The Equality Act 2010 now makes it unlawful, with certain exceptions, to treat a person differently because of their age in the provision of goods, services and facilities; the exercise of public functions; and the running of private clubs and other associations. The ban is effective from 1 October 2012 when the relevant provisions contained in Parts 3 and 7 of the Equality Act 2010 (the "Equality Act") came into force.
What are the changes under the new rules?
Discrimination because of age by employers against employees is already banned. The new ban will now mean that unjustifiable discrimination on the basis of age will also be unlawful in the provision of services, the carrying out of public functions, and the running of clubs and associations, together with any related harassment and victimisation. The ban does not apply in respect of people under the age of 18. Therefore, a 15 year old cannot, for example, complain about not being sold alcohol or tobacco on account of their age.
From 1 October 2012 the following are banned in the context of providing services:
- Direct discrimination on account of age, unless this can be objectively justified. Direct age discrimination is where someone is treated differently and unfairly in comparison with another on the basis of age. Objective justification means demonstrating that the discrimination is a proportionate means of achieving a legitimate end.
- Indirect discrimination on account of age, unless objectively justified. Indirect discrimination on grounds of age refers to situations where the same rule or practice applies to people of all ages but disadvantages people of a particular age or those who fall in a particular age group.
- Harassment related to age. Harassment is unwanted conduct which violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for that person.
- Victimisation of someone who has complained about age discrimination or harassment, or who has supported someone else’s complaint.
Claims under the Equality Act are brought before the county court in England and Wales or the Sheriff in Scotland within six months of the act to which the claim relates (although the court has a discretion to accept proceedings brought outside of the six month limit if it considers it "just and equitable" to do so in the circumstances of the case.
There are general and specific exceptions to the new rules. The Equality Act already provides for some general exceptions, which will also apply to the ban on age discrimination in the provision of services. For instance, it is lawful to treat people differently because of their age:
- Where another piece of legislation allows or requires people to be treated differently on that basis (for example, free TV licences for the over 75s, free bus passes for pensioners, winter fuel allowance);
- Where a particular club or association caters for a particular age group;
- Where a charity provides benefits for a certain age group; and
- Where necessary for reasons of national security.
The Equality Act 2010 (Age Exceptions) Order 2012, which also came into force on 1 October, sets out a number of specific exceptions from the ban, including in respect of providers of financial services, age-based concessions and age-restricted services:
- Providers of financial services, such as insurance companies and banks, may continue to use age in assessing risk, deciding which parts of the market to enter and in pricing products. However, institutions must carry out any age-based risk assessment by reference to relevant information from a source on which it is reasonable to rely. Individuals may challenge any risk assessment that is arbitrarily based on age.
- Providers of goods and services, including public bodies, may continue to grant age-based concessions, such as discounts, special arrangements, or special offers open only to people of a particular age group.
- An exception also exists for age-restricted services - therefore businesses selling alcohol, fireworks, cigarettes, etc may continue to ask for proof of age.
The Government has provided a series of guidance notes for businesses in respect of the new ban, which are available here: