The appellant had failed in his claim for indirect age discrimination. Approaching retirement, he complained that new conditions allowing advancement to graduates only, discriminated against him since he could not complete a degree before retiring.
Held: The appeal succeeded, but the case was remitted to investigate whether the discrimination could be properly justified: ‘Part of the assessment of whether the criterion can be justified entails a comparison of the impact of that criterion upon the affected group as against the importance of the aim to the employer. That comparison was lacking, both in the ET and in the EAT.’
Lady Hale said: ‘The law of indirect discrimination is an attempt to level the playing field by subjecting to scrutiny requirements which look neutral on their face but in reality work to the comparative disadvantage of people with a particular protected characteristic. A requirement which works to the comparative disadvantage of a person approaching compulsory retirement age is indirectly discriminatory on grounds of age.’ and ‘It was important to establish the principles in a new area which many still find counter-intuitive. It is not long ago that it was taken for granted that age was a relevant criterion in deciding how long people should be allowed to go on working. Now that has to be justified. The same is true of apparently neutral criteria which have an adverse impact upon people of a particular age. But both the Age Regulations and the Equality Act recognise that difficult balances have to be struck between the competing interests of different age groups. We all have a lot of learning to do.’
The 2010 Act had a new basis for looking at indirect discrimination: ‘Previous formulations relied upon disparate impact – so that if there was a significant disparity in the proportion of men affected by a requirement who could comply with it and the proportion of women who could do so, then that constituted indirect discrimination. But . . the new formulation was not intended to make it more difficult to establish indirect discrimination: quite the reverse . . It was intended to do away with the need for statistical comparisons where no statistics might exist. It was intended to do away with the complexities involved in identifying those who could comply and those who could not and how great the disparity had to be. Now all that is needed is a particular disadvantage when compared with other people who do not share the characteristic in question. It was not intended to lead us to ignore the fact that certain protected characteristics are more likely to be associated with particular disadvantages.’
Lord Hope, Deputy President, Lady Hale, Lord Brown, Lord Mance, Lord Kerr
[2012] UKSC 15, UKSC 2010/0102, [2012] WLR(D) 122, [2012] IRLR 601, [2012] Eq LR 594, [2012] ICR 704, [2012] 3 All ER 1287
SC Summary, Bailii, Bailii Summary, SC, WLRD
Employment Equality (Age) Regulations 2006 3 7, Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation 1, Equality Act 2010
England and Wales
Citing:
Cited – Seldon v Clarkson Wright and Jakes SC 25-Apr-2012
The appellant claimed that the requirement imposed on him to retire from his law firm partnership on attaining 65 was an unlawful discrimination on the grounds of age.
Held: The matter was remitted to the Employment tribunal to see whether the . .
At EAT – West Yorkshire Police and others v Homer EAT 27-Oct-2008
EAT AGE DISCRIMINATION
The Tribunal found that the claimant had been discriminated on grounds of age. The employers introduced a requirement that to be graded at the top grade, and to receive the higher . .
Appeal from – Homer v Chief Constable of West Yorkshire Police CA 27-Apr-2010
The claimant alleged indirect age discrimination, in not having received a promotion to a post of legal adviser to the defendant. He did not have a law degree and did not want to undertake the study required which would have him acquiring the degree . .
Cited – London Underground Limited v Edwards (2) CA 21-May-1998
New rosters for underground train drivers were indirectly discriminatory because all the men could comply with them but not all the women could do so: it was a ‘striking fact’ that not a single man was disadvantaged despite the overwhelming . .
Cited – Bilka-Kaufhaus v Webers Von Hartz ECJ 13-May-1986
ECJ An occupational pension scheme which, although established in accordance with statutory provisions, is based on an agreement between the employer and employee representatives constitutes an integral part of . .
Cited – De Freitas v The Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing and others PC 30-Jun-1998
(Antigua and Barbuda) The applicant was employed as a civil servant. He joined a demonstration alleging corruption in a minister. It was alleged he had infringed his duties as a civil servant, and he replied that the constitution allowed him to . .
Cited – London Underground Limited v Edwards CA 21-May-1998
A new driver roster imposing shift working timetables discriminated against women since significantly less in proportion of women could meet the new arrangements – indirect discrimination . .
Cited – Hardys and Hansons Plc v Lax CA 7-Jul-2005
The issue of justification of discrimination is rarely a simple matter. No margin of appreciation was to be allowed to an employer. It is for the tribunal to make its own judgment as to whether the practice complained of by the employee was . .
Cited – Secretary of State for Defence v Elias CA 10-Oct-2006
The claimant said that a scheme drawn by the defendant for compensating British civilians interned by the Japanese during the second world war was indirectly discriminatory on racial grounds by requiring a national origin link with the UK. She had . .
Cited – Kucukdeveci v Swedex GmbH and Co KG ECJ 19-Jan-2010
ECJ Principle of non-discrimination on grounds of age – Directive 2000/78/EC – National legislation on dismissal not taking into account the period of employment completed before the employee reaches the age of . .
Cited – Hennigs v Eisenbahn-Bundesamt ECJ 8-Sep-2011
ECJ Directive 2000/78/EC – Articles 2(2) and 6(1) – Charter of Fundamental Rights of the European Union – Articles 21 and 28 – Collective agreement on pay for public sector contractual employees of a Member State . .
Cited by:
Cited – Seldon v Clarkson Wright and Jakes SC 25-Apr-2012
The appellant claimed that the requirement imposed on him to retire from his law firm partnership on attaining 65 was an unlawful discrimination on the grounds of age.
Held: The matter was remitted to the Employment tribunal to see whether the . .
Cited – South Lanarkshire Council v The Scottish Information Commissioner SC 29-Jul-2013
Commissioner’s Approach not in Breach
In May 2010, a Mr Irvine made requests under the 2002 Act for information from South Lanarkshire Council. He wanted to know how many of their employees in a particular post were placed at 10 particular points on the Council’s pay scales. His . .
Cited – Essop and Others v Home Office (UK Border Agency) SC 5-Apr-2017
The appellants alleged indirect race and belief discrimination in the conditions of their employment by the respondent. Essop came as lead claimant challenging the tests used for promotion. Statistics showed lower pass rates for BME candidates, but . .
Lists of cited by and citing cases may be incomplete.
Discrimination
Updated: 11 November 2021; Ref: scu.452986