AGE AND SEXUAL
ORIENTATION DISCRIMINATION
ROBIN ALLEN QC
CLOISTERS
@RobinAllenQC
CLOISTERS - AGE and SO - ROBIN ALLEN QC
1
Whats coming up?
AGE
 Quick update on
UN/Europe
 12 new cases
 Themes 





SEXUAL ORIENTATION (SO)
 A new right!
 4 new cases
 Themes 
Ageist Language
Comparators
Justifying Recruitment ages
Justifying Retirement ages
Transitional arrangements
Taxing your injury to feelings!


Righting historic wrongs
Getting clear about the
relationship between marriage
and same sex unions
Dealing with evangelicals
CLOISTERS - AGE and SO - ROBIN
ALLEN QC
2
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…

CLOISTERS - AGE and SO - ROBIN
ALLEN QC
3
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.
CLOISTERS - AGE and SO - ROBIN
ALLEN QC
4
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

CLOISTERS - AGE and SO - ROBIN
ALLEN QC
5
WORK
STARTING AND FINISHING
Vital Pérez
Seldon
CLOISTERS - AGE and SO - ROBIN
ALLEN QC
6
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

CLOISTERS - AGE and SO - ROBIN
ALLEN QC
7
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

CLOISTERS - AGE and SO - ROBIN
ALLEN QC
8
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.
CLOISTERS - AGE and SO - ROBIN
ALLEN QC
9
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.
CLOISTERS - AGE and SO - ROBIN
ALLEN QC
10
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

CLOISTERS - AGE and SO - ROBIN
ALLEN QC
11
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

CLOISTERS - AGE and SO - ROBIN
ALLEN QC
12
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
CLOISTERS - AGE and SO - ROBIN
ALLEN QC
13
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
CLOISTERS - AGE and SO - ROBIN
ALLEN QC
14
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

CLOISTERS - AGE and SO - ROBIN
ALLEN QC
15
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)?
CLOISTERS - AGE and SO - ROBIN
ALLEN QC
16
CLOISTERS - AGE and SO - ROBIN
ALLEN QC
17
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.

CLOISTERS - AGE and SO - ROBIN
ALLEN QC
18
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.
CLOISTERS - AGE and SO - ROBIN
ALLEN QC
19
AGE AND SEXUAL
ORIENTATION DISCRIMINATION
ROBIN ALLEN QC
CLOISTERS
@RobinAllenQC
CLOISTERS - AGE and SO - ROBIN ALLEN QC
20