1. Age discrimination law in the UK has developed significantly in recent years, increasingly viewing age discrimination as seriously as other forms of discrimination like sex discrimination. 2. A key case, Seldon v Clarkson Wright and Jakes, established that employers must show that mandatory retirement ages are a proportionate means of achieving a legitimate aim, considering possible alternative approaches. 3. Subsequent cases like Lockwood v DWP have applied a stringent approach to considering proportionality and alternative options, requiring detailed evidence from employers, signaling that UK courts are taking a rigorous approach to justifying practices that risk age discrimination.

1. 1
Age Discrimination – Coming of Age?1
Synopsis
For many years, there has been concernthat age discriminationis taken
much less seriously by UKlaw than say, sex discrimination. This paper
argues that after a slowstart developments, including (perhaps
surprisingly) the Seldon litigation, indicate that the UKlegal systemis
now taking age discriminationmuchmore seriously. As always, the CJEU
has had a part to play.
1. The members of the discrimination law family – now known collectively as
the protected characteristics – were warned that a new member was on the
way when the EU agreed the Council Directive in 2000/78/ECestablishing a
general framework for equal treatment in employment and occupation. Its
early years werehowever troubled.
2. The heart of the matter was a certain ambivalence aboutwhether age
(discrimination) does matter as much as the government’s early
consultation papers suggested2
. On a domestic level, the point was made by
Lord Walker in R (Carson and Reynolds) v Secretary of State for Work and
Pensions[2006] 1 AC 173 at [60] when he said
Age is a personalcharacteristic, but it is different in kind fromother
personalcharacteristics. Every human being starts life as a tiny infant,
and none of us can do anything to stop the passageof the years. As
the High Court of Australia said (in a different context) in Stingel v The
1 Equality and Diversity – Coming of Age” was the titleof the March 2006 Report on the Government
Consultation the draft Age Discrimination Regulations.
2 Toward Equality and Diversity – Age Matters (June 2003).

2. 2
Queen (1990) 171 CLR312, 330: "theprocess of developmentfrom
childhood to maturity is something which, being common to us all, is
an aspect of ordinariness."
There is nothing intrinsically demeaning about age. Itmay be
disheartening for a man to be told that he cannotcontinue in his
chosen job after 50, and it is certainly demeaning for a woman air
hostess to be told that she cannotcontinue as cabin crew after the age
of 40 (see Defrenne vSociété Anonyme Belge de Navigation Aérienne
(Case43/75) [1976] ECR455). ButMlle Defrennewas discriminated
against on the ground of sex, not age. In relation to normalretirement
ages lines haveto be drawn somewhere…
3. On a European level, there was also ambivalence. Article 21 of the
European Charter on FundamentalRights and Freedoms proclaims a
fundamental right not to be discriminated against on the ground of age. So
does much of the case law: Mangold v. Helm [2006] IRLR143.On theother
hand in a much cited opinion Advocate General Sharpston indicated in the
case of Bartsch v. Bosch and Siemans[2008] ECR1- 7245 that age was
qualitatively differentfrom race etc. on the grounds of its “greater
specificity” - whatever that means.
4. European ambivalence was later to express itself in the astonishing
proposition that “dignity” is a legitimate aim justifying compulsory
retirement. This means that compulsory retirement can justified by
reference to the discomfortof younger colleagues in confronting the retiree
about his performance; this remains so even if the retiree is willing to
submit to a performancemanagement regime through which shesays she

3. 3
will prove her worth3
. This is a staggering proposition in a rights/autonomy
based body of law.
5. Between 2000 and 2006, theUK endured a policy debate about whether
age discrimination should apply to compulsory retirement. The judgment
of Blake J in the judicial review proceedings broughtby Age Concern is
instructive4
. The research evidence indicated that there was no evidence of
declining performanceuntil age 70 and Blake J was not able to find any
evidence of job blocking such as to justify mandatory retirement at 65. Yet
the governmentstill passed Regulation 30 exempting retirement at 65 from
the age discrimination regulations provided only that employers considered
(but without giving any reasons for rejecting) a requestto say on.
6. In the same vein, the governmenttook advantage to the maximum possible
extent of the liberty given to it by the framework directiveto delay
implementation. Thus the legislation did not come into force until October
2006, theHome Office Minister at the time stating that the Regulations
were broughtinto force “with the greatest possiblereluctance”.
Seldon: Judicial Caution
7. Unsurprisingly therefore, theSeldon litigation had someworrying
implications for the future of age discrimination law.
8. One was the attitude of the various Courts to consent: all of the Courts
which have heard the case thus far haveheld againstMr Seldon the fact
that he signed the (renewed) partnership deed in 2005. But why so? Article
16 of the framework directiveprovides that discriminatory agreements
shall not be enforceable. If an aspiring female partner in a law firm wereto
3
Rosenbladt v Oellerking Gebaudereinigungsges mbH, C-45/09 [2012] All ER (EC) 288 ECJ
4
R (Age UK) v. Secretary of State for Business Industry and Skills [2010] ICR 260.

