Age Discrimination

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Age discrimination
Updating author: Tina McKevitt
Summary
Age is a "protected characteristic" under the Equality Act 2010. (See Definition of age)
As well as being liable for its own actions, there are circumstances in which an employer will be
liable for the acts of others. (See Who is liable?)
The Equality Act 2010 prohibits direct discrimination, indirect discrimination, victimisation and
harassment. (See Prohibited conduct)
Direct discrimination is where, because of the protected characteristic of age, a person treats
another person less favourably than that person treats or would treat other persons. (See Direct
discrimination)
Indirect discrimination occurs where a "provision, criterion or practice" puts one age group at a
"particular disadvantage". (See Indirect discrimination)
Under the Equality Act 2010, it is possible for employers to justify both direct and indirect
discrimination. (See Justification)
Harassment is unwanted conduct related to an individual's age that has the purpose or effect of
violating his or her dignity or creating an intimidating, hostile, degrading, humiliating or offensive
environment for that individual. (See Harassment)
Victimisation occurs when a person is subjected to a detriment because he or she did a
protected act. (See Victimisation)
Employers that compulsorily retire employees, or attempt to pressurise employees to retire, are
at risk of direct age discrimination and unfair dismissal claims. (See Retirement)
There are some exceptions from unlawful age discrimination. (See Service-related benefits,
National minimum wage, Redundancy payments, Service-related benefits, Insurance and
financial services and Other exceptions)
Future developments
There are no future developments.
Definition of age
Age is a protected characteristic under the Equality Act 2010. Section 5 of the Equality Act 2010
provides that, in relation to the protected characteristic of age:
a reference to a person who has a particular protected characteristic is a reference to a person
of a particular age group; and
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a reference to persons who share a protected characteristic is a reference to persons of the

same age group.
An age group means "a group of persons defined by reference to age, whether by reference to a
particular age or to a range of ages".
The effect is that, when people fall into the same age group (whether that means people of the same
age or people of a particular range of ages), they share the protected characteristic of age.
The Equality Act 2010 explanatory notes state at para.37:
An age group would include over-50s or 21-year-olds.
A person aged 21 does not share the same characteristic of age with people in their 40s.
However, a person aged under 21 and people in their 40s can share the characteristic of being
in the under-50 range.
Who is protected?
The Equality Act 2010 provides protection against direct and indirect discrimination, harassment and
victimisation in the fields of employment and vocational training to:
actual and prospective employees;
ex-employees;
apprentices;
some self-employed workers;
contract workers;
actual and prospective partners in a partnership or a limited liability partnership; and
people seeking or undertaking vocational training.
Job applicants are prospective employees and, therefore, protected under the Equality Act 2010.
However, in Kratzer v R+V Allgemeine Versicherung AG [2016] IRLR 888 ECJ, the European Court
of Justice held that a person who applies for a job with the sole purpose of making an application for
compensation for discrimination is not covered by the Equal Treatment Framework Directive
(2000/78/EC) or the Equal Opportunities and Equal Treatment Directive (2006/54/EC). Such a person
may be considered as having committed an abuse of rights under EU law. Following Kratzer,
vexatious discrimination claims will be unsuccessful where the candidate is unable to demonstrate a
genuine interest in the position. However, employers will need to consider carefully each recruitment
decision, given the potential difficulty in identifying which claims are vexatious.
In Uber BV and others v Aslam and others [2019] IRLR 257 CA, the Court of Appeal held that Uber
taxi drivers are "workers" within the meaning of s.230 of the Employment Rights Act 1996 and, as
such, are entitled to statutory rights arising from that status. Since the definition of employment in
s.83 of the Equality Act 2010 includes, in effect, a wider definition of "worker" than that contained in
s.230 of the Employment Rights Act 1996, the drivers would also be covered by discrimination
legislation.
It is assumed that a voluntary worker who has a contract to carry out work personally will be
protected under the Equality Act 2010. However, in X v Mid Sussex Citizens Advice Bureau and
another [2013] IRLR 146 SC, a disability discrimination case, the Supreme Court held that a voluntary
worker without a legally binding contract who, accordingly, was not an employee under the now
repealed Disability Discrimination Act 1995 was not protected by the Equal Treatment Framework
Directive (2000/78/EC) because it is clear that the Directive does not cover voluntary activity. The
Supreme Court went on to state that a reference to the European Court of Justice was not justified. In
Breakell v Shropshire Army Cadet Force EAT/0372/10, the Employment Appeal Tribunal (EAT)
confirmed that a paid volunteer is not an employee within the meaning of s.68(1) of the repealed
Disability Discrimination Act 1995 where there is no mutuality of obligation between the parties.
In EAD Solicitors LLP and others v Abrams [2015] IRLR 978 EAT, the sole director and principal
shareholder of a limited company brought a complaint of age discrimination in the name of the
company through which he was providing his services (as well as in his own name). The EAT held
that a limited company can bring a claim of direct discrimination under the Equality Act 2010.
Although a limited company does not itself have the protected characteristics identified in the Equality
Act 2010, the EAT held that it could bring a claim of direct discrimination on the ground that it suffered
detrimental treatment because of its association with someone having a protected characteristic.
There are special provisions in the Act dealing with office-holders, the police, barristers and
advocates, trade organisations, qualifications bodies and employment-service providers. The Act's
employment provisions also apply to members of the armed forces.
Additional resources on who is protected?
FAQs
Can someone who is turned down for an internship bring a discrimination claim?
Recipients or (intended) victims of instructions to discriminate

Section 111 of the Equality Act 2010 prohibits a person from instructing, causing or inducing another
person to discriminate, harass or victimise a third person. The Equality Act 2010 explanatory notes
state at para.364 that s.111 provides a remedy "for both the recipient of the instruction and the
intended victim, whether or not the instruction is carried out, provided the recipient or intended victim
suffers detriment as a result". While the express power allowing the intended victim to bring
proceedings is new, the express power allowing the recipient of such instructions to bring
proceedings is intended to codify the position established in Weathersfield Ltd t/a Van & Truck
Rentals v Sargent [1999] IRLR 94 CA (a case decided under the repealed Race Relations Act 1976).
Mrs Sargent resigned from her job as a receptionist with a car-hire firm when she was instructed to
tell black or Asian callers that there were no cars available for them to hire. The Court of Appeal
upheld her claim of race discrimination, stating that she had been less favourably treated than a
person willing to carry out the discriminatory policy and that she had been put in an intolerable
position as a result.
Discrimination, harassment and victimisation because of age by trustees and managers of
occupational pension schemes are also prohibited by s.61 of the Equality Act 2010.
Employees and workers

"Employment" is defined under s.83(2) of the Equality Act 2010 as meaning: employment under a
contract of employment or of apprenticeship or a contract personally to do any work; or employment
as a Crown employee or as a "relevant member" of the House of Commons or House of Lords staff.
This is an extended definition compared to the one that is used in s.230(3)(b) of the Employment
Rights Act 1996 and other employment legislation.
In Windle and another v Secretary of State for Justice [2016] IRLR 628 CA, the Court of Appeal
considered the definition of employees "in the extended sense" under s.83(2)(a) of the Equality Act
2010, that is those who are engaged on a contract "personally to do work". The case concerned
professional interpreters who undertook work for Her Majesty's Courts and Tribunals Service
(HMCTS) on a case-by-case basis, whereby "HMCTS was under no obligation to offer them work; nor
were they under any obligation to accept it when offered". The Court of Appeal restored the
employment tribunal decision that the interpreters were not employees within the meaning of the
Equality Act 2010. The Court of Appeal held that the absence of mutuality of obligation between the
parties outside the period during which work is being done may "influence, or shed light on, the
character of the relationship within it". The Court of Appeal concluded that "the fact that a person
supplying services is only doing so on an assignment-by-assignment basis may tend to indicate a
degree of independence, or lack of subordination, in the relationship while at work which is
incompatible with employee status even in the extended sense".
In Pimlico Plumbers Ltd and another v Smith [2018] UKSC 29 SC, the Supreme Court noted that,
while s.83(2) of the Equality Act 2010 defines "employment" in terms different from those descriptive
of the concept of a "worker" under s.230(3)(b) of the Employment Rights Act 1996 (see Contracts of
employment > Determining employment status > Workers) and other employment legislation, "this
distinction has been held to be one without a difference" and the meaning is essentially the same. In
Pimlico, the Supreme Court upheld the employment tribunal decision that a "sub-contracted" plumber
was a worker within the meaning of s.230(3)(b) of the 1996 Act and s.83(2)(a) of the 2010 Act
because the dominant feature of the plumber's contract was an obligation of personal performance.
The tribunal was entitled to conclude that Pimlico Plumbers could not be regarded as a client or
customer of the plumber because of its "tight control" over him.
Where a contract described car valeters as sub-contractors, the Supreme Court held that the
employment tribunal was entitled to look behind the contractual terms to ascertain the reality of the
situation. On the facts, the valeters were held to be employees and/or workers and thus entitled to
certain statutory rights (Autoclenz Ltd v Belcher & others [2011] IRLR 820 SC).
However, in Halawi v WDFG UK Ltd T/A World Duty Free [2015] IRLR 50 CA, the Court of Appeal
upheld the employment tribunal decision that the claimant did not have "a contract personally to do
work" under s.83 of the Equality Act 2010. Ms Halawi provided her services to the end user via a
limited company which she had set up for that purpose. On the facts, she did not have any contract
with either the first respondent (the end user) or with the second respondent (whose role, according
to the Employment Appeal Tribunal (EAT), "was in effect that of an agent supplying workers to a third
party to work in retail space controlled by the first respondent"). Dismissing her appeal, the Court of
Appeal concluded that there is no incompatibility between s.83(2) of the Equality Act 2010 and EU
law on the meaning of employment. It rejected an argument that there was a relationship of
employment if the relationship was one of subordination, meaning a relationship of economic
dependency and economic value to the enterprise. The Court of Appeal held that it was clear that
there must be some obligation to perform work personally.
In Muschett v HM Prison Service [2010] IRLR 451 CA, the Court of Appeal held that an agency
worker did not come within the definition of employment in s.78(1) of the now repealed Race
Relations Act 1976 because he was not contractually obliged to provide services personally to the
end user, HM Prison Service. He was not, therefore, able to bring a claim of race discrimination
against it. The decision in Muschett is relevant to age discrimination cases under the Equality Act
2010, because the definition of employment in the Employment Equality (Age) Regulations 2006 (SI
2006/1031) and s.83(2) of the Equality Act 2010 is substantially the same. If employed by the agency,
a person in Mr Muschett's position would be protected from discrimination by the end user as a
contract worker under the Equality Act 2010.
Whether or not a minister of religion is an employee for the purposes of the Equality Act 2010 will
depend on the facts of the case. In Percy v Church of Scotland Board of National Mission [2006]
IRLR 195 HL, the House of Lords held that although an associate minister in a parish of the Church
of Scotland did not have a "contract of service" she was an employee for the purposes of the (now
repealed) Sex Discrimination Act 1975 because she had a "contract personally to execute any work
or labour". However, in President of the Methodist Conference v Preston [2013] IRLR 646 SC, the
Supreme Court held that, on the particular facts, Ms Preston (who was a Minister in the Redruth
Circuit of the Methodist Church until 2009) did not have a contract at all and accordingly could not be
an employee under the Employment Rights Act 1996 for the purposes of pursuing an unfair dismissal
claim. Although this did not arise on the facts, the absence of a legally binding contract would also
have denied employment status to Ms Preston pursuant to the broader definition under the Equality
Act 2010. Similarly, in Sharpe v The Bishop of Worcester (in his corporate capacity) [2015] IRLR 663
CA, where a Reverend had brought complaints of unfair dismissal and detriment for "whistleblowing",
the Court of Appeal held that there were "no features of the method of Reverend Sharpe's
appointment, the duties imposed upon him by law or the means by which he could be deprived of his
benefice which would support the existence of a contract between him and either the bishop or the
diocesan board of finance".
Illegal contracts
Individuals employed under an illegal contract (eg where there is some form of tax evasion in the way
the employee is paid) are not usually allowed, as a matter of public policy, to bring proceedings
relying on the contract. However, an illegal contract does not necessarily prevent a claimant from
bringing a claim for discrimination.
In Hall v Woolston Hall Leisure Ltd [2000] IRLR 578 CA (a sex discrimination case decided under the
repealed Sex Discrimination Act 1975), the Court of Appeal held that the correct approach in cases
involving illegality and statutory torts, such as claims for discrimination, required the tribunal to
consider if the "claim arises out of or is so inextricably bound up or linked with the illegal conduct that
the court could not permit the [claimant] to recover compensation without appearing to condone that
conduct". The Court of Appeal held that the employee could proceed with her sex discrimination
claim because although she knew that her employer had been defrauding the Inland Revenue by not
paying tax on her behalf, she had been powerless to change the situation. In V v Addey & Stanhope
School [2004] All ER (D) 561 (Jul) CA (a race discrimination case decided under the repealed Race
Relations Act 1976), a contract made with an asylum seeker was found to be illegal because he had
falsely indicated in his application form that he did not need a work permit. Applying Hall, the Court of
Appeal held that the asylum seeker was prevented from bringing a race discrimination claim because,
unlike the facts in Hall, the illegal conduct was that of the employee and the circumstances
surrounding his claim were inextricably bound with the illegality of his conduct.
However, in Hounga v Allen and another [2014] IRLR 811 SC) (another race discrimination case
decided under the repealed Race Relations Act 1976), the Supreme Court focused its attention on
public policy considerations. Ms Hounga was a Nigerian national who obtained a six-month travel
visa to the UK having made dishonest declarations as to her age, name and the purpose of her visit.
Having no right to work in the UK, she then knowingly entered into an illegal employment contract.
Overturning the decision of the Court of Appeal, the Supreme Court held that there was an
insufficiently close connection between her immigration offences and her discrimination claims,
because "the former merely provided the setting or context in which that tort was committed, and to
allow her to recover for that tort would not amount to the court condoning what it otherwise
condemns". Lord Wilson (with whom Lady Hale and Lord Kerr agreed) was of the opinion that "the
considerations of public policy which militate in favour of applying the defence so as to defeat Miss
Hounga's complaint scarcely exist". Observing that Ms Hounga might be regarded as a victim of
trafficking, Lord Wilson added that although she had not been compelled to commit a crime, the Court
of Appeal's decision to uphold the illegality defence "runs strikingly counter to the prominent strain of
current public policy against trafficking and in favour of the protection of its victims". The Court said
that "public policy in support of the application of that defence, to the extent that it exists at all, should
give way to the public policy to which its application is an affront; and Miss Hounga's appeal should
be allowed".
The EAT applied Hall in Wijesundera v (1) Heathrow 3PL Logistics Ltd (2) Natarajan EAT/0222/13, in
concluding that illegality was no defence to the serious sexual harassment claims brought by Ms
Wijesundera. The EAT held that the illegality test in tort "is a test which looks to see whether, on all
the facts, and not just simply applying a causation test, the claim is inextricably bound up with the
applicant's illegal conduct". With the exception of the dismissal claim, Mr Natarajan's actions "could
not be said to be inextricably bound up with the [il]legal conduct, for there is nothing intrinsic about
being an employee that leads to sexual harassment or freedom from it". The EAT added that the "fact
of employment may have given rise to a practical opportunity for the acts to be committed".
The same approach is likely to be taken with claims of age discrimination under the Equality Act
2010.
Contract workers
These are individuals employed by a third party and whose services are supplied to a principal in
furtherance of a contract either between the principal and the individual's employer, or between the
principal and another third party. It is not necessary for there to be a direct contractual relationship
between the principal and the individual's employer.
Vocational trainees
An individual who is undergoing vocational training - defined by s.56 of the Equality Act 2010 as
training for employment or work experience - is protected by s.55, which concerns the provision of
employment services (including vocational training). In Treasury Solicitor's Department v Chenge
[2007] IRLR 386 EAT (decided under the now repealed Race Relations Act 1976), the EAT held that
an unpaid vacation placement scheme of 10 days was a work placement or work experience scheme,
which was vocational training.
In Blackwood v Birmingham and Solihull Mental Health Foundation Trust EAT/0130/14, the EAT
examined the relationship between the employment and the education protections in the Equality Act
2010. Ms Blackwood, a single parent, was a student at Birmingham City University undertaking a
Diploma of Higher Education in Mental Health Nursing. As part of her course, she undertook a
vocational placement with the trust, which the trust eventually withdrew because Ms Blackwood was
unable to work the late night shift patterns due to her childcare commitments. She issued
employment tribunal proceedings alleging indirect sex discrimination against both the trust (as a
provider of vocational training) and the university as its alleged agent. The proceedings against the
university were discontinued when it contended that it had to be sued in the County Court. The
employment tribunal went on to hold that it lacked jurisdiction to hear the claim against the trust
because Ms Blackwood's placement with the trust was arranged by the university, where she was a
student. Accordingly, it was clear from s.56(5) of the Equality Act 2010 that her case against the trust
fell within the education provisions of the Act and must be pursued in the County Court. The tribunal's
reasoning was that Ms Blackwood was undertaking training or guidance "to which the governing
body" of the university had "power to afford access". In this respect the tribunal interpreted "power" as
"the ability to do something", and noted that the university was "clearly able to provide students with
placements in hospital trusts" and had so placed Ms Blackwood. The EAT dismissed Ms Blackwood's
appeal. However, the Court of Appeal overturned the EAT decision and held that s.56(5) should be
construed so as to give effect to the Equal Treatment Framework Directive (2000/78/EC). The starting
point is to identify whether the claim concerns discriminatory access to a work placement or whether
it concerns discrimination occurring during the work placement. If the claim was that the university
had failed to provide a work placement at all or had provided a work placement in a discriminatory
way, such a claim could be brought only in the county court, under s.91 of the Equality Act 2010. In
contrast, where the claim concerns discrimination by the work placement provider, in this case the
trust, this should be brought under s.55 of the Equality Act 2010 and, therefore, in the employment
tribunal. Where the alleged act of discrimination is committed by the provider as the agent of the
university, the Court of Appeal held that "both the provider and the university will be liable by virtue of
ss.109(2) and 110(1) [of the Equality Act 2010] respectively, but the liability will still arise under s.55,
so that the employment tribunal will still be the correct forum whether the claimant chooses to
proceed against only one of them or against both". The Court of Appeal concluded that "s.56(5) did
not in this case operate to deprive the employment tribunal of jurisdiction to determine the appellant's
complaint" (Blackwood v Birmingham & Solihull Mental Health NHS Foundation Trust [2016] IRLR
878 CA).
In X v Mid Sussex Citizens Advice Bureau and others [2011] EWCA Civ 28 CA, the Court of Appeal
held that an unpaid volunteer at the Citizens Advice Bureau was not undertaking vocational training
within the meaning of the Equal Treatment Framework Directive.
Territorial scope
The Equality Act 2010 is silent as to the territorial scope of its employment provisions. The Equality
Act 2010 explanatory notes explain at para.15 that this follows the precedent of the Employment
Rights Act 1996 by leaving it "to tribunals to determine whether the law applies, depending for
example on the connection between the employment relationship and Great Britain". This means that
case law determining the territorial scope of the Employment Rights Act 1996 is relevant in
determining the territorial scope of the Equality Act 2010 (see Termination of employment > Unfair
dismissal > Employees excluded from the right).
This approach was adopted in Clyde & Co LLP and another v Bates Van Winkelhof [2012] EWCA Civ
1207 CA. The Court of Appeal considered whether or not the employment tribunal had jurisdiction to
hear claims of sex discrimination and/or pregnancy discrimination made by a former partner in a
limited liability partnership, who "worked primarily outside the jurisdiction in Tanzania". The Court of
Appeal referred to several authorities, which mainly addressed the territorial scope of certain claims
under the Employment Rights Act 1996. Summarising the principles from case law, the Court of
Appeal reaffirmed that, where the employee "is employed wholly abroad", it will be appropriate for the
tribunal "to carry out a comparative exercise in which the factors which point towards a connection
with Great Britain are compared with the factors pointing in favour of another jurisdiction". However,
where the employee "lives and/or works for at least part of the time in Great Britain", as in the case of
Ms Bates Van Winkelhof, it is not necessary to apply the comparative test as between the two
jurisdictions. In the latter situation, the tribunal must be satisfied that the connection is "sufficiently
strong to enable it to be said that Parliament would have regarded it as appropriate for the tribunal to
deal with the claim" (Ravat v Halliburton Manufacturing and Services Ltd [2012] IRLR 315 SC). In
Clyde & Co LLP, the Court of Appeal held that the tribunal was not required to carry out the
comparative exercise and was correct in deciding that it had jurisdiction to hear the discrimination
claims.
The test established under the Employment Rights Act 1996 may not be wide enough for the
purposes of discrimination law rights, many of which are derived from EU law. This was recognised in
Bleuse v MBT Transport Ltd and another [2008] IRLR 264 EAT in which the Employment Appeal
Tribunal (EAT) stated that, in respect of contracts governed by English law "an English court properly
exercising jurisdiction must seek to give effect to directly effective rights derived from an EU Directive
by construing the relevant English statute, if possible, in a way which is compatible with the right
conferred". While acknowledging this issue, the Court of Appeal declined to address it in Clyde & Co
LLP and another v Bates Van Winkelhof [2012] EWCA Civ 1207 CA as it was not necessary for its
decision.
However, in R (on the application of Hottak and another) v Secretary of State for Foreign and
Commonwealth Affairs and another [2016] IRLR 534 CA, the Court of Appeal did not consider that
Parliament had intended the territorial scope of the employment-related discrimination provisions in
part 5 of the Equality Act 2010 to extend further than the territorial reach of s.94(1) of the Employment
Rights Act 1996 (ie the provisions on unfair dismissal). R (on the application of Hottak and another)
concerned two Afghan nationals who were "locally employed staff" in Afghanistan and who sought
judicial review of alleged discriminatory failures by the respondents. The Court of Appeal concluded
that the fact that the claims were for discrimination did not require the court to "look upon the
territoriality problems with greater sympathy than if they were unfair dismissal claims". The Court of
Appeal added that "the cases in which s.94(1) (and therefore part 5) will extend to the employment
contract of the foreign based employee are…truly exceptional".
In Ministry of Defence v Wallis and another [2011] EWCA Civ 231 CA, the Court of Appeal held that
the employment tribunal was correct to decide that it had jurisdiction to hear claims of unfair dismissal
and sex discrimination by two British employees who worked for the Ministry of Defence (MoD) in
Belgium and the Netherlands. It stated that: "the claimants were employed by the MoD overseas in
unusual circumstances that connected their employment with Great Britain to a degree that was
sufficiently strong to bring them within the scope of protection of the British unfair dismissal
legislation". The Court of Appeal also held that Mrs Wallis was entitled to effective judicial protection
of her directly enforceable rights under the Equal Treatment Directive (76/207/EEC) (now the recast
Equal Opportunities and Equal Treatment Directive (2006/54/EC)).
In Duncombe and others v Secretary of State for Children, Schools and Families (No. 2) [2011] IRLR
840 SC, the Supreme Court held that teachers who were employed in European schools outside
Great Britain were entitled to bring unfair dismissal claims because they had an "overwhelmingly
closer connection with Britain and with British employment law than with any other system of law".
In Pervez v Macquarie Bank Ltd (London Branch) and another [2011] IRLR 284 EAT, the EAT
rejected the proposition that while an employee who was seconded to work in London by a Hong
Kong-based employer was notionally protected under the Employment Rights Act 1996, the
employment tribunal lacked jurisdiction to hear the employee's complaint because reg.19(1) of the
Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (SI 2004/1861)
requires that "the respondent ... resides or carries on business in England and Wales". Overturning
the tribunal on this point, the EAT held that "in the particular context of reg.19 a company can 'carry
on business' in England and Wales by seconding an employee to work at an establishment here,
even if the supply of workers to third parties is not part of its ordinary business".
In Fuller v (1) United Healthcare Services Inc (2) Radkiewicz EAT/0464/13, where, according to the
EAT, the employment tribunal found on the facts that an "employment relationship was
overwhelmingly American in nature and that the work carried out in the UK did not alter that" the
tribunal was correct to hold that the situation "was not within the territorial reach of … the Equality Act
2010".
In Jeffery v British Council; Green v SIG Trading Ltd [2019] IRLR 123 CA, the Court of Appeal
dismissed the appeal and upheld Jeffery v The British Council [2016] IRLR 935 EAT. In Jeffery, the
employee, who worked on a "truly expatriate" basis, latterly as a teaching centre manager in
Bangladesh, was found by the EAT to have an "overwhelmingly closer connection with Great Britain
and with British employment law than any other system" and was therefore able to pursue his claims
under the Equality Act 2010. The main factors that the EAT identified that established "a quite
exceptional degree of connection with Great Britain and British employment law" are set out below:
The employee was "a UK citizen recruited in the UK to work for a UK organisation".
The contract of employment provided for English law to apply.
The employee was entitled to a civil service pension, which the EAT commented was "a
remarkable feature to find in the contract of employment of an expatriate employee". The EAT
observed that this "[created] another strong link to the UK and to UK employment law".
The employee's "salary was subject to a notional deduction for UK income tax to maintain
comparability with the position if he were working in the UK". The EAT again commented that
this was "an exceptional provision to find in the contract of an expatriate employee".
The "nature of the Respondent ... [which is] recognised as playing such a part in the life of the
nation that it is right to afford a civil service pension to their employees".
The Equality Act 2010 contains a power to specify the territorial application of its employment
provisions in relation to ships, hovercraft and offshore work. The Equality Act 2010 (Offshore Work)
Order 2010 (SI 2010/1835) applies part 5 of the Act - which sets out the provisions relating to work -
to offshore work, replacing similar provisions in previous legislation. The order does not apply to ships
in navigation or those engaged in fishing or dredging. The Equality Act 2010 (Work on Ships and
Hovercraft) Regulations 2011 (SI 2011/1771) prescribe the circumstances in which part 5 of the
Equality Act 2010 applies to seafarers working on UK ships and hovercraft, or on ships and
hovercraft from other EEA states. In Hasan v Shell International Shipping Services (Pte) Ltd and
others EAT/0242/13, Mr Hasan, a British national with a British passport, whose normal place of
residence (when not on board ship) is in England, failed in his attempt to pursue a race discrimination
claim against the respondents. The EAT upheld the tribunal decision that, on the facts of Mr Hasan's
employment, it lacked jurisdiction to hear his claim.
Further guidance on the territorial scope of the Act appears in chapter 10 of the Employment statutory
code of practice.
Who is liable?
Those who may be liable for prohibited conduct under the Equality Act 2010 include:
Employers, in relation to job applicants, employees, ex-employees (in some cases), where:
the employer discriminates against a job applicant, or discriminates against, harasses or
victimises an employee in its employment;
the employer's employees discriminate against a worker during the course of their
employment, unless the defence of having taken "all reasonable steps" to prevent
discrimination applies; or
the employer's agent discriminates, unless the reasonable steps defence applies.
Employees who discriminate during the course of their employment, who will be personally
liable even if the employer has a defence.
Principals (ie those who make work available for individuals employed by someone else) when:
they discriminate against contract workers; or
the principal's agent discriminates.
A person who knowingly helps another person to do an unlawful act of discrimination.
Employers
Employers are liable under the Equality Act 2010 for direct and indirect age discrimination and
victimisation in relation to recruitment, terms and benefits, detrimental treatment during employment,
and dismissal. Employers are also liable for harassment of job applicants and employees and, in
some circumstances, for discrimination, harassment or victimisation after employment. The act of
discrimination, harassment or victimisation may be:
done by the employer itself;
done by its employees in the course of their employment, whether or not the act is done with the
employer's knowledge or approval; or
done by an agent of the employer with the express or implied authority of the employer (whether
given before or after the act).
Employers will have a defence against an act done by one of their employees or agents if they can
show that they took all reasonable steps to prevent such conduct (see Reasonable steps defence).
Prior to 1 October 2013, the employer could be liable under s.40(2) to (4) of the Equality Act 2010 for
an act done by a third party against an employee who (the employer knew) had been subjected to
third-party harassment on at least two previous occasions where the employer had failed to take
reasonably practicable steps to prevent it. However, s.40(2) to (4) was repealed with effect from 1
October 2013 (see Third-party harassment for further information).
Employers' liabilities for employees' acts

