Age Regulations 2006: Part 1 - Key general principles

In the first of three articles explaining the Employment Equality (Age) Regulations 2006, Michael Rubenstein looks at principles of non-discrimination under the new legislation.

The Employment Equality (Age) Regulations 2006 have received parliamentary approval and will come into force on 1 October 2006. The Regulations are expected to have a profound impact on workplace culture. This is the first of three articles that will explain the new Regulations.

This article deals with principles of non-discrimination under the new legislation. Part 2 will look at specific issues of age discrimination against applicants and employees, and part 3 will focus on dismissal and retirement.

The 2006 Regulations represent the UK's implementation of the age strand of the EU Framework Employment Directive (EU Employment Framework Directive: An EOR Guide). This means that the Regulations have to implement correctly the provisions of the Directive relating to age. If the UK does not do so, the courts are obliged to interpret our legislation so far as possible to accord with the Directive's requirements, and public sector workers may be able to enforce the Directive directly against their employer.

Implementing the Directive correctly also means complying with the principle of non-regression. This is set out in art. 8 of the Directive. It says: "The implementation of this Directive shall under no circumstances constitute grounds for a reduction in the level of protection against discrimination already afforded by member states in the fields covered by this Directive."

Discrimination on grounds of age

3. -

(1) For the purposes of these Regulations, a person ("A") discriminates against another person ("B") if -

(a) on grounds of B's age, A treats B less favourably than he treats or would treat other persons, or

(b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same age group as B, but -

(i) which puts or would put persons of the same age group as B at a particular disadvantage when compared with other persons, and

(ii) which puts B at that disadvantage,

and A cannot show the treatment or, as the case may be, provision, criterion or practice to be a proportionate means of achieving a legitimate aim.

(2) A comparison of B's case with that of another person under paragraph (1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

(3) In this regulation -

(a) "age group" means a group of persons defined by reference to age, whether by reference to a particular age or a range of ages; and

(b) the reference in paragraph (1)(a) to B's age includes B's apparent age.

The basic definition of direct and indirect age discrimination parallels that for the other strands, but with several differences, one of which is extremely important: the distinctive feature of the age regulations is that direct, as well as indirect, discrimination will be capable of being objectively justified, and the same test will apply to both forms of discrimination. This is discussed in more detail below.

Direct age discrimination

Direct discrimination takes place where "on grounds of B's age, A treats B less favourably than he treats or would treat other persons". This is the same formulation that was used for the religion or belief and sexual orientation Regulations. It is slightly narrower than the definition used in the Race Relations Act (RRA), "on grounds of race".

According to the Department of Trade and Industry's (DTI) explanatory note: "RRA case law has established that direct discrimination on racial grounds covers discrimination against a person by reason of the race of someone with whom the person associates… The narrower definition has been used in the age Regulations to avoid covering discrimination on grounds of association with persons of a particular age in order not to create confusion with 'family friendly' legislation."

Regulation 3(3)(b) makes it unlawful to discriminate on grounds of someone's "apparent" age. This provides protection against "perceived discrimination". It means that if someone is discriminated against because they look too young, or too old, for a particular job, they will be able to complain successfully even if the discriminator is wrong about their actual age.

Because the statutory wording is so similar, the principles established by the case law under the Sex Discrimination and Race Relations Acts will apply for determining whether a claimant has been less favourably treated on grounds of their age. Adapting these principles to age:

The crucial question in a case of direct discrimination is why the claimant received less favourable treatment. Was it on grounds of age, or was it for some other reason? Nagarajan v London Regional Transport [1999] IRLR 572 HL.

The intention or motive of the employer to discriminate is not a necessary condition for liability. R v Birmingham City Council ex parte Equal Opportunities Commission [1989] IRLR 173 HL.

The object of the legislation is to ensure that each person is treated as an individual and not assumed to be like other members of the group, whether or not most members of the group do have such characteristics. R (on the application of European Roma Rights Centre) v Immigration Officer at Prague Airport [2005] IRLR 115 HL.

That age was an important factor in an employer's decision is sufficient to found a case of discrimination. It is not necessary that the factor of age was the sole reason for the employer's decision. Owen & Briggs v James [1982] IRLR 502 CA.

