New law to ban age discrimination in services, public functions and associations – with exceptions

On 1 October 2012, new provisions in the Equality Act 2010 came into force, extending the ban on age discrimination to cover services, public functions and private clubs and associations - with some notable exceptions.

Direct and indirect age discrimination, harassment and victimisation will be unlawful when providing services and when carrying out public functions. It is irrelevant whether a service is provided by the private, public or voluntary sector, and whether it’s for payment or free of charge.

The new ban means that in most cases service providers will not be able to operate upper and lower age limits.
The ban on age discrimination in services and public functions does not apply to those under 18 years of age. In contrast, the ban on age discrimination in clubs and associations applies to all ages. In all these sectors, age based concessions and benefits will still be permitted (see exceptions below).

Unlike the other protected characteristics under the Equality Act 2010, direct discrimination because of age can be justified if it is objectively justifiable – that is, ‘a proportionate means of achieving a legitimate aim.’ This recognises that some age-differentiated treatment is socially acceptable. However, it is unclear how this legal test will be applied by the Courts.

Exceptions

Under the Equality Act 2010 there are some general exceptions which permit discrimination in the provision of services, the exercise of public functions or the activities of associations which the Act otherwise prohibits. These exceptions now apply to age.

In addition, alongside the new age discrimination ban, there are now some new exceptions which relate specifically to age:  These exceptions allow:

  • The use of age in financial services including insurance;
  • so called ‘beneficial concessions’ in services, for example, cheap hair cuts for pensioners, cut price or free travel related to age
  • age-linked holidays, for example, Saga; Club18-30
  • services restricted by age under other legislation, such as purchase of products such as alcohol and cigarettes
  • use of age criteria in immigration control
  • residential mobile homes – minimum age limits for sites
  • sports – to allow fair competition, for example under 21’s football will still be lawful

For clubs and associations, there is also an exception which allows them to offer age-based concessions such as reduced membership fees for particular age groups.

It’s important to note that there still is no protection from age discrimination with respect to premises. This is because it is government policy to allow landlords to continue to be able to target accommodation at particular age groups.

Exception for Financial Services

The whole of the financial services sector is exempt from the ban on age discrimination - except where an assessment of risk relating to age is carried out. If this is the case, the assessment must be done by reference to ‘relevant’ information ‘from a source on which it is reasonable to rely’.  Parliament has not provided any definition of these terms. This exception is very wide and the Commission is concerned that any unreasonable refusal of services or disproportionate detriment based on age will be difficult to challenge in the financial services sector.

Exception for Concessionary Services

Service providers will still be allowed to offer age based concessions for services generally available to all age groups.   For example, for senior citizens, it will be lawful to offer reduced price travel and discount days at hairdressers and DIY stores,  It will also be lawful to offer reduced prices for young adults – for example, at leisure centres.

Health and Social Care

There is no express exception for health and social care.  This means that organisations responsible for planning, commissioning or delivering health or social care services can only differentiate in the treatment of service users in different age groups if this can be objectively justified.  However, many age-based services currently provided in these sectors will be able to satisfy this legal test; for example, winter flu injections for over 65s .

As with any new legislation it will be important for the courts to clarify the application of the new age discrimination ban. The Equality and Human Rights Commission has the power to support strategic litigation relating to the Equality Act 2010 and would be interested in hearing about any upcoming cases.

As the equality regulator, we are also responsible for ensuring that service providers cease any discriminatory practices.  If necessary we can take enforcement action where we receive evidence of non-compliance with the Equality Act.  Therefore please let us know of any continuing discrimination in services.

Individuals who think they might have been discriminated against can contact the Equality Advisory and Support Service (EASS) for advice. EASS is a new service that has replaced the EHRC Helpline.

The contact numbers for the new service are:

Phone: 0808 800 0082
Textphone: 0808 800 0084

Opening hours:

09:00 to 20:00 Monday to Friday
10:00 to 14:00 Saturday
closed on Sundays and Bank Holidays

Post: FREEPOST Equality Advisory Support Service FPN4431

Last Updated: 28 Sep 2012