An employer will be liable for discrimination, harassment or victimisation carried out by employees in
the course of employment unless the employer has taken all reasonable steps to prevent such
conduct. Using arguably stronger wording than under previous legislation, the Equality Act 2010
states that anything done by an employee in the course of employment "must be treated as also done
by the employer". "Course of employment" has been interpreted widely in race and sex discrimination
cases. In Jones v Tower Boot Co Ltd [1997] IRLR 168 CA, a racial harassment case decided under
the now repealed Race Relations Act 1976, the Court of Appeal held that "in the course of
employment" could cover even acts of torture to which workers had subjected a colleague in the
workplace. The term should be interpreted in the broad sense in which it is employed in everyday
speech. It may cover discrimination that occurs outside work provided that there is a close link to the
work, eg a work outing, a Christmas party or a work trip abroad.
In Chief Constable of the Lincolnshire Police v Stubbs and others [1999] IRLR 81 EAT, the
Employment Appeal Tribunal (EAT) upheld a finding that two incidents that occurred in a pub after
work occurred in the course of employment and were unlawful under the now repealed Sex
Discrimination Act 1975. The tribunal had held that the incidents were connected to work and the
workplace; they would not have happened but for the applicant's work; and work-related social
functions are an extension of employment. The EAT said that when there is a social gathering of work
colleagues it is appropriate for a tribunal to consider whether or not the circumstances show that what
was occurring was an extension of their employment. Whether a person is or is not on duty and
whether or not the conduct occurred on the employer's premises are two of the factors that will need
to be considered by the tribunal, but are not conclusive. Each situation is a question of fact for the
tribunal.
In Mohamud v WM Morrison Supermarkets plc [2016] IRLR 362 SC, a case that may have
implications for discriminatory behaviour by employees towards colleagues or third parties, the
Supreme Court held that the employer was vicariously liable for a violent assault on a customer by
one of its employees. The Supreme Court noted that the case addressed the question of in what
manner the conduct of an individual has to be related to the relationship between that individual and
the defendant employer for vicarious liability to be imposed on the employer. In Mohamud, the
Supreme Court held that the employee's actions, although a gross abuse of his position, were "in
connection with the business in which he was employed to serve customers" and that the employer
"should be held responsible".
In Bellman v Northampton Recruitment Ltd [2019] IRLR 66 CA, a personal injury case that may also
have implications for discriminatory behaviour by employees towards colleagues or third parties, the
Court of Appeal held that an employer was vicariously liable for a managing director's assault of an
employee during a drinking session after the work Christmas party. Following the principles in
Mohamud v WM Morrison Supermarkets plc [2016] IRLR 362 SC, the Court found that the employee,
as managing director, was authorised to act on behalf of his employer and that he had been given a
wide remit. In the Court's view, there was "sufficient connection" between his field of activities and the
assault to render it just that the employer should be vicariously liable for the managing director's
actions.
In Unite the Union v Nailard [2018] IRLR 730 CA, the Court of Appeal considered the union's liability
for sexual harassment by two of its elected branch officers against a paid employed officer. The Court
of Appeal held that the union was liable for the acts of its elected branch officers because they were
acting as its agents, but that the union was not liable for failures by its employed union officials to
prevent discrimination by the third-party elected branch officers.
Additional resources on employers' liabilities for employees' acts
FAQs
Can employers be held liable for harassment that takes place during a work-related social
event?
Policies and documents
Policy on work-related social events
"How to" guidance

How to ensure acceptable conduct at office parties and other work-related social events
Third parties
An employer may be liable in connection with a third party's conduct towards an employee if the
employer fails to intervene to prevent or stop the conduct because of the employee's age. In
Macdonald v Advocate General for Scotland; Pearce v Governing Body of Mayfield School [2003]
IRLR 512 HL, the House of Lords said that an employer will not be liable for subjecting an employee
to discrimination by a third party other than an employee, unless the reason for the failure to take
action to prevent or reduce the discrimination is related to the employee's sex, race, etc, or the third
party was acting as the employer's agent. Macdonald was decided under the repealed Sex
Discrimination Act 1975 but employers would be advised to assume that they should protect
employees from all types of discrimination by third parties.
In a case that may have implications for discriminatory behaviour by third parties, the Supreme Court
held that the Ministry of Justice was vicariously liable for the conduct of a prisoner whose negligence
caused a prison officer employee to suffer a back injury while working in the prison kitchen (Cox v
Ministry of Justice [2016] IRLR 370 SC). The Supreme Court noted that the case addressed the
question of "what sort of relationship has to exist between an individual and a defendant before the
defendant can be made vicariously liable in tort for the conduct of that individual".
Prior to 1 October 2013, the employer could be liable under s.40(2) to (4) of the Equality Act 2010 if
an employee was harassed by a third party during the course of employment, in circumstances where
the employer knew that the employee concerned had been subjected to such "third-party"
harassment on at least two other occasions (whether by the same or a different third party) but had
failed to take reasonably practicable steps to prevent it. The third-party harassment provisions in the
Equality Act 2010 were repealed with effect from 1 October 2013 by s.65 of the Enterprise and
Regulatory Reform Act 2013, but the repeal does not apply "for the purposes of proceedings that
relate to a contravention occurring before" the coming into force of s.65 on 1 October 2013. It would
appear that the proceedings did not need to be ongoing as at 1 October 2013. The explanatory note
to the Enterprise and Regulatory Reform Act 2013 (Commencement No.3, Transitional Provisions
and Savings) Order 2013 (SI 2013/2227) (which is the Order that commenced s.65 of the 2013 Act)
states that the effect of the third-party harassment provisions in the Equality Act 2010 is saved "for
contraventions of the provisions before 1 October 2013".
Additional resources on third parties
FAQs
If a third party harasses an employee, will his or her employer be liable for the third party's
actions under the Equality Act 2010?
"Reasonable steps" defence

An employer will have a defence to anything done by one of its employees in the course of
employment if it can prove that it took all reasonable steps to prevent the employee from doing that
thing, or from doing anything of that description. Guidance from sex and race discrimination cases
suggests that having an appropriate policy covering the type of behaviour, such as an equal
opportunities or dignity at work policy, will be an essential part of proving a reasonable steps defence,
but will be insufficient in itself. The policy must be properly implemented, which will include making
employees aware of the policy and the provision of training. If a particular risk has been identified, eg
from a particular employee, some additional steps may be required if the employer is to be able to
establish a reasonable steps defence to any act of discrimination by that employee: Canniffe v East
Riding of Yorkshire Council [2000] IRLR 555 EAT. Canniffe was decided under the repealed Sex
Discrimination Act 1975, which required employers to take "such steps as were reasonably
practicable" (as opposed to "all reasonable steps") to prevent the employee's conduct. It remains to
be seen whether or not the omission of the word "practicable" from s.109(4) of the Equality Act 2010
will have any effect on the availability of the defence.
In Unite the Union v Nailard [2018] IRLR 730 CA, the Court of Appeal noted an "apparent anomaly" in
that this defence "is available only to employers and not principals".
Additional resources on "reasonable steps" defence

Equal opportunities policy
Dignity at work policy
Equal opportunities and dignity at work policy
Liability for and of agents

An employer may also be liable for discrimination, harassment or victimisation carried out by its
agents, such as an employment agency through which members of staff are appointed. In this
context, the employer is referred to as "the principal", which has a different meaning to a person who
engages the services of a worker who is employed by someone else (see Principals below). It does
not matter whether or not the employer knew of or approved the agent's conduct. In Lana v Positive
Action Training in Housing (London) Ltd [2001] IRLR 501 EAT (a case decided under the repealed
Sex Discrimination Act 1975, which, prior to the implementation of the Equality Act 2010, covered
discrimination on the grounds of pregnancy and maternity), the respondent placed the claimant with a
company, which terminated the arrangement soon after the claimant said that she was pregnant. The
respondent then terminated its training contract as it did not have any work for the claimant. The EAT
held that the respondent, which had agreed to provide the claimant with work experience, and
contracted with another company (its agent) to provide her with a work experience placement, would
be liable itself if its agent had terminated the work experience placement because the trainee was
pregnant. The agent had the authority to terminate the engagement of the trainee and, if that were
done in circumstances in which it constituted discrimination, the principal would be liable. The agent
would also be liable. The same principles would be applicable to an age discrimination case under
the Equality Act 2010.
In Bungay and others v Saini and others EAT/0331/10 (decided under the repealed Employment
Equality (Religion or Belief) Regulations 2003 (SI 2003/1660)), the EAT followed the approach
adopted in Lana v Positive Action Training in Housing (London) Ltd [2001] IRLR 501 EAT, holding
that Mr Bungay and Mr Paul (the other appellant) "were managing the centre as part of their authority
as its directors and so the tribunal was entitled to conclude that [they] were acting as its agents even
though they performed their duties in a discriminatory manner".
In Commissioner of Police of The Metropolis v Weeks EAT/0130/11, the EAT upheld the employment
tribunal decision that a civilian employee who alleged that she had been subjected to sex
discrimination by a police officer (who it seems was not to be regarded as an employee in the
circumstances, under s.17 of the now repealed Sex Discrimination Act 1975) was entitled to rely on
s.41(2) of the Sex Discrimination Act 1975, which provided that: "Anything done by a person as agent
for another person with the authority ... of that other person shall be treated for the purposes of this
Act as done by that other person as well as by him", to bring her claim against the Commissioner of
Police. As the EAT observed, the Equality Act 2010 (in s.42) retains the same principles with regard
to the police (in s.17 of the Sex Discrimination Act 1975) and (in s.109) with regard to the liability of
employers and principals (in s.41(2) of the Sex Discrimination Act 1975).
An employer's potential liability for acts committed by an agency worker in its workforce was
considered by the EAT in Mahood v Irish Centre Housing Ltd EAT/0228/10. The EAT stated that: "an
employer would be liable for the acts of an agency worker exercising authority, or controlled by the
[employer] or who has the [employer's] authority to do the acts in question where those acts are done
in a discriminatory manner but are just as capable of being done in a lawful manner". The EAT
remitted the case to the same employment tribunal to reconsider it on this basis. Mahood was
decided under the repealed Race Relations Act 1976 and the repealed Employment Equality
(Religion or Belief) Regulations 2003 (SI 2003/1660) but the principle is likely to remain relevant
under the Equality Act 2010.
In Kemeh v Ministry of Defence [2014] EWCA Civ 91 CA (decided under the Race Relations Act
1976), Mr Kemeh, a cook in the British army, was racially abused in the mess by Ms Ausher who was
a civilian employed by Sodexo as a butcher. The Court of Appeal noted that the material agency
provisions of the repealed Race Relations Act 1976 were "almost identical" to those in the Equality
Act 2010, and found that the Ministry of Defence (MoD) could not be held liable for Ms Ausher's
conduct, stating that: "Whatever the precise scope of the legal concept of agency, and whatever
difficulties there may be of applying it in marginal cases, I am satisfied that no question of agency
arises in this case. In my view, it cannot be appropriate to describe as an agent someone who is
employed by a contractor simply on the grounds that he or she performs work for the benefit of a third
party employer. She is no more acting on behalf of the employer than his own employees are, and
they would not typically be treated as agents" - although in some circumstances they might be. The
Court of Appeal held that "Ms Ausher's contract with Sodexo is the source of any authority she has to
make decisions relating to the butcher's department in the mess. It may be ... that ultimately the MoD
would have the right to veto her presence, at least for good reason. But that limited degree of control
comes nowhere near constituting an authorisation by the MoD to allow Ms Ausher to act on its behalf
with respect to third parties." Recognising that this probably left Mr Kemeh without a cause of action
the Court of Appeal commented that "Parliament may wish to consider this lacuna, although if it
provides a remedy, it will have to decide whether it is the immediate employer rather than the end
user of the services who should bear the legal responsibility."
In Unite the Union v Nailard [2018] IRLR 730 CA, the Court of Appeal upheld the employment tribunal
decision that two elected branch officers were acting as agents for the union because they carried out
work on its behalf "in their dealings with local members, officers, other trade unions and employers".
The Court of Appeal upheld the tribunal decision that the union was liable under s.109 of the Equality
Act 2010 for the sexual harassment of the claimant (a union employee) by its elected officers.
In Peninsula Business Service Ltd v Baker [2017] IRLR 394 EAT, the employer (the "principal")
arranged for a third party (the "agent") to conduct covert surveillance of an employee. When the
employee was informed of this, he alleged that the surveillance had been arranged in response to
protected acts he had done, and that it amounted to victimisation. The agent was unaware of any of
the alleged protected acts. The EAT acknowledged that s.109(2) of the Equality Act 2010 provides
that anything done by an agent for a principal, with the authority of the principal, must be treated as
also done by the principal. The EAT went on to state that s.109 "only makes the principal liable for a
breach of the [Equality Act 2010] ... if what the agent does is, itself, a breach of the Act". As the agent
had not victimised the employee, the EAT held that the principal could not be held liable either.
Personal liability of employees

Section 110 of the Equality Act 2010 expressly provides that an employee will be personally liable for
acts of discrimination, harassment or victimisation carried out against other workers during the course
of his or her employment. This reflects the previous position as demonstrated in cases such as
Yeboah v Crofton [2002] IRLR 634 CA, which was decided under the now repealed Race Relations
Act 1976, but as the Equality Act 2010 explanatory notes make clear, s.110 "take[s] a more direct
approach". Thus, an employee may be named as a respondent in a discrimination claim and be
ordered to pay compensation even if the employer can show that it satisfied the reasonable steps
defence. In Gilbank v Miles [2006] IRLR 538 CA, a case decided under the repealed Sex
Discrimination Act 1975, an award of £25,000 was made personally against a manager (who was a
director and the main shareholder of the company) after she discriminated against a pregnant
employee. It is not necessary to show that the employee knew that the act was unlawful, but liability
will be avoided if the employee is able to establish that he or she reasonably relied on a statement by
the employer that the act was not unlawful (s.110(3) of the Equality Act 2010).
In Barlow v Stone EAT/0049/12 (decided under the repealed Disability Discrimination Act 1995), Mr
Barlow issued disability discrimination proceedings against his employer. Mr Barlow's colleague, Mr
Stone, then made a complaint about Mr Barlow to the police. Mr Barlow alleged that this was an act
of victimisation perpetrated by both Mr Stone and their mutual employer. However, proceedings were
not issued against the employer in relation to this issue. Overturning the employment tribunal
decision, the EAT held that the tribunal had jurisdiction to hear Mr Barlow's victimisation claim against
Mr Stone even though Mr Barlow had not issued proceedings against the employer in relation to this
issue.
Trustees and managers of occupational pension schemes