In common with the other strands, the burden of proof will shift to the employer if the complainant proves facts from which the tribunal could conclude in the absence of an adequate explanation that the employer committed an act of unlawful age discrimination. In accordance with guideline 11 of Igen Ltd v Wong [2005] IRLR 258 CA, "to discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of" age.

Justification

The unique feature of the age Regulations is that direct age discrimination, in principle, is capable of justification. The Regulations provide that direct discrimination will not be unlawful if the employer can show that the treatment is "a proportionate means of achieving a legitimate aim."

This is the same language as the government has used as the test for justifying indirect discrimination on grounds of race, sex, religion or belief and sexual orientation (see below).

The principle that direct age discrimination is capable of justification derives from the EU Directive, which treats age differently than the other grounds by specifically setting out potential justifications. Article 6(1) of the Directive stipulates that "member states may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary. Such differences of treatment may include, among others:

a. the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection;

b. the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment;

c. the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement."

The government proposed originally to have a restricted list of legitimate aims that could be used to justify direct discrimination. In the final consultation on the draft age discrimination Regulations (Draft age discrimination Regulations: An EOR guide), the list was removed. The DTI explained that "an exhaustivelist of legitimate aims for direct discrimination would be too restrictive and prescriptive".

The draft Regulations, however, set out three examples of situations in which less favourable treatment on grounds of age might be considered to be a proportionate means of achieving a legitimate aim, which were taken directly from the examples set out in art. 6(1) of the Directive. The first two related to positiveaction, and were relatively uncontroversial. The third example of potentially justifiable direct discrimination was: "the fixing of a maximum age for recruitment or promotion which is based on the training requirements of the post in question or the need for a reasonable period in post before retirement". This envisages employers directly discriminating against applicants because they are nearing retirement age, so that the "pay-back" on investment in training or in recruitment would be insufficient.

The examples of legitimate aims have also been dropped from the final version of the Regulations. This means that what is and what is not a "legitimate aim" is now more likely to be determined in accordance with the developing case law generally in respect of this test, including the way it has been interpreted for indirect race and sex discrimination purposes, although reference to the examples set out in art. 6(1) will also be legitimate.

Legitimate aims

What will be considered as "legitimate aims"? One key issue is whether avoiding the cost of not discriminating will be a legitimate defence for an employer to run. The DTI consultation suggested that "the aim must correspond with a real need on the part of the employer ... Economic factors such as business needs and considerations of efficiency may also be legitimate aims. However, discrimination will not be justified merely because it may be more expensive not to discriminate." In Cross v British Airways plc (EOR 142), the EAT took a somewhat less stringent view and held that an employer can put cost into the balance, together with other justifications for discrimination if there are any.

Cost is an especially important consideration in an age discrimination context, and the approach taken by the courts to this issue is likely to be an important determinant of the ultimate reach of the new legislation. What view will be taken, for example, of the employer who dismisses older employees and replaces them with younger employees in order to save money?

The DTI consultation suggested some other legitimate aims:

health, welfare and safety (including protection of young or older people);

facilitation of employment planning;

particular training requirements;

encouraging and rewarding loyalty;

the need for a reasonable period of employment before retirement; and

recruiting or retaining older people.

All of these in theory might be legitimate aims such as to justify direct discrimination, but to do so, they will also have to be proportionate. On the face of it, the aims referred to are much more likely to justify indirect discrimination than direct discrimination.

Another crucial question is whether satisfying customer preference will be regarded as a "legitimate" aim allowing employers to discriminate on grounds of age. The consultation said that the legitimate aim cannot be related to age discrimination itself. It then gave an example that has since been much referred to: "A retailer of trendy fashion items wants to employ young shop assistants because it believes that this will contribute to its aim of targeting young buyers. Trying to attract a young target group will not be a legitimate aim, because this has an age-discriminatory aspect."

What this illustration seems to be driving at is that if the aim is tainted by age discrimination, it cannot be regarded as "legitimate". But there are problems with the illustration. Trying to attract a young target group may be related to age, but the legislation says nothing that could cast doubt on the legitimacy of goods and services directed primarily at particular age groups. Otherwise, providers of old-age facilities and publishers of teen magazines could find themselves in difficulties.

