Andrea Bull: Hello and welcome to this webinar on gendered ageism with a case law update. Today's presentation will last for approximately 40 minutes with time for your questions at the end. Firstly some housekeeping points. The webinar player has a few simple controls. The most important are the volume adjustment and full screen option which are at the bottom right hand side of the player. There are also some tabs along the top which you can click on to access details of today's presenters, the slides and our recent alerts on age discrimination. You can ask us questions at any time.
We would really encourage you to do that. Just click on the 'ask a question' tab, type in your question and then click submit. We will try to answer as many as we can in the time available. There is also a poll tab. Don't worry too much about that. Throughout the webinar polls will automatically flash up on your screen and we would really encourage you to participate in those. If for any reason you can't see the current slide just click on the slide tab to get back to it. Today we have Liz Wood and Ruth Ormston. They are both from Wragge Lawrence Graham and they are in our Combined Human Resources Solutions Team. They have extensive experience of advising on HR, employment and discrimination law issues. So over to them.
Liz Wood: Hello everyone we are delighted you have been able to join us today. This webinar is going to cover firstly issues with gendered ageism. So looking at the interaction between sex discrimination and age discrimination issues which Ruth will be covering. The second part of the webinar will look at some of the recent age discrimination cases and just drawing out some of the key points for employers. But firstly we have a poll.
Andrea Bull: OK so our first poll for you is coming up now. Does your organisation monitor the gender profile of its workforce?. The answers you can choose from are:
- Yes - for all levels of the workforce including senior and board levels;
- Yes - for most of the workforce but not at senior and board level;
- No
- Not applicable - sole trader/too small to be relevant; or
- Don't know.
We have 39% of you saying yes for all levels of the workforce including senior and board levels, a small percentage (6%) saying yes for most of the workforce but not at senior and board level, 24% no, 9% not applicable and 20% don't know.
Ruth Ormston: Thanks Andrea. So a bit of a mix of results there. Gendered ageism, views on shoes. What are we talking about here? I don't know whether any of you can remember the report from the Cannes Film Festival earlier this year where it was reported that a number of women in their 50s were turned away from the red carpet film screening because they were apparently wearing flat shoes.
We have also had the recent press story of Maggie Gyllenhaal who was told that as a 37 year old woman she was too old to play the actress of a 55 year old love interest and she went to the press on that, and that received quite a lot of publicity. So we are aware of this stuff getting reported in the media fairly frequently but how much of a problem is it for the workforce in general? When we look at the workforce there is potentially the fact that women are wearing the wrong shoes. Caring responsibilities are often cited as a primary reason for the under representation of women in senior positions but that does that reason actually mask the prevalence of a wider problem of gendered ageism. When we talk about gendered ageism we are talking about older women being discriminated against because of the combination of their gender and their age. Do those women face a daily bias as being in the wrong shoes?
There is research to show that there is a very short window of promotion potentially for women because they go from being seen of a potential child bearing age and therefore a maternity risk to then being too old to stay in the business and not promotable. There have been several studies in this area. I have put one of them up on this slide. It was probably one of the most recent ones, which was a study of senior female managers. That concluded that women are often considered to be too old at an earlier age than their male colleagues. Sometimes that happens when they just get to over 40. That study also concluded that older women's knowledge is not necessarily valued in the same way as that as their male counterparts. It looked at the fact that "lookism", which is essentially judging and determining someone on their look and commenting on it, is an increasingly particular concern for women.
I think that feeds through often when you look at politics in this country. Nicola Sturgeon recently said that not a day goes by when somebody doesn't comment on what she's wearing or how she looks. I also think of the experience conclusion here of linking quite well for the Hilary Clinton or the Hilary Clinton effect. She joked at her kick-off speak that she may not be the youngest candidate in the race, but she would be the youngest female president. Although some people might question her judgment, her policies and her trustworthiness, her qualifications and her experience are indisputable. Her time as a senator, as the most politically active First Lady since Eleanor Roosevelt, and her service as Secretary of State means she has amassed more relevant experience and knowledge than a number of the current Republican candidates combined. So if anyone is finding that talking about gendered ageism is just not getting any traction, then maybe hold up Hilary as your example.