4. 4
sign a partnership deed (the only one on offer) which required her to work
full time, no one would consider that matter capable of undermining her
claim for indirect sex discrimination following the refusalof her request to
work part-time.
9. Another was the low evidential standard which was imposed. Thus in its
2007 decision the ET had to consider whether compulsory retirementwas
justified by
a) the need to avoid confronting older partners with the uncomfortable
truth (“collegiality”)
b) the need to plan the workforce
c) the need to retain associates.
[the Claimant dubbed the last two of these three aims “Dead Men’s Shoes”]
10. One of the Claimant’s submissions was that there was no evidence that any
of these aims required compulsory retirement; no evidence for example
that performancemanagement would not deal with issues threatening
collegiality; no evidence that “dead men’s shoes” was the way careers
advanced in modern law firms.
11.This submission failed at every stage. The EAT was particularly clear that an
ET did not need “concrete evidence”. In Homer, Elias P repeated the same
point when he said
Itis an error to think that concrete evidence is always necessary to
establish justification, and the ACAS guidance should not be read in
that way. Justification may be established in an appropriatecase by
reasoned and rational judgment. What is impermissibleis a

5. 5
justification based simply on subjectiveimpression or stereotyped
assumptions5
12. Itwas enough if partners stepped up and justified the practice on the basis
of “their experience” - withoutnecessarily giving specific examples.
13.More grandly, the Appellant in Seldon had one enormous point to make.
This was that Article 6(1) of the Directive did not permit the delegation by
the State to private employers of decisions about whether social policy
required either a) workers to retire so as to allow space for youth; or
alternatively b) to stay at work in order to support themselves. A related
point was that any justificatory aim had to be one of social policy. A private
business aim would not do. These arguments wererejected. Businesses
were to have broad discretion to pursuetheir own aims provided only they
were loosely related to the State’s social policy aims. However as we shall
see, the breadth of the permitted aims has had a very significantimpact
upon the proportionality test.
The Turn of the Tide?
14.The starting point is obvious. In 2011, thegovernmentrepealed the
sections of the Equality Act containing the Designated Retirement Age. For
some reason, previous concern aboutjob blocking had proved unfounded
and it was no longer necessary to maintain a mandatory retirement age.
15.Looking now at Seldon, Lady Hale’s approach to proportionality is crucial. In
the only paragraph of her judgment to discuss proportionality, shesaid
5
Chief Constable of South Yorkshire v Homer [2009] IRLR 262 at para 48.

6. 6
…the means chosen have to be both appropriate and necessary. Itis one
thing to say that the aim is to achieve a balanced and diverseworkforce.
Itis another thing to say that a mandatory retirement age of 65 is both
appropriateand necessary to achieving this end. Itis one thing to say that
the aim is to avoid the need for performancemanagement procedures. It
is another to say that a mandatory retirement age of 65 is appropriate
and necessary to achieving this end. The means haveto be carefully
scrutinised in the context of the particular business concerned in order to
see whether they do in fact meet the objective and there are not other
less discriminatory measures which would do so (paragraph 62).
16.That it was put this way is not an accident. During Mr Seldon’s firstappeal
to the EAT, Declan O’Dempsey for the EHRC (Intervening) invited the EAT
to develop an approach emanating from the decision of Elias P in Redcar v
Cleveland BC wherehe said
Itis inherent in the proportionality principle that where differentmeans
of achieving a particular objective could be achieved, the one which has
the least discriminatory impactshould be chosen. For a recent example
see the decision of the Courtof Appeal in R (Elias) v Secretary of State for
Defence [2006] 1 WLR3213. (emphasis added)
17.Not surprisingly, when hearing Mr Seldon’s appeal, Elias P endorsed his own
views on Redcar:

7. 7
We agree that the rule should adapt the least discriminatory means of
achieving the particular objective.6
(para 62).
18.In the Court of Appeal and the Supreme Court, wherethe Appellant was
funded by the EHRC, this approach was commended to both Courts. Thus in
the Appellant’s Case in the SupremeCourt it was said
In every case, rigorous consideration of the possibility of less
discriminatory measures has been required and wherethis has not
occurred then the measurehas not been justified: see Ingeniorforeningen
I Danmark and Henningsand Mai (B2 664)
19.Itis clear why Lady Hale accepted this submission: sherejected the
Appellant’s case in Seldon that the class of legitimate aims was limited to
state level social policy aims. Employers were to be given flexibility in
choosing whataims to pursue. There was thus a danger that the defence
would become too broad. This however was to be prevented by three
further requirements namely,
a) that the Respondent mustactually be pursuing the aim at the
material time;
b) that the aim must be legitimate in the circumstances of the
particular business;
and
c) that the means chosen be both appropriateand necessary.
6 [2009] ICR 60 atpara 62.

8. 8
20. Moreover, one of the issues in the SupremeCourt was the question of
whether Regulation 3 required the justification of Clause 22 of the
Partnership Deed (as the Respondent said) or its application to the
Appellant in his particular circumstances (as the Appellant contended).
Again the Respondent’s case was accepted.
21.However it follows fromthis that wherea Respondent relies on a rule the
consideration of proportionality will inevitably come down to the
consideration of alternative rules. Since the Respondent bears the burden
of proof it will have to show that any alternatives suggested by the Claimant
are not apt to achieve the aim. The position is similar to that facing a
Respondent in a DDA claim which has to show that any reasonable
adjustments proposed by the Claimant are unreasonable: see Project
ManagementInstitute v Latif [2007] IRLR579.
22.This is clearly in line with EU Law. The CJEU considers thata measureis
disproportionateif there are alternative measures which achieve the same
aim. Moreover notwithstanding the margin of appreciation accorded to
Members States, the CJEU is rigorous and proactive in considering
alternative less discriminatory rules.
23.There are numerous cases which illustrate the point, but it is perhaps best
illustrated by Henningsand Mai [2012] IRLR83.7
24.The Claimants in that case were appointed at an initial salary determined by
their age on appointment. The question for the CJEU was whether the
discriminatory effects of this rule could be justified. The Danish government
said that the measurewas justified because older workers tended to be
more experienced.
7 See also Ingeniørforeningen I Danmark (acting on behalf of Andersen) v Region Syddanmark, C-499/08 [2012]
All ER (EC) 342 ECJ

9. 9
25.The CJEU said the measurewas disproportionatebecausea rule based on
experience would be equally if not more effective and would be less
discriminatory: seeparas 69-78 of the judgment.
26.In my view, this represents a real change. Previously, thejustification test
has been clothed in the language of reasonablenecessity following the
decision of the Court of Appeal in Hardysand Hanson vLex [2005] ICR1565.
In Benson v. Land Registry [2012] ICR627 UnderhillJ. spokeof
27. …the error of treating the language of “real need”, or “reasonable
needs”, as Balcombe LJ put it in Hampson, as connoting a requirement of
absolute necessity. Itis well established that that is not the case: see the
judgments of the Court of Appeal in Barry ([1999] ICR319, at p. 336 A-B)
and in Cadman vHealth and Safety Executive [2005] ICR1546,and of Elias
P in this Tribunal in Blackburn (above), at paras. 17-21 (pp. 509-510). In
Cadman Maurice Kay LJ said, at para. 31 (p. 1560 B-C):
The test does not require the employer to establish that the
measurecomplained of was "necessary" in the senseof being
the only courseopen to him. That is plain from Barry. … The
difference between "necessary" and "reasonably necessary"is a
significant one …”
28.Thus the decision in Seldon marks a clear shift fromthis position which is
wholly in line with the trend in EU caselaw and which makes the
proportionality test emanating fromLuxemburg much stricter than that
which applies when Human Rights issues areat stake.8
8 See “Is Proportionality Differently Applied by Luxembourg and Strasbourg?” Unpublished paper by Richard
Wilson QC 3rd November 2013.

10. 10
29.Moreover its impact is all the greater because of Lady Hale’s repeated
emphasis on the need to show that the rule was justified in circumstances
of the Respondent’s particular business. Generalisations will not be
enough.
Lockwood and Comparators
30.If the approach in Seldon to proportionality amounts to a turning of the
tide, the tide became higher in the case of Lockwood vDWP [2013] IRLR941
31.The case concerned the Civil ServiceCompensation Scheme which paid
compensation to thosetaking redundancy. The level of compensation was
determined by a number of age related bands based on evidence collected
by the Respondent about the differing responsibilities and needs of its
employees at different age defined stages of their lives.
32.At first instance, the Claimants failed because it was found that the relevant
older employees werenot statutory comparators becausetheir
circumstances weredifferent.
33.This (be it noted) was a version of Lord Walker’s argumentin Carson: we all
progress through theages. Itwas importantbecause if accepted it would
have had the effect of exempting many age related practices fromscrutiny
under the proportionality test.
34.However the Court of Appeal rejected this approach. An alleged
comparator could not be distinguished by referenceto age related
characteristics.
35.The Claimants failed on proportionality: while different banding rules could
have been adopted that did not make the one chosen disproportionate.