The way the "aim" in this illustration is more likely to be framed is that the objective is to take on employees with whom the prospective target group an overt policy of employing "young" assistants is a proportionate means of achieving the employer's aim of targeting a young market. As is discussed below, there are good reasons for thinking that such direct discrimination should not be considered proportionate.

Proportionate means

If the aim is legitimate, in order to justify discrimination, the employer must show that the "treatment" - that is to say, the direct discrimination - is "a proportionate means" of achieving that aim. The concept of proportionality requires a balance to be struck. In the recent case of Mangold v Helm [2006] IRLR 143, the European Court of Justice (ECJ) put it this way: "Observance of the principle of proportionality requires every derogation from an individual right to reconcile, so far as is possible, the requirements of the principle of equal treatment with those of the aim pursued."

Mangold involved German legislation on fixed-term work that excluded all those aged 52 and over from protection. The ECJ accepted that the purpose of the German legislation was legitimate in that it was intended to promote the vocational integration of unemployed older workers. However, the Court ruled that the means used to achieve that objective could not be regarded as appropriate and necessary, and thus the age discriminatory legislation could not be regarded as justified. This was because the blanket exclusion of all employees aged 52 and over from protection infringed the principle of proportionality.

The legislation took the age of the worker concerned as the only criterion "regardless of any other consideration linked to the structure of the labour market in question or the personal situation of the person concerned". This, the Court said, went beyond "what is appropriate and necessary in order to attain the objective pursued".

This case graphically illustrates how the principle of proportionality is meant to work and why it will be difficult for employers - or the government - to justify a directly age discriminatory criterion. The burden will be on the respondent to show that the overt discrimination is not "over-inclusive".

At the heart of the principle of proportionality is the idea that one should not discriminate more than necessary. Discrimination is not proportionate if the aim can be achieved by a less discriminatory means. If the legitimate aim can be achieved by treatment or a policy that has a smaller discriminatory effect, then that should be used.

If we look at the potential "legitimate aims" employers might have for discriminating on grounds of age, there are very few, other than some of the issues relating to retirement, that are directly related to someone's chronological age. Instead, age operates as a "cheap screen" for a generalisation or stereotype that matches the attributes or characteristics the employer is seeking, the potentially legitimate aim. The employer operating dangerous machinery is concerned about the potential health and safety risks if an employee should fall ill and considers that the chances of this increase as employees get older. The retailer of the trendy fashion items wants employees who will be able to model the clothes it is selling.

In cases like this, the employer's objective could be equally well - and, indeed, better - achieved if the characteristic or attribute was measured for directly, ie by subjecting employees to medical tests or having them try the clothes on, in these examples. That, however, might be more burdensome on the employer, and thus more costly. A key battleground for interpreting the age Regulations, therefore, will be the extent to which tribunals find that an employer fails to satisfy the requirement of proportionality where it directly discriminated on grounds of age, in circumstances where it could have operated an age-neutral criterion (albeit one that may have had an adverse impact on a particular age group and would still require to be justified).

Indirect age discrimination

The definition of indirect age discrimination follows the pattern of the definitions applying to the other strands of discrimination law. Before the burden of proof shifts to the employer to justify the practice, a claimant (or group of claimants) will have to overcome three hurdles.

First, they will have to show that there is a provision, criterion or practice that the employer has applied to them and to persons of a different age group. "Provision, criterion or practice", for the moment at least, has been extremely widely interpreted by the courts. In British Airways plc v Starmer [2005] IRLR 862, it was held by the EAT to extend to a discretionary management decision, though this judgment is being appealed to the Court of Appeal.

Second, claimants will have to show disparate impact. They will have to establish that the provision, criterion or practice puts, or would put, persons of their age group at a particular disadvantage when compared with other persons. There are several points to note in this connection. "Age group" is given a broad definition by the Regulations. It means a group defined "by reference to age, whether by reference to a particular age or a range of ages". This applies both to the claimant and the comparator.