The Equality Act 2010 prohibits discrimination, harassment and victimisation by trustees and
managers of occupational pension schemes, and by employers whose employees are, or may be,
members of such a scheme.
Principals
A principal is defined, by s.41(5) of the Equality Act 2010, as a person who, under a contract to which
the principal is a party, makes work available for an individual who is employed and supplied by
another person (whether or not that other person is a party to the contract). The Act therefore codifies
existing case law by making it clear that there does not have to be a direct contractual relationship
between the principal and the employer of the contract worker as established in Abbey Life
Assurance Co Ltd v Tansell [2000] IRLR 387 CA (a case decided under the now repealed Disability
Discrimination Act 1995).
Principals are liable under the Equality Act 2010 for age discrimination or victimisation in whether to
allow the contract worker to do, or continue to do, the work, in the terms on which the worker is
allowed to do the work, in relation to access to benefits, or in relation to any other detrimental
treatment, including some discrimination after the working relationship has come to an end. Principals
are also liable for harassment of contract workers, which may extend to conduct after the working
relationship has ended. The act of discrimination, harassment or victimisation may be:
done by the principal itself;
done by the principal's employees in the course of their employment, whether or not the acts
are done with the principal's knowledge or approval; or
done by an agent of the principal with the express or implied authority of the principal (whether
given before or after the act).
The same approach to "course of employment", the "reasonable steps" defence to acts done by the
principal's employees and liability for the acts of an agent will apply as described above. In addition,
the individual will be protected from discrimination by his or her employer.
Employees, agents and others who "knowingly help" contraventions of the

Equality Act 2010
Under s.112 of the Equality Act 2010, it is unlawful to knowingly help someone to discriminate
against, harass or victimise another person or to knowingly help to instruct, cause or induce
discrimination. In certain circumstances liability for such conduct may extend beyond the end of the
employment relationship. Liability is avoided if it can be established that reasonable reliance was
placed on a statement by the person to whom assistance was given to the effect that the act was not
unlawful. The Equality and Human Rights Commission (EHRC) has published guidance in the form of
the Employment statutory code of practice, which cites the example of a clerical worker who is asked
by a company manager, who wishes to be surrounded by female staff, to let him know the sex of all
of the applicants for a particular post so that he may filter out the male candidates, in circumstances
where such information is not apparent from the application forms in accordance with the company's
equal opportunities policy. The EHRC considers that "it may be unlawful for the clerical worker to give
the manager this help" even if the manager were unsuccessful in his attempt to exclude male
applicants.
While the wording in the Equality Act 2010 (ie knowingly help) differs to that used in previous
discrimination legislation (ie knowingly aid), the principles established in previous case law may
remain relevant. In Anyanwu and another v South Bank Students' Union and South Bank University
[2001] IRLR 305 HL, a case that concerned the phrase "knowingly aid" from the now repealed Race
Relations Act 1976, the claimants, two black students who were employed by the student union,
claimed that the university aided their dismissal by the student union when the university expelled
them and barred them from the union premises. The House of Lords held that a person aids another
if the person helps or assists, or cooperates or collaborates with him or her. It does not matter who
the "prime mover" is. Aiding must be done knowingly. It requires more than a general attitude of
helpfulness or cooperation; it must be shown that another is aided to do the unlawful act in question:
Hallam and another v Cheltenham Borough Council and others [2001] IRLR 312 HL (also decided
under the repealed Race Relations Act 1976). In Gilbank v Miles [2006] IRLR 538 CA, an award of
£25,000 was made personally against a manager (who was a director and the main shareholder of
the company) after she discriminated against a pregnant employee, contrary to the now repealed Sex
Discrimination Act 1975.
Others who may be liable
The Equality Act 2010 has special provisions setting out the circumstances in which other bodies may
be liable for discrimination, harassment and victimisation, including:
partnerships or proposed partnerships (s.44);
limited liability partnerships (LLPs) or proposed LLPs (s.45);
employment-service providers (s.55); and
barristers (s.47).
In Michalak v General Medical Council and others [2018] IRLR 60 SC, the Supreme Court held that
the employment tribunal had jurisdiction to hear a claim against a qualification body (the General
Medical Council) in respect of discrimination committed in the course of the body carrying out its
functions. The availability of judicial review did not preclude this because that process does not
constitute "proceedings in the nature of an appeal" for the purposes of s.120(7) of the Equality Act
2010. (Section 120(7) of the Act excludes from the jurisdiction of the employment tribunal, cases
concerning qualification bodies where the discriminatory act complained of may, by law, "be subject
to an appeal or proceedings in the nature of an appeal".)
Prohibited conduct
The Equality Act 2010 prohibits the types of conduct listed below.
Direct discrimination, ie less favourable treatment because of the protected characteristic of
age. This covers less favourable treatment because of a person's association with someone
who has or is believed to have the protected characteristic ("discrimination by association"), or
because a person is wrongly thought to have the protected characteristic ("discrimination by
perception") (see Direct discrimination).
Indirect discrimination, ie where a person of a particular age group and others who share that
age group are, or would be, disadvantaged by the unjustified application of a provision, criterion
or practice (PCP) when compared with others to whom the PCP is, or would be applied, and
who do not share that age group (see Indirect discrimination and Justification).
Harassment, ie unwanted conduct related to age that has the purpose or effect of violating the
victim's dignity or creating an intimidating, hostile, degrading, humiliating or offensive
environment for him or her (see Harassment).
Victimisation, ie where a person is subjected to detriment because he or she has done, or the
employer believes that he or she has done, or may do, a "protected act" (see Victimisation).
Prohibited conduct in the employment context

As with previous discrimination legislation, prohibited conduct as defined in the Equalit Act 2010 is
unlawful only if it occurs in specified circumstances. In the employment context, part 5 of the Equality
Act 2010 prohibits discrimination and victimisation in the fields of employment and vocational training.
Under s.39(1) and (3) of the Act, an employer (A) must not directly or indirectly discriminate against,
or victimise a person (B):
in the arrangements A makes for deciding to whom to offer employment;
as to the terms on which A offers B employment; or
by not offering B employment.

Under s.39(2) and (4) of the Act, an employer (A) must not directly or indirectly discriminate against,
or victimise an employee of A's (B):
as to B's terms of employment;
in the way A affords B access, or by not affording B access, to opportunities for promotion,
transfer or training, or for receiving any other benefit, facility or service;
by dismissing B; or
by subjecting B to any other detriment.
Section 39(7) and (8) of the Equality Act 2010 provide that "dismissal" includes constructive dismissal
and the expiry and non-renewal of a fixed-term contract.
Under s.40 of the Act, it is also unlawful for an employer (A), in relation to employment by A, to
harass a person (B):
who is an employee of A's; or
who has applied to A for employment.
Under s.41 of the Act, direct and indirect discrimination and victimisation by principals is unlawful:
as to the terms on which the principal allows the contract worker to do work;
by not allowing a contract worker to do, or continue to do, the work;
in the way the principal affords the contract worker access, or by not affording the worker
access, to opportunities for receiving a benefit, facility or service; or
by subjecting the contract worker to any other detriment.
It is also unlawful for a principal to harass a contract worker.
In X v Mid Sussex Citizens Advice Bureau and others [2011] EWCA Civ 28 CA, a disability
discrimination case with implications for comparable age discrimination cases, the Court of Appeal
upheld the employment tribunal decision that the employer's volunteering arrangements did not
constitute "arrangements which [the employer] makes for the purpose of determining to whom he
should offer employment" (under the now repealed Disability Discrimination Act 1995).
"Detriment" is likely to be interpreted in the same way as it was in sex and race discrimination cases
decided under the repealed Sex Discrimination Act 1975 and Race Relations Act 1976, of which the
following are examples. An individual can suffer a detriment even if he or she was unaware of the
conduct complained of at the time: Garry v London Borough of Ealing [2001] IRLR 681 CA. Being
subject to a "detriment" was interpreted as meaning put at a disadvantage: Jeremiah v Ministry of
Defence [1979] IRLR 436 CA. In Bayode v The Chief Constable of Derbyshire EAT/0499/07, the EAT
agreed with the employment tribunal that the mere act of making a written record could not give rise
to a justified sense of grievance on the part of the claimant so as to constitute a detriment. No
physical or economic consequence is necessary: Shamoon v Chief Constable of the Royal Ulster
Constabulary [2003] IRLR 285 HL. Hurt feelings may be enough for there to be detriment, at least
provided that the victim's view of the treatment is not unreasonable or unjustified.
A gay employee was subjected to a detriment when, while looking through an archived file, he
discovered homophobic comments in a memo that he had not been intended to see (Bivonas LLP
and other v Bennett EAT/0254/11). Although Bivonas LLP was decided under the repealed
Employment Equality (Sexual Orientation) Regulations 2003 (SI 2003/1661) it is relevant to

discrimination cases decided under the Equality Act 2010.
In a case decided under the now repealed Employment Equality (Age) Regulations 2006 (SI
2006/1031), Keane v Investigo and others EAT/0389/09, the EAT upheld an employment tribunal
finding that a job applicant whose applications were not genuine had not suffered a detriment.
Therefore her claims for direct and indirect age discrimination failed. Similarly, in Cordant Security Ltd
v Singh and another [2016] IRLR 4 EAT, the EAT held that an employee did not suffer a detriment by
reason of his employer's failure to investigate an allegation of race discrimination because the
"allegation was fabricated" and, had it been investigated, "it would have been found to be untrue".
Although the employment tribunal was entitled to conclude on the evidence that the employer's failure
to investigate amounted to less favourable treatment because of race, the employee's claim that it
amounted to unlawful direct discrimination in breach of s.39(2)(d) of the Equality Act 2010 (the
requirement not to subject an employee to a detriment) failed at the EAT because he was required to
establish both less favourable treatment and that he had been subjected to a detriment.
The detriment to which an employee is subjected under s.39 of the Equality Act 2010 must occur in
the employment field. In London Borough of Waltham Forest v Martin EAT/0069/11 (which was
decided under the now repealed Race Relations Act 1976, but is likely to remain relevant under the
Equality Act 2010), the EAT held that a local authority's decision to instigate a criminal prosecution
against a resident, who was also one of its employees, for alleged benefit fraud was not a matter that
fell within the employment field. Accordingly, the employment tribunal had no jurisdiction to hear the
claimant's claim.
An employment tribunal will decide, on a balance of probabilities, whether or not there has been
unlawful discrimination. The burden of proof provision in the Act has the effect that a tribunal must
find unlawful discrimination where the complainant proves facts from which the tribunal could
conclude that the respondent has committed unlawful discrimination, unless the respondent provides
a satisfactory non-discriminatory explanation for the treatment.
Neither direct nor indirect age discrimination will be unlawful if justified - see Justification. In limited
circumstances, jobs can be restricted on age grounds - see Occupational requirements. There are
general exceptions where age discrimination will not be unlawful in relation to:
benefits based on length of service - see Service-related benefits;
positive action - see Positive action;
the national minimum wage - see National minimum wage;
enhanced redundancy payments - see Redundancy payments; and
insurance and related financial services - see Insurance and financial services.
Additional resources on prohibited conduct in the employment context
FAQs
What constitutes a detriment?
Prohibited conduct after the working relationship has come to an end
An act of discrimination or harassment committed after the working relationship has come to an end
will be unlawful if it would have been unlawful during the course of the working relationship, where
the discrimination or harassment arises out of or is closely connected to that former relationship. It
appears that post-employment victimisation is also unlawful in similar circumstances.
Thus, a complaint could be brought about any age discrimination or victimisation during the course of
an appeal against dismissal, although the employment ended with the dismissal. It is clear also that
any age discrimination or victimisation in the refusal to give a reference or in the form of a reference
given within a reasonable time after employment has ended will fall within the employment provisions
of the Act, and it is likely that a complaint could be brought about references even after a much
longer period if the employer would still normally provide a reference after such an interval in the form
sought. If an employer normally provides benefits to ex-employees, whether this is a contractual
entitlement or otherwise, a complaint could be brought about discrimination or victimisation in the
provision of such benefits after employment has ended.
Acts of discrimination and harassment of this type committed after the working relationship has come
to an end will be unlawful if they are committed on or after 1 October 2010 when the Equality Act
2010 came into force, even if the working relationship came to an end before that date.
Direct discrimination
Section 13 of the Equality Act 2010 defines direct discrimination as being where, because of a
protected characteristic (eg age), person A treats person B less favourably than person A treats or
would treat other persons. There must be no material difference between the circumstances of B's
case and that of his or her actual or hypothetical comparator(s) (s.23 of the Act).
The less favourable treatment can relate to B's actual or perceived age, even where the perception is
wrong. A will be liable for treating B less favourably because he or she considers B to be too young or
too old, even if A is mistaken about B's age. B will not be required to disclose his or her age in order
to bring a claim.
The discrimination could also relate to someone else's age. In EAD Solicitors LLP and others v
Abrams [2015] IRLR 978 EAT, the Employment Appeal Tribunal (EAT) held that a limited company
could bring a claim of direct discrimination under the Equality Act 2010 because of the protected
characteristic of someone with whom it was associated.
Section 24 of the Equality Act 2010 provides that the alleged discriminator's characteristics are
irrelevant. This means that it is no defence to a claim of direct discrimination that A is of the same age
group as B. The Equality Act 2010 explanatory notes state that the wording of s.24 is wide enough to
cover cases of discrimination based on association or perception.
Determining whether or not there has been direct discrimination under the Equality Act 2010 requires
a similar approach to that previously taken in cases of sex or race discrimination under the repealed
Sex Discrimination Act 1975 and repealed Race Relations Act 1976. In Shamoon v Chief Constable
of the Royal Ulster Constabulary [2003] IRLR 285 HL (a sex discrimination case decided under the
Sex Discrimination (Northern Ireland) Order 1976) the House of Lords suggested that, although it
may be helpful in some cases to divide the test for direct discrimination into two elements of less
favourable treatment and whether or not this was on the prohibited ground, in other cases the less
favourable treatment issue cannot be resolved without deciding on the reason for the treatment. This
is most likely to be the case where there is no actual comparator in the same or not materially
different relevant circumstances. Where a hypothetical comparator has to be relied on, determining
the reason for the treatment may determine how a hypothetical comparator would have been treated.
However, the EAT in Olalekan v Serco Ltd EAT/0189/18 (a race discrimination case) said that "a
Shamoon-style comparator is only one means of constructing a hypothetical comparator, and the
tribunal was not bound to adopt that means in place of all others". In the EAT's view, the employer
could be liable for discriminatory treatment meted out to different employees in similar circumstances
even though different decision-makers were involved. However, on the facts of the claimant's case,
the EAT held that the tribunal was entitled to dismiss his claim because the circumstances of his
comparators were not truly similar and the tribunal did engage with his arguments on hypothetical
comparators to a sufficient extent.
In Geller and another v Yeshurun Hebrew Congregation EAT/0190/15, a sex discrimination case, the
EAT noted that "in some cases of alleged direct discrimination, the discrimination alleged is inherent
in the act complained of and there will be no need to enquire further into the mental process,
conscious or unconscious, of the alleged discriminator". However, in other cases "discrimination is
not inherent in the act complained of as it does not by its nature strike at the protected characteristic,
but the act complained of may be rendered discriminatory by the motivation, conscious or
unconscious, of the alleged discriminator". The EAT explained that "in the latter class of cases the
employment tribunal asks itself what the reason for the alleged discriminator's act was, and if the
reason is that [the victim] possessed the protected characteristic, then direct discrimination is made
out". The EAT held that Mrs Geller's case was the latter class of case and fell within the same
category as the example in Nagarajan v London Regional Transport [1999] IRLR 572 HL, in which the
House of Lords held that the motivation of the person committing an act of direct race discrimination
may be conscious or unconscious. In Geller and another, the EAT also emphasised that "in neither
case is a benign motive relevant; nor is it relevant whether the alleged discriminator thought the
reason for his or her treatment of the person with the protected characteristic, was that
characteristic".
Provisions on the application of the burden of proof require that, where a claimant proves facts from
which the tribunal could conclude that the respondent has contravened a relevant provision of the
Equality Act 2010, the tribunal must uphold the complaint unless the respondent provides an
adequate non-discriminatory explanation for the treatment. For further information see Employment
tribunals and dispute resolution > Tribunal procedures and penalties > Burden of proof in
discrimination cases.
In R (on the application of Unison) v First Secretary of State [2006] IRLR 926 HC (judicial review
proceedings concerning the Local Government Pension Scheme), the High Court considered that the
"85 year rule", whereby local government employees could draw an unreduced pension from the age
of 60 provided that their age and number of years' service totalled at least 85 years, constituted age
discrimination. As part of its decision, the High Court held that the Government - which argued that
this rule was discriminatory - was entitled to conclude that it was not justified and remove it. The rule
was directly discriminatory as it produced different outcomes depending on the age of employees. A
63-year-old with 22 years' service would be entitled to an unreduced pension, while a 61-year-old
with the same service would not. The High Court did not accept Unison's argument that the rule was
justified because it rewarded loyalty.
In Clements v (1) Lloyd's Banking plc (2) Shawcross (3) Guthrie EAT/0474/13, the employment
tribunal found on the facts that discriminatory remarks were not material in a cumulative course of
conduct that eventually gave rise to a constructive dismissal. During a meeting on 5 January 2012
with the claimant (who was a senior employee in his 50s) his manager had twice said "You're not 25
anymore". The employee was subsequently moved to a different role at the bank and resigned on
three months' notice in July 2012. The tribunal found that he had been constructively dismissed by
reason of a breach of the implied term of mutual trust and confidence but that, although the remarks
of 5 January 2012 amounted to direct age discrimination, by the time of the employee's decision to
resign the discriminatory remarks "did not form a material contributing element of the cumulative
treatment undermining trust and confidence which led to that decision". Accordingly, the tribunal
"concluded that the constructive dismissal was not tainted by age discrimination". The EAT upheld
the tribunal's decision.
In Court v Dennis Publishing Ltd [2007] ET/2200327/07 (decided under the repealed Employment
Equality (Age) Regulations 2006 (SI 2006/1031)), the employment tribunal found that the employer
had directly discriminated against a 55-year-old employee on the grounds of his age when selecting
him for redundancy. This was inferred from a general culture that younger, cheaper employees were
preferable to older, more expensive staff, and a failure to consider for redundancy any other
employees, all of whom were at least 20 years younger than the selected employee.
In Wilkinson v Springwell Engineering Ltd ET/2507420/07 (decided under the repealed Employment
Equality (Age) Regulations 2006), the employment tribunal found that an employer directly
discriminated against a teenage employee on the grounds of her age when it dismissed her because
she was "too young for the job". It did not accept that there was evidence to support the employer's
contention that the reason for the dismissal was capability.
In Live Nation (Venues) UK Ltd and other appeals EAT/0234/08, EAT/0235/08 & EAT/0236/08
(decided under the repealed Employment Equality (Age) Regulations 2006), the EAT held that the
employment tribunal had been wrong to infer that Mr Hussain had been subjected to direct age
discrimination because of an (arguably) unjustified or unreasoned belief on the part of management
that Mr Hussain had ageist tendencies, coupled with a supposition on the part of the tribunal that the
employer thought that he was too old to change his attitudes. The tribunal had also adopted an
incorrect approach to the shifting burden of proof, in that it had failed to ask itself whether or not there
was a genuine reason, other than age, that caused the employer to dismiss Mr Hussain. Had it asked
that question, the tribunal would have concluded that the reason was Mr Hussain's conduct towards
two colleagues. It was immaterial that the dismissal itself was not conducted fairly.
In Kücükdeveci v Swedex GmbH & Co KG [2010] IRLR 346 ECJ, the European Court of Justice
(ECJ) held that a German law that disregards periods of employment under the age of 25 for the
purposes of calculating a worker's service-related notice entitlement could not be justified, and the
practice was incompatible with the prohibition on age discrimination set out in the Equal Treatment
Framework Directive (2000/78/EC). The ECJ held that it is for the national court to disapply national
legislation that is incompatible with the principle of non-discrimination on the ground of age,
irrespective of whether or not it requests a preliminary ruling of the interpretation of that principle from
the ECJ.
In Rosenbladt v Oellerking Gebäudereinigungsges mbH [2011] IRLR 51 ECJ, the ECJ held that a
German law allowing employers to agree with employees under a collective agreement that they
must retire when they become entitled to a pension could be justified under art.6(1) of the Equal
Treatment Framework Directive provided that the retired employees are not deprived of continued
protection against age discrimination.
In Mayor and Burgesses of the London Borough of Tower Hamlets v Wooster [2009] IRLR 980 EAT
(decided under the repealed Employment Equality (Age) Regulations 2006), the EAT held that an
employer committed direct age discrimination against an employee when it made him redundant at
the age of 49 in order to avoid paying an early retirement pension to which he would be entitled if he
left employment when he was aged 50 or over.
Additional resources on direct discrimination
Line manager briefings

Line manager briefing on age discrimination - direct discrimination
Less favourable treatment

