Age Discrimination: a "too Young' Protected Characteristic in Europe?

Age discrimination and the other protected characteristics are legislated, in the EC Treaty, as a numerus clausus of features which, despite the differences, enjoy equal status. Yet, age discrimination, unlike its counterparts, is susceptible to being ‘justified’ in force of the Framework Directive. The obscure and grey waters of law to which age discrimination has been drifting aimlessly for some time, is the subject of this paper, the ultimate purpose of which is, beyond the sociological and anthropological studies, to dissect and unearth the current inconsistencies in the European Union legislation as regards this notion and its interplay with the equality corpus iuris. As a logical outcome, the paper puts forward suggestions for amendments to the current Framework Directive so that its tenor can be aligned to the Treaty where, be this construct ontologically correct or not, there is no suggestion that a ranking of protected characteristics should be adopted. Furthermore and more intriguingly, the contribution advances a more radical proposal, ergo the reform of the Framework Directive so that this protected characteristic, in so many cases unsuccessfully pursued vis-à-vis the national courts, be ultimately shaped in a binary way, therefore ‘old age discrimination’, so that its ‘promotion’ to the ‘premier league’ of protected characteristics can thereupon be realised

Managing without default retirement in universities: a comparative picture from Australia

This is the author accepted manuscript. The final version is available from Wiley via http://dx.doi.org/10.1111/lest.12079The abolition of the default retirement age is creating challenges for UK employers, and universities in particular. Operating without mandatory retirement may have consequences for performance management, the creation of opportunities for new generations of workers, the scope for workforce planning and employment costs. Drawing on comparative experiences of Australian universities, which have been operating without mandatory retirement since the 1990s, this paper critically examines whether these consequences have materialised in Australia. It draws out a number of lessons for UK universities from the Australian experience.</jats:p

Age stereotyping: a legal and fieldwork analysis

Purpose – The purpose of this paper is to report on fieldwork observation of direct age discrimination cases within employment tribunal hearings over a 3 year period. The observation focussed upon whether the witness evidence revealed age stereotyping by employers and whether the employment tribunal panel addressed the stereotyping in its questioning and in its judgments. The observation was combined with an analysis of jurisprudence relating to direct age discrimination over an 11 year period. Design/methodology/approach – This research analysed a sample of 90 employment tribunal judgments concerning direct age discrimination, which included 5 fieldwork observation cases concerning direct age discrimination in an employment tribunal. Findings – This paper opens a window on age stereotyping in the workplace, illuminating the existence of age stereotypes in the context of employment tribunals and the approach of the courts towards stereotypes in the sample is analysed. Research limitations/implications - The fieldwork observation is limited to one employment tribunal and may not necessarily be representative of all tribunals however the findings are supported by a wider qualitative analysis of ET Judgments. Practical Implications – The article provides pertinent learning outcomes for claimants, employers and key implications of legal decisions for human resource policy and practice in organisations. Originality/Value –The paper is the first to conduct fieldwork observation on age stereotyping in an employment tribunal, combined with a profile of direct age discrimination claims over the period studied

Indirect discrimination, justification and proportionality: are UK claimants at a disadvantage?

The minimum standard of scrutiny for the justification defence in the context of indirect discrimination was first set out by the European Court of Justice (CJEU) in Bilka-Kaufhaus GmbH v Weber von Hartz (1986). This established that an indirectly discriminatory measure is justified if it meets a real need and is appropriate and necessary for meeting that need. The UK courts’ approach to the concept of proportionality within the context of this justification defence may nevertheless have distinct disadvantages for claimants in comparison with their EU counterparts. The approach of the UK courts is assessed here by considering the development of case law in this area, both in the Employment Appeal Tribunal and in the higher courts. When compared to the approach taken by the CJEU, it becomes apparent that there is a significant difference between the ways in which UK courts and the CJEU interpret the justification defence. Findings show that the approach of the UK courts significantly disadvantages claimants, leading to the conclusion that the UK may not be fully compliant with EU law. To remedy this defect, it is suggested that there are at least two practical alternative solutions. The first is that Parliament could incorporate a strict necessity test into the Equality Act. Alternatively, the courts could develop a ‘robust approach’ to proportionality. The outcomes of a large number of employment law cases are examined here, appearing to suggest that the latter approach may have greater benefits for claimants than those associated with adopting a strict necessity test, although it is unlikely that either will find favour with Parliament or the courts

Reasonable responses versus proportionality in employee dismissal cases: A comparison between the Employment Rights Act 1996, s 98(4) and the Equality Act 2010, s 13(2), s 15(1)(b), and s 19(2)(d).

