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Goods, facilities and services: Age discrimination problems arise in unexpected places

Goods, facilities and services: Age discrimination problems arise in unexpected places

By Dee Masters and Siân McKinley

Overview

There has been a ban on age discrimination in goods, facilities and services in Great Britain since 1 October 2012 but very little litigation or publicity.  However, age discrimination problems can arise in some unexpected but common areas.  It seems likely that service providers have been lulled into a false sense of security by the lack of litigation.  A recent story in Ireland illustrates the dangers of such an approach.

Review of the law

The Equality Act 2010 covers the provision of goods, facilities and services, charities, education, health and social care and the exercise of public functions (e.g. arrest, detention). It is irrelevant whether the services or facilities are provided for free or in return for a payment.    

Like discrimination in an employment context, the legislation prohibits direct discrimination, indirect discrimination, harassment and victimisation.

Direct and indirect discrimination extends to the following matters (see s 29(2) EA 2010):

–       Withholding a service

–       Terms on which a service is provided

–       Termination of service

–       Any other detriment

It is also discriminatory to provide a service either in a different way or in an inferior way because of age (see s.31(7) EA 2010).

Direct or indirect age discrimination can be objectively justified if the treatment amounts to a proportionate means of achieving a legitimate aim. The ingredients of an objective justification defence are well-known to discrimination lawyers.

Potential pitfalls

The most common issue for service providers arises when practices which apply to all customers place those in certain age groups at a disadvantage. These may be long-standing and established practices such as using technology to streamline services. However, since it is commonly thought that older people are likely to be less familiar and less comfortable with technology this may place them at a disadvantage.

A recent cautionary tale from Ireland highlights the problem. The Bank of Ireland, a state-owned bank which operates in the Republic of Ireland and Northern Ireland, announced this week that customers in the ROI depositing less than €3000 or withdrawing less than €700 would not be allowed to use in-branch services at the counter with a teller. Such customers could only use ATMs and so-called "quick lodge" machines.

This decision was met with criticism by a number of politicians and charities who said the bank was ignoring the needs of its older customers with the new rules.

This is a good illustration of the negative publicity which a service provider may receive. Within hours, the Bank of Ireland changed its position and announced that vulnerable customers, such as elderly customers who are not comfortable using self-service channels or other technology solutions, would still be permitted to use the available in-branch services.

In Great Britain, it’s unlikely that the same action would amount to indirect age discrimination. Schedule 3 s.20A EA 2010 creates an exception which applies to “doing anything” in connection with a financial service which would otherwise amount to direct or indirect discrimination. However, the following examples may be closer to home:

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. 

A supermarket which reserves its best deals to customers who are prepared to bulk buy products e.g. “3 for 2” or discounts for larger sizes might face a claim for indirect age discrimination since these types of bulk deals will only appeal to families which are likely to fall within specific age ranges.  If this type of disparate impact could be proved, the supermarket would have to explain why it provided discounts only on bulk products rather than simply discounting individual items by an equivalent amount. 

Defending an age discrimination claim would probably require both the train company and the supermarket to disclose commercially sensitive information concerning the financial benefits of selling tickets online or bulk buy discounts. Furthermore, objective justification of such measures is likely to come down to an attempt to make cost savings and of course this is a difficult area.

This area requires some creative thinking, both to identify the problems and then to find a solution. We recommend service providers carefully review their practices, including those which are common place.  Similarly, service users who are placed at a disadvantage by these types of practices should consider formalising their concerns.

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