What constitutes less favourable treatment is a matter for the tribunal to decide. The Employment
statutory code of practice states that to decide whether or not an employer has "treated a worker 'less
favourably', a comparison must be made with how they have treated other workers or would have
treated them in similar circumstances". The code explains that: "If the employer's treatment of the
worker puts the worker at a clear disadvantage compared with other workers, then it is more likely
that the treatment will be less favourable: for example, where a job applicant is refused a job." It goes
on to state that less favourable treatment "could also involve being deprived of a choice or excluded
from an opportunity."
It is usually necessary that a complainant show that he or she has suffered an actual detriment,
although as the code states: "The worker does not have to experience actual disadvantage
(economic or otherwise) for the treatment to be less favourable. It is enough that the worker can
reasonably say that they would have preferred not to be treated differently from the way the employer
treated - or would have treated - another person."
The Equality Act 2010 requires complainants alleging direct discrimination to compare themselves
with either an actual or a hypothetical comparator when showing less favourable treatment. So a
complainant would have to show that he or she had been less favourably treated than another
individual of a different age group in similar circumstances either had or would have been treated.
In Lockwood v Department for Work and Pensions and another EAT/0094/12 (decided under the
repealed Employment Equality (Age) Regulations 2006 (SI 2006/1031)), the employee (who was
aged 26 and had eight years' service) received a voluntary redundancy payment of £10,849.04.
However, under the rules of the scheme she would have been entitled to a further sum of £17,690.58,
had she been over the age of 35, with the same period of service. The EAT upheld the employment
tribunal finding that there were material differences between the employee's age group (35 or under)
and the comparator group on which she relied (over 35). The conclusion that the two groups were
"not truly comparable" was based on evidence "showing that the purpose of the different payments
was to reflect the comparative difficulty of loss of employment suffered by the older workers (finding
another job; family financial commitments) when compared with those in the younger age group".
However, in Lockwood v Department for Work and Pensions and another [2013] IRLR 941 CA, the
Court of Appeal held that the tribunal, and subsequently the EAT, had failed to conduct the
comparison exercise properly. The Court of Appeal held that the tribunal was wrong "to factor into the
comparison exercise considerations that were either directly related to [the employee's] age, or were
consequent upon, linked or connected to her age". Such considerations included: the employee's
age; the fact that she was less likely to have family ties and/or a mortgage; and the fact that she
would have less difficulty in finding new employment because she was younger than the comparator.
Accordingly, the Court of Appeal overturned the EAT decision and held that the employee had
suffered less favourable treatment, although it also held that such treatment was objectively justified.
The EAT in Budgen and Smith v Ministry of Justice and others EAT/0308/12 and EAT/0309/12 relied
on Lockwood in holding that the real reason why the claimants who were both over 60 received lower
voluntary redundancy payments under the Civil Service Compensation Scheme 1994 than their
colleagues who were under 60 was because of their age, and "the view that any explanation that
such a person is getting a lesser sum in compensation because he is getting more in his pension is
irrelevant at this stage". The EAT remitted the case to the employment tribunal to determine the issue
of objective justification.
A similar finding was reached in Donkor v Royal Bank of Scotland [2016] IRLR 268 EAT. Unlike two
colleagues aged under 50, Mr Donkor (who was aged over 50 at the relevant time) was not offered
the opportunity to apply for voluntary redundancy. It seems that the underlying reason for this was
that Mr Donkor was eligible to apply for early retirement, and the significant costs involved
necessitated a referral for higher level approval. Allowing Mr Donkor's appeal against the
employment tribunal decision that he had not been less favourably treated, the EAT stated that the
question was not why the employer had taken into account the employee's age, but whether it did so.
As Mr Donkor's age was the reason why his employer failed to extend to him the same opportunity to
apply for voluntary redundancy as it had extended to his younger comparators, the EAT found that he
had been less favourably treated. It substituted a finding that there was a prima facie case of direct
discrimination and remitted the issue of objective justification for consideration by the same
employment tribunal.
The EAT has emphasised that where an employer relies on differences between the claimant and the
comparators to explain their dissimilar treatment, the difference must be "material" to the case (CP
Regents Park Two Ltd v Ilyas EAT/0366/14 (a race discrimination case)).
Where there is no actual comparator in similar circumstances and there is some evidence to support
an inference of discrimination, the tribunal must construct a hypothetical comparator to show how a
person of the other racial group would have been treated: Balamoody v United Kingdom Central
Council for Nursing, Midwifery and Health Visiting [2002] IRLR 288 CA (decided under the now
repealed Race Relations Act 1976). A tribunal can draw an inference of how a hypothetical
comparator would be treated from evidence of how the employer treated actual non-identical, but not
wholly dissimilar cases: Chief Constable of West Yorkshire v Vento [2001] IRLR 124 EAT (decided
under the repealed Sex Discrimination Act 1975).
Because of age
The second hurdle in a claim of direct age discrimination is to show that the reason the treatment was
less favourable was "because of the protected characteristic" of age. The protected characteristic of
age does not have to have been the sole reason for the less favourable treatment but it must have
been an important or substantial reason. This was emphasised in Alam v London Probation Trust
EAT/0199/14 (a race discrimination case), in which the EAT stated that: "What is required is not that
the treatment is solely because of a protected characteristic but that the protected characteristic is an
'effective cause' of the treatment".
The Equality Act 2010 explanatory notes state that the use of the words "because of" instead of the
words "on grounds of" used in the Employment Equality (Age) Regulations 2006 is not intended to
change the legal definition of direct discrimination. As such, it is likely that reference will continue to
be made to certain cases that addressed how less favourable treatment was established under
previous discrimination legislation.
The approach to direct discrimination was addressed in Amnesty International v Ahmed [2009] IRLR
884 EAT (decided under the repealed Race Relations Act 1976). The EAT stated that while in "some
cases the ground, or the reason, for the treatment complained of is inherent in the act itself" (for
example, a sign saying "No blacks admitted"), in others "the act complained of is not in itself
discriminatory but is rendered so by a discriminatory motivation, ie other 'mental processes' (whether
conscious or unconscious) which led a putative discriminator to do the act. Establishing what those
processes were is not always an easy inquiry, but tribunals are trusted to be able to draw appropriate
inferences from the conduct of the putative discriminator and surrounding circumstances (with the
assistance where necessary of the burden of proof provisions). Even in such a case, however, it is
important to bear in mind that the subject of the inquiry is the ground of, or reason for, the putative
discriminator's action, not his motive: just as a ... benign motive is irrelevant."
In HM Revenue and Customs v Saldanha EAT/0067/17 EAT, a race discrimination case, the
employee successfully applied for a posting in Italy, but HM Revenue and Customs (HMRC) withdrew
its offer when it received the employee's psychological resilience assessment that indicated that,
given his ethnicity, he could suffer stress if faced with any racism in Italy. The tribunal found that both
the assessment and the withdrawal of the posting were acts of unlawful race discrimination. Applying
Amnesty International, the EAT held that the tribunal was entitled to find that the nature of the
discrimination arose from a criterion rather than a mental process as the acts complained of were
based on race and inherently discriminatory. As HMRC had adopted the third party's psychological
assessment, its decision taking was also "tainted" by race. Therefore, the tribunal did not need to
investigate the mental processes of the third party or HMRC.
In Geller and another v Yeshurun Hebrew Congregation EAT/0190/15, the employment tribunal held
that the employer's treatment of Mrs Geller "was based on non-sex related factors" which led to the
tribunal's conclusion that "the treatment was non-sex related". Upholding the employee's appeal and
remitting the case to the employment tribunal, the EAT stated that the tribunal had incorrectly relied
on the employer's "genuine beliefs" and had overlooked the very important point that discrimination
can be unconscious or subconscious, a principle applied by the House of Lords in Nagarajan v
London Regional Transport [1999] IRLR 572 HL.
The Court of Appeal has held that, where it is necessary to consider motive, it is the motive of the
individual who carried out the asserted discriminatory act that is relevant, rather than someone else's
motive. In CLFIS (UK) Ltd v Reynolds [2015] IRLR 562 CA, the alleged discriminatory act of a sole
decision-making employee was influenced by information supplied, or views expressed, by another
employee whose motivation was asserted to be discriminatory. Referring to such a situation as a
"tainted information case", the Court of Appeal took the view that "liability can only attach to an
employer where an individual employee or agent for whose act he is responsible has done an act
which satisfies the definition of discrimination. That means that the individual employee who did the
act complained of must himself have been motivated by the protected characteristic." The Court
added that there was no basis for asserting that that employee's act could be said to be
discriminatory on the basis of someone else's motivation, and that, in a tainted information case, the
correct approach is to treat the conduct of the person supplying the information as a separate act
from that of the person who acted on it, meaning that it should be the subject of a separate claim.
Indirect discrimination
Section 19 of the Equality Act 2010 defines indirect discrimination as being where person A applies to
person B a provision, criterion or practice that is discriminatory in relation to a relevant protected
characteristic of B's.
A provision, criterion or practice is discriminatory in relation to B's age, if:
A applies, or would apply it, to people who are not of the same age group as B;
it puts, or would put, people who are in the same age group as B at a particular disadvantage
when compared with others who are not in that age group;
it puts, or would put, B at that disadvantage; and
A cannot justify the provision, criterion or practice by showing that it is a proportionate means of
achieving a legitimate aim (see Justification).
Indirect age discrimination will not be unlawful if it is justified - see Justification.
The Employment statutory code of practice explains that a 25-year old female employee could be
viewed as sharing the protected characteristic of age with a number of different age groups. These
may include "25 year olds", "the under 30s", "the over 20s" and "younger workers".
The EHRC guidance What equality law means for you as an employer: dismissal, redundancy,
retirement and after a worker has left advises, for example, that an employer needs to be cautious
when using length of service as a criterion in a redundancy selection matrix. The guidance states that
this could result in "younger people who will not have built up as long an employment record" being in
the pool in greater numbers, and so could give rise to indirect age discrimination. However, the use of
such a criterion might be justified as one of several criteria (see Justification).
The employees in Braithwaite and others v HCL Insurance BPO Services Limited EAT/0152/14 and
Edie and others v HCL Insurance BPO Services Limited EAT/0153/14 were transferred to the
employer (HCL) under the Transfer of Undertakings (Protection of Employees) Regulations 2006 (SI
2006/246) and retained the benefit of better contractual terms than HCL's pre-existing employees.
HCL was experiencing losses and decided to move all employees on to the same terms and
conditions, which employees were required to accept or be dismissed. The transferred employees
complained that HCL had applied to them a provision, criterion or practice (PCP) that was indirectly
discriminatory on the ground of age within the meaning of s.19 of the Equality Act 2010. The
employment tribunal found that HCL had applied a PCP that if employees wished to remain in
employment with HCL "they were required to enter into a new contract … under which they would not
have contractual entitlements to private health insurance, carer days and enhanced redundancy
payments and in which their working hours would be 37 hours per week and annual leave would be
25 days a year". That PCP put older workers at a particular disadvantage because they had built up
"greater entitlements by virtue of longer service". However, the tribunal found that the introduction of
the new terms was justified in that it was a proportionate means of achieving HCL's "legitimate aim
which was to reduce staff costs to ensure [HCL's] future viability and to have in place market
competitive, non-discriminatory terms and conditions". The EAT upheld the employment tribunal
decision.
In Rainbow v Milton Keynes Council [2008] ET/1200104/07 (decided under the repealed Employment
Equality (Age) Regulations 2006 (SI 2006/1031)), a local authority's advertisement for candidates "in
the first five years of their career" was held to be indirectly discriminatory against a teacher with 34
years' teaching experience. The employer's argument that it was justified in seeking less experienced
employees on the grounds of cost was rejected.
In Homer v Chief Constable of West Yorkshire Police [2012] IRLR 601 SC (decided under the
repealed Employment Equality (Age) Regulations 2006), the Supreme Court held that a requirement
that employees obtain a law degree before they could be promoted to the highest grade was indirect
age discrimination against the claimant, who did not have enough time to complete a degree before
he reached the employer's retirement age. It sent the case back to the employment tribunal to decide
whether or not the employer's actions were justified as a proportionate means of achieving a
legitimate aim. A newly constituted tribunal found that the requirement was not justified and the police
force had discriminated against the claimant (Homer v Chief Constable of West Yorkshire Police
ET/1803238/2007).
In (1) ABN Amro Management Services Ltd (2) Royal Bank of Scotland v Hogben EAT/0266/09
(decided under the repealed Employment Equality (Age) Regulations 2006), a change in policy
relating to the payment of discretionary bonuses to redundant employees meant that they were no
longer automatically considered for the receipt of a pro-rated bonus; they were considered only where
proof of exceptional circumstances existed. The employee argued that the change was indirectly
discriminatory. However, the EAT struck out the employee's claim, and held that it would be artificial
and unnatural to describe the change from one substantive policy to another as a provision, criterion
or practice.
In ABN Amro Management Services Ltd, the employee also argued that the requirement that he sign
a compromise agreement (now known as a settlement agreement) and waive his right to pursue an
age discrimination claim in order to receive an enhanced redundancy payment was indirectly
discriminatory. The EAT disagreed and stated that the requirement did not put employees in any
given age group at a particular disadvantage because it affected all dismissed employees in the
same way. The EAT went on to state that, even if the requirement was found to be discriminatory, it
could be justified as a proportionate way of achieving the employer's legitimate aim of achieving a
binding compromise of all of the possible claims arising out of the dismissal of an employee.
In Tyrolean Airways Tiroler Luftfahrt Gesellschaft Mbh v Betriebsrat Bord Der Tyrolean Airways Tiroler
Luftfahrt Gesellschaft Mbh [2012] IRLR 781 ECJ, a collective agreement provided that only length of
service with the particular employer was taken into account for pay grading purposes: identical
experience with airlines in the same group was irrelevant. The European Court of Justice held that
this criterion was not directly or indirectly related to age. Accordingly, the criterion was not
discriminatory within the meaning of the Equal Treatment Framework Directive (2000/78/EC).
Additional resources on indirect discrimination

