Legal Island considers Proposal to Extend Age Discrimination Legislation in relation to the extension of the protection against age discrimination to goods, facilities and services for people who are 16 years old or over
Article reproduced with permission of Legal Island
In July 2015, the OFMDFM published a paper entitled, “Proposals to extend age discrimination legislation (Age goods, facilities and services)” (“the Proposed Legislation”) which outlines a proposal to extend the protection against age discrimination to goods, facilities and services for people who are 16 years old or over. The consultation process ended on 8 October 2015. At the time of writing, the response to the consultation process has not been published.
The Proposed Legislation will expand considerably the legal protection available to individuals and accordingly have a wide-ranging impact on service providers.
Legal Island asked Dee Masters BL from Cloisters Chambers in London to spell out some likely consequences of the legislation, if passed. Here are some scenarios that Dee thinks employers/employees and service providers/service users in NI should consider:
Game Tech Ltd is a tech start-up which develops gaming platforms. The shareholders and directors are two 18 year olds. The owner of an office block refuses to lease space to Game Tech Ltd because he believes that they will not look after it and will disturb other businesses operating from the site. The basis for that belief is stereotypical view that young people are irresponsible. This would probably be prima facie direct age discrimination under the Proposed Legislation.
An unpaid referee who provides his services to a local rugby club is told that his assistance will no longer be required once he turns 65 because of concerns over health and safety. At the moment, he will have no claim for age discrimination because of decisions such as X v Citizens Advice Bureau  ICR 249 which confirm that unpaid volunteers are neither employees nor workers under existing legislation. However, he may be able to claim on the basis he is a service provider and has been the victim of prima facie direct age discrimination.
It is assumed that the Proposed Legislation will cover discrimination by association, since this is a standard feature of discrimination legislation, although this does require confirmation as it is not explicitly addressed in the proposal. Therefore, a carer being harassed because s/he is looking after an elderly person would probably be covered by the Proposed Legislation.
A landlord refuses to rent a flat to a couple in their early 20’s simply because of a stereotypical view that “young people don’t know how to behave” would probably be liable under the Proposed Legislation.
A small post office frequently has long queues of customers. It is not uncommon for people to wait 20 minutes to be served at peak times. There are no chairs. This could amount to indirect age discrimination if people over a certain age struggled to use the post office because of the lack of available seating. It could also amount to a failure to make reasonable adjustments or indirect disability discrimination in relation to people who have disabilities which make standing for long periods of time challenging e.g. people with back problems.
A train company which only allows customers to access the cheapest fares if they book their tickets online might face a claim for indirect age discrimination by older customers if the claimants could demonstrate that older people found it harder to access/use the internet. If so, the train company would have to show that its practices were justified in order to avoid a successful claim. This would probably require disclosing information concerning the financial benefits of selling tickets in this way. The train operator would also have to show that allowing customers to access the cheapest tickets by calling a hotline or attending a station in person would not have the same financial benefits.
Security staff being offered an incentive to ensure that only people under 25 access a night club where the exclusion itself was discriminatory will probably be discriminatory under the Proposed Legislation.
Exceptions and Exemptions
The Proposed Legislation outlines a number of exceptions. Many of these exceptions are not consistent with the purpose of the Proposed Legislation and can only be justified on the grounds of pragmatism.
A critique of these exceptions is contained in a paper produced by Dee Masters BL for the ECNI entitled "Strengthening protection for all ages: proposals for reform of age discrimination in goods, facilities and services".
The proposals to extend age discrimination into the provision of goods facilities and services will bring with them new challenges for employers and service providers in particular.
Age Discrimination and GFS - The Office of the First Minister and deputy First Minister has issued a public consultation on its proposals to extend age discrimination legislation in Goods, facilities and services in NI to those 16 years or older. This will have wide-ranging implications for businesses, services providers and consumers alike. Dee Masters BL, Cloisters Chambers, London, explains the options and what it could mean for us all in our second session on GFS and workplaces.
Legal-Island would like to thank Dee Masters for the main content of this article. Dee is ranked in both Chambers and Partners and the Legal 500 as a leading employment barrister. She combines specialist knowledge in all areas of discrimination law, especially age discrimination and equal pay, with expertise in the court room. She represents multinational companies, banks, universities, schools, charities, NHS trusts and local authorities. Recent clients include HSBC, IBM, Cambridge University and Mitsubishi. She also represents senior employees in a diverse range of sectors from sales to banking.
To view Dee's full article, click here.