This has two implications. First, the reference to a range of ages signifies that not all members of the claimant's age group or the comparator group have to be of the same age. They may have a range of ages. Second, the wording of the Regulations suggests that the claimant will be able to frame their complaint comparing themselves to whatever age group best suits their case. For example, the claimant might say that they are aged 38 and the particular policy under attack places employees who are aged 38 at a disadvantage compared to employees aged 50 and over. In this illustration, the impact on employees between 39 and 49 would become irrelevant, and it would not appear to be open to the employer, or to the tribunal for that matter, to counter a claim of disparate impact by pointing to the impact, or lack of it, on another age range.

The reference in the definition to "puts, or would put" persons of their age group at a particular disadvantage follows the Directive's language and signifies that statistical evidence of the actual impact of the policy being challenged on particular age groups will not always be necessary. Other empirical evidence will suffice, and that evidence can relate to how the policy would impact on a different age group if it were applied to them. General guidance on the principles governing the law relating to disparate impact may be provided by the House of Lords when it issues its decision in Rutherford v Secretary of State for Trade and Industry (No.2).

Finally, the claimant will have to prove that the provision, criterion or practice does have an adverse impact on them. Theoretical complaints are not permitted.

To summarise: the indirect age discrimination provisions will apply to any provision, criterion or practice, a term that has been defined very broadly. The claimant will be able to frame the most suitable comparison and statistical evidence will not be necessary to demonstrate adverse impact on the claimant's age group.

The message is clear: almost any HR policy or practice, term or condition, is likely to have a disproportionate impact on some age group or another. If a practice is such that it is capable of having a disparate impact, it would be surprising indeed if it had the same impact on all different age ranges. The implication is simple: employers will have to be prepared to defend and prove as justifiable the great majority of their policies and practices if they are challenged as being age discriminatory.

The test for justifying indirect age discrimination is exactly the same as that for justifying direct discrimination, as discussed above. The employer must show that the provision, criterion or practice is "a proportionate means of achieving a legitimate aim". Note that the wording used, as with the other discrimination strands, is not the test set out in the Framework Employment Directive, which refers to the means being "appropriate and necessary". The explanation given is very much the same as was put forward for the same change in the wording used in the regulations on religion or belief and sexual orientation (New Discrimination Regulations Part 2: Race, religion and sexual orientation).

Thus, according to the DTI, "the Directive appears to use the two terms 'proportionate' and 'appropriate and necessary' interchangeably … Similarly, the European Court of Justice has used the two terms interchangeably, explaining that proportionality requires that the means used to achieve an aim must not exceed the limits of what is appropriate and necessary to achieve that aim … Since the two terms have the same meaning in light of the case law, the Regulations use the same term ('proportionate') for the sake of consistency throughout … The term 'proportionate' is considered to be clearer than 'appropriate and necessary' in implementing the Directive in that it sets the requirement of necessity in its proper context. Were the Directive's formulation to be simply copied out, there might be a risk that this would be interpreted as a very strict requirement (for example, that the legitimate aim pursued was essential to the employer's business), in accordance with the usual English law approach to the concept of necessity. But, as the ECJ case law … demonstrates, the term 'appropriate and necessary' in the European context does not set out an absolute test but, rather, one of proportionality involving balancing between the discriminatory effects of a measure and the importance of the aim pursued."

Harassment on grounds of age

6. -

(1) For the purposes of these Regulations, a person ("A") subjects another person ("B") to harassment where, on grounds of age, A engages an unwanted conduct which has the purpose or effect of -

(a) violating B's dignity; or

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(2) Conduct shall be regarded as having the effect specified in paragraph (1)(a) or (b) only if, having regard to all the circumstances, including in particular the perception of B, it should reasonably be considered as having that effect.

The Regulations will prohibit harassment on grounds of age. The definition is similar to that for race, disability, religion and sexual orientation. Age-based harassment will be unlawful if it has the purpose or effect of violating the claimant's dignity or if it creates an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. As with the other strands, there is an objective test as to whether harassive conduct had the specified effect. The DTI notes that "an over-sensitive complainant who takes offence unreasonably at a perfectly innocent comment would probably not be considered as having been harassed". The reasonableness test does not apply, however, where the conduct had a harassive purpose.