Line manager briefing on age discrimination - indirect discrimination
The pool for comparison
The claimant must be able to show that the application of the provision, criterion or practice
disadvantages or would disadvantage persons of the relevant age group. The choice of the
appropriate pool for deciding disadvantage is a matter for the tribunal but it should be sufficiently wide
to include all those who may be affected by the provision, criterion or practice. The Employment
statutory code of practice states that: "In general, the pool should consist of the group which the
provision, criterion or practice affects (or would affect) either positively or negatively, while excluding
workers who are not affected by it, either positively or negatively." Jones v University of Manchester
[1993] IRLR 218 CA was decided under the now repealed Sex Discrimination Act 1975 at a time
when the test for indirect discrimination concerned whether or not the persons to whom a particular
requirement or condition was applied "could comply" with that requirement or condition. Nevertheless,
the decision in Jones is still of some background relevance to the choice of "pools for comparison"
under the Equality Act 2010. In Jones, the Court of Appeal held that the appropriate pool for
comparison in a recruitment case was all those people who could comply with the other selection
criteria, apart from the requirement at issue.
Once the pool for comparison has been selected, to assess its potential discriminatory effect it is
necessary to ascertain whether or not people of the same age group are disadvantaged by the
provision, criterion or practice. The Employment statutory code of practice advises: "Looking at the
pool, a comparison must be made between the impact of the provision, criterion or practice on people
without the relevant protected characteristic, and its impact on people with the protected
characteristic."
Disadvantage
The claimant must show that the provision, criterion or practice in question puts or would put people
of the same age group at a particular disadvantage when compared with people not of that age
group. The claimant must also establish that it puts or would put him- or herself at that disadvantage.
As explained in the Employment statutory code of practice the phrase "would put" "allows challenges
to provisions, criteria or practices which have not yet been applied but which would have a
discriminatory effect if they were". Disadvantage is not defined in the Equality Act 2010, but it is
usually understood to be a similar concept to "detriment". According to the code, disadvantage could
involve the denial of an opportunity or choice, deterrence, rejection or exclusion, but would exclude
"an unjustified sense of grievance".
In the words of the EAT "It is not sufficient that the practice puts, or would put, only the [complainant]
at a particular disadvantage". In Greenland v Secretary of State for Justice EAT/0323/14 (a race
discrimination case), Mr Greenland complained that a practice of paying higher fees to parole board
members who were judges indirectly discriminated against black non-judicial members of the board.
However, while all 36 judicial members were white, there was no evidence that there were any black
members apart from Mr Greenland himself among the group of 113 non-judicial members. The EAT
stated that: "The wording and purpose of s.19 of the [Equality Act 2010] point to consideration of the
potential impact of the practice on the appellant and other non-judicial members of the parole board
who share his protected characteristics (not hypothetical, potential future members of the parole
board)." The EAT assumed (without deciding) that it would be sufficient if there were at least one
other person who shared Mr Greenland's "protected characteristic and that 'persons' in s.19(2)(b)
includes the singular as well as the plural". However, if Mr Greenland was in fact the only black non-
judicial member, the EAT opined that "this would properly raise the question of whether s.19(2)(b)
permitted a hypothetical black person to be included amongst the group for the purposes of the
comparison". The EAT concluded that: "On the facts of the present case, there is no scope for
including hypothetical persons, that is persons who are not members of the parole board, within the
group for comparison. We do not consider that the phrase 'puts or would put persons' includes, in the
context of this case, non-existent or hypothetical persons who are not yet members of the parole
board." In any event (having regard to s.23 of the Equality Act 2010), on the facts there were material
differences "between the retired judges who were members of the parole board and the non-judicial
members" which rendered comparison impermissible. The EAT took the view that such an approach
"is consistent with the decision of the Court of Appeal in Eweida v British Airways Plc [2010] IRLR
322 CA".
In Essop and others v Home Office (UK Border Agency) [2017] IRLR 558 SC, the Supreme Court
held that claimants in indirect discrimination claims are not required to explain the reason why the
provision, criterion or practice (PCP) puts, or would put, the affected group at a particular
disadvantage, stating that: "It is enough that it does." In Essop, the PCP was the requirement for all
staff to pass an assessment test to be eligible for promotion. Statistical evidence indicated that
candidates from black and minority ethnic (BME) backgrounds and candidates over 35 were
disproportionately likely to fail the test, although no reason was identified to explain the differential. Mr
Essop, along with other unsuccessful candidates, claimed that they suffered a disadvantage
compared with white and younger candidates. Overturning the Court of Appeal decision (Essop and
others v Home Office (UK Border Agency) [2015] IRLR 724 CA) and upholding the EAT decision
(Essop & others v Home Office (UK Border Agency) EAT/0480/13), the Supreme Court held that
there is no requirement for the PCP to "put every member of the group sharing the particular
protected characteristic at a disadvantage". The Court noted that "The fact that some BME or older
candidates could pass the test is neither here nor there. The group was at a disadvantage because
the proportion of those who could pass it was smaller than the proportion of white or younger
candidates [who could pass the test]."
The Supreme Court decision in Essop is more in line with the European Court of Justice (ECJ)
decision in CHEZ Razpredelenie Bulgaria AD v Komisia za Zashtita ot Diskriminatsia [2015] IRLR
746 ECJ (a race discrimination case that did not concern, but is likely to impact on, employment law).
In CHEZ, the claimant, who was an occupant in an urban district mainly inhabited by persons of
Roma origin, but who was not herself of Roma origin, made a complaint of discrimination that the
Roma majority district received less favourable treatment in that their electricity meters were
deliberately installed at inconvenient heights in comparison to districts in which the inhabitants were
not majority Roma origin where the meters were installed at head height. The ECJ held that it is not
necessary for the claimant to share the same characteristic as the protected group to bring a
complaint of indirect race discrimination under the Race Directive (2000/43/EC). The ECJ further
stated that art.2 of the Race Directive "must be interpreted as precluding a national provision under
which, in order for there to be indirect discrimination on the grounds of racial or ethnic origin, the
measure in question is required to have been adopted for reasons of racial or ethnic origin".
Justification
Both direct and indirect age discrimination are capable of being justified. Less favourable treatment
because of age will not amount to unlawful direct age discrimination if the treatment is shown to be a
proportionate means of achieving a legitimate aim. Similarly, a provision, criterion or practice that is
indirectly discriminatory in relation to age will not be unlawful if the employer can show that the
provision, criterion or practice is a proportionate means of achieving a legitimate aim. While this test
is not defined in the Equality Act 2010 itself, it embodies principles derived from EU law.
The Employment statutory code of practice states that the aim of the provision, criterion or practice
"should be legal, should not be discriminatory in itself and must represent a real, objective
consideration" to constitute a "legitimate aim".
The code states that EU law "views treatment as proportionate if it is an 'appropriate and necessary'
means of achieving a legitimate aim". However, the code points out that "necessary" in this context
does not mean that the provision, criterion or practice must be the only possible way of achieving the
legitimate aim: "it is sufficient that the same aim could not be achieved by less discriminatory means".
In practice, this requires balancing the discriminatory effect of the provision, criterion or practice
against the employer's reasons for applying it, taking into account all relevant facts.
In Rosenbladt v Oellerking Gebäudereinigungsges mbH [2011] IRLR 51 ECJ, the European Court of
Justice (ECJ) held that a German law allowing employers to agree with employees under a collective
agreement that they must retire when they become entitled to a pension could be justified under
art.6(1) of the Equal Treatment Framework Directive (2000/78/EC), which provides that member
states may provide that differences of treatment on grounds of age "shall not constitute
discrimination, if, within the context of national law, they are objectively and reasonably justified by a
legitimate aim, including legitimate employment policy, labour market and vocational training
objectives, and if the means of achieving that aim are appropriate and necessary". The ECJ noted
that its approval of the German law does not mean that such clauses in a collective agreement are
exempt from any review by the courts; the collective agreement itself must be objectively justified.
In Prigge and others v Deutsche Lufthansa AG [2011] IRLR 1052 ECJ, the ECJ held that air traffic
safety does not constitute a legitimate aim within the meaning of art.6(1) of the Equal Treatment
Framework Directive because such aims must be "social policy objectives, such as those related to
employment policy, the labour market or vocational training". Nor was a provision in a German airline
collective agreement that required airline pilots to retire at the age of 60 necessary for public security
and the protection of health within the meaning of art.2(5) of the Directive, given that under
international law and German domestic law pilots may continue to carry out their activities, under
certain restrictions, between the ages of 60 and 65.
In Braithwaite and others v HCL Insurance BPO Services Limited EAT/0152/14 and Edie and others v
HCL Insurance BPO Services Limited EAT/0153/14, the employer (HCL) applied a provision, criterion
or practice (PCP) requiring all of its employees to move to a single set of terms and conditions, which
disadvantaged transferred employees (and particularly those older employees with long service) who
lost the benefit of more favourable contractual terms. The EAT agreed with the employment tribunal
that the PCP was justified in that it was a proportionate means of achieving HCL's "legitimate aim
which was to reduce staff costs to ensure [HCL's] future viability and to have in place market
competitive, non-discriminatory terms and conditions".
In Chief Constable of West Midlands Police and others v Harrod and others [2015] IRLR 790 EAT,
the EAT dismissed police officers' claims for indirect discrimination on the ground of age. The
employment tribunal (in Harrod and others v Chief Constable of West Midlands Police and others
ET/1307406/2011) held that the blanket practice of requiring the retirement of officers under reg.A19
of the Police Pensions Regulations 1987 (SI 1987/257) is not a proportionate means of achieving a
legitimate aim and accordingly, not justified. However, the EAT held that the tribunal had erred in law
in holding that the discrimination was not justified. The EAT stated that the tribunal "wrongly
concentrated on the process, and reasoning, adopted by the forces when deciding to utilise reg.A19,
rather than enquiring whether at the date of the hearing before the tribunal the use of reg.A19 was
proportionate (and hence justified, objectively)". The discriminatory element arose from statute and
not the force's application of the regulation. The Court of Appeal, in Chief Constable of West
Midlands Police and others v Harrod and others [2017] IRLR 539 CA, dismissed the officers' appeal.
It stated that it was the method of achieving the reduction in the number of police officers that must
be justified, and not the number of compulsory retirements. The forces' use of the power under
reg.A19 was justified because no other method of selection was lawful.
It is likely that, as in sex discrimination cases, cost alone will not justify the imposition of a
discriminatory provision, criterion or practice, but may be one of the factors taken into account in the
balancing exercise: Cross and others v British Airways plc [2005] IRLR 423 EAT (which was decided
under the now repealed Sex Discrimination Act 1975). In Woodcock v Cumbria Primary Care Trust
[2011] IRLR 119 EAT, the Employment Appeal Tribunal (EAT) held that the decision to dismiss Mr
Woodcock before he reached the age of 50 to prevent him from getting a pension "windfall" and avoid
the corresponding loss to the trust was a legitimate aim that went beyond the mere wish to reduce
costs. The EAT went on to question the current orthodoxy that an employer cannot justify
discrimination on the ground of cost alone, and stated that cost alone may be a sufficient justifying
factor where the cost of avoiding or rectifying the discriminatory impact of a measure or state of
affairs would be "disproportionately high". The EAT noted that in many cases the discriminatory
impact will be such that the employer "must avoid or correct it whatever the cost" but in other cases
the discriminatory impact will be trivial and the cost of avoiding it enormous. The Court of Appeal
dismissed Mr Woodcock's appeal (Woodcock v Cumbria Primary Care Trust [2012] IRLR 491 CA). It
noted that almost every decision made by an employer will have regard to costs and observed that
the relevant legislation was silent as to "the extent to which considerations of cost may feature in the
justification exercise" and concluded from this that the correct question is whether or not treatment
that would otherwise be discriminatory "may be justified if it was 'a proportionate means of achieving
a legitimate aim'". The Court of Appeal concluded, after reviewing the relevant authorities including
decisions of the ECJ, that although "the guidance of the Court of Justice is that an employer cannot
justify discriminatory treatment 'solely' because the elimination of such treatment would involve
increased costs, that guidance cannot mean more than that the saving or avoidance of costs will not,
without more, amount to the achievement of a 'legitimate aim'". Accordingly, had the employer's
treatment of Mr Woodcock been "no more than treatment aimed at saving or avoiding costs" it would
not have been justifiable, but his dismissal notice was "genuinely served, with the aim of giving effect
to the trust's genuine decision to terminate his employment on the grounds of his redundancy". This
was a legitimate aim and it was also legitimate for the trust "to ensure that, in giving effect to it, the
dismissal also saved the trust the additional element of costs that, had it not timed the dismissal as it
did, it would be likely to have incurred". Woodcock was concerned with the attempted justification of
direct age discrimination under the repealed Employment Equality (Age) Regulations 2006 (SI
2006/1031), but it is likely to remain relevant under the Equality Act 2010.
In Sturmey v Weymouth and Portland Borough Council EAT/0114/14, the EAT commented that
Woodcock does not set out, nor was it "intended by the Employment Appeal Tribunal or the Court of
Appeal to set out, any general principle as to whether omitting or eliding stages in the redundancy
process to save pension costs will always achieve a legitimate aim or will always be a proportionate
means of doing so". In Woodcock, the Court of Appeal recognised the "very particular circumstances"
of the case, whereas in Sturmey the EAT was concerned with an employee "of more ordinary
financial status" who just happened to be "in her 54th year when the re-organisation struck". She was
"part of a general re-organisation where one might expect budgetary allowance to be made for those
who happen to be 55 or reach the age of 55 during the process". The EAT remitted the case to the
employment tribunal, which it stated "ought to have considered and given reasons for its conclusion
on proportionality without effectively saying that Woodcock was decisive".
A case brought under the Part-Time Workers Directive (Directive 97/81/EC) which was transposed
into domestic law by the Part-time Workers (Prevention of Less Favourable Treatment) Regulations
2000 (SI 2000/1551) has implications for attempted justification on costs grounds under the Equality
Act 2010. Following a reference to the ECJ (O'Brien v Ministry of Justice Case C-393/10 ECJ), the
Supreme Court held, contrary to a specific provision in the Regulations, that a part-time fee paid
judge was a "worker" and as such entitled to the protection of the Regulations. Further, the exclusion
of part-time judges from the judicial pension scheme amounted to less favourable treatment that was
not objectively justified. The Supreme Court held that "the unequal treatment of different classes of
employees must be justified by the existence of precise, concrete factors, characterising the
employment condition concerned in its specific context and on the basis of objective and transparent
criteria". Commenting on the "pure budgetary consideration" that the pensions payable to full-time
judges may have to be reduced if part-time judges receive a pension, the Supreme Court continued:
"the fundamental principles of equal treatment cannot depend upon how much money happens to be
available in the public coffers at any one particular time or upon how the state chooses to allocate the
funds available between the various responsibilities it undertakes". Although the Supreme Court
found it "unnecessary ... to express a view upon whether the case of Woodcock was rightly decided"
it is clear that Woodcock v Cumbria Primary Care Trust [2012] IRLR 491 CA must now be interpreted
in the light of O'Brien (O'Brien v Ministry of Justice (formerly Department for Constitutional Affairs)
[2013] IRLR 315 SC).
In HM Land Registry v Benson and others [2012] IRLR 373 EAT (decided under the repealed
Employment Equality (Age) Regulations 2006), the EAT, overturning the decision of the employment
tribunal, held that a "cheapness criterion" applied by the employer during the selection process when
implementing a voluntary redundancy/early retirement exercise was justified, although indirectly
discriminatory on the basis of age. Mrs Benson was refused early retirement because she was of an
age that made it more expensive to grant her application. The EAT found that it was legitimate for the
employer to impose a budget on the amount to be spent on such schemes, stating that: "Like any
business, it was entitled to make decisions about the allocation of its resources." The EAT found that,
on the facts, the adoption of the cheapness criterion was a proportionate means of selection to meet
the financial limit imposed.
In Seldon v Clarkson Wright & Jakes [2009] IRLR 267 EAT (decided under the repealed Employment
Equality (Age) Regulations 2006), the EAT rejected a submission by the Equality and Human Rights
Commission (EHRC) that the threshold for justifying direct age discrimination is higher than that
required to justify any form of indirect discrimination. The EHRC argued that tribunals should direct
themselves that such justification will be found only in very exceptional cases. The EAT found no
support for the EHRC's approach in the Employment Equality (Age) Regulations 2006 or the Equal
Treatment Framework Directive (2000/78/EC), and stated that tribunals "must apply the normal
principles of legitimate aim and proportionality".
On appeal, the Court of Appeal in Seldon v Clarkson Wright and Jakes and Secretary of State for
Business, Innovation and Skills [2010] IRLR 865 CA, held that it is the UK laws that have to be
justified by reference to "social and employment" aims. This does not mean that a particular employer
must justify its actions by those "social and employment" aims, only that it must act consistently with
the social or labour policy aims that the UK used to justify the Regulations. The legislation can (as the
ECJ said in R (on the application of the Incorporated Trustees of the National Council on Ageing (Age
Concern England)) v Secretary of State for Business, Enterprise and Regulatory Reform [2009] IRLR
373 ECJ), give "some discretionary powers or a degree of flexibility" to employers. The Court of
Appeal held that an aim to provide employment prospects for young people and encourage young
people to seek employment by holding out good promotion prospects, is at least consistent with
social policy. It also found that it can be a legitimate aim to have a cut-off age after which individuals
are required to retire to avoid forcing an assessment of a person's falling-off in performance, thus
maintaining a confrontation-free workplace. An aim intended to produce a happy workplace has to be
consistent with the social policy justification for the Regulations.
Following the decision of the Supreme Court in Seldon, it seems that there was substance in the
EHRC's argument that the test for justifying direct age discrimination is different from, and more
stringent than, the usual principles for justifying indirect discrimination. In Seldon v Clarkson Wright &
Jakes (a partnership) [2012] IRLR 590 SC, the Supreme Court (having reviewed the applicable
provisions of the Equal Treatment Framework Directive and relevant European authorities) concluded
that the correct application of those principles to UK domestic legislation meant that "the approach to
justifying direct age discrimination cannot be identical to the approach to justifying indirect
discrimination and that reg.3 [which sets out the test for discrimination on the ground of age] (and its
equivalent in s.13(2) of the Equality Act 2010) must be read accordingly". The Supreme Court noted
that to "justify direct age discrimination under art.6(1), the aims of the measure must be social policy
objectives, such as those related to employment policy, the labour market or vocational training".
These are of a public interest nature, which is "distinguishable from purely individual reasons
particular to the employer's situation, such as cost reduction or improving competitiveness". The
Supreme Court considered that the UK Government had given employers "the flexibility to choose
which objectives to pursue, provided always that (i) these objectives can count as legitimate
objectives of a public interest nature within the meaning of the Directive and (ii) are consistent with
the social policy aims of the state and (iii) the means used are proportionate, that is both appropriate
to the aim and (reasonably) necessary to achieve it". It appeared to the Supreme Court that
European case law had identified two different kinds of legitimate objective, namely "inter-
generational fairness" and "dignity". The Court was satisfied that, in this case, the employer's aims of
staff retention and workforce planning were legitimate in that they were "directly related to the
legitimate social policy aim of sharing out professional employment opportunities fairly between the
generations". The third aim of "limiting the need to expel partners by way of performance
management" related to the "dignity aims" accepted previously by the ECJ in other cases.
Although the Supreme Court agreed that the employer's aims were legitimate, it remitted the case to
the employment tribunal on the issue of justification. Further, in noting that: "There is a difference
between justifying a retirement age and justifying this retirement age" the Court suggested that, as
well as addressing justification of the third aim, the tribunal might re-visit the question of "whether the
choice of a mandatory age of 65 was a proportionate means of achieving the first two aims". The
employment tribunal subsequently held that the firm's retirement age for partners was justified and
dismissed Mr Seldon's claim. In doing so, it "found that there is a narrow range of ages any one of
which would achieve the two aims". It took into account various factors, "in particular that the partners
had consented to the mandatory retirement age and that the default retirement age at the relevant
time was 65". The tribunal stated that the position might have been different if the facts had arisen
after the abolition of the default retirement age on 6 April 2011 "and after the planned changes in the
state pension age" (Seldon v Clarkson Wright & Jakes ET/1100275/2007). The EAT rejected Mr
Seldon's appeal (Seldon v Clarkson Wright & Jakes EAT/0434/13).
In Lord Chancellor and another v McCloud and others; Ministry of Justice v Mostyn and others;
Secretary of State for the Home Department and others v Sargeant and others [2019] IRLR 477 CA,
the Court of Appeal held that the Government's view that "it felt right" to protect older workers with
transitional provisions when making changes to pension schemes for judges and firefighters was
insufficient to defend direct age discrimination claims. In relation to the judges, the Court of Appeal
held that the tribunal had not erred in concluding that the aims relied on by the Government did not
stand up to scrutiny, given the lack of evidence that older judges required protection against financial
disadvantage more than younger judges. The Court also acknowledged the tribunal's dim view of the
Government's stated aim of consistency with other public-sector pension schemes. This contention
was "based on generalisation rather than hard evidence" and the judges' position is so different from
that of other public servants that true comparisons cannot be made. Regarding the firefighters, the
Court of Appeal concluded that, if the Government's view that older firefighters needed additional
protection was based on something more than "visceral instinct", it needed to explain its reasons to
the tribunal, which could assess the legitimacy of the chosen aims. While the Government can have
moral and political aims in mind, their justification must be supported by evidence. The Court of
Appeal accepted that, in the absence of evidence supporting the claimed legitimacy of the aims, the
firefighters' direct age discrimination case must succeed.
In Air Products plc v Cockram [2018] IRLR 755 CA, the employer refused to allow the claimant to
take stock options on leaving his employment because he was under the age of 55. The Court of
Appeal held that limiting the advantage enjoyed by one age group over another is "a legitimate social
policy aspect of intergenerational fairness" and Seldon does not say anything to the contrary. Having
weighed up the factors, the Court of Appeal found that the provision was a proportionate means of
achieving a legitimate aim.
In Hörnfeldt v Posten Meddelande AB [2012] IRLR 785 ECJ, the ECJ upheld the Swedish law that
allows an employer to terminate an employee's contract of employment on the sole ground that he or
she has reached the age of 67, taking no account of the pension that the employee will receive, as
justified.
In European Commission v Hungary Case C-286/12 ECJ, the Hungarian Government sought to
justify its adoption of a legislative provision that lowered the compulsory retirement age for judges,
prosecutors and notaries from 70 to 62. Hungary relied on two objectives, the first related broadly to
the standardisation of the compulsory retirement age in the public sector, and the second centred on
the establishment of a "more balanced age structure" facilitating access for young lawyers into the
professions in question. The ECJ held that the standardisation aim was legitimate and, in principle,
the means adopted were appropriate. However, it noted that the abrupt and significant change to the
retirement age was introduced without any transitional measures to protect the legitimate
expectations of those affected by the change, and that Hungary had failed to adduce evidence as to
whether or not more lenient measure would have sufficed. Against that background the ECJ held that
the measures were not necessary to achieve the first aim. The second aim was also legitimate but
the "apparently positive" but "short-term effects" called "into question the possibility of achieving a
truly balanced age structure in the medium and long-terms" and thus the method was not
appropriate. Accordingly, the ECJ found that the provision was not justified.
In Bloxham v Freshfields Bruckhaus Deringer [2007] ET/2205086/06 (decided under the repealed
Employment Equality (Age) Regulations 2006), the employment tribunal held that transitional
arrangements for the reform of a partners' pension scheme were less favourable treatment on
grounds of age. However, the treatment was a proportionate response to the need to tackle
intergenerational unfairness whereby a large proportion of the profits of younger, active partners were
going towards the pensions for retired partners. Taking into account the need to redress the balance
between older and younger partners, and the fact that even after lengthy consultation no less
discriminatory alternative was proposed, the tribunal found that the arrangements were justified.
In MacCulloch v Imperial Chemical Industries plc [2008] IRLR 846 EAT (decided under the repealed
Employment Equality (Age) Regulations 2006), the tribunal had found that a redundancy scheme that
discriminated against younger employees was justified by the employer's aims of encouraging and
rewarding loyalty and of reflecting the vulnerability of older workers in the job market. The EAT held
that the tribunal had failed to consider properly whether or not the employer's method of achieving its
(legitimate) aims was proportionate: the tribunal should have analysed whether or not the significant
disadvantage caused to the employee by the operation of the scheme was reasonably necessary to
achieve its objectives. The issue of justification was remitted to the same tribunal.
In Lockwood v Department for Work and Pensions and another EAT/0094/12 (decided under the
repealed Employment Equality (Age) Regulations 2006 (SI 2006/1031)), the employee (who was
aged 26 and had eight years' service) received a voluntary redundancy payment of £10,849.04.
However, under the rules of the scheme she would have been entitled to a further sum of £17,690.58,
had she been over the age of 35, with the same period of service. The EAT upheld the employment
tribunal finding that the employee's age group (35 or under) and the comparator group (over 35) were
not truly comparable, but even if they were, the tribunal had been entitled to find that the employer
adopted proportionate means to achieve its legitimate aim of producing "a proportionate financial
cushion for workers until alternative employment is found when balanced against the disparate
treatment of younger workers". In Lockwood v Department for Work and Pensions and another [2013]
EWCA Civ 1195 CA, the Court of Appeal overturned the EAT decision and held that the employee
had suffered less favourable treatment. However, it agreed that the treatment was objectively
justified.
Although preventing a "windfall" may constitute a legitimate aim of a redundancy payments scheme,
a tribunal erred in failing to consider whether or not an employee's exclusion from the scheme (on the
grounds that he was entitled to an immediate occupational pension from the age of 60) was
proportionate to any disadvantage he thereby sustained (Loxley v BAE Systems (Munitions &
Ordnance) Ltd [2008] IRLR 853 EAT, decided under the repealed Employment Equality (Age)
Regulations 2006)). The EAT remitted the issue of justification to a fresh tribunal. However, in Kraft
Foods UK Ltd v Hastie EAT/0024/10 (which was also decided under repealed the Employment
Equality (Age) Regulations 2006), the EAT held that a redundancy payment scheme that incorporated
an age-related cap on payments was a proportionate means of achieving the legitimate aim of
preventing employees from receiving a windfall and was not discriminatory.
In BAE Systems (Operations) Ltd v McDowell EAT/0318/16, the employer's enhanced redundancy
scheme applied a cap whereby employees who are aged 65 and over, and who have an immediate
entitlement to an occupational pension, do not receive an enhanced redundancy payment. The
employer conceded that the cap had a discriminatory impact, but argued that such discrimination was
justified. The EAT found that the tribunal had given careful consideration to the fact that Mr
McDowell's potential financial hardship was mitigated by his immediate entitlement to a pension and
it was entitled to conclude that this did not justify the cap. However, the EAT held that, in assessing
the employer's justification defence, the tribunal had failed to adopt a holistic approach and consider
the age-related cap on redundancy payments within the broader context and held that the tribunal's
conclusion was unsafe on this basis.
In Rolls Royce plc v Unite the Union [2009] IRLR 49 HC (decided under the repealed Employment
Equality (Age) Regulations 2006), the employer argued that a length of service criterion that formed
part of a redundancy selection matrix contained in two collective agreements entered into before the
age discrimination legislation came into force now gave rise to unlawful indirect age discrimination.
The union argued that the length of service criterion reflected the loyalty and experience of the
workforce and gave a measure of protection to older workers, who were more vulnerable in the job
market after redundancy. The High Court held that the criterion was justified under reg.3 of the now
repealed Employment Equality (Age) Regulations 2006. The legitimate aim was "the advancement of
an employment policy which achieves a peaceable process of [redundancy] selection agreed with the
recognised union", and the criterion was a proportionate means of achieving this aim. In any event,
the Court was satisfied that points awarded for long service in a redundancy selection matrix
constituted a "benefit" within reg.32, which was justified in relation to workers with more than five
years' service (see Service-related benefits). The Court of Appeal upheld the High Court's decision
that the criterion is lawful under the age discrimination legislation (Rolls Royce plc v Unite [2009]
EWCA Civ 387 CA). (Benefits based on length of service are now dealt with in para.10 of sch.9 to the
Equality Act 2010.)
In Pulham and others v London Borough of Barking & Dagenham [2010] IRLR 184 EAT (decided
under the repealed Employment Equality (Age) Regulations 2006), the EAT held that, contrary to the
position with sex discrimination, pay protection arrangements that are discriminatory on the ground of
age are always potentially justifiable.
In (1) ABN Amro Management Services Ltd (2) Royal Bank of Scotland v Hogben EAT/0266/09
(decided under the repealed Employment Equality (Age) Regulations 2006), the employee claimed
that weighting given to length of service in the employer's enhanced redundancy payment scheme
indirectly discriminated against older workers. The EAT refused to strike out the employee's claim,
and went on to state that in relation to the issue of justification "what has to be justified is the feature
of the scheme which is complained of as impacting on the claimant", and if that feature can be
justified, it is immaterial that other features of the scheme may discriminate against other age groups
unless the employer's justification involves reliance on those other features.
Additional resources on justification