11. 11
Surprisingly, thepoint about alternative rules arising from Seldon does not
appear to have been taken.
36.However it is noteworthy that the Respondent seems to have come armed
with very detailed empirical evidence to back up its claims [see paragraph
15]. This I would suggest represents the way in which the proportionality
test is being replied in a more rigorous way.
Proportionality Post Seldon: the A19 Cases
37.Further evidence of a more rigorous approach to proportionality can be
found in the decision of the London Central ET in the A19 cases.
38.Police Officers haveconsiderable security of tenure but may be required to
retire at 60 or 65 depending on rank under Regulation A 18 of the Police
Pensions Regulations. In addition, Regulation A 19 provides
Compulsory retirement on grounds of efficiency of the force
A19. (1) This Regulation shall apply to a regular policeman, other
than a chief officer of police, deputy chief constable or assistant
chief constable, who if required to retire would be entitled to
receive a pension of an amountnot less than 2 thirds of his average
pensionable pay or would be entitled to receive a pension of such
an amountif it did notfall to bereduced in accordancewith PartVIII
of Schedule B (reduction of pension related to up-rating of widow’s
pension).
(2) If a police authority determines that the retention in the forceof
a regular policeman to whom this Regulation applies would not be
in the general interests of efficiency, he may be required to retire
on such date as the police authority determine.

12. 12
39.Regulation 19 had traditionally been used to “accommodate” under-
performing individuals but between 2010 and 2012 it was used to effect the
retirement of all officers then entitled to a 2/3 pension. A 2/3 pension could
be earned only by 30 years’ service. Accordingly these offices were for the
most partabout 55 years of age and the provision was prima facie indirectly
discriminatory within the terms of S. 19 of the Equality Act.
40.The question considered by the Central London Employment Tribunalwas
whether such effects could be justified. At about the same time the High
Court considered whether the useof A.19 was lawfulas a matter of public
law and held that it was.9
41.The Claimants contended that the sole aim of the application of this
measurewas to save cost. The defence failed, they said, because cost
saving is not per sea legitimate aim: O’Brien v Ministry of Justice [2013] ICR
499 at para 69.
42.Like many previously, the ET sidestepped an argumentwhich is well
founded in authority but perhaps shortof common sense. Itheld that the
legitimate aim was increasing the efficiency of the forcewhich was not
necessarily the same thing as saving costs. As such the aim was legitimate.
43.However though the Respondents succeeded in establishing a legitimate
aim, the ET went on to hold that the blanket application of the rule was
neither appropriate nor necessary. Accordingly it was disproportionate.
44.The starting point was that the Respondents having received Counsel’s
advice that the intended useof A19 was potentially justified had failed to
properly consider whether it was in fact appropriate and necessary and if
so why. In the language of Seldon, they had failed to consider whether the
circumstances of these particular business required retirement.
9 See [2023] EWHC 2173 (Admin)

13. 13
45.In particular, it had assumed that applying A19 would result in a saving of
the salaries of all who were subjectto it whereas the ET found that in
reality, mostof those concerned would haveretired anyway.
46.If followed that the Respondents task before the Tribunal was a difficult one
because they had not addressed their own business needs in advance: R
(Elias) v Secretary of State [2006] 1 WLR3213.
47.In addition, the Respondents had failed to consider a number of possible
alternatives. In particular, the Respondents could have soughtto plan their
workforcein more detail e.g. by asking all thoseeligible to retire on 2/3
pension whether they intended to stay on before ascertaining how many
compulsory retirements were necessary (seepara 83). Part-timeworking
and career breaks were also alternatives. Thus though Seldon was notcited.
EJ Taylor was clearly applying the “was there any alternative” approach.
48.The case is also striking in that even the availability of a substantial pension
to a retiring officer did not prevent retirement being a disproportionate
measure.
Retirement and Pensions
49.The view that the availability of pension could very much help to justify
retirement had some supportin the case-law.
50.However the CJEU has also now taken a very different approach. Thecase
of Dansk [2014] IRLR37 showsthatthe availability of a pension does not in
itself show that it is appropriateand necessary to retire if the employee
wishes to go on working to improve his/her pension position: see paras 67
and 68.

