Age discrimination and indirect age discrimination

9th July 2019

Age discrimination and indirect age discrimination

There are various types of discrimination under the Equality Act 2010. Indirect age discrimination is where an employer applies a policy to all of its employees, but that policy then negatively affects people in a certain age group. Indirect discrimination is rarely intentional. It is possible to justify an indirectly discriminatory policy, though, if you can show that it is a proportionate means of achieving a legitimate aim. A legitimate aim of saving costs is not enough to justify a discriminatory policy in its own right – there would have to be another legitimate aim as well.

In Heskett v Secretary of State for Justice, the employee was a probation officer. Due to the financial crisis, the government limited public sector pay increases, with probation officers’ pay scales being changed so that they only received a single pay increment each year, instead of three. What this meant was that younger workers took longer to get to the top of the pay scale and were paid less than their older colleagues.

It was decided by an employment tribunal that the policy was indirectly discriminatory against younger employees. But it went on to say that the policy could be justified. It was decided that the employer had a number of legitimate aims: to reward loyalty and experience, retain some incentive, avoid redundancies and preserve accrued rights, so this policy wasn’t about reducing costs alone –  it was about an absence of means because of government funding cuts. The changes to the pay policy were proportionate means of achieving the aim of breaking even.

This case provides an interesting angle on the ‘cost alone’ rule. The ‘absence of means’ principle doesn’t translate so easily into the private sector, where profit is the driver, rather than break even. Justifying an indirectly discriminatory policy on financial grounds will still require a costs “plus” reason, which is also proportionate.

For advice or clarification on age discrimination, contact Andrew West on 01473 298102 or email andrew.west@gotelee.co.uk.

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