Line manager briefing on age discrimination - justification
Harassment
Under s.26 of the Equality Act 2010, harassment occurs where person A engages in unwanted
conduct related to the protected characteristic of age, which has the purpose or effect of:
violating person B's dignity; or
creating an intimidating, hostile, degrading, humiliating or offensive environment for him or her.
The Employment statutory code of practice makes clear that if "unwanted" conduct (which according
to the code means "unwelcome" or "uninvited") is engaged in with the purpose of violating the dignity
of another person or creating an intimidating, hostile, degrading, humiliating or offensive environment
for that person, that amounts to harassment irrespective of its effect on the person concerned.
However, in many cases, unintentional conduct, or even conduct that is intended to be amusing or
friendly, may amount to harassment. The code advises that, where there is no intention to create one
of the environments described above, each of the following, in accordance with s.26(4) of the
Equality Act 2010, must be taken into account in determining whether or not the conduct amounts to
harassment:
B's perception.
The other circumstances of the case.
Whether or not it is reasonable for the conduct to have that effect (which is an objective test).
In Bakkali v Greater Manchester Buses (South) Ltd (t/a Stage Coach Manchester) [2018] IRLR 906
EAT, the Employment Appeal Tribunal (EAT) considered the test that should be applied when
determining whether or not the unwanted conduct is "related to" a protected characteristic. The EAT
held that "related to" requires a consideration of the context of the offending words or behaviour and
the "mental processes" of the alleged harasser. The EAT upheld the tribunal decision that asking a
Muslim employee of Moroccan origin whether or not he supported IS did not amount to harassment
because, given the context, the offending comment was not "related to" his religious belief or race.
The tribunal had found that the comment had been made after the employee had informed his
colleague about some "positive sounding comments" from a journalist about IS.
The employer will be liable for acts of employees carried out in the course of employment. In Jones v
Tower Boot Co Ltd [1997] IRLR 168 CA (decided under the repealed Race Relations Act 1976), the
Court of Appeal held that "in the course of employment" could cover even acts of torture to which
workers had subjected a colleague in the workplace.
In Unite the Union v Nailard [2018] IRLR 730 CA, the Court of Appeal upheld the employment tribunal
decision that the union was vicariously liable for the behaviour of elected officers of the union on the
basis that its failure to deal properly with allegations of sexual harassment by them of a paid union
official also amounted to harassment under s.26 of the Equality Act 2010.
The harassment can relate to person B's actual or perceived age, even where the perception is
wrong. B would not be required to disclose his or her actual age in order to bring a claim. It will be
enough that B has been harassed because of assumptions made about his or her age. The
harassment could also relate to someone else's age, for example B's spouse or partner.
In a departure from previous legislation, the harassment no longer needs to be "on grounds of" age,
but only "related" to it. Therefore it is now clear that B does not have to be, or even be believed to be,
the age that is the subject of the unwanted conduct. This was confirmed in Noble v (1) Sidhil Ltd (2)
Moore EAT/0375/14 in which the EAT stated: "it is clear that it is not necessary for a person to share
the protected characteristic before he may be harassed or discriminated against".
In Timothy James Consulting Ltd v Wilton EAT/0082/14; EAT/020414 & EAT/0205/14 (a sex
discrimination case), the EAT stated that "it is important … to give effect to the words that Parliament
has used and not to substitute alternative words for them". It also stated: "It is also important that the
statutory language should not become encrusted with a judicial gloss. The words used by Parliament
are that the conduct must be 'related to' the relevant protected characteristic. The tribunal's task was
to apply those words to the facts of the particular case before it." The EAT noted that "prior acts of
harassment may give rise to a constructive dismissal". However, it went on to note that "the act of
constructive dismissal does not in itself fall within the meaning of harassment as defined by the
Equality Act. It was therefore not open to the tribunal as a matter of law to find that the constructive
dismissal ... was in itself an unlawful act of harassment."
The Employment statutory code of practice states that: "Unwanted conduct covers a wide range of
behaviour, including spoken or written words or abuse, imagery, graffiti, physical gestures, facial
expressions, mimicry, jokes, pranks, acts affecting a person's surroundings or other physical
behaviour".
Additional resources on harassment
FAQs
Is an employer liable for offensive and/or potentially discriminatory material or comments
posted on its intranet bulletin board?
Policy on dealing with harassment complaints
Policy on investigating claims of bullying and harassment
"How to" guidance
How to deal with bullying and harassment in the workplace
Bullying and harassment
Line manager briefing on age discrimination - harassment
Third-party harassment
An employer may be liable in connection with a third party's conduct towards an employee if the
employer fails to intervene to prevent or stop the conduct because of the employee's age. In
Macdonald v Advocate General for Scotland; Pearce v Governing Body of Mayfield School [2003]
IRLR 512 HL, the House of Lords said that an employer will not be liable for subjecting an employee
to discrimination by a third party other than an employee, unless the reason for the failure to take
action to prevent or reduce the discrimination is related to the employee's sex, race, etc, or the third
party was acting as the employer's agent. Macdonald was decided under the repealed Sex
Discrimination Act 1975 but employers would be advised to assume that they should protect
employees from all types of discrimination by third parties.
In Conteh v Parking Partners Ltd EAT/0288/10 (decided under the now repealed Race Relations Act
1976), the Employment Appeal Tribunal (EAT) upheld the employment tribunal decision that the
employer was not liable in respect of the harassment of one of its employees by a person who was
employed by a third party over whom the claimant's employer had no control.
In a case that may have implications for discriminatory behaviour by third parties, the Supreme Court
held that the Ministry of Justice was vicariously liable for the conduct of a prisoner whose negligence
caused a prison officer employee to suffer a back injury while working in the prison kitchen (Cox v
Ministry of Justice [2016] IRLR 370 SC). The Supreme Court noted that the case addressed the
question of "what sort of relationship has to exist between an individual and a defendant before the
defendant can be made vicariously liable in tort for the conduct of that individual".
Prior to 1 October 2013, an employer could be liable under s.40 of the Equality Act 2010 if:
an employee was harassed by a third party during the course of his or her employment;
the employer knew that the employee concerned had been subjected to harassment by a third
party on at least two other occasions (whether by the same or a different third party); and
the employer had failed to take such steps as would have been reasonably practicable to
prevent the third party from harassing the employee.
The third-party harassment provisions in s.40 of the Equality Act 2010 were repealed with effect from
1 October 2013 with the result that no claim for alleged third-party harassment can be made under
s.40 in respect of acts that took place on or after that date. However, it appears that a claim may still
have been able to be issued on or after 1 October 2013 in respect of acts of third-party harassment
that occurred prior to that date.
Additional resources on third-party harassment
FAQs
If a third party harasses an employee, will his or her employer be liable for the third party's
actions under the Equality Act 2010?
Protection from Harassment Act 1997

Under the Protection from Harassment Act 1997, an employer may be vicariously liable for a course
of conduct by one of its employees that amounts to "harassment". The harassment may consist of
bullying, intimidation or harassment, and does not need to be on a prohibited ground (Majrowski v
Guy's and St Thomas's NHS Trust [2006] IRLR 695 HL). In Majrowski the claimant argued his
manager had bullied him because he was gay. This included being excessively critical of and strict
about his time-keeping and his work; isolating him by refusing to talk to him; being rude and abusive
in front of other staff; and imposing unrealistic targets for his performance and threatening him with
disciplinary action if he did not achieve them.
In Hammond v International Network Services UK Ltd [2007] EWHC 2604 HC, the High Court held
that to succeed under the Protection from Harassment Act 1997 an employee must show that there
was an element of real seriousness to the harassment. The actions must be calculated in an
objective sense to cause alarm and distress and must be capable of being objectively judged to be
oppressive and unreasonable. Irritating, annoying and upsetting conduct, such as shouting and
swearing by a supervisor, will not necessarily be a breach of the Act. The High Court found that the
matters complained of by Mr Hammond were trivial or could be traced back to reasonable operational
decisions taken by the employer.
However, in Green v DB Group Services (UK) Ltd [2006] IRLR 764 HC the High Court awarded a
claimant damages of £852,000 after she suffered a "relentless campaign of mean and spiteful
behaviour" by four women who worked closely with her, and in respect of a male co-worker's
behaviour, which was found to be "domineering, disrespectful, dismissive, confrontational and
designed to undermine and belittle her in the view of others". Although each incident viewed
separately was not of major significance, it was their cumulative effect that was important. The bank
was found liable for the bullying. This also amounted to harassment under the Protection from
Harassment Act 1997. The High Court found that a reasonable employer would have intervened as
soon as it was aware of the bullying, but managers in this case had closed their eyes to it.
This emphasises the need for employers to ensure that they have in place an anti-bullying policy that
is well publicised to all workers and properly enforced. As soon as an employer is aware that bullying
is occurring it should take steps to deal with it. In Rayment v Ministry of Defence [2010] IRLR 768 HC,
the High Court referred to Veakins v Kier Islington Ltd [2010] IRLR 132 CA, in which the Court of
Appeal held that, since Majrowski v Guy's and St Thomas's NHS Trust [2006] IRLR 695 HL, courts
have had to consider whether or not the conduct complained of is 'oppressive and unacceptable' as
opposed to merely unattractive, unreasonable or regrettable. In Rayment, the High Court awarded
the claimant damages under the Protection from Harassment Act 1997, of £5,000 for injury (the
exacerbation of the claimant's existing depression) and distress caused by 'oppressive and
unacceptable conduct' and £500 for distress caused by the display of photographs in a restroom that
was used only by the claimant.
In Levi and another v Bates and others [2015] EWCA Civ 206 CA, the Court of Appeal held that a
claim under the Protection from Harassment Act 1997 can be brought by someone who is not the
target of the conduct complained of, "if he or she is foreseeably likely to be directly alarmed or
distressed by it".
Victimisation
Section 27 of the Equality Act 2010 defines victimisation as where a person (A) subjects another
person (B) to a detriment because:
B does a protected act; or
A believes that B has done, or may do, a protected act.
The following are protected acts:
bringing proceedings under the Equality Act 2010;
giving evidence or information in connection with proceedings under the Act;
doing any other thing for the purposes of or in connection with the Act; or
making an allegation (whether or not express) that A or another person has contravened the
Act.
Section 77(4) of the Act provides that the following are also to be treated as protected acts:
seeking a "relevant pay disclosure";
making or seeking to make a relevant pay disclosure; or
receiving information disclosed in a relevant pay disclosure.
A "relevant pay disclosure" is one made "for the purpose of enabling the person who makes it, or the
person to whom it is made, to find out whether or to what extent there is, in relation to the work in
question, a connection between pay and having (or not having) a particular protected characteristic"
(s.77(3)) (see Equality and human rights > Equal pay).
Most claims of victimisation will be made where the employee has made an earlier complaint of age
discrimination. It will not matter whether or not the original underlying claim was successful. In a
complaint of victimisation the age discrimination is not in issue, it is the conduct of the employer in
consequence of the employee bringing a claim or assisting another to bring a claim. An individual is
protected from victimisation even if the allegation turns out to be wrong, provided that it was not made
in bad faith (see Bad faith).
No comparator necessary
Under the victimisation provisions of the Equality Act 2010, the complainant does not need to
compare his or her treatment to that of another real or hypothetical person to establish victimisation.
The complainant simply needs to show that he or she was subjected to a detriment because he or
she has done or may do a protected act.
Detriment
An employee will be treated as having been subjected to a detriment if he or she suffers a
disadvantage that causes harm, damage or loss. The test for detriment is whether or not a
reasonable worker would feel that he or she had been disadvantaged at work (Shamoon v Chief
Constable of the Royal Ulster Constabulary [2003] IRLR 285 HL).
In Rank Nemo (DMS) Ltd and others v Coutinho [2009] IRLR 672 CA (decided under the Race
Relations Act 1976), the Court of Appeal held that the non-payment of a tribunal award to a former
employee may constitute victimisation.
In Bouabdillah v Commerzbank AG ET/2203106/2012, the employment tribunal found that an
employee was victimised by being dismissed from her new post because she had brought sex
discrimination proceedings against her former employer.
In Das v Ayrshire and Arran Health Board EATS/0021/14, Mr Das was not offered an interview for the
job that he had applied for even though he was the only applicant. The employment tribunal found
that the decision to withdraw the post was an act of victimisation because the belief that Mr Das might
"bring proceedings in the tribunal was a substantial influence in the decision to depart from the
ordinary recruitment process". However, the tribunal went on to find on the facts that Mr Das "had
only a slender chance of being appointed even though he was the only candidate". It assessed this
as a 10% chance and reduced his compensation by 90%. The EAT upheld the tribunal decision.
Bad faith
Under s.27(3) of the Equality Act 2010, giving false evidence or information, or making a false
allegation, is not a protected act if the evidence or information is given, or the allegation is made, in
bad faith.
The Employment statutory code of practice states that "if a worker gives evidence, provides
information or makes an allegation in good faith but it turns out that it is factually wrong, or provides
information in relation to proceedings which are unsuccessful, they will still be protected from
victimisation".
In Saad v Southampton University Hospitals NHS Trust [2018] IRLR 1007 EAT, the EAT held that the
primary question, when deciding if an employee acted in bad faith under s.27(3), is whether or not the
employee acted honestly in making the discrimination allegation, not the employee's ulterior purpose.
The EAT found that, although the employee may have raised his race discrimination allegation with
the ulterior purpose of delaying a performance assessment, he had not made the allegation
dishonestly as he had a genuine belief that it was true. The EAT was satisfied that, while the
employee's motivation might be relevant to the question of remedy, it was not sufficient for a finding of
bad faith.
However, in HM Prison Service and others v Ibimidun [2008] IRLR 940 EAT, a case decided under
the now repealed Race Relations Act, the EAT held that an employee, who was dismissed because
he had brought tribunal proceedings solely in order to harass his employer and colleagues, had not
carried out a bona fide protected act and was not covered by the victimisation provisions. In
Elegbede v Nexen Petroleum UK Ltd EAT/0298/10 (also decided under the repealed Race Relations
Act 1976), the EAT upheld an employment tribunal decision that Mr Elegbede had not been
victimised. While the tribunal found that Mr Elegbede had suffered less favourable treatment in one
limited respect with regard to a complaint that he had made during his employment, it concluded that
"since the allegation underlying that complaint was made falsely and in bad faith" the victimisation
claim could not succeed.
Link between protected act and detriment

It will not be victimisation where an employer can show that the employee was subjected to the
detriment for a reason unrelated to the employee having made a protected act.
In Martin v Devonshires Solicitors EAT/0086/10 (decided under the repealed Sex Discrimination Act
1975 and Disability Discrimination Act 1995), the EAT confirmed that, where an employer dismisses
an employee in response to his or her protected act, the employer may not have unlawfully victimised
the employee where the reason for dismissal is some feature of the protected act that can be treated
as separable. The EAT stated that, in dismissing the employee's victimisation claims, the tribunal
had, in effect, found that the reason for the dismissal "had nothing to do with the fact, as such" that
she had complained of discrimination, but was because she "was mentally ill and ... the significance
of the complaints was as evidence of that fact".
In Woodhouse v West North West Homes Leeds LTD [2013] IRLR 773 EAT, the EAT overturned the
employment tribunal decision that an employee who was dismissed following multiple race
discrimination and related grievances, which had not been made in bad faith, was not victimised. The
EAT held that the employer's position that the employee "was dismissed because he had lost trust
and confidence in the organisation, when coupled, as the employment tribunal found it to be, with the
avoidance of further repetition of grievances ... is no more than the [employee] being dismissed, if not
because of past protected acts, then because of the belief of the likelihood of future protected acts".
On the tribunal's own factual findings, "that amounted to victimisation within the scope of s.27(1)" of
the Equality Act 2010 and any other conclusion was an error of law. The EAT warned against using
Martin as a "template" for identifying "genuinely separable features" in alleged victimisation cases.
Describing Martin as an "exceptional" case, the EAT continued "very few cases will have grievances
based on paranoid delusions about events that never happened".
The motivation of the person committing the act of victimisation may be conscious or unconscious:
Nagarajan v London Regional Transport [1999] IRLR 572 HL (decided under the repealed Race
Relations Act 1976). The claim of victimisation related to the rejection of Mr Nagarajan's application
for employment. He had previously brought claims of racial discrimination against the respondent
company and believed that that was the reason for its rejecting his application. The House of Lords
allowed the appeal and held that the key question for victimisation, as well as direct discrimination, is
why the complainant received less favourable treatment. The House of Lords held that "if the answer
to this question is that the discriminator treated the person victimised less favourably by reason of his
having done [a protected act]", the case falls within the definition of victimisation. The House of Lords
emphasised that the less favourable treatment still constitutes victimisation "even if the discriminator
did not consciously realise that, for example, he was prejudiced because the job applicant had
previously brought claims against him under the Act". The House of Lords found that a subconscious
influence could be a substantial cause of victimisation.
However, those committing the alleged act of victimisation must have knowledge of the protected act:
Scott v London Borough of Hillingdon [2001] EWCA Civ 2005 CA (decided under the repealed Race
Relations Act 1976).
In Chief Constable of Greater Manchester Police v Bailey [2017] EWCA Civ 425 CA, the employee
claimed that the termination of his secondment (which had come about because he had previously
brought a successful race discrimination claim against the employer) was an act of victimisation. The
employment tribunal upheld the claim, noting that the employee was only on secondment because of
the agreement he had made with his employer, "an agreement which is inextricably linked to, and
arises out of, his protected act of bringing his previous proceedings". The Court of Appeal held that
the employment tribunal had erred in applying the "but for" test, rather than the "reason why" test,
which applies to both direct discrimination and victimisation claims. Allowing the employer's appeal,
the Court of Appeal held that, although "it is self-evidently the case that there would have been no
secondment to terminate if the claimant had not brought his earlier claims ... that kind of 'but for'
causative link does not mean that the termination was 'because of' his earlier claims in the relevant
sense". The Court acknowledged that this point has been made in a number of cases and referred to
Ahmed v Amnesty International [2009] EAT/0447/08, in which the EAT held that "the fact that a
claimant's sex or race is a part of the circumstances in which the treatment complained of occurred,
or of the sequence of events leading up to it, does not necessarily mean that it formed part of the
ground, or reason, for that treatment".
In Pasab Ltd t/a Jhoots Pharmacy & Jhooty v Woods EAT/0454/11, decided under the repealed
Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660), the employment tribunal
found that the employer dismissed the employee because it believed that she had referred to the
employer as being "a little Sikh club" and it regarded this as a racist comment. The EAT held that it
was not open to the tribunal to find that the employee's dismissal was an act of victimisation because
"if the remark was viewed not as a protected act but an offensive racist comment ... then the reason
for dismissal was not that the claimant had done a protected act, but some other feature genuinely
separable from the implicit complaint of discrimination". The Court of Appeal upheld the EAT decision
(Woods v Pasab Ltd (t/a Jhoots Pharmacy) and another [2013] IRLR 305 CA).
Ongoing claims
Under previous legislation, to constitute victimisation, the act of victimisation had to be "by reason
that" the claimant has done the protected act. In Chief Constable of West Yorkshire Police v Khan
[2001] IRLR 830 HL, which was decided under the repealed Race Relations Act 1976, the House of
Lords held that the refusal to supply a reference to support promotion applications while race
discrimination proceedings were in progress was not victimisation. The reference was not withheld
"by reason that" the claimant had brought discrimination proceedings, but rather due to the
employer's temporary need to preserve its position in the outstanding proceedings. The Equality Act
2010 uses the word "because" rather than "by reason that" but it is suggested that the same
principles will apply and that Khan would be decided in the same way under the Act.
The EAT in Commissioners of Inland Revenue and another v Morgan [2002] IRLR 776 EAT (decided
under the Race Relations Act 1976) read Khan as creating a specific exception to victimisation where
the act complained of is an honest and reasonable step in the proper conduct of the respondent's
defence.
However, in St Helens Metropolitan Borough Council v Derbyshire and others [2007] IRLR 540 HL,
which was decided under the now repealed Sex Discrimination Act 1975, the House of Lords held
that unpleasant letters sent to 39 equal pay claimants pointing out that they might be responsible for
the loss of colleagues' jobs if they won had crossed the line between taking those reasonable steps
and subjecting the claimants to a detriment.
In Croad v University and College Union EAT/0012/11 (decided under the repealed Disability
Discrimination Act 1995), the EAT upheld the employment tribunal decision that the union had not
victimised the member by withdrawing legal support from her in connection with a claim against her
employer at a time when she had accused the union of disability discrimination. On the facts, which
involved a history of "antipathy" between the member and the union, the tribunal was satisfied that
the union "did not act as it did because the [member] gave notice of or brought proceedings but
because the bringing of proceedings created a conflict of interest".
Post employment
Section 108 of the Equality Act 2010 deals with prohibited conduct after the end of the working
relationship. Section 108(1) and (2) prohibit post-employment discrimination and harassment
respectively, while s.108(7) states that "conduct is not a contravention of this section in so far as it
also amounts to victimisation of B by A". However, this anomaly was resolved by the Court of Appeal
in Rowstock Ltd and another v Jessemey [2014] IRLR 368 CA. The Court of Appeal held that the
apparent exclusion of post-employment victimisation was the result of an inadvertent drafting error
and that the Equality Act 2010 can be interpreted to cover post-employment victimisation. Further, the
EHRC guidance states that, if a worker's former employer refuses to give him or her a reference
because he or she supported someone else's claim for sexual harassment, this would almost
certainly be victimisation (What equality law means for you as an employer: dismissal, redundancy,
retirement and after a worker has left). The guidance goes on to say that: "It does not matter how
long ago the person worked for you, as long as the worker could show that any unlawful
discrimination arises out of and is closely connected to the previous employment relationship."
Additional resources on victimisation
FAQs
What constitutes a detriment?
Line manager briefing on age discrimination - victimisation
Burden of proof
Section 136 of the Equality Act 2010 deals with the application of the burden of proof and provides
that, where an applicant proves facts from which the tribunal could conclude that the respondent had
committed a discriminatory act, the tribunal must uphold the complaint unless the respondent
provides an adequate non-discriminatory explanation for the treatment. For further information see
Employment tribunals and dispute resolution > Tribunal procedures and penalties > Burden of proof
in discrimination cases.
Occupational requirements
Paragraph 1 of sch.9 to the Equality Act 2010 contains an exception from direct age discrimination in
recruitment; opportunities for promotion, transfer or training; or dismissal where a requirement to
have a particular protected characteristic applies.
An occupational requirement will apply where, having regard to the nature or context of the work, the
employer applying the requirement shows that:
being of a particular age group is an occupational requirement;
the application of the requirement is a proportionate means of achieving a legitimate aim; and
either the person to whom the requirement is applied is not of the required age group or the
employer has reasonable grounds for not being satisfied that the person is of the required age
group.
The Equality Act 2010 explanatory notes state that while this provision replicates previous
exceptions, it differs in that "it makes clear that the requirement must pursue a legitimate aim and that
the burden of showing that the exception applies rests on those seeking to rely on it".
The explanatory notes to the Act state that the: "need for authenticity or realism might require
someone of a particular ... age for acting roles ... or modelling jobs".
In Wolf v Stadt Frankfurt Am Main Case C-229/08 ECJ, the European Court of Justice (ECJ) held that
a German law restricting applicants to the fire service to individuals under the age of 30 is permissible
as a genuine occupational requirement. The ECJ held that the age restriction does not go beyond
what is necessary to achieve the legitimate aim of ensuring "the operational capacity and proper
functioning of the professional fire service".
The requirement that it must be proportionate to apply the requirement to be of a particular age group
in a particular case may mean that, even if an occupational requirement applies to some of the duties
of a job, the exception could not be relied on if there were others of the required age group who could
do these duties, if the work were redistributed or reorganised.
In Prigge and others v Deutsche Lufthansa AG [2011] IRLR 1052 ECJ, the ECJ considered how
art.4(1) of the Equal Treatment Framework Directive (2000/78/EC), which deals with occupational
requirements, applies to airline pilots. The ECJ stated that possessing particular physical capabilities
may be considered a "genuine and determining occupational requirement" for acting as an airline
pilot, within the meaning of art.4(1). However, the ECJ went on to state that, in fixing the age limit at
60 while national and international legislation authorises pilots to continue to fly under certain
conditions until the age of 65, the collective agreement imposed on those pilots applied a
disproportionate requirement within the meaning of art.4(1). Therefore the provision gave rise to age
discrimination.
In Sorondo v Academia Vasca de Policía (C-258/15) [2017] IRLR 162 ECJ, the ECJ held that the
Equal Treatment Framework Directive (2000/78/EC) does not preclude national legislation that
provides that candidates for police posts must be under 35. The ECJ accepted that there could be an
occupational requirement because the duties relating to the protection of people and property, the
arrest and guarding of offenders and preventive patrolling may require the use of physical force. On
this basis, the ECJ accepted that an age cap for the recruitment of police officers in the Basque
region is lawful.
Recruitment
Employers cannot discriminate in recruitment on age grounds unless:

this can be objectively justified - see Justification; or
age is a genuine occupational requirement for the job - see Occupational requirements.
"Employee" for the purpose of the exception permitting employers to dismiss on grounds of
retirement does not have the same wide meaning as in the Equality Act 2010 generally. This
exception applies only to employees (within the meaning of s.230(1) Employment Rights Act 1996),
those in Crown employment and House of Lords and House of Commons staff. It does not for
example, apply to admission to partnership. Refusal of admission to partnership on age grounds will
be lawful only if the age grounds can be objectively justified.
In McCoy v James McGregor & Sons Ltd & ors Case Ref: 237/07 (decided under the Employment
Equality (Age) Regulations (Northern Ireland) 2006 (SR 2006/261)), which have not been repealed),
a Northern Ireland industrial tribunal held that an employer discriminated against a 58-year-old job
applicant on the grounds of age when it decided not to offer him employment. The job advert had
called for someone with "youthful enthusiasm" and the applicant was asked questions about his drive
and motivation, and if he was hungry enough to succeed.
It is not advisable to ask a candidate questions about his or her age during a recruitment exercise as
this may be relied on to show that a failure to appoint was based on the candidate's age
(Cunningham v BMS Sales 1 February 2007 Irish Equality Tribunal).
Additional resources on recruitment
FAQs
Can employers specify a minimum number of years' experience in job advertisements?
Is it unlawful to include a preferred age range in a job advertisement?
Is it permissible for an employer to stipulate in a job advert that candidates must be "recent
graduates"?
Under the age discrimination provisions of the Equality Act 2010 is an employer prevented
from using job titles including the words "senior" and "junior"?
Can employers still request applicants' work and education history, with dates, on their
application forms?
Is it unlawful to ask for applicants' date of birth on application forms?
Recruitment policy
Line manager briefing on age discrimination - recruitment
Retirement
Employers that compulsorily retire employees, or attempt to pressurise them to retire, are at risk of
direct age discrimination and unfair dismissal claims. Therefore, employers should treat older
employees with care and ensure that managers avoid making stereotypical assumptions about the
abilities or performance of older employees or their future intentions to "wind down".