14. 14
51.In that case, a measuredepriving Danish Civil Servants of availability
allowances upon redundancy merely because they were65 was held
disproportionatebecause
the legitimate objectives pursued by the legislation at issuein the
main proceedings may be attained by less restrictivebut equally
appropriatemeasures (para 69).
52.The purposeof the rule was to assistcivil servants who had made
redundantto remain available for work within the Civil Service. This could
have been achieved by withdrawing the allowance fromanyonein receipt
of their pension. A rule which withdrew the allowance from anyone able to
withdraw their pension was overbroad.
53.This was so despite the pensions available to the Claimants since it was
perfectly legitimate for them to go on working in order to obtain promotion
and also to improvetheir pension position.
Discrimination and Cost
54.In recent years, the UK Courts have shown themselves less than totally
committed to the principle that discrimination cannot be justified alone by
costs considerations alone. This is sometimes known as the cost plus
approach and stems fromthe judgmentof Burton P in Crossv British
Airways[2005] IRLR423.
55.In Woodcock vCumbria PrimaryCare Trust [2011] ICR143, theEmployment
Appeal Tribunal refused to follow it on the basis that it was liable to spawn
an excessively unrealistic approach to the presentation of arguments.

15. 15
56.On appeal, the Court of Appeal loyally upheld a long line of cases in the
CJEU to the effect that cost alone cannot justify discrimination. Arguably
however its loyalty was somewhatsuperficial. In that casethe timing of the
Claimant’s dismissalwas determined by the fact that had he been allowed
to stay till he was 49, his severancebenefits would havebeen significantly
greater.
57.The Court of Appeal held that while this was age based less favourable
treatment it was a proportionatemeans of achieving a legitimate aim since
it was not solely cost based. The aim was to effect a dismissalin the most
economic way possible.
58.In O’Brien v Ministry of Justice [2013] IRLR315 theSupremeCourt (Lord
Hope and Lady Hale) strongly affirmed the EU Jurisprudence. Considering
as a justification, it said
69. Hence the European cases clearly establish that a Member State
may decide for itself how much it will spend upon its benefits system,
or presumably upon its justicesystem, or indeed upon any other area
of social policy. But within that system, the choices it makes mustbe
consistentwith the principles of equal treatment and non-
discrimination. A discriminatory rule or practice can only be justified
by reference to a legitimate aim other than the simple saving of cost.
……..
74. In effect, the arguments presented to us are the same as the
arguments presented by the Kingdomof the Netherlands in
Commission v The Netherlands (C-542/09) [2012] 3 CMLR643: that if
recorders get a pension, then the pensions payableto circuit judges
will have to be reduced. That is a pure budgetary consideration. It
depends upon the assumption that the present sums available for

16. 16
judicial pensions are fixed for all time. Of coursethere is not a
bottomless fund of public money available. Of courseweare currently
living in very difficult times. But the fundamentalprinciples 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. That argumentwould not avail a private
employer and it should not avail the State in its capacity as an
employer. Even supposing that direct sex discrimination were
justifiable, it would not be legitimate to pay women judges less than
men judges on the basis that this would cost less, that more money
would then be available to attract the best male candidates, or even
on the basis that mostwomen need less than mostmen.
59.Moreover they expressed doubts (para 70) about the conclusion of the
Court of Appeal in Woodcock.
60.Itseems likely also that the conclusion of Underhill J in Benson v. Land
Registry [2012] ICR627 was incorrect. Therethe Respondent’s aimwas to
maximize headcount reduction within a fixed budget of £12 million. This
inevitably led to the selection of younger as against older people because
under the scheme older workers received expensivetop ups to their
pensions.
61.Itwas held that given the employer’s legitimate aim, selection according to
age inevitably followed as proportionate and necessary. TheET had erred in
in effect requiring the employer to increasethe sizeof its budget.

