Age Discrimination in UK Law

It seems clear from Stec, however, that the normally strict test for justification of sex discrimination in the enjoyment of the Convention rights gives way to the "manifestly without reasonable foundation" test in the context of state benefits. The same principles were applied to the sex discrimination involved in denying widow's pensions to men in Runkee v United Kingdom [2007] 2 FCR 178, para 36.

Be that as it may, and I do not need to resolve it, this is not a case of direct age discrimination between those two groups and was not argued to be such. Mr Davies contended that there was indirect age related discrimination. I bear in mind what Carnwath LJ said at para 17 in R (Esfandiari and Others) v SSWP [2006] EWCA Civ 282 about the need for caution in the application to Article 14 of the concept of indirect discrimination.

There may be differences of view about whether age is or can be a “suspect” ground for discrimination, requiring a more intense scrutiny, or whether “old age”, which is not quite the same, can be. But the grounds of differentiation here, not wholly aptly characterised as those of age, are not suspect grounds.

Mr O'Dempsey is, of course, correct to submit that the change in the Immigration Rules reflected in the HMFIR undermined some of the assumptions supporting the decision of the Court of Appeal in Purja. Those who retired after 1997 with the qualifying service have acquired rights to live in the United Kingdom. The question is whether those changes have affected the reasoning of the Court of Appeal as it applies to the calculation of pension entitlements which accrued before 1 July 1997.

There may be such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous. Then the court's scrutiny may best be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact.

Direct discrimination expressly requires a causal link between the less favourable treatment and the protected characteristic. It is dealing with hidden barriers which are not easy to anticipate or to spot.

As Lady Hale has demonstrated, the evolving case law of the ECJ and the CJEU has shown that a distinction must be drawn between legitimate employment policy, labour market and vocational training objectives and purely individual reasons which are particular to the situation of the employer. These social policy objectives have private aspects to them, as they will tend to work to the employer's advantage. But the point is that there is a public interest in the achievement of these aims too.