However, employers may, in limited cases, apply an "employer-justified retirement age" (EJRA).
Section 13(2) of the Equality Act 2010 provides that, in relation to the protected characteristic of age,
less favourable treatment will not amount to age discrimination if the perpetrator can show that the
treatment is a proportionate means of achieving a legitimate aim. This means that employers
potentially can compulsorily retire employees if the retirement is objectively justified. Further, the
dismissal may be potentially fair provided that a fair dismissal procedure that satisfies the
requirements of the Employment Rights Act 1996 is followed. Where there is an EJRA, Acas
guidance states that a retirement dismissal will be dealt with as a dismissal for "some other
substantial reason" (s.98(1)(b) of the Employment Rights Act 1996). For further information, see
Termination of employment > Retirement.
Prior to 6 April 2011, employers were able to rely on the provisions in the Equality Act 2010 (and prior
to that, the Employment Equality (Age) Regulations 2006 (SI 2006/1031)) that provided an exception
to age discrimination and unfair dismissal, if the statutory retirement procedure was followed when
retiring employees who had reached the default retirement age of 65. Both the default retirement age
and the statutory retirement procedure were abolished by the Employment Equality (Repeal of
Retirement Age Provisions) Regulations 2011 (SI 2011/1069), which came into force on 6 April 2011.
Additional resources on retirement
FAQs
Can an employer ask an employee whether or not they have any plans to retire?
Can an employer suggest to an employee that they consider reducing their hours in
preparation for retirement?
Should an employer notify its employees that they can choose to retire?
What should an employer do if an older employee requests to change his or her working
pattern in preparation for retirement?
Can an employer offer a pre-retirement course to employees when they reach a certain age?
Retirement
Employer-justified retirement ages

Since retirement at a particular age takes account only of the age of an individual and not his or her
personal capabilities or job performance, the circumstances in which employers can compulsorily
retire employees are rare.
Employers will have to demonstrate that retirement at a particular age is "a proportionate means of
achieving a legitimate aim" within the meaning of s.13(2) of the Equality Act 2010. This is known as
the objective justification test. This test is not further defined in the Act itself, but embodies principles
derived from EU law (see Justification).
Legitimate aim
To establish objective justification under s.13(2) of the Equality Act 2010, the employer must first
prove that its retirement policy or decision meets a legitimate aim. If the employer cannot establish
this then the defence of justification will fail and the retirement dismissal will amount to direct age
discrimination contrary to s.13(1) of the Act. Possible examples of legitimate aims set out in the Acas
guidance Age and the workplace include: "workforce planning (the need for business to recruit, retain
and provide promotion opportunities and effectively manage succession) or the health and safety of
individual employees, their colleagues and the general public".
The Employment statutory code of practice (on the EHRC website) gives the following examples of
aims that might be considered legitimate:
the facilitation of workforce planning, by providing a realistic long-term expectation as to when
vacancies will arise; and
the provision of sufficient opportunities for promotion, thereby ensuring staff retention at more
junior levels.
The code points out that the legitimacy of such aims would depend on all the circumstances of the
case and, as emphasised by Acas, the employer's aim will need to be supported by evidence:
"assertions alone will not be enough".
Although the code was written in connection with compulsory retirements prior to the abolition of the
default retirement age and associated statutory retirement procedure, it is likely to remain relevant.
Proportionate means
Where an employer is able to establish that a legitimate aim exists, it must go on to demonstrate that
retiring an employee at a particular age is a proportionate way of meeting the aim. The employer will
need to show that it has considered whether or not the aim could be achieved by another method that
does not discriminate as much or at all. For example, where the employer seeks to rely on health and
safety as a legitimate aim, it should consider if there are other effective ways of addressing the issue,
such as health and fitness tests. If such a method would not be effective in addressing the employer's
aim, it will need to show why this is the case. If the measures chosen to achieve the employer's
legitimate aim are not proportionate, the justification defence will fail and the retirement dismissal will
amount to direct age discrimination contrary to s.13(1) of the Equality Act 2010.
The Employment statutory code of practice states that: "In determining [proportionality], a balance
must be struck between the discriminatory effect of the retirement and the employer's need to
achieve the aim - taking into account all the relevant facts." The code goes on to state that an
employer will need to produce evidence supporting its decision if it is challenged in the employment
tribunal.
The Acas guidance Age and the workplace states that "EJRAs tend to be used in exceptional
circumstances in which an employer has a retirement age under 65. For example, posts in the
emergency services which require a significant level of physical fitness or other occupations requiring
exceptional mental and/or physical fitness such as air traffic controllers." The use of a single
compulsory retirement age throughout an organisation may not be proportionate, particularly if
employees carry out a range of jobs requiring a range of skills and capabilities. It may well be that a
compulsory retirement age can be justified only in relation to a particular category, or categories, of
employee, if at all. Both domestic and European cases provide a possible indication of how the courts
might approach the issue of justification in the absence of a default retirement age.
In a Spanish case, Palacios de la Villa v Cortefiel Servicios SA [2007] IRLR 989 ECJ, the European
Court of Justice (ECJ) ruled that, although the Equal Treatment Framework Directive (2000/78/EC)
applies to a Spanish law permitting clauses in collective agreements that allow employees to be
compulsorily retired when they reach a specified age, since the law was introduced with the aim of
promoting full employment and encouraging recruitment it was objectively justified. In Fuchs and
another v Land Hessen [2011] IRLR 1043 ECJ, the ECJ held that German legislation that requires
civil servants to retire at 65 can, in principle, be justified by reference to the legitimate aims of
establishing an age structure that balances young and older civil servants to encourage the
recruitment and promotion of young people, improve personnel management and prevent possible
disputes concerning employees' fitness to work beyond a certain age. The ECJ stressed that, while a
compulsory retirement age can be justified by reference to such legitimate aims, it must be
"appropriate and necessary".
In Prigge and others v Deutsche Lufthansa AG [2011] IRLR 1052 ECJ, the ECJ held that, while the
aim of guaranteeing air traffic safety was a legitimate objective within the meaning of art.4(1) of the
Equal Treatment Framework Directive, which deals with occupational requirements, a clause in a
German airline collective agreement that required airline pilots to retire at the age of 60 was
disproportionate, given that under international law and German domestic law pilots may continue to
carry out their activities, under certain restrictions, between the ages of 60 and 65. The ECJ also held
that the measure did not constitute a legitimate aim within the meaning of art.6(1) of the Directive,
which deals with justification, because such aims must be "social policy objectives, such as those
related to employment policy, the labour market or vocational training". Further, the clause was not
necessary for public security and protection of health within the meaning of art.2(5). Therefore the
compulsory retirement provision gave rise to age discrimination.
In Hampton v Lord Chancellor and another [2008] IRLR 258 ET, the employment tribunal held that
the policy of forcing Recorders (part-time judges and "office holders" within the meaning of reg.12 of
the repealed Employment Equality (Age) Regulations 2006) to retire at the age of 65 is unlawful age
discrimination. It rejected the argument that it is necessary for a reasonable flow of new
appointments.
In Seldon v Clarkson Wright & Jakes ET/1100275/07 (also decided under the repealed Employment
Equality (Age) Regulations 2006), the tribunal held that the retirement of a partner in a law firm was
direct age discrimination. However, it was justified as the firm needed a compulsory retirement age
for partners to ensure that associates had the opportunity to become a partner after a reasonable
period. It also avoided confrontation with underperforming partners who were close to retirement.
Allowing Mr Seldon's appeal, the Employment Appeal Tribunal (EAT) held that part of the tribunal's
decision on justification rested on the assumption that, as partners reach the age of 65, there is a
significantly greater risk that they will underperform. However, there was no factual evidence to
support this assumption, which the EAT held was unjustified and discriminatory. It remitted the case
to the same tribunal to consider whether or not the other legitimate aims of the compulsory retirement
rule are sufficient to justify it (Seldon v Clarkson Wright & Jakes [2009] IRLR 267 EAT). On appeal,
the Court of Appeal held that it could be legitimate for a law firm to have a cut-off age after which
partners are required to retire to avoid forcing an assessment of their drop in performance, thus
maintaining a confrontation-free workplace (Seldon v Clarkson Wright and Jakes and Secretary of
State for Business, Innovation and Skills [2010] IRLR 865 CA). Mr Seldon appealed to the Supreme
Court. The Supreme Court's decision would appear to narrow the circumstances in which employers
will be able to impose a compulsory retirement age (Seldon v Clarkson Wright & Jakes (a
partnership) [2012] IRLR 590 SC). The Supreme Court (having reviewed the applicable provisions of
the Equal Treatment Framework Directive and relevant European authorities) concluded that the
correct application of those principles to UK domestic legislation meant that "the approach to
justifying direct age discrimination cannot be identical to the approach to justifying indirect
discrimination and that reg.3 [which sets out the test for discrimination on the ground of age] (and its
equivalent in s.13(2) of the Equality Act 2010) must be read accordingly". The Supreme Court noted
that to "justify direct age discrimination under art.6(1), the aims of the measure must be social policy
objectives, such as those related to employment policy, the labour market or vocational training".
These are of a public interest nature, which is "distinguishable from purely individual reasons
particular to the employer's situation, such as cost reduction or improving competitiveness". The
Supreme Court considered that the UK Government had given employers "the flexibility to choose
which objectives to pursue, provided always that (i) these objectives can count as legitimate
objectives of a public interest nature within the meaning of the Directive and (ii) are consistent with
the social policy aims of the state and (iii) the means used are proportionate, that is both appropriate
to the aim and (reasonably) necessary to achieve it". It appeared to the Supreme Court that
European case law had identified two different kinds of legitimate objective, namely "inter-
generational fairness" and "dignity". The Court was satisfied that, in this case, the employer's aims of
staff retention and workforce planning were legitimate in that they were "directly related to the
legitimate social policy aim of sharing out professional employment opportunities fairly between the
generations". The third aim of "limiting the need to expel partners by way of performance
management" related to the "dignity aims" accepted previously by the ECJ in other cases.
Although the Supreme Court agreed that the employer's aims were legitimate, it remitted the case to
the employment tribunal on the issue of justification. Further, in noting that: "There is a difference
between justifying a retirement age and justifying this retirement age" the Court suggested that, as
well as addressing justification of the third aim, the tribunal might re-visit the question of "whether the
choice of a mandatory age of 65 was a proportionate means of achieving the first two aims".
In Hörnfeldt v Posten Meddelande AB [2012] IRLR 785 ECJ, the ECJ upheld the Swedish law that
allows an employer to terminate an employee's contract of employment on the sole ground that he or
she has reached the age of 67, taking no account of the pension that the employee will receive, as
justified.
In European Commission v Hungary Case C-286/12 ECJ, the Hungarian Government sought to
justify its adoption of a legislative provision that lowered the compulsory retirement age for judges,
prosecutors and notaries from 70 to 62. Hungary relied on two objectives, the first related broadly to
the standardisation of the compulsory retirement age in the public sector, and the second centred on
the establishment of a "more balanced age structure" facilitating access for young lawyers into the
professions in question. The ECJ held that the standardisation aim was legitimate and, in principle,
the means adopted were appropriate. However, it noted that the abrupt and significant change to the
retirement age was introduced without any transitional measures to protect the legitimate
expectations of those affected by the change, and that Hungary had failed to adduce evidence as to
whether or not more lenient measure would have sufficed. Against that background the ECJ held that
the measures were not necessary to achieve the first aim. The second aim was also legitimate but
the "apparently positive" but "short-term effects" called "into question the possibility of achieving a
truly balanced age structure in the medium and long-terms" and thus the method was not
appropriate. Accordingly, the ECJ found that the provision was not justified.
The lawfulness of the now abolished default retirement age, and the principles of objective
justification, were also discussed in R (on the application of the Incorporated Trustees of the National
Council on Ageing (Age Concern England)) v Secretary of State for Business, Enterprise and
Regulatory Reform [2009] IRLR 373 ECJ and R (on the application of Age UK) v Secretary of State
for Business, Innovation and Skills [2009] EWHC 2336 HC both of which were unsuccessful
challenges to the legality of the default retirement age. See Justification for further decisions dealing
with justification.
Additional resources on employer-justified retirement ages
FAQs
Can an employer use a mandatory retirement age for workers who are not employees?
Retirement policy and procedure
Retirement contract clause for employees subject to an employer justified retirement age
Situations where there is no employer-justified retirement age

If an employer is unable to establish an employer-justified retirement age (see Employer-justified
retirement ages), the purported "retirement" dismissal of an employee will amount to direct age
discrimination under s.13(1) of the Equality Act 2010 in respect of which the employee will be able to
seek compensation from an employment tribunal. It is likely that the employee will also have a
successful claim for unfair dismissal - irrespective of the procedure used - since the employer is
unlikely to be able to establish that the employee's retirement dismissal constituted "some other
substantial reason" under s.98 of the Employment Rights Act 1996.
Employers must treat employees consistently. For example, if an employer does not operate a
compulsory retirement age but finds that an older employee is underperforming, the employer should
address that matter with that particular employee as a capability issue in the normal way. Failing to
address the employee's underperformance could result in an age discrimination claim from a younger
employee whose underperformance is dealt with under the capability procedure. As with employees
of any age, should the older employee's performance fail to achieve a satisfactory standard through
the application of the capability procedure, the employer may eventually decide to dismiss the
employee by reason of capability, which is a potentially fair reason for dismissal under s.98 of the
Employment Rights Act 1996.
Additional resources on cases where there is no employer-justified retirement age
FAQs
If an employer does not retain a compulsory retirement age, can it retire employees if this is
justified on a case-by-case basis?
How should an employer that is no longer using a compulsory retirement age amend its
policies?
Retirement policy and procedure
Service-related benefits
Pay or benefits linked to experience or service indirectly discriminate against younger employees.
Paragraph 10 of sch.9 to the Equality Act 2010 contains a specific exception to allow employers to
use length of service as a criterion for the provision of a benefit, facility or service. However, where
the employee who is put at a disadvantage has more than five years' service (which can be the total
time the employee has worked for the employer or the length of time the employee has been doing
work at a particular level), it must reasonably appear to the employer that the way in which it uses the
criterion of length of service, in relation to the award of the benefit, facility or service fulfils a business
need of its undertaking, for example by encouraging the loyalty or motivation, or rewarding the
experience, of some or all of its employees.
A service criterion of five years or less is, therefore, lawful without the employer having to provide
individual justification. An employer may be able to justify a service criterion of longer than five years
by reference to a business need, but this will not automatically be the case. The Employment
statutory code of practice states that this test of "fulfilling a business need" is "less onerous than the
general test for objective justification for indirect discrimination" (see Justification). The code goes on
to state that "an employer would still need evidence to support a reasonable belief that the length of
service rule did fulfil a business need".
Any benefits linked directly to age, for example where there is a minimum or maximum age for
providing a benefit, would have to be objectively justified in accordance with the general test of
justification.
In Rolls Royce plc v Unite the Union [2009] IRLR 49 HC (decided under the repealed Employment
Equality (Age) Regulations 2006 (SI 2006/1031)), the High Court was satisfied that points awarded
under a length of service criterion that formed part of a redundancy selection matrix constituted a
"benefit" within reg.32 that was justified in relation to workers with more than five years' service. The
Court of Appeal upheld the High Court decision that the criterion was lawful under the age
discrimination legislation (Rolls Royce plc v Unite [2009] EWCA Civ 387 CA).
This potential exception does not apply to payments that are made to an employee on leaving his or
her employment because such payments are not a reward for experience from which an employer
can benefit. A separate provision deals with redundancy payments (see Redundancy payments).
Additional resources on service-related benefits
FAQs
Is it permissible to award greater holiday entitlement to employees who have, for example,
10 years' service?
Where it is a company's policy to give a small gift to employees who have completed periods
of service of multiples of 10 years could this be discriminatory under the Equality Act 2010?
National minimum wage

The Equality Act 2010 contains an exception from unlawful age discrimination to permit employers to
base their pay structures on the national minimum wage legislation.
This exception cannot be relied on by employers that do not base their pay structures on the national
minimum wage legislation. For further information see Pay and benefits > The national minimum
wage > Age discrimination legislation.
Redundancy payments
Paragraph 13 of sch.9 to the Equality Act 2010 contains an exception that allows enhanced company
redundancy payments linked to length of service where the provisions of the company scheme mirror
provisions in the statutory redundancy scheme.
The exception allows employers applying the statutory calculation method to enhance it by:
treating a week's pay as being uncapped, or subject to a maximum amount above that set out in
s.227 of the Employment Rights Act 1996 - £525 from 6 April 2019 (previously £508); and/or
multiplying the appropriate amount allowed for each year of employment by a figure of more
than one.
Regardless of whether either or both of the previous enhancements have been applied, the employer
may also apply a multiple to the total redundancy payment.
Additional resources on redundancy payments
FAQs
Will an employer be liable to an age discrimination claim if it makes enhanced redundancy
payments?
Policy on enhanced redundancy payments
Quick Reference
Enhanced redundancy payments
Insurance and related financial services

Paragraph 14 of sch.9 to the Equality Act 2010, as amended with effect from 6 April 2011, contains
an exception from the equal treatment requirement for employers that provide: "insurance or a related
financial service to or in respect of an employee", in relation to employees reaching the age of 65 or
the state pension age, whichever is greater. The Acas guidance Age and the workplace explains that
group-risk insured benefits that some employers provide for their employees and their dependants,
such as income protection, sickness and accident insurance, and private medical insurance, are
"exempt from the principle of equal treatment on the grounds of age so that it will be possible for
employers to cease to provide or offer insured benefits to employees aged 65 and above, even if they
continue working beyond that age. The age at which group risk insured benefits can be withdrawn will
increase in line with increases to the state pension age."
Additional resources on insurance and related financial services
FAQs
Can an employer stop providing group risk insured benefits such as life assurance or private
medical cover to employees when they reach a certain age?
Other exceptions
National security
Section 192 of the Equality Act 2010 contains an exception from unlawful age discrimination for acts
done for the purpose of safeguarding national security, if the acts are proportionate for that purpose.
Statutory authority
The Equality Act 2010 contains an exception from unlawful age discrimination for acts done in order
to comply with a requirement of an enactment.
In Heron v Sefton Metropolitan Borough Council EAT/0566/12, Ms Heron, who was aged over 60 at
the time of her dismissal for redundancy, received a redundancy payment that was half the sum
payable "to a similar employee similarly dismissed" but who was under the age of 60. The
Employment Appeal Tribunal (EAT) overturned the employment tribunal decision upholding the
employer's defence of statutory authority, stating that the Civil Service Compensation Scheme (the
statutory authority relied on) "provides for the difference in treatment between employees dismissed
by reason of redundancy who are over and under 60 at the date of dismissal, but it does not require
that difference to be respected". The EAT stated that: "A requirement is something which means that
the person subject to it cannot do otherwise". The EAT upheld Ms Heron's claim that she had been
subjected to unjustified direct age discrimination.
Armed forces
In relation to the protected characteristic of age, the employment provisions of the Equality Act 2010
do not apply to service in the armed forces (para.4 of sch.9 to the Act).
Childcare
Paragraph 15 of sch.9 to the Equality Act 2010 introduced a new exception to the prohibition on age
discrimination pertaining to benefits relating to the provision of childcare, and to which access is
restricted to children of a particular age group. The Equality Act 2010 explanatory notes point out that
following the decision of the ECJ in the Coleman v Attridge Law and another [2008] IRLR 722 ECJ (a
disability discrimination case), employers that provide childcare where access is limited by reference
to a child's age could potentially be liable for treating an employee less favourably because of the age
of the employee's child (see Equality and human rights > Disability discrimination > Direct
discrimination). This exception allows employers to provide, make arrangements for, or facilitate the
provision of, care for children of a particular age group up to and including the age of 16 without
contravening relevant provisions of the Act.
Facilitating the provision of care for a child includes:
"paying for some or all of the cost of the provision;
helping a parent of the child to find a suitable person to provide care for the child;
enabling a parent of the child to spend more time providing care for the child or otherwise
assisting the parent with respect to the care that the parent provides for the child" (para.15(3) of
sch.9 to the Act).
It is clear from s.212(1) of the Equality Act 2010 that "parent" covers not only natural parents, but all
those with parental responsibility for a child.
Contributions to personal pension schemes

