Ban on age discrimination in services - what should voluntary organisations consider?

08 October 2012
Ban on age discrimination in services - what should voluntary organisations consider?

On 1 October 2012, age discrimination in the provision of goods, services, and facilities became illegal. Here we survey some of the implications for voluntary sector employers.

The change in law was originally scheduled for April 2012, but was delayed to allow the government time to consider what exemptions there should be. So what should you do in response to the change in law?

1. Work out whether the law applies to you. Do you provide services, goods or facilities to the public? Do you run a club or association? If so, the new law applies to you in how you run these activities.

(Note that age discrimination in employment has been illegal for some time and is not covered by this new law which relates only to providing services, goods, facilities and running associations.)

2. Audit your age-related policies and practices. The new law only protects people who are 18 years old or over. Do not worry about differential treatment that affects those under 18 years old, as this is permitted.

For those over 18 years old, consider:

Direct discrimination: do you only provide services to particular age groups? Do you only sell products to specific age categories? Is there anyone who you would not provide facilities to, on the basis of their age?

Indirect discrimination: do you have particular rules or ways of doing things, which could put people of a particular age category at a disadvantage? Think about how you make decisions.

Harassment: could people using your products, services or facilities find themselves receiving unwanted treatment based on their age, which is undignified or creates an intimidating, hostile, degrading, humiliating or offensive environment for them?

Victimisation: could someone who has made an age-related complaint about your services or supported another's complaint, be treated unfavourably as a consequence?

3. Consider whether your policy or practice counts as an exception to the law. Below are some specific scenarios which do not count as age discrimination. (Note that harassment and victimisation is always age discrimination):

- Do you run a club or association for a particular age group? This might be for young people or pensioners, for example. This is not age discrimination.

- Do you run a charity that benefits a particular age group? This is not age discrimination.

- Do you provide holidays for a particular age group? This is not age discrimination.

- Are you running sports groups for particular age categories? Eg. under-18s football. This is not age discrimination.

- Are you giving concessions to a particular age group? Eg. student discounts. This is not age discrimination.

- Are you asking someone to verify their age to ensure you comply with age restrictions set down by law? For example, operating a policy to check the ID documents of anyone who appears under 25 years old. This is not age discrimination, providing you have signs to show you operate this policy.

- Are you allowing age to be taken into account when assessing risk in financial services? This means you are not arbitrarily basing decisions on someone's age, but taking age into account as part of collecting relevant and reliable information about an individual. This is not age discrimination.

- Is what you're doing required by law? For example, pensioners receive free bus passes by law. TV licences are free for those over 75 years old - and there are age limits on who can go on jury service. If so, this is unlikely to be age discrimination.

4. Consider whether your policy or practice counts as positive action.
Are you trying to counter-balance a disadvantage experienced by a particular age group? If so, this is positive action and is unlikely to be age discrimination. Examples include providing free internet classes to over-50s.

5. Consider whether your policy or practice is objectively justified. 
Your policy or practice may be objectively justified - in which case it should satisfy the following test. (Again, note that harassment and victimisation will never satisfy this test):

- Your policy or practice sets out to achieve an aim that is legitimate. Legitimate aims will usually produce some kind of social good or be in the public interest (eg. allowing people of a certain age to enjoy something together). Cost reduction without some wider social benefit is unlikely to count as a legitimate aim.

- Your policy/practice is a proportionate way to achieve this end ie. is there no fairer way to achieve this outcome. You will probably have evidence or research to back up your policy or practice. And you will be able to show that there is no fairer way to address the issue you're trying to tackle. For some examples see this guidance from the Government Equalities Office (opens as PDF).

If your policy or practice is objectively justified, you should be able to defend yourself if anyone should challenge it. However the final decision on whether a policy or practice is objectively justified rests with the court, should anybody take out legal proceedings.


5. Amend any policies or practices which do not count as exceptions, positive action and are not objectively justified. You will either need to amend your age-related policy or practice - or do away with it altogether. This should be done by 1 October 2012.

6. Brief your staff. If you have identified ways that your staff may deliberately or inadvertently be breaking the law, ensure you brief them and explain what changes the new law entails for their work.

For further information, see the equality and diversity section of HRBird.

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