17. 17
62.Thus in Benson the costargument was circumvented by subsuming a cost
limitation into the statement of the aim. But this would now seem
impermissible in the light of Lady Hale’s comments in O’Brien.
63.This is an importantmatter for employers who will often have fixed budgets
for redundancy/restructuring exercises. In reality, agemay be relevant to
“removalcost” but the messagefrom recent case law is that is unlikely to
be a permitted criterion of choice.
Choosing a Retirement: 65 or 68
64.One question which remains unresolved is how the proportionality test
applies to the choice between potential retirement ages. When Mr Seldon’s
case was remitted back to the ET, his argument was that the partnership’s
aims of workforceplanning and associateretention could just as easily be
achieved by a retirement age of 68.
65.Giving the judgment of the Court of Appeal in Seldon, Sir Mark Waller
appeared to indicate that at least as far as work forceplanning and
associateretention were concerned any age would do. He said
39.There is a distinction between a cut-off date in relation to the
"dead men's shoes" aims, and the "collegiality aim". Under
performanceas a result of age is not relevant to 65 being chosen as
a cut-off to encouragerecruitment or long term planning. That
being so it seems to me that the mere fact that the firmmight have
chosen some other age in relation to those aims cannot
automatically lead to the conclusion that the rule which provides
for retirement at 65 is not justified. A rule which adopts 66 is less
discriminatory to partners aged 65, but is now more discriminatory

18. 18
to partners aged 66. The selection of any age is going to be more
discriminatory to that age. If that makes the rule unlawful, it would
simply be impossibleto justify a retirement age introduced with
those aims. The directive (recital 14) seems to contemplate the
legitimacy of a retirement age and it cannot thus have envisaged
that it would be impossibleto justify oneage becausea different
age would be less discriminatory to persons of the age chosen.
40.The question is whether the clause introduced with the legitimate
aims is a proportionatemeans of achieving those aims. If it is
proportionateto choose65, the fact it would be less discriminatory
to some to have chosen 66 cannot in my view render the clause
unlawful. Itis true there was no evidence as to whether it would
have made any difference to associates or others whether the age
chosen had been 68, 65 or 63. But in my view the fact the firm
might have justified anyone of thoseages does not mean that it is
unable to chooseone at all.10
66.The argument is flawed. Itis true that at any given age raising the
retirement age by one year will always involve less discrimination. But it
does not follow that if the retirement age has to be justified compulsory
retirement cannotbe justified at all.
67.At any given age, raising the retirement age by one year will always involve
less discrimination. But it not true that raising the retirement age by one
year will always be costless.
10 [2011] ICR 60

19. 19
68.There will come a point at which raising the retirement age any further will
hinder the achievement of the partnerships aims. In the caseof a law firm
like this there would inevitably come a point in this case wherethe further
raising of the age would undermine the firm’s collegiality aim.11
69.Unsurprisingly, thereforeLady Haledid not accept this view when
discussing thescope of the remission. She said
There is a difference between justifying a retirement age and justifying
this retirement age (para 68).
70.If there was any doubt that the proportionality of a compulsory retirement
rule must include consideration of the age at which it operates, this was laid
to rest by the decision of the CJEU in Commission v Hungary Case(C-
286/12) In thatcase, the CJEU held the a rule providing for the compulsory
retirement of judges was disproportionatebecauseit was at age 62.
Previously it had been at 68. See paras 65-79 of the judgmentbut especially
par 71.
71.Mr Seldon’s second trip to the EAT arosebecause the ET refused to accept
that given Lady Hale’s tightening up of the proportionality test, the
Respondent was obliged to retire at the highest possibleage. It said:
Where there is a range of ages that the employer might have chosen,
it does not follow that the age selected cannot be justified…
72.Itwent on to hold that only retirement between 64 and 66 would achieve
the partnerships legitimate aims.
11 If thatwere not so,it wouldshowonlythatage basedruleswere notappropriate toachievingthe
aimbecause all that isneedediscertaintyastowhenvacanciesmightarise.

20. 20
73.In effect this was to apply the band of reasonableresponses testheld to be
erroneous by the Courtof Appeal in Hardy and Hanson’sPLC v Lax [2005]
ICR1565.
74.Unfortunately the EAT affirmed the ET’s judgment when Seldon (No.2) was
heard on 14th
May stating that the Hardysand Hanson testdid still apply to
the choice between ages. This is doubly unfortunate becauseit seems
unlikely that the Court of Appeal will have the opportunity to consider the
case again.
75.In truth, the solution to the problem of whatshould be the retirement age
is likely to lie in the power of consent. Courts are unlikely to hold
disproportionatea retirement age to which there has been recent informed
consent. It is for this reason that there is much forcein the suggestion
made by ACAS that employers should regularly review with employees their
future plans.
Discrimination in the Provision of Services
76. There is another way in which age discrimination was initially the poor
relation. The Equality Act made it unlawfulto discriminate in relation to the
provision of goods and service on the basis of a protected characteristic: it
was these provisions in relation to sexual orientation which gave rise to the
famous caseof Hall v Bull [2013] 1 WLR 3741. However, theequivalent
provision with respect to age did not come into place with regards to age
until October 201212
. And when they did come into forcethey included
some comprehensiveexceptions designed inter alia to protect age based
clubs.
12
Equality Act 2010 (Commencement No. 4, Savings,Consequential,Transitional,Transitory and Incidental
Provisionsand Revocation) Order 2010/2317 art2(3) (a); Equality Act 2010 (Commencement No. 9) Order
2012/1569