What, if any, are the differences between a dismissal that is reasonable and one that is a proportionate means of achieving a legitimate aim? That is the question at the centre of this dissertation. To answer it we start by placing both legal tests within the overall context of statute, then assess and analyse both separately. From that point the two can be fully compared. The structure of this dissertation is thus as follows: Chapter one outlines statutory provisions regulating dismissal from employment in both the Employment Rights Act 1996 (ERA) and Equality Act 2010 (EqA). It identifies the key role of section 98(4) of the ERA in deciding unfair dismissal claims; and the likewise key roles of sections 13(2), 15(1)(b), and 19(2)(d) of the EqA in deciding some categories of discrimination claim. Chapter two examines the application of ERA s 98(4) in depth to identify its interpretation, its impact on claimants and employers, and the likelihood of future legal developments in this area. Chapter three carries out a similar exercise for sections 13(2), 15(1)(b), and 19(2)(d) of the EqA. Having identified the central concepts of reasonable responses and proportionality, chapter four compares them directly. It focuses particularly on dual claim situations where both tests are necessarily applied side by side to the same facts. Overall conclusions are made about both differences and similarities found. It is argued that the relationship between reasonableness and proportionality in cases of employee dismissal is not fully settled within case law, and further clarification will likely be necessary in the future. Such clarification could go to the heart of distinctions between unfair dismissal and discrimination in UK law

Age Discrimination and EU Labour Rights Law

The aim of this chapter is to provide a general account of the development and working of EU law against age discrimination in employment in which that body of law is analysed and evaluated as the expression or realisation, however complete or incomplete it may be, of an EU labour right which we can think of as ‘the EU right to age equality in employment’ or ‘the EU right against age discrimination in employment’. For this purpose, the legal framework concerning age discrimination is first described in general terms (Section 1), and attention is then focused upon three areas or aspects of that body of law, namely those of discrimination against younger workers (Section 2), discrimination against older workers in general (Section 3), and finally the special case of retirement (Section 4). In this Introduction, we suggest a method for critical analysis of this body of law which, among other things, serves to explain why we single out retirement as a special case for discussion. This paves the way for some normative evaluations which are made throughout and are added to in the Conclusion to the chapter. Our suggestion for a method of critical analysis of EU employment age discrimination law focuses on the kinds and degrees of structural change to employment arrangements which are involved in its implementation; so it is the idea of ‘EU law against age discrimination in employment and structural change’. This might also be applicable to EU employment discrimination law on other grounds

Dignity and the legal justification of age discrimination in health care

Evidence shows that age discrimination in health care is still widespread. At the same time, there has been suggestion, both in the theoretical literature and in the jurisprudence, that age is ‘different’ to other protected characteristics such as sex and race and thus that age discrimination may sometimes be permissible in circumstances in which discrimination on other grounds, such as sex or race, may not. This is chiefly because, it is argued, if a ‘complete life view’ of equality is taken, age discrimination may not produce the same distributive inequalities as does discrimination on other grounds. This thesis responds to these arguments by asking what other – dignity-related - harms, age based distinctions in health care may cause. Dignity is widely agreed to be an important normative foundation for anti-discrimination law and features prominently in judicial and ethical debate on a range of issues in medical law. It is not an easy concept to define, however. There is no legal or theoretical consensus as to its meaning and legal uses of dignity involve appeal to a range of different and sometimes conflicting concepts. Rather than advocating one particular conception of dignity, the thesis identifies the variety of meanings of dignity evident in two contexts of close relevance to the problem at hand - equality law and medical law – and considers the answers to which these different meanings may give rise. The purpose of the discussion is to contribute to a debate as to the approach that courts should take in assessing whether particular instances of age discrimination in health care can be justified. It concludes that, on several conceptions of dignity, age-based distinctions may give rise to dignity harms which cannot be ignored or discounted by taking a complete life view of equality. As a result, courts should tread carefully before adopting a starting point which assumes age to be different and should develop their approach to justification accordingly