Background to the change
As readers will know, in addition to the familiar protection against discrimination and employment, the Equality Act 2010 (the Act) also prohibits discrimination in the provision of goods, facilities and services. This obligation applies to organisations which are offering goods, facilities and services both privately and to the public, and includes services which are provided free of charge. The scope of organisations that are covered by this duty extends to those providing education, transport and property services.
Until recently, age discrimination has been excluded from the protection provided in the provision of goods, facilities and services.
Changes as of 1 October 2010
On 1 October 2010, the Act introduced a new duty not to discriminate on grounds of age against those aged 18 or over. This means that the duties with respect to age discrimination are now extended to those providing goods, facilities and services and those carrying out public functions.
However, not all age discrimination will be unlawful. The aim of the new provisions within the Act is to ban age discrimination which has been described by the Government as 'harmful'. Different treatment can be objectively justified even where the discrimination is direct - i.e. specifically because of the person's age. In addition, 'positive action' is allowed in some cases and there are also exemptions in the Act that allow some types of age-based treatment to continue.
Objective justification and positive action
Providing different services based on a person's age is not prohibited under the Act if the provider can show that this different provision is objectively justified. Justification involves showing the service provided is a 'proportionate means of achieving a legitimate aim' i.e. the service provider is required to show that there is a good reason for the way in which the service is provided and the approach taken is the most appropriate.
Different treatment according to age is allowed where the aim is to meet the particular needs of an age group or to help overcome any disadvantage faced by that group on account of their age. An example would be targeted age related health services or checks, where the risk profile for a health condition varies with age. Similarly, where relatively few people of a particular age group take part in an activity, action can be taken to encourage them to participate. This is known as 'positive action' and in each case is acceptable provided it is proportionate.
Exemptions under the Act
There are a number of general exemptions under the Act which allow for different treatment on account of a person's age, which would otherwise be considered discriminatory. One example is complying with existing pieces of legislation which require people to be treated differently as a result of their age; another is where a private club or society caters for a particular group such as young people or pensioners.
There are also specific exemptions in relation to age which are wide ranging and cross a number of service sectors. These include:
- Financial services including insurance, pensions and investment
Providing different insurance services (whether or different terms or premiums) will not be discriminatory on the basis of age, if the provider of that service can show that a risk assessment, based on relevant information from a reliable source, has been carried out. This will encompass using age as a factor for assessing risk or in applying age limits on a product.
- Concessionary services
Providing age-based concessions or favourable treatment to persons of a particular age group can be used as long as the concession does not preclude or dissuade other age groups because the difference in pricing is so significant. Examples would include discounts for the over 65s.
- Age specific holidays
Holidays aimed at groups of persons of a particular age will not be discriminatory as long as the feature of such a holiday is to bring together people of a certain age group. The age range of the holiday must be clearly stated when the holiday is offered.
- Age restricted services
The Act does not prohibit the operation of age verification schemes and the requirement for valid identification to be produced such as in the sale of alcohol and other age restricted products. Service providers must clearly display a notice stating that such a scheme is in operation.
Age-banded activities, both physical and intellectual, can continue under the Act where they are necessary to allow for fair competition and the safety of other competitors, to comply with the rules of a competition or to increase participation in an activity.
Customers looking to challenge age bias will have to show that they were genuinely seeking to make use of that service or facility.
Whilst the exemptions under the Act are wide ranging, consideration should be given by service providers to their existing policies and services and pricing practices which may be caught by the new provisions under the Act. If such services are caught then service providers should ask themselves whether that service is covered by one of the exemptions or could be considered to be positive action and if not, whether reasons can be evidenced to show that the differing service position to customers based on their age, is objectively justified.