AGE DISCRIMINATION
1. The Employment Tribunal did not err in law in its construction of section 61 of the Equality Act 2010 or its impact on the availability of the defence provided by paragraph 1(1) of Schedule 22 of that Act.
2. Section 61 prohibits the Appellants from acting in a manner which discriminates on the grounds of age and it prioritises that obligation over other provisions in the pension scheme which would oblige them to act in that way. In this way it gives effect to the UK Government’s obligations under EU Directive 2000/78. The defence provided by paragraph 1(1) of Schedule 22 of the Equality Act 2010 is not available to the Appellants.
3. Upon the proper construction of section 62 of the Equality Act 2010 the appellants have vested in them the power to pass a resolution making non-discrimination alterations to the scheme of which they are managers in respect of those members who were last employed by them. In that respect, also, they were not obliged by a statutory requirement to discriminate against the Claimants on the grounds of age and so, by that route too, are unable to avail themselves of the statutory defence provided by paragraph 1(1) of Schedule 22.
4. The provision of a cause of action against a third party for inducing an employer to breach the principles underlying the EU Directive falls a long way short of compliance with Article 16 of the Directive: to take necessary measures to ensure that any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished. Community law requires that the discriminatory provisions of the 2015 Scheme Regulations are to be overridden, set aside, disapplied, or amended with the consequence that the appellants are not required by an enactment to contravene the Equality Act by applying them. In that way too, if necessary, the statutory defence is unavailable to the Appellants.
Citations:
[2021] UKEAT – 0137 – 1202
Links:
Jurisdiction:
England and Wales
Employment, Discrimination
Updated: 27 November 2022; Ref: scu.661697
