Pushing the equality agenda

Recent developments in Brussels will affect the UK’s anti-discrimination legislation.

If you are looking forward to your retirement and to having more time on your hands to travel, be with family or potter around the golf course, you might not want to read on. If the mere prospect fills you with dread and you want to continue working until you drop, there might be hope in sight.

By the time you read this, one of the Advocates General in the European Court of Justice (ECJ) will have handed down an opinion on the legality of the UK’s retirement laws. A final ruling should follow before the end of the year.

The Heyday case is a challenge to the UK’s Employment Equality (Age) Regulations 2006 under EU rules and has led the High Court to seek the guidance of the ECJ [see footnote 1]. It asks specifically whether employers should retain the ability to require employees to retire at 65 according to a directive from 2000 outlawing age discrimination.

The court will have to decide whether the UK legislation constitutes a proportionate means of achieving a legitimate aim. In other words, will the UK government have managed to convince the court that its exception to the prohibition of direct discrimination is justified? It is worth noting that in a similar Spanish case in 2007, the ECJ found the mandatory retirement rules in question to be justified [see footnote 2]. If the UK’s explanations do not hold up to scrutiny, it could be forced to amend the regulations. Ultimately, however, it will be for the High Court to give a judgment reflecting the ECJ’s interpretation of the directive.

While this will concern employed solicitors, it is worth noting that the UK legislation applies different rules to partners in firms. There have also, however, been challenges to the forced retirement of partners in solicitor firms – most recently an appeal by former senior partner, Leslie Seldon, to the Employment Appeal Tribunal. So do not despair yet if you feel you still have a number of good years left in you.

The ECJ has been equally active in recent months in extending the scope of other equal treatment legislation. Only a few months ago it ruled that existing legislation protecting workers against discrimination on grounds of disability was not restricted to workers who were themselves disabled. On the contrary, it also covered workers suffering discrimination by virtue of someone else’s disability – in this case, a disabled son requiring care [see footnote 3]. It is reasonable to expect that further cases of discrimination by association will come before the courts as a result.

Such instances of litigation have not, however, stopped the wheels of government turning, either in London or Brussels. The new Equality Bill is due to feature in the next Queen’s Speech and this undoubtedly marks a significant step in the UK government’s plans to further the cause of social justice and equal treatment.

Directive dilemma

Recent developments in Brussels could nevertheless put pay to some of the hard work that has gone into the preparation of this legislation. A directive proposed by the European Commission before the summer could prove to be a poor fit with what is planned domestically. It would be unfortunate if a future Equality Act had to be amended to accommodate rules agreed in Brussels at a similar time.

In 2000 the election of an Austrian government, which included members of Jörg Haider’s far-right Austrian Freedom Party, pushed Europe to legislate quickly, particularly to outlaw forms of discrimination based on race or ethnicity. Legislation against other forms of discrimination (age, disability and so on) was less ambitious and is still restricted to discrimination in the workplace, whereas rules on racial discrimination cover other aspects of life, such as access to goods and services and to public services. The commission’s recent proposal attempts to rectify the shortfall, extending equal treatment rules with respect to disability, age, sexual orientation, and religion and belief, to cover access to goods and services and public services.

Any new legislation will undoubtedly govern the way in which solicitors provide services to clients, but it is difficult to imagine that these new rules will bring about any significant change in the way solicitors practise. It is less clear whether they could affect related matters, such as the ability of a firm’s policy on pro bono work to target these groups in society.

Broader points of concern have also emerged relating to potential discrepancies between future UK and EU legislation. For instance, the EU proposals outlaw direct and indirect discrimination, as well as harassment. In the UK it was feared that extending rules against harassment to the provision of goods and services could have unfortunate effects. For instance, could it impinge on rights of freedom of speech and expression? Could an advertisement for a product that some might find offensive on religious grounds – such as Monty Python’s Life of Brian – be construed as harassment?

While it is easy to sign up to such broad principles, the devil lies in the detail. The adoption of new legal frameworks to address discrimination issues is important to practitioners, employers, consumer-orientated businesses and public service providers. The Law Society’s recent launch of a forum for black and minority ethnic solicitors highlights the importance of diversity issues within the profession. Let us hope that what comes out of the Brussels and London machines proves to be a good fit.

Andrew Laidlaw is deputy head of office at the joint Brussels office of the Law Societies.

Cases cited:

1 R ex parte the Incorporated Trustees of the National Council for Ageing (Age Concern England) v Secretary of State for Business, Enterprise and Regulatory Reform (case C-388/07)

2 Félix Palacios de la Villa v Cortefiel Servicios SA (case C-411/05)

3 Coleman v Attridge Law and Steve Law (case C-303/06)