Who: Equality and Human Rights Commission
Where: London
When: March 2014
Law as stated at: 8 May 2014
What happened:
The Equality and Human Rights Commission has published a draft supplement to the Statutory Code of Practice on Services, Public Functions & Associations for the Equality Act 2010 (“Act”), covering age discrimination. The draft Code provides an explanation of the Act as it relates to age discrimination and gives examples of sales activities which could potentially breach age discrimination laws, as well as those that would fall within exemptions to age discrimination.
The ban on age discrimination
The ban on age discrimination in services, public functions and associations came into force on 1 October 2012. As a result, it is illegal for a service provider to treat a person less favourably than it treats another because of age, unless it can show objective justification (i.e. the service provider can show that the treatment is a proportionate means of achieving a legitimate aim).
The draft Code states that legitimate aims should be outcomes that are socially positive or in the public interest and provides a list of aims that are likely to be legitimate and not discriminatory, including enabling people of a particular age group to socialise together (e.g. at outings, events or concerts), to enjoy activities together (e.g. hiking or sports), or to enjoy peace and quiet or enable them to enjoy music at a high volume.
The ban on age discrimination and harassment related to age in relation to services and exercise of public functions only protects people aged 18 or above.
Age specific exceptions
The draft Code provides examples of services in respect of which the Act permits age discrimination in specified circumstances. These include:
• Concessionary services: A service provider will not be age discriminating if it gives a “concession” (a benefit, right or privilege) to people of a particular age. For example, a hairdresser could offer a reduced rate for pensioners on Tuesdays and a younger customer would not be able to complain about age discrimination for not being offered a similar reduced rate. However, this exception does not apply to a refusal of service, so if a customer who is not a pensioner asks for an appointment on a particular Tuesday when appointments are still available, and is refused, this refusal will amount to age discrimination, unless the treatment can be justified as being a proportionate means of achieving a legitimate aim.
The concessionary services exception also does not apply to harassment: while a bar wishing to attract young customers may lawfully offer under 25s their first drink free of charge and a table service, it cannot, in an aggressive and abusive manner ask older customers to leave. Such treatment is likely to amount to harassment related to age, which is unlawful.
• Financial services: It is not age discrimination for a service provider to do anything in connection with financial services, including banking, credit, insurance, pension, investment or payment services. Again, the provider cannot rely on this exception in defending claims of victimisation or harassment. It is therefore lawful, for example, for a bank to offer a “silver saver” account for customers aged 60. However, if another customer (wrongly) complains to the bank that the “silver saver” account amounts to age discrimination and, because of such complaint, the bank refuses to allow them to open an ordinary current account, this amounts to victimisation and would not be covered by the financial services exception.
• Package holidays: Age discrimination is permitted in relation to a decision, for example by a holiday company or a hotel, about whether or not to allow a person to enjoy a package holiday service. However, certain criteria must be met for the relevant holiday to be covered by this exception, including that the customer must pay a single price for at least two of travel, accommodation or access to activities forming significant part of the service, the holiday must be provided only to people in a certain age group, and an essential feature of the holiday must be to bring people of a particular age group together. Therefore, a tour operator who promotes weekend walks away exclusively for people over 55, but extends the holiday to a 21 year old daughter of one of the travellers in the tour group would not be able to rely on this exception if another customer at a later date is told his 30 year old son cannot join him.
Why this matters:
While the supplementary Code does not impose legal obligations, it can (once approved by Parliament) be used as evidence in legal proceedings brought under the Act, and courts and tribunals are also obliged to take it into account where relevant to any question arising under such proceedings. The guidance provided in the draft Code will therefore be of interest to those who provide services to the public to ensure they understand the responsibilities in respect of age discrimination under the Act. In particular, the examples given in the draft Code highlight how what would appear to be small differences in the behaviour of a service provider may lead to it being in breach of age discrimination legislation.
The draft supplementary Code is available here.
The consultation in relation to the draft sCode closed on 2 May 2014, and the final version of the supplementary Code of Practice will be published in due course.