Anecdotal evidence suggests that age-related harassment is common in many workplaces. It may consist of ageist jokes in one form or another, or belittling remarks about someone's age. They may be directed at someone because they are regarded as too old, or sometimes too young. Sometimes the harassment may be based on more than one ground, such as age and sex: as in remarks about a woman's physical appearance or jokes about a man's sexual potency.

In many workplaces, ageist harassment is probably viewed in much the same way as was sexual or racial harassment 20 years ago. The perpetrators regard ageist jokes and remarks as "just good fun" and the recipients feel obliged to join in for fear of appearing lacking in a sense of humour. Experience suggests that some people will have no problem with age-related teasing or jokes, but others will. This will now need to be reflected in workplace policies.

Victimisation

4. -

(1) For the purposes of these Regulations, a person ("A") discriminates against another person ("B") if he treats B less favourably than he treats or would treat other persons in the same circumstances, and does so byreason that B has -

(a) brought proceedings against A or any other personunder or by virtue of these Regulations;

(b) given evidence or information in connection with proceedings brought by any person against A or any other person under or by virtue of these Regulations;

(d) alleged that A or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of these Regulations, or by reason that A knows that B intends to do any of those things, or suspects that B has done or intends to do any of them.

(2) Paragraph (1) does not apply to treatment of B by reason of any allegation made by him, or evidence or information given by him, if the allegation, evidence or information was false and not made (or, as the case may be, given) in good faith.

The age discrimination Regulations include the standard provisions prohibiting victimisation of someone by virtue of something that they have done under, or in connection with, the Regulations. Thus, A unlawfully victimises B if A treats B less favourably because he has brought age discrimination proceedings against A or "otherwise done anything under or by reference to these Regulations".

The phrase "by reference to" is especially broad. In Aziz v Trinity Street Taxis Ltd [1988] IRLR 204, the Court of Appeal, construing the comparable wording in the Race Relations Act, said that an act falls within this definition if it is done "by reference to" the legislation in the broad sense, even though the doer does not focus his mind specifically on any provision of the Act. This would suggest that an internal grievance relating to age discrimination would qualify, even if it did not result in litigation.

Note in this context that the victimisation provisions continue to apply past the default retirement age and are not affected by the exclusion relating to retirement. If an employee was able to show that the reason their request to continue working beyond retirement age was turned down was because they had sued the employer for age discrimination or brought a grievance relating to age discrimination, that is likely to amount to unlawful victimisation even though the claimant was over retirement age.

Relationships that have come to an end

24. -

(1) In this regulation a "relevant relationship" is a relationship during the course of which an act of discrimination against, or harassment of, one party to the relationship ("B") by the other party to it ("A") is unlawful by virtue of any preceding provision of this Part.

(2) Where a relevant relationship has come to an end, it is unlawful for A -

(a) to discriminate against B by subjecting him to a detriment; or

(b) to subject B to harassment; where the discrimination or harassment arises out of and is closely connected to that relationship.

(3) In paragraph (1), reference to an act of discrimination or harassment which is unlawful includes, in the case of a relationship which has come to an end before the coming into force of these Regulations, reference to an act of discrimination or harassment which would, after the coming into force of these Regulations, be unlawful.

This regulation makes it unlawful for an employer to discriminate on grounds of age against a former employee after the working relationship between them has come to an end. The wording is identical to that found in the sexual orientation and religion or belief Regulations.

The main mischief at which this regulation is directed is adverse references. This may be especially important in an age discrimination context. Employers whose references reveal adverse stereotypes based on the employee's age, such as comments that "they were nolonger up to the job", may fall foul of these provisions.

Like the victimisation provisions, the protection in respect of relationships that have come to an end continues to apply even where the former employee has passed retirement age. Note also that reg. 24(3) specifically provides that an act of post-employment discrimination taking place after the new Regulations come into force is unlawful even where the relationship came to an end before 1 October 2006. In other words, from 1 October, employers will have to guard against ageist comments in references in respect of any former employee and not just those who leave after 1 October 2006.

