CLOISTERS - AGE and SO - ROBIN ALLEN QC 1

AGE AND SEXUAL ORIENTATION DISCRIMINATION

ROBIN ALLEN QC

CLOISTERS

@RobinAllenQC

Whats coming up?

AGE Quick update on

UN/Europe 12 new cases Themes -

Ageist Language Comparators Justifying Recruitment ages Justifying Retirement ages Transitional arrangements Taxing your injury to feelings!

SEXUAL ORIENTATION (SO) A new right! 4 new cases Themes -

Righting historic wrongs Getting clear about the

relationship between marriage and same sex unions

Dealing with evangelicals

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Lockwood: Comparisons and OJ ET cannot exclude a claim by denying a

comparison across working ages ET can take into account different

demands at different ages Query whether there should have been an

assessment of the balance…

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Smith v Ministry of Justice

PCPS entitlement to pension at 60. Compensation for loss of office but if over 60 the

maximum amount six months' salary. Persons under 60 were entitled to a maximum

payment of 21 months' salary. EAT hold discriminatory:

You cannot avoid a claim by

building age into comparison.

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Palmer v Royal Bank of Scotland Plc Another Lockwood type case However defence provided by the Equality

Act (Age Exceptions for Pension Schemes) Order 2010

Summary of the four questions normally posed in age justification cases

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WORKSTARTING AND FINISHING

Vital Pérez Seldon

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Vital Perez 30 max age for recruitment by

Orviedo police force Articles 4 and 6 engaged Can achieve purpose of getting

adequately strong officers without using age - so not justified to use age

In any event plenty of time if start later for an adequate working period

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Seldon

Argued that need clear evidence why he should be retired at 65 and not later

However – he party to choice of that age! In any event some age had to be chosen to achieve retention policies and workforce

planning First instance cases of later ages

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Leopold Schmitzer v Bundesministerin für Inneres EU law does not preclude MS from taking account of

budgetary considerations at the same time as political, social or demographic considerations,

Provided that in so doing they observe, in particular, the general principle of the prohibition of age discrimination.

Wwhile budgetary considerations may underpin the chosen social policy of a Member State and influence the nature or extent of the measures that that Member State wishes to adopt, such considerations cannot in themselves constitute a legitimate aim within the meaning of Article 6.

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Specht

Just too difficult to do more in a transitional scheme

Over 65,000 individual cases would have to be examined;

That task would take approximately 360,000 hours to complete.

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Moorthy v Revenue and Customs Commissioners No special free-standing tax relief for

payments made for injury to feelings;

When settling be alert to what the payment relates to.

The claimant will be liable for tax shortfall and HMRC can go after the employer for their incorrect deductions

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Sash Window Workshop Ltd v King Irrelevant to assessment that Awards for injury to feelings made after

April 1, 2013 should be subjected to the 10 per cent uplift laid down in Simmons v Castle

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M v Fife Council

Fife as an education authority wrong to refuse grant to a school pupil with an autistic spectrum disorder and dyspraxia on the ground that he had attained the age of 18

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Andrew Wale and Neil Allard were the first same-sex couple to marry in Brighton at one minute past midnight on Saturday 29th March 2014

Hay v Credit Agricole Mutuel de Charente-Maritime et des Deux-Sevres

Marriage is a form of civil union Claim for days of special leave and

marriage bonus granted, available under national collective agreement, to married employees

Direct SO discrimination not to grant this to those in civil union

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Innospec Ltd & Ors v Walker

Is it unlawful SO discrimination to grant survivor’s benefits to spouses but deny them to those in a civil partnership insofar as those benefits derived from service prior to the day the Civil Partnership Act 2004 came into force (5 December 2005)?

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Cary v Commissioner of Police of the Metropolis Assessors need an ability to discern

whether people were deceiving the court or in denial about their own prejudices, or the operation of unconscious bias or stereotyping

That skill in evaluation and analysis, which could be honed by the experience of being exposed to discrimination complaints.

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Finally a plug for the …

They do brilliant work throughout the year with their email shots, Practitioner Meetings, Briefings and Annual Conference.

Its easy to join at the desk outside or online.

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AGE AND SEXUAL ORIENTATION DISCRIMINATION

ROBIN ALLEN QC

CLOISTERS

@RobinAllenQC