21. 21
77. The EHRC has recently produced a draft code on discrimination in the
provision of services13
. Somethe examples cited make it clear how
demanding the law can be on serviceproviders. Thus if the Department of
Health wants to restrict vaccination for a particular diseaseto thoseunder
50, it will need solid research evidence of a slower and lower responsefrom
the over 50s if it’s less favourabletreatment of the over 50s is to be a
proportionatemeans of achieving a legitimate aim.
78. However, in the light of recent ECJ case law, this paper focuses however on
the provision of services by or for employers (AKA employee benefits).
79. Consider the following scenario:
Bloggs and Co offers its employees privatehealth care and PHI cover
but neither continues beyond the age of 65. Their providers indicate
that they do not consider it to be economic to provide such cover. Are
Bloggs and Co unlawfully discriminating on the grounds of age? Are
their providers doing so?
80.In this respect, Parliament has gone to great lengths to protect both
employers and their serviceproviders.
81.Thus Schedule 9 Part 2(Exceptions Relating to Age)
14.—Insurance etc.
1. It is not an age contravention for an employer to make
arrangements for, or afford access to, the provision of insuranceor a
related financial serviceto or in respect of an employee for a period
ending when the employee attains whichever is the greater of—
a) the age of 65, and
b) the state pensionable age.
13 EHRC (draft) supplement to the Service, Public Functions & Associations (March 2014) para 3.25

22. 22
2. It is not an age contravention for an employer to make
arrangements for, or afford access to, the provision of insuranceor a
related financial serviceto or in respect of only such employees as
have not attained whichever is the greater of—
a) the age of 65, and
b) the state pensionable age.
3. Sub-paragraphs (1) and (2) apply only wherethe insuranceor
related financial serviceis, or is to be, provided to the employer's
employees or a class of those employees—
a) in pursuanceof an arrangement between the employer and
another person, or
b) wherethe employer's business includes the provision of
insuranceor financial services of the description in question,
by the employer.
4. The state pensionableage is the pensionable age determined in
accordancewith the rules in paragraph 1 of Schedule 4 to the
Pensions Act 1995 2
.
82.As regards claims in respectof services, Schedule 3 provides in Part 5 as
follows
20. Services arrangedby employer
1. Section 29 does not apply to the provision of a relevant financial
serviceif the provision is in pursuanceof arrangements made by an
employer for the service-provider to provide the serviceto the
employer's employees, and other persons, as a consequenceof the
employment.

23. 23
2. “Relevant financialservice” means—
a. insuranceor a related financial service, or
b. a servicerelating to membership of or benefits under a
personalpension scheme (within the meaning given by
section 1 of the Pension Schemes Act 1993).
83) Thus by virtue of working for an employer, the serviceprovider would on
the face of it be exempt from liability. In case the matter was still in doubt,
further protection was provided by when the serviceprovision rules of the
Equality Act were broughtinto play by the Equality Act 2010 (Age
Exceptions) Order 2012/2466. This inserted a new S.20A into Part 5 of
Schedule 3.
20A.—Age
1. A person (A) does not contravene section 29, so far as relating to age
discrimination, by doing anything in connection with the provision of
a financial service.
2. Where A conducts an assessmentof risk for the purposes of
providing the financial serviceto another person (B), A may rely on
sub-paragraph (1) only if the assessmentof risk, so far as it involves a
consideration of B's age, is carried out by referenceto information
which is relevant to the assessmentof risk and from a sourceon
which it is reasonableto rely.
3. In this paragraph, “financialservice” includes a serviceof a banking,
credit, insurance, personalpension, investmentor payment nature.