Exceptions to the non-discrimination rule in relation to age in respect of employer contributions to
personal pension schemes previously set out in sch.2 to the Employment Equality (Age) Regulations
2006 (SI 2006/1031) have been revoked. Paragraph 16 of sch.9 to the Equality Act 2010 confers
power on a government minister to provide "that it is not an age contravention for an employer to
maintain or use, with respect to contributions to personal pension schemes, practices, actions or
decisions relating to age which are of a specified description". No regulations have yet been issued.
Terms
Unenforceable terms
Section 142 of the Equality Act 2010 renders unenforceable against a person contractual terms that
constitute, promote or provide for treatment, of that person or another person, that is prohibited under
the Act. Section 143 of the Act provides that the county court may order that a term rendered
unenforceable by s.142 is removed or modified.
No contracting out
Section 144 of the Equality Act 2010 prohibits contracting out from its provisions, except where the
contract in question settles a complaint and is either made with the assistance of a conciliation officer
or constitutes a qualifying settlement agreement (previously referred to as a compromise contract).
Positive action
General positive action
Section 158 of the Equality Act 2010 allows a person (P) to take action in the following
circumstances:
Where P reasonably thinks that persons who share a protected characteristic suffer a
disadvantage connected to that characteristic, P may take any action that is a proportionate
means of enabling or encouraging persons to overcome or minimise that disadvantage.
Where P reasonably thinks that persons who share a protected characteristic have needs that
are different from the needs of persons who do not share it, P may take any action that is a
proportionate means of meeting those needs.
Where P reasonably thinks that participation in an activity by persons who share a protected
characteristic is disproportionately low, P may take any action that is a proportionate means of
enabling or encouraging persons who share that protected characteristic to participate in that
activity.
This would allow an employer to take measures in relation to persons from a particular age group, but
only where one of the above conditions is met. The measures taken must be proportionate, having
regard to the seriousness of the disadvantage etc, because, as the Equality Act 2010 explanatory
notes make clear, positive action measures in relation to one group "may result in people not having
the relevant characteristic being treated less favourably".
Chapter 12 of the Employment statutory code of practice discusses positive action in detail, and the
subject is also covered in vol.1 of EHRC guidance: What equality law means for you as an employer:
when you recruit someone to work for you. The code cites mentoring, shadowing and training
targeted at specified disadvantaged groups as examples of the measures that may be taken. The
guidance states that positive action steps before or at the application stage "could include
encouraging particular groups to apply, or helping people with particular protected characteristics to
perform to the best of their ability (for example, by giving them training or support not available to
other applicants)". In addition, the Equality Act 2010 contains a power permitting the Government to
make regulations setting out what action is, and is not, permitted under s.158 in order to provide
greater legal certainty about what action is likely to be regarded as proportionate. No regulations
have yet been issued.
Additional resources on general positive action
FAQs
What "positive action" is permitted under discrimination legislation?
Are employers obliged to take positive action towards under-represented groups under the
Equality Act 2010?
What is the difference between positive action and positive discrimination?
Are employers able to use both the general and the recruitment and promotion positive
action provisions?
What are the advantages for employers of taking positive action?
Are there any time limits on the use of positive action?
Positive action in recruitment and promotion

Section 159 of the Equality Act 2010, which came into force on 6 April 2011, permits an employer, in
defined circumstances, to appoint or promote a person (A) with a protected characteristic in
preference to another person (B) who does not have the protected characteristic.
Section 159(1) provides that an employer is permitted to take positive action only where it reasonably
thinks that persons who share a protected characteristic suffer a disadvantage connected to that
characteristic (s.159(1)(a)); or participation in an activity by persons who share a protected
characteristic is disproportionately low (s.159(1)(b)). The Government Equalities Office has issued
guidance on taking positive action (Equality Act 2010: What do I need to know? A quick start guide to
using positive action in recruitment and promotion), and that guidance states that some: "information
or evidence will be required to indicate to the employer that one of those conditions exists [ie
disadvantage or under-representation] - but it does not need to be sophisticated statistical data or
research". The guidance goes on to state that the employer may, for example, look at the profile of its
own or a comparable workforce, or consult national data such as labour force surveys.
The positive action must be a proportionate means of the employer enabling or encouraging persons
who share the protected characteristic to overcome or minimise the disadvantage or participate in the
activity (s.159(4)(c)). The Government Equalities Office guidance Equality Act 2010: What do I need
to know? A quick start guide to using positive action in recruitment and promotion states that, in order
to ensure that positive action is proportionate, an employer "will need to balance the seriousness of
the disadvantage suffered or the extent to which people with a protected characteristic are under-
represented against the impact that the proposed action may have on other people". The guidance
advises employers to: "consider if the proposed action is the only way to address the under-
representation or disadvantage effectively, or if it would it be possible to achieve the same effect by
other actions that are less likely to result in the less favourable treatment of other people."
Section 159(4) of the Act provides that an employer may take positive action only if:
A is as qualified as B to be recruited or promoted; and
the employer does not have a policy of treating persons who share the protected characteristic
more favourably in connection with recruitment or promotion than persons who do not share it.
The Equality Act 2010 does not set out what is meant by "as qualified as". However, the Equality Act
2010 explanatory notes state that "the question of whether one person is as qualified as another is
not a matter only of academic qualification, but rather a judgment based on the criteria the employer
uses to establish who is best for the job which could include matters such as suitability, competence
and professional performance". The Government Equalities Office guidance Equality Act 2010: What
do I need to know? A quick start guide to using positive action in recruitment and promotion) refers to
candidates being "of equal merit" to each other, not "as qualified as" each other. The guidance
advises that: "Employers should establish a set of criteria against which candidates will be assessed
when applying for a job". The guidance states that this can take into account: "a candidate's overall
ability, competence and professional experience together with any relevant formal or academic
qualifications, as well as any other qualities required to carry out the particular job ... [but] employers
should ensure that any criteria do not indirectly discriminate against people who share a protected
characteristic".
The absence of a statutory definition of "as qualified as" in the Equality Act 2010 means that case law
will be required to clarify what is meant by this requirement. It is unclear whether or not "as qualified
as" will be interpreted to extend to "equal merit" as assumed by the Government Equalities Office
guidance.
Section 159 does not require an employer to take positive action and taking such action is not without
risk. An employer that favours one applicant over another because he or she has a protected
characteristic may be exposed to a claim of direct discrimination under s.13 of the Equality Act 2010
by the rejected applicant. The rejected applicant may argue that the employer has failed to satisfy all
of the criteria required to trigger the application of, and protection afforded by, s.159. For example,
the rejected applicant may assert that s.159 does not apply because he or she is better qualified for
the job than the appointed candidate, or that the positive action was not a proportionate way of
addressing the disadvantage or under-representation of persons who share the same protected
characteristic as the appointed candidate.
Additional resources on positive action in recruitment and promotion
FAQs
What is the main risk for an employer that applies the positive action in recruitment and
promotion provisions?
Do the positive action provisions apply to all protected characteristics?
Given that no two applicants will be identical in terms of their suitability for a post, how can
employers show that they are as qualified as each other?
In a recruitment or promotion situation, is an employer obliged to offer the position in
question to a candidate with a protected characteristic that is under-represented?
At what stage of the recruitment process should employers make the decision to take
positive action?
Pensions and other employment benefits

Occupational pension schemes

Section 61 of the Equality Act 2010 provides that an occupational pension scheme must be taken to
include a non-discrimination rule.
A non-discrimination rule means that a responsible person (A) (ie a trustee or manager of the
scheme; an employer whose employees are, or may be members of the scheme; or a person
exercising an appointing function in relation to an office the holder of which is, or may be a member of
the scheme) must not:
discriminate against another person (B) in carrying out any of A's function in relation to the
scheme;
in relation to the scheme, harass B; or
in relation to the scheme, victimise B.
The provisions of an occupational pension scheme take effect subject to the non-discrimination rule,
although the rule does not apply to a person who is a pension credit member of the scheme. Section
62 of the Equality Act 2010 confers a power on the trustees and managers of such a scheme to alter
its rules by resolution (in certain circumstances) in order to conform with the s.61 non-discrimination
rule.
The Equality Act 2010 explanatory notes state that the non-discrimination rule "does not apply to
pension rights built up or benefits payable for periods of service before the commencement of this
section" (which was on 1 October 2010). The notes go on to state that periods of service prior to this
date will be subject to previous discrimination legislation. Occupational pension schemes were
required to have non-discrimination rules in respect of age prior to the implementation of the Equality
Act 2010. Exceptions to the non-discrimination rule in respect of age previously set out in sch.2 to the
Employment Equality (Age) Regulations 2006 (SI 2006/1031) have now been revoked, but s.61
provides that it will not be a breach of the non-discrimination rule for an employer or the trustees or
managers of a scheme "to maintain or use in relation to the scheme rules, practices, actions or
decisions relating to age which are of a description specified" in secondary legislation. Relevant
secondary legislation has been passed (the Equality Act 2010 (Age Exceptions for Pension
Schemes) Order 2010 (SI 2010/2133)) (see Pensions > Occupational pensions and employment law
> Occupational pension schemes and age discrimination).
In HK Danmark acting on behalf of Kristensen v Experian A/S Case C-476/11 ECJ, which was
referred to the ECJ from Denmark, it held that the principle of non-discrimination on grounds of age
set out in the Equal Treatment Framework Directive (2000/78/EC) and, in particular, arts.2 and 6(1) of
that Directive, must be interpreted as not precluding an occupational pension scheme under which an
employer pays, as part of pay, pension contributions that increase with age, provided that the
resulting difference in treatment on grounds of age is appropriate and necessary to achieve a
legitimate aim, which is a matter for the national court to establish.
Public authorities
Section 149 of the Equality Act 2010, which came into force on 5 April 2011, sets out the general
public sector equality duty. The first arm of the duty applies to all of the protected characteristics,
while the second and third arms apply to all of the protected characteristics except for marriage and
civil partnership.
A public authority must, in the exercise of its functions, take account of the three matters specified in
the general equality duty. First, a public authority must have due regard to the need to eliminate
discrimination, harassment, victimisation and any other conduct that is prohibited by or under the
Equality Act 2010 (s.149(1)(a)).
Second, a public authority must have due regard to the need to advance equality of opportunity
between persons who share a relevant protected characteristic and those who do not share it
(s.149(1)(b)). This involves taking into account the need to:
remove or minimise disadvantages suffered by persons who share a relevant protected
characteristic that are connected to that characteristic;
take steps to meet the needs of persons who share a relevant protected characteristic that are
different from the needs of persons who do not share it; and
encourage persons who share a relevant protected characteristic to participate in public life or in
any other activity in which participation by such persons is disproportionately low.
Third, a public authority must foster good relations between persons who share a relevant protected
characteristic and those who do not (s.149(1)(c)). This involves taking into account the need to tackle
prejudice and promote understanding.
Section 149(6) of the Equality Act 2010 provides that compliance with the general equality duty may
involve treating some persons more favourably than others, but not where such conduct would
otherwise be prohibited by or under the Act.
The general equality duty applies to public authorities that are listed in sch.19 to the Equality Act
2010. The list includes government departments, local authorities, NHS bodies, schools and other
educational bodies and the police.
A person who is not a public authority but who exercises public functions must also, in the exercise of
those functions, comply with the general duty (s.149(2)). A public function is one that is of a public
nature for the purposes of the Human Rights Act 1998 (s.150(5)). The Equality and Human Rights
Commission's (EHRC) Essential guide to the public sector equality duty (revised fourth edition,
January 2014) explains that such bodies "will include private bodies or voluntary organisations which
are carrying out public functions on behalf of a public authority", and gives the example of a private
company running a prison on behalf of the Government. The guide goes on to state that "the
company would, however, only be covered by the general equality duty with regard to its public
functions, but not for other work, like providing security services for a supermarket".
In January 2013, the EHRC issued technical guidance on the public sector equality duty for England,
Scotland and Wales, which "explains the three aims of the [duty], outlines the requirements of the
Equality Act 2010 and the specific duty regulations and provides practical approaches to complying
with the public sector equality duty". The guidance states that it "provides an authoritative,
comprehensive and technical guide to the detail of the law". Although the guidance is not in the form
of a statutory code of practice issued under s.14 of the Equality Act 2006, it may be used as evidence
in legal proceedings and a body subject to the duty would need to justify a departure from it. The
guidance is available on the EHRC website: Equality Act 2010 technical guidance on the public
sector equality duty: England, Equality Act 2010 technical guidance on the public sector equality duty:
Scotland and Equality Act 2010 technical guidance on the public sector equality duty: Wales.
The EHRC has issued other revised guidance for public authorities in England (and bodies with non-
devolved functions in Scotland and Wales) which is available on the EHRC website: Meeting the
equality duty in policy and decision-making (third edition revised October 2014) and Engagement and
the equality duty (revised September 2014).
Specific public sector equality duties

The general duty is underpinned by specific duties, designed to support the functioning of the general
duty. Under the Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017 (SI
2017/353), there are three specific duties: to publish equality information, to publish equality
objectives and to publish gender pay gap information. The Regulations apply to public authorities in
England and to the non-devolved functions of public authorities in Scotland and Wales. The relevant
public authorities are listed in sch.2 to the Regulations. These specific public sector equality duties
are intended to enable public authorities better to perform, and demonstrate their compliance with,
the general public sector equality duty.
The Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017 (SI 2017/353)
revoked and replaced the previous Equality Act 2010 (Specific Duties) Regulations 2011 (SI
2011/2260) on 31 March 2017. The 2017 Regulations expanded the specific duties to introduce the
gender pay gap reporting duty for public authorities.
In October 2011, the Government Equalities Office published a quick start guide to the specific duties:
Equality Act 2010: Specific duties to support the equality duty. A quick start guide for public sector
organisations.
The duty to publish equality information
Under the specific duty to publish equality information, a public authority listed in sch.2 to the 2017
Regulations must publish information to demonstrate its compliance with the general equality duty
under s.149(1) of the Equality Act 2010, including, in particular, information relating to persons who
share a relevant protected characteristic who are: its employees; and other persons affected by its
policies and practices. The requirement to publish information about employees does not apply to
public authorities with fewer than 150 employees. Public authorities must publish this information at
intervals of no more than one year.
The EHRC has published Equality Information and the Equality Duty: A Guide for Public Authorities.
The guidance recommends that public authorities with at least 150 employees publish:
the race, disability, gender, age breakdown and distribution of the workforce at different grades,
and whether they are full or part time;
an indication of likely representation on sexual orientation and religion or belief, provided that no
individuals can be identified as a result;
an indication of any issues for transsexual staff, based on engagement with transsexual staff or
voluntary groups;
gender pay gap information (the EHRC guidance was published prior to the introduction of the
specific gender pay gap reporting duty);
information about occupational segregation;
grievance and dismissal information for people with relevant protected characteristics;
complaints about discrimination and other prohibited conduct from staff;
details and feedback of engagement with staff and trade unions;

quantitative and qualitative research with employees, eg staff surveys;
records of how the authority has had due regard to the aims of the duty in decision-making with
regard to employment, including any assessments of impact on equality and any evidence
used; and
details of policies and programmes that have been put into place to address equality concerns
raised by staff and trade unions.
The EHRC guidance says that it would also be useful for authorities to publish information broken up
by protected group on:
return-to-work rates after maternity leave;
success rates of job applicants;
take-up of training opportunities;
applications for promotion and success rates;
applications for flexible working and success rates;
other reasons for termination such as redundancy and retirement;
length of service/time on pay grade, and;
pay gap for employees with other protected characteristics.
The duty to publish equality objectives
A public authority listed in sch.2 to the 2017 Regulations must also prepare and publish one or more
"specific and measurable" objectives that it thinks it should achieve to comply with any part of the
general equality duty. This information must be published at intervals of not greater than four years.
The information required under regs.4 and 5 must be published "in a manner that is accessible to the
public", which could include "publication within another published document" (reg.6).
The EHRC has published Objectives and the Equality Duty: A Guide for Public Authorities, which
includes guidance on engaging with members of the public, trade unions and other organisations to
identify objectives, and on how to prioritise and select final objectives.
Specific public sector equality duties in Scotland and Wales
The 2017 Regulations apply to specified public authorities in England, specified cross-border Welsh
authorities and specified public authorities operating across Great Britain in relation to non-devolved
functions. There are separate provisions that apply to public authorities in Scotland (see Equality and
human rights > Key differences in Scotland and Northern Ireland for further information) and Wales.
The Equality Act 2010 (Statutory Duties) (Wales) Regulations 2011 (SI 2011/1064), which set out the
specific duties for public authorities in Wales in relation to their devolved public functions, came into
force on 6 April 2011. The specific duties for relevant Welsh public authorities are significantly more
detailed than those that are applicable to English public authorities, and include duties to carry out
impact assessments on policies and practices, to publish strategic equality plans and to report on
compliance with the general equality duty. Technical guidance on the equality duty for the Welsh
public sector is available on the EHRC website.
Additional resources on specific public sector equality duties
FAQs
Which employers must comply with the specific public sector equality duties under the
Equality Act 2010?
Must employers with fewer than 150 employees publish equality information about their staff
under the specific public sector equality duties?
Do private sector organisations that carry out public functions have to publish equality
information about their staff?
What are the specific public sector equality duties in Wales?
Key references
Legislation
Sex Disc rimination Act 1975
Race Relations Act 1976
Protection from Harassment Act 1997
Equality Act 2010
Equal Treatment Framework Directive (2000/78/EC)
Employment Equality (Age) Regulations 2006 (SI 2006/1031)
Employment Equality (Age) (Amendment No.2) Regulations 2006 (SI 2006/2931)
Equality Act 2010 (Offshore Work) Order 2010 (SI 2010/1835)
Equality Act (Age Exceptions for Pension Schemes) Order 2010 (SI 2010/2133)
Employment Equality (Repeal of Retirement Age Provisions) 2011 (SI 2011/1069)
Codes of practice
Employment statutory code of practice
Guidance
Equality Act 2010: What do I need to know? A quick start guide to using positive action in recruitment
and promotion
A step by step practical guide to using positive action when making appointments
EHRC guide on what equality law means for advertisers and publishers
Acas guidance on age discrimination
© 2019 Reed Business Information Ltd

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27/4/2019 Age discrimination | Equality and human rights | Employment law manual | Tools | XpertHR.co.

a reference to persons who share a protected characteristic is a reference to persons of the

Additional resources on who is protected?

Recipients or (intended) victims of instructions to discriminate

Employees and workers

Employers' liabilities for employees' acts

Additional resources on employers' liabilities for employees' acts

"How to" guidance

Additional resources on third parties

"Reasonable steps" defence

Additional resources on "reasonable steps" defence

Policies and documents

Liability for and of agents

Personal liability of employees

Trustees and managers of occupational pension schemes

Employees, agents and others who "knowingly help" contraventions of the

Others who may be liable

Prohibited conduct in the employment context

by not offering B employment.

Employment Equality (Sexual Orientation) Regulations 2003 (SI 2003/1661) it is relevant to

Additional resources on prohibited conduct in the employment context

Prohibited conduct after the working relationship has come to an end

Additional resources on direct discrimination

Line manager briefings

Less favourable treatment

Additional resources on indirect discrimination

Line manager briefings

The pool for comparison

Additional resources on justification

Line manager briefings

Additional resources on harassment

Additional resources on third-party harassment

Protection from Harassment Act 1997

Link between protected act and detriment

Additional resources on victimisation

Employers cannot discriminate in recruitment on age grounds unless:

Additional resources on recruitment

abilities or performance of older employees or their future intentions to "wind down".

Additional resources on retirement

Employer-justified retirement ages

Additional resources on employer-justified retirement ages

Situations where there is no employer-justified retirement age

Additional resources on cases where there is no employer-justified retirement age

Additional resources on service-related benefits

National minimum wage

Additional resources on redundancy payments

Insurance and related financial services

Additional resources on insurance and related financial services

Contributions to personal pension schemes

Additional resources on general positive action

Positive action in recruitment and promotion

Additional resources on positive action in recruitment and promotion

Pensions and other employment benefits

Occupational pension schemes

Specific public sector equality duties

details and feedback of engagement with staff and trade unions;

Additional resources on specific public sector equality duties

© 2019 Reed Business Information Ltd

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