Coverage

Since it implements one of the strands of the Framework Employment Directive, the coverage of the age Regulations is similar to that for disability, religion or belief and sexual orientation. The Regulations apply to those who are employed "under a contract of service or of apprenticeship or a contract personally to do any work". In addition, there are provisions applying the Regulations to contract workers, office holders, partners and barristers, and the police.

There are two exclusions from coverage of the age discrimination Regulations that are noteworthy. These are discussed below.

Exclusion of applicants over age 65

7. -

(1) It is unlawful for an employer, in relation to employment by him at an establishment in Great Britain, to discriminate against a person -

(a) in the arrangements he makes for the purpose of determining to whom he should offer employment;

(b) in the terms on which he offers that person employment; or

…

(4) Subject to paragraph (5), paragraph (1)(a) and (c) does not apply in relation to a person -

(a) whose age is greater than the employer's normal retirement age or, if the employer does not have a normal retirement age, the age of 65; or

(b) who would, within a period of six months from the date of his application to the employer, reach the employer's normal retirement age or, if the employer does not have a normal retirement age, the age of 65.

(5) Paragraph (4) only applies to a person to whom, if he was recruited by the employer, regulation 30 (exception for retirement) could apply.

One of the most controversial of the exclusions from the scope of the legislation is the blanket exclusion from the right to complain of age discrimination in respect of selection arrangements and recruitment of all those who are within six months of the national default retirement age of 65, or the particular employer's normal retirement age if that age is greater.

This represents a slight modification of the government's original proposal for a total exclusion of those aged 65 and above. According to the DTI's notes: "The rationale for this exclusion from the requirement not to discriminate flows from the rationale for reg. 30 (exception for retirement). There is little point in requiring an employer not to discriminate at the point of receiving an application from a prospective employee when, if he were to employ the person, that person could be retired (without it amounting to discrimination to do so) within six months of their appointment."

This reasoning must be open to question. All derogations from the principle of equal treatment have to be proportionate and justified on their own merits. We will be examining the justification put forward for the default retirement age itself in part 3 of this series. In general terms, it is to meet the concerns of employers in relation to "workforce planning" and "avoiding an adverse impact on the provision of occupational pensions and other work-related benefits".

Those justifications operate with much less force, if at all, in respect of recruiting workers aged 65 and over. Nor does the rationale logically follow, in any event, from the justification for the decision to impose a default retirement age. It presupposes that it is likely that an employee who was recruited for the first time when they were over the default retirement age will then be dismissed by reason of retirement.

Exception for genuine occupational requirement etc

8. -

(1) In relation to discrimination falling within regulation 3 (discrimination on grounds of age) -

(a) regulation 7(1)(a) or (c) does not apply to any employment;

(b) regulation 7(2)(b) or (c) does not apply to promotion or transfer to, or training for, any employment; and

(2) This paragraph applies where, having regard to the nature of the employment or the context in which it is carried out -

(a) possessing a characteristic related to age is a genuine and determining occupational requirement;

(b) it is proportionate to apply that requirement in the particular case; and

(i) the person to whom that requirement is applied does not meet it, or

(ii) the employer is not satisfied, and in all the circumstances it is reasonable for him not to be satisfied, that that person meets it.

Given that direct discrimination on grounds of age can be justified by an employer, there would seem to be little need for a further exemption for a genuine occupational requirement (GOR). In its consultation, the government suggested that "age will only be a genuine occupational requirement in very few cases". The examples that have been put forward for where a GOR might apply are the obvious ones like child actors, but whether the exception will be interpreted so narrowly by tribunals remains to be seen.

Although the DTI says that "the regulation is similar" to that in the sexual orientation and religion or belief Regulations, the language is different. Whereas the sexual orientation Regulations refer to circumstances where "being of a particular sexual orientation is a genuine and determining occupational requirement", the age GOR is not limited to cases where "being of a particular age" is determining. Instead, the formulation refers to "possessing a characteristic related to age". Accordingly, an employer will be entitled to discriminate on the basis of a "characteristic related to age" where it is a "determining" occupational requirement and it is "proportionate" to apply the requirement in the particular case.