24. 24
83.None of this helps an employer who provides age related access to benefits
prior to 65. This point was well illustrated by the decision of the ET in
Witham v Capita Insurance Services (NewcastleEmployment Tribunal
February 2013). TheClaimant in that case became ill and thus entitled to
PHI Benefits. However under the terms of the policy his benefits ceased
when he became 55.
84.The ET held that this less favourabletreatment was not a proportionate
means of achieving a legitimate aim. The reality was simply that once the
benefits ceased to be covered by Unum, the Respondent was unwilling to
meet the costitself; or explore any other way of doing so. Cost however
could not itself justify discrimination on the grounds of age.
85.However the status of these exceptions has been thrown into doubt by the
decision of the CJEU in the case of HK Danmark vExperian A/S (Case
476/11, 26th
September 2013).
86.Ms Kristensen was a member of an occupational pension scheme to which
both she and her employer contributed. However those contributions rates
increased sharply when she reached 35 and again when she reached 45.
87.The first issuefor the ECJ was whether these rules were out with the
Framework Directivedue to Article 6(2) which provides that
Notwithstanding Article 2(2), Member States may providethat the fixing
for occupational social security schemes of ages for admission or
entitlement to retirement or invalidity benefits, including the fixing under
those schemes of differentages for employees or groups or categories of
employees, and the use, in the context of such schemes, of age criteria in
actuarial calculations, does not constitute discrimination on the grounds

25. 25
of age, provided this does not result in discrimination on the grounds of
sex.
88.The second issuewas whether, if they were not, these rules were
nevertheless a proportionate means of achieving a legitimate aim.
89.As to the first issue, the ECJ held that the employer’s contributions were
akin to pay and accordingly not within the exception. The reasoning of the
Court was striking: the CJEU noted that Article 3(1) of the Directive applied
to “pay” to which the exception in Article 6(2) could not apply. Pay however
was given the very broad definition adopted many years previously in equal
pay litigation for example Barber v Guardian RoyalExchange [1990] IRLR
240. The CJEU held that
The concept of pay, within the meaning of Article 157(2) TFEUcomprises
any consideration, whether in cash or in kind, whether immediate or
future, provided that the worker receives it, albeit indirectly, in respectof
his employment fromhis employer (see, in particular, Case C-262/88
Barber [1990] ECRI-1889,paragraph 12). (emphasis added)
89.As to the proportionality question, the matter was essentially remitted back
to the National Courtfor a decision.
90.However, the significanceof the decision is the finding on the firstissue. As
a matter of EU Law, failure to provideaccess to benefits like PHI and Health
Insuranceto older workers would seemto be an aged base difference in
pay which falls outsidearticle 6(2).
91.Accordingly a blanket exemption for such services would not seem
permissibleas a matter of EU Law – and we know fromthe decision of that

26. 26
domestic legislation which undermines EU rights has to be disapplied even
in private law litigation14
: Benkharbouch vSudan [2013]IRLR918.
92.Ironically, theservice provider is unaffected by this. Service provision does
not fall within the Framework Directive. The employer however may be
liable for offering the servicein an age discriminatory way unless this can be
justified.
Conclusion and Crystal Ball
93. Notwithstanding the fees regime, we may expect the steady flow of clams
based on direct discrimination on the grounds of age to continue. Itis
indirect discrimination however which has the greatest potential to cause
waves.
94. Homer v Chief Constable of West Yorkshire Police15
indicates the potential.
Mr Homer had been told that he could not be promoted because he did not
have a law degree. However after a trip the SupremeCourt, the ET
accepted that the Respondent had the legitimate aim of recruiting and
retaining a high quality workforce. However itwas disproportionateto
apply the requirement to existing employees such as the Claimant.
95. As this case shows assessmentcriteria can be indirectly discriminatory on
the grounds of age. The point is confirmed by the Meadows reportwhich
was cited to the appellate Courts in Seldon. Whilstemployees may not
decline generally until 70, they do tend at different ages to bring different
skills to the party. “Know How” but not speed for example.
96. The challenge for the future is likely to be the development of modes of
assessmentwhich do not indirectly discriminate on the grounds of age.
14 CF Kücükdeveci v Swedex GmbH & Co KG, C-555/07 [2010] IRLR 346 ECJ
15 Homer v Chief Constable of West Yorkshire Police [2012] IRLR 601 SC

27. 27
97. Flexible working for older employees may also be an issue: some older
workers may seek to work part-time on the grounds of a need to care for an
elderly relative16
. Others may receive an unfavourableperformancereview.
In response, they will perhaps stand the parameters of the age debate on
end and ask to go part-time because they are “slowing down”!!though the
statistical basis for group disadvantage - if still required17
- may take time to
emerge.18
98. Challenging times.
RichardO’Dair
36 BedfordRow
15th
October 2014
16 If the carer is femalethen the claimmay take form of indirectdiscrimination on the grounds of gender.
17 See Eweida v UK [2013] IRLR 751 ECHR
18 Mather v Devine UKEAT/0119/12, [2012] EqLR 1082 shows that itis no obstacleto a discrimination claim
that no flexibleworkingrequest could be made in this situation.