equality Act 2010 (“EA 2010”) which prohibit age discrimination in services and public functions finally came into force on 1 October 2012: Equality Act (Commencement No 9) Order 2012; Equality Act 2010 (Age Exceptions) Order 2012 (SI 2012/2466).

Age discrimination has been unlawful in employment since 2006, through the Employment Equality (Age) Regulations 2006 (now consolidated into the EA 2010). Now, protection against discriminatory treatment on the grounds of age has been extended into the provision of services, the carrying out of public functions and the practices of clubs and associations. This would include for example law firms, the health and social care sector, leisure facilities, government departments, shops and other businesses.

The new ban is one of the biggest changes to equality law made by EA 2010. The Equality & Human Rights Commission welcomed the decision to bring legislation on age discrimination further into line with discrimination on other grounds. It came after years of campaigning by, mainly, older people’s organisations, who argued that age was still the “Cinderella” equality strand.

Which areas are covered?

The prohibition on discrimination on the grounds of age in services is contained in ss 13, 19, 26, 27 and 29 of EA 2010. Protection is not extended to those under 18, which means that organisations can for example continue to operate “no children” hotels and holidays.

The new rules cover the provision of all services to the public, or a section of the public, whether in the private, public or voluntary sector. Service providers must not discriminate by refusing to provide a service, or providing one of inferior quality, because of a person’s age. It is irrelevant whether services are provided free of charge or in return for payment, for example by sports centres or hospitals and clinics.

The provisions also cover anyone who exercises any functions of a public nature, such as licensing or tax collection. This includes private organisations, for example those running prisons.

Associations (such as sports clubs, membership organisations or political parties) must not discriminate, harass or victimise their members, guests or associates or potential members. Part 7 of EA 2010, which deals with associations, extends the ban on discrimination to all age groups, including people under 18.

It is noteworthy that there is still no protection against age discrimination in relation to premises under part 4 of the Act.

Justifiable exceptions

Some age-based rules and practices are viewed by society as beneficial or justifiable, for example flu jabs for older people or discounts for club members because of their age or length of membership. The law allows for age discrimination to continue in relation to specific products and services or in certain circumstances.

The Equality Act 2010 (Age Exceptions) Order 2012 lists a range of specific exceptions relating to direct age discrimination. Most of these exceptions are inserted into EA2010 by way of new paragraphs in sched 3 to the Act, which also contains general exceptions applying to the provision of services and public functions.

The specific exceptions permit:

• use of age criteria in immigration control – para 15A;
• age criteria in financial services – para 20A, and see below;
• general age-based concessions (such as 10% off goods in DIY stores for those over 65) – para 30A;
• age-related holidays (such as Saga and Club 18-30) – para 30B;
• age “challenges” by shops selling age-related goods (such are fireworks and cigarettes) and seeking proof of age – para 30C;
• minimum age limits for occupants of residential park homes – para 30D.

In addition, new para 1A in sched 16 allows age-based concessions in private clubs or associations. There is also an exception which allows competitive age-banded activities, sports and games (new s 195(7), EA 2010).

It should be noted that the basic assumption under the Act is that age discrimination is unlawful unless any exception applies, and that any exception to the prohibition of discrimination should generally be interpreted restrictively (see also Services, public functions and associations: Statutory Code of Practice, para 13.2).

There is no exception for health and social care, although certain age-based policies and practices are likely to be objectively justified, for example the earlier mentioned flu jabs.

Financial services

Those providing financial services are exempt from the ban on age discrimination – except where an assessment of risk relating to age is carried out. In this case, the assessment must be done by reference to “relevant” information “from a source on which it is reasonable to rely”.

There is concern that the breadth of the exception will make it difficult to challenge various types of age discriminatory treatment – for example, a bank refusing to serve an older customer unless they are accompanied by a younger relative, or refusing a credit card application for someone over a certain age.

However, service providers may still be able to defend allegations of age discrimination falling outside the list of exceptions provided they can show that the rule or practice in question qualifies as positive action or that it can be objectively justified.

Positive action

This is when action is being taken to prevent or compensate for disadvantages experienced by particular age groups, when the age group has different needs from other age groups or when it is aimed at targeting an identified underrepresentation. Such age-related positive action is allowed, although needs to be objectively justified if challenged. An example might be dedicated “silver surfer” sessions offered by libraries to older people to help them gain confidence in using the internet.

Objective justification

Unlike other protected characteristics, direct discrimination because of age can be objectively justified if it is “a proportionate means of achieving a legitimate aim” (s 13(2) EA 2010). An example of potential direct discrimination could include a local authority refusing to allow someone to become an adoptive parent because they are considered too old. The question of whether an age-based rule or practice can be objectively justified can be approached in two stages:

• Does the aim of the rule or practice represent a real need, which in itself is not discriminatory?
• If the aim is legitimate, are the means of achieving it proportionate – that is, appropriate and necessary in all the circumstances?

Indirect age discrimination can also be objectively justified in some situations, using the same two-stage test. It may occur when an apparently neutral provision or practice puts people sharing an age group at a particular disadvantage. An example would be a local authority requiring all applications for housing benefits to be done online. Such a policy may apply equally to all service users, but could be indirectly discriminating against older people, as they are less likely to have internet access and are therefore likely to be put at a particular disadvantage by the policy.

Harassment and victimisation on grounds of age, however, are prohibited in all circumstances.

Attitude change

It is hoped that the new ban will over time lead to a change in the treatment of older people, as organisations will now have to take steps to tackle unjustifiable age-based practices; but also challenge deep seated, often negative, stereotypical assumptions towards older people.

As with any new legislation, it will be important for the courts to clarify the application of the new age discrimination ban. The Commission is monitoring how the new law is taking effect, and can use its legal enforcement powers to intervene in or support cases that test and clarify the law in this area.