It is true that as these provisions are a derogation, Community law requires that they should be interpreted strictly. "Determining" undoubtedly is being used in this context as meaning "decisive" rather than formative. Nevertheless, so far as we are aware, there is no authoritative interpretation as to just what the word means in this context. As we pointed out in Draft age discrimination Regulations: An EOR guide, if we take the example in the DTI consultation of the retail clothing shop whose customers are teenage girls, will that shop be able to argue that having someone with a "youthful image" is a "determining" requirement for their sales staff, and that it is proportionate to apply the requirement so as to require staff below a certain age? That will be up to the case law to decide.

Box 1: The age discrimination paradox

The age discrimination Regulations will have a huge impact on workplace culture. There are no guarantees that it will happen immediately, but these changes will probably take place sooner rather than later. The Regulations are taking effect within a well-developed framework of discrimination law. In recent years, both employers and members of the judiciary have become increasingly sophisticated in their understanding of discrimination law issues. The learning curve experienced in sex and race, and even disability, discrimination is unlikely to be replicated.

To the extent that it is, the learning process is likely to be accelerated by a rush of cases. Employees in their 40s and 50s who are dismissed after 1 October 2006 will be considering carefully whether their age had anything to do with it. They will know, or will be advised, that there is no upper limit on the compensation that can be awarded for loss of earnings resulting from an age discriminatory dismissal. Unless and until the new legislation itself produces a culture change, the prospects of middle-aged employees who have been dismissed obtaining a new job on an equivalent salary are not good.

Younger employees will also benefit from age discrimination legislation. Formal experience requirements that cannot be justified and informal stereotypes about the appropriate age for holding senior positions are likely to be swept away.

It is a different story when we come to those in their mid-60s and older. As a result of the government's decision to capitulate to the CBI and introduce a default retirement age (see Hewitt's shameful surrender), those aged 65 and over are completely excluded from complaining about mandatory retirement, or about being discriminated against on grounds of age when they apply for the employment that many will need to look for because they have been thrown out of their former job before they were ready to retire.

There are few experts who believe that the exclusion of mandatory retirement will last for more than 10 or so years.

By that time, we can also expect age discrimination legislation to be extended to access to goods, facilities and services, and for there to be a duty on public authorities to have due regard to the need to eliminate unlawful discrimination and to promote equality of opportunity.

Until then, the paradox of our age discrimination legislation is that it will benefit every age group other than the oldest.

Box 2: Mandatory retirement referred to ECJ

The introduction of a default retirement age of 65 and the exclusion of employees aged 65 and over from the scope of the age discrimination Regulations is one of the most controversial aspects of the new legislation.

We have questioned whether these blanket exclusions fall within the scope of the derogations permitted to member states under the Framework Employment Directive, and there has certainly been talk of a legal challenge against the UK government.

These issues are likely to be clarified, however, by a Spanish reference which is currently before the European Court of Justice, Palacios de la Villa and Cortefiel Servicios SA (C-411//05). This was referred to the ECJ by the Juzgado de lo Social No.33 of Madrid on 14 November 2005, and poses the following questions:

"Does the principle of equal treatment, which prohibits any discrimination whatsoever on the grounds of age and is laid down in Article 13 EC and Article 2(1) of Directive 2000/78, preclude a national law (specifically, the first paragraph of the Single Transitional Provision of Law 14/2005 on clauses in collective agreements concerning the attainment of normal retirement age) pursuant to which compulsory retirement clauses contained in collective agreements are lawful, where such clauses provide as sole requirements that workers must have reached normal retirement age and must have fulfilled the conditions set out in the social security legislation of the Spanish State for entitlement to draw a retirement pension under their contribution regime?

In the event that the reply to the first question is in the affirmative: Does the principle of equal treatment, which prohibits any discrimination whatsoever on the grounds of age and is laid down in Article 13 EC and Article 2(1) of Directive 2000/78, require this court, as a national court, not to apply to this case the first paragraph of the Single Transitional Provision of Law 14/2005 cited above?"

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Age Regulations 2006: Part 1 - Key general principles

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Age Regulations 2006: Part 1 - Key general principles