Age discrimination laws came from the EU. In the UK, there was no protection from age discrimination at all until we were required to introduce new laws in order to implement the relevant EU directive. 

But now the UK is moving in a different direction and we are leaving the EU. So what does this mean for the future of age discrimination?

The ECJ

European Court of Justice (“ECJ”) decisions have fleshed out age discrimination law and we have a solid body of jurisprudence to rely on.  After Brexit, it is likely that UK courts will continue to look to the ECJ for guidance, but will not be bound to follow their decisions - they will be of persuasive value only. This means there is scope to ignore future developments in age discrimination law at European level, or even row back from some developments that have already been followed by the courts.

Dignity

When it comes to justifying age discrimination, the preservation of dignity is accepted as a legitimate aim. This is typically understood to mean avoiding the need to dismiss older workers on the grounds of incapacity or underperformance. It is most used in retirement cases.

In the Seldon decision, Lady Hale acknowledged that “dignity” is accepted as a legitimate aim which can be used to justify age discrimination. She commented that the ECJ had recognised this in the cases of Rosenbladt and Fuchs.

However, her acceptance was a begrudging one. Without the constraints of ECJ case law, “dignity” could more easily be challenged in a post-Brexit world, and the courts may take the opportunity to treat justifications based on dignity with increased scepticism.

Cap on compensation

Discrimination compensation is currently uncapped, although that hasn’t always been the case.

Historically, the UK law capped compensation for discrimination at around £6,000. However, in 1993 the ECJ ruled in Marshall that this cap on discrimination compensation was unlawful. The ECJ said that individuals must be able to recover in full the loss and damage actually sustained as a result of the discrimination.

Existing workers’ legal rights will continue to be guaranteed in law – and they will be guaranteed as long as I am prime minister.
— Theresa May, Conservative Party Conference 2016

Without the restrictions of this ECJ decision, the UK Government would be free to once again place a cap on discrimination compensation. With polling  suggesting that most people agree with a cap on compensation, it is something that a post-Brexit Government could consider in the future.

For the time being though, a cap on compensation is unlikely. New PM Theresa May has pledged to make no changes to employment law as a result of Brexit.

The EU’s general principle of non-discrimination

A general prohibition of age discrimination is not contained directly within the various European treaties but has arisen through ECJ case law. The general non-discrimination principle of EU law first arose in Mangold v Helm. In this case, the ECJ said that national courts are bound to apply “the general principle” and must set aside provisions of national law that are incompatible with it.

The general principle was further elaborated upon in Kucukdeveci v Swedex. Here the ECJ said that the scope of the general principle is limited to the scope of the directive that gives effect to it.

In essence, the ECJ has managed to find a “back door” to letting some directives have horizontal direct effect.  This actually gives the UK courts the power to ignore legislation that it not compatible with the general principle of non-discrimination, where this is necessary in a discrimination claim between private parties.

After Brexit, the courts would not be bound to implement this general principle. Indeed, it is questionable whether they would have the power to do so. 

This potentially severely restricts the ability of those in the UK to challenge legislation that has an age discriminatory effect.

Voting leave was supposed to allow the people to "take back control", but the irony is that people will be less empowered than ever when it comes to challenging age discriminatory laws. 

Positive discrimination

Currently, positive discrimination is unlawful. Employers can only take:

  1. “general positive action” , being proportionate measures to enable or encourage persons with the relevant characteristic to overcome disadvantage, to meet their needs, or to enable or encourage their increased participation; or
  2. positive action in recruitment and promotion, allowing an employer who reasonably thinks that persons with a particular protected characteristic are disadvantaged or are disproportionately under-represented to decide to hire the individual from the less represented group, as long as they are “as qualified as” the other candidates.

An example of general positive action would be if an employer's data shows that their workers over the age of 60 are more likely to request training in advanced IT skills compared to workers outside this age group. The employer could lawfully target training sessions at this group of workers.

An example of positive action in recruitment could be in a situation where the vast majority of workers employed by a national retailer are under the age of 40. Because people over the age of 40 are under-represented in the organisation, that retailer could place a job advert encouraging applications from all groups, especially applicants over the age of 40. It could then, when faced with two candidates who are equally qualified, decide to employ the older applicant. However, that retailer could not restrict who it considers for the role solely to those over 40 - it would have to consider all age groups.

Without the restrictions of the EU, the UK could legislate on positive discrimination. We could see new exemptions from age discrimination law created allowing employers to engineer the demographics of their workforce.

With this in mind, and the fact that youth unemployment has been high for years, it’s easy to see how allowing employers to set aside jobs for young people without risk of discrimination may seem an attractive policy to lawmakers in a post-Brexit world. But would such a policy be likely to be often used?

In today’s labour market, employers go to great lengths to show that they have modern, inclusive working environments. Being seen to favour different groups of people potentially damages that brand. Workplaces are becoming increasingly multigenerational, and different generations need to work alongside each other harmoniously. Intergenerational conflict must be avoided.

In addition, any rational employer will always hire who it thinks is the best person for that job. Why would someone going hire a less qualified young person over a more qualified older person, even if there are laws allowing them to?

Additionally, there is already a powerful economic incentive for employing a greater number of younger people: under 24 year olds can be paid a much lower minimum wage than those aged 25+.

Conclusions

Discrimination law in the UK came of age with the implementation of the Framework Directive 2000/78/EC and the coming into force of the first age discrimination laws. Since then, the default retirement age has been abolished and we have seen a great rise in the number of older workers.

Today, there is an increased need and desire to have greater numbers of older workers in employment - the previous Government has a strategy that aims accomplish this, although we have heard little about it since the General Election in 2015.

Given this background, a significant weakening of age discrimination law is unlikely. Rolling back rights for older workers would be politically poisonous (older workers are the most likely to turn up to vote), and age discrimination laws tend to be relied upon more by this age group rather than younger people.

Given this, although a UK freed from the constraints of ECJ caselaw could potentially make some big changes in the field of age discrimination law, it is likely that any developments will be more minor and brought in over time.

Comment