On 1 October 2012, the ban on age discrimination in the provision of services will come into force. This will bring age into line with other discrimination strands (sex, race, religion/belief, sexual orientation, disability, gender reassignment and pregnancy/maternity) which already benefit from this protection (
see box “The framework“).This change will affect service providers across the full spectrum from retailers to clubs, doctors and those in the financial services sector, who will have to review their practices to ensure that the way in which they provide their services to the public does not fall foul of the new rules.
However, there are a number of exceptions due to enter into force at the same time which will ensure that a number of common practices (for example, offering age-based concessions such as discounts for pensioners) are not caught, or which otherwise benefit entire industry sectors.
The new rules
The ban will prohibit age discrimination in the provision of services against those aged 18 and over only. Those under 18 will not be able to claim age discrimination (for example, by suggesting that they should be able to buy alcohol).
Service providers will still be able to provide different services to different people based on their age if:
- They can demonstrate that the treatment is a proportionate means of achieving a legitimate aim (that is, it is “objectively justified”). However, harassment or victimisation because of a person’s age will not be capable of justification.
- They can justify extra help to an age group with particular needs (that is, “positive action”). Positive discrimination, however, is not permitted.
- Different treatment is permitted by law, whether because of the exceptions listed below or otherwise (the example given by the government is that of free sight tests for older people).
The exceptions
The exceptions due to come into force at the same time as the ban are as follows:
Financial services. There will be a broad exception permitting financial services providers (such as banks and insurance companies) to continue to use age as a factor in the products and prices that they offer (for example, in assessing risk). However, any assessment of risk must, so far as it involves a consideration of age, be based on relevant information from a source on which it is reasonable to rely (for example, actuarial models, projections or reports).
To address widespread concerns about the ability of some age groups to obtain insurance, particularly in the motor and travel sectors, the government concluded that a voluntary “signposting” scheme, aimed at referring customers to organisations that do provide insurance to their age group, would be more appropriate than legislative intervention, in line with its “light touch” approach to new regulation.
Age-based concessions or discounts. Service providers will continue to be able to offer concessions, discounts or more favourable terms to particular age groups, provided that the concession does not have the effect of preventing those in other age groups from using the service and is reasonable (such as offering a 10% discount to those over 65).
The government has dismissed concerns that this exception could be used to create artificial pricing structures designed to exclude older (or younger) people from access to particular services. An example might be a fashion retailer wishing to maintain a younger customer profile, inflating prices for clothing, while offering a 50% discount for the under-30s. The government’s view is that service providers are unlikely in practice to introduce a “warped” pricing system like this which would deprive them of customers.
Group holidays. Specialist holiday providers will be permitted to continue to design, market, offer and sell package holidays to people in particular age groups, such as those provided by Saga Holidays and Club 18-30. However, it will be unlawful for service providers to sell a standalone product, such as hotel rooms or flights, to a particular age group only, unless this can be objectively justified.
Age verification schemes. To provide certainty, the government has introduced a specific exception permitting retailers to ask all customers who appear to be under a particular age (to be determined by the retailer) for proof of age before selling age-restricted products, such as cigarettes or alcohol, provided that an appropriate notice is displayed.
Other exceptions. Further exceptions extend to: immigration (permitting the immigration authorities to take age into account when determining a person’s eligibility to enter and remain in the UK); sport (allowing age-restricted sporting leagues and competitions to continue); and residential park homes (permitting residential park homes to include minimum age limits in their admission rules).
The government concluded that there should be no exception for health and social care after reviewing evidence demonstrating that older people received inferior treatment. As such, doctors and others will need to be able to objectively justify any difference in treatment because of a person’s age. Similarly, the government was not persuaded that specific exceptions were required by those in the car rental and self-catering holiday accommodation sectors.
Looking ahead
There has been some criticism of the financial services exception, with organisations such as Age UK arguing that the exception is too wide and goes further than similar exceptions for gender and disability (both of which require that anything done under the exception is a “reasonable thing to do”). However, this and other exceptions will be welcomed by service providers as a proportionate response to the introduction of the age ban.
Service providers will now need to review any age-related practices and consider whether they fall within any of the specific exceptions or can be objectively justified. Retailers in particular should consider the extent to which targeting a particular age group through concessions or other measures could amount to indirect age discrimination and any justification.
Service providers should also review any policies and statements relating to equal access to ensure that they cover age, and consider what steps need to be taken to inform and train staff. The government has produced guidance for organisations which may help with this process (available via Equality Act guidance, Home Office).
Sarah Gregory is a partner and Paul Harrison is Of Counsel at Baker & McKenzie LLP.
For links to the legislation, consultation and other information on age discrimination, see Age discrimination, Home Office.
The framework
The Equality Act 2010 (2010 Act) entered into force on 1 October 2010 and prohibits (among other things) discrimination in the provision of services, the exercise of public functions and by clubs and other associations on the grounds of sex, race, religion/belief, disability, gender reassignment, pregnancy/maternity and sexual orientation (the protected characteristics) (Equality Act 2010: Royal Assent). It brought together the disparate strands of discrimination legislation to provide broadly uniform protection.
Although age discrimination is covered by the 2010 Act, the ban on age discrimination in the provision of services was not brought into force along with the rest of the 2010 Act, pending consultation (now concluded) on appropriate exceptions which would enable differential treatment based on age to continue, where that was regarded as beneficial.