Ruth Ormston: So, looking now at gendered ageism within UK businesses. We're going to look at all levels but going first to boardroom inequality. We have shown on this slide that the female balance of senior talent remains a key challenge for organisations across the economy. Lord Davies' review recommended that FTSE 100 boards should aim for minimum of 25% female representation by 2015 on their board. We can see here that, as at March 2015, women accounted for 23.5%. So, we are getting there, but is it far enough? We also see here that the proportion of female employees decreases with seniority in two thirds of organisations. Just three in ten have taken action to improve the gender diversity of their board.
A survey done at the end of 2014 by CIPD of UK based professionals in public, private and not-for-profit sectors queried respondents on gender diversity in the board. Only half of the respondents approximately were aware of the Lord Davis report and the targets, even though the vast majority agreed that a good level of gender diversity can improve boardroom effectiveness. Why is that the case? PWC published an article in March 2015 this year based on some research that they had done. This concluded that businesses face a shortfall of strategic leaders able to deliver successful transformation. They used the catchy headline, "Wicked Problems Need Wicked Women". When they're talking about wicked problems, they are talking about complex problems that require high-level strategic thinking in both the public and the private sectors. According to their research, only 8% of senior management have strategic attributes required to effect the change that some of these problems require. The largest proportion of strategic leaders were found to be women in the over 55 group. So, again, maybe we come back to the Hilary Clinton's of this world. They outlined ten ways to get strategic leaders into the organisation and keep them there.
Andrea Bull: Okay, it's time for another poll for you now. So, do you think gendered ageism is:
- A risk for all businesses, including your own?
- Only a risk for businesses in certain sectors, such as the media?
- Lower risk, or not a risk at all?
We have got a massive 93% of you saying you think it's a risk for all businesses, including your own. Then we have got just under 7% saying low risk or not a risk at all.
Ruth Ormston: Thanks, Andrea. So, that's very interesting that an overwhelming majority thinking that it is a risk for their business, which makes my part of the talk relevant, so that's good. Employee representative organisations agree with the vast majority of you and think that this is something that affects employees across all levels. It's attracting an increasing amount of interest and reporting from those sorts of organisations. I have put on the screen here just two reports that are an example of that. One, by Unison, "Women Deserve Better – A Better Deal for Women Aged 50 and over in Employment, and another one called, "Age Immaterial", which was a TUC report. Both of these reports look at a number of issues affecting older women in the workforce, across all levels. Issues including dual caring responsibilities that older women might have, for example, when they are looking after children or grandchildren, but also looking after elderly parents, perceptions of older women and opportunities for promotion. It is not just employee representative organisations that have been looking at this.
The Government has also acknowledged the specific issues and problems that can be faced by older women in the workforce. Ros Altmann, Business Champion for older workers, published a report in March 2015 which was a vision for older workers and looked at a lot of issues affecting older workers. That had an entire section on female older workers. She looked at the issues they faced as people who combined work and caring often. She looked at the particular health issues that might be faced by older women and not older men and how companies deal with those health issues if they acknowledge them at all. So having looked at what gender ageism is and the fact that everyone seems to acknowledge it is, I think one of the first things that businesses need to do is identify that this is a problem which they need to recognise and address. I have hopefully shown failure to do that means that you risk losing talent, expertise and distinctive thought leadership. Essentially the message is that gendered ageism is bad for business. So we have put on the next slide just a few examples of things that you can do if you are concerned about this within your own business. It is probably good to start off by saying that if you have strategies and policies which affect ageism more widely they are going to have a beneficial impact on gendered ageism normally. But here are some things that we have thought of specifically that would affect older women.
Having a visible board level commitment to diversity role models. Looking at that Lord Davies' review and seeing how you are doing when you compare your results against the recommendations. Train staff on the benefits of diversity and inclusion and I think here the training needs to focus on the usual bias but also sub-conscious bias, so hidden bias that people might not even recognise they have because gendered ageism is quite a difficult thing to spot and to monitor. Designing clear career paths and unbiased promotional opportunities so that we are preventing any sort of blockers that there are to older women gaining promotion. Finally out of the general recommendations that there are to tackle ageism within the workforce, it is perhaps good to go back to that Ros Altmann report from March earlier this year which has a handy mantra that is easy to remember of "retain, retrain and recruit". So if you do those things, look at them from an age perspective then you are certainly on the right track.
Liz Wood: Thanks very much Ruth. So now the second part of the talk is going to be around recent case law. I am going to talk through the key principles from an age discrimination perspective and then look at three cases that we have recently seen coming through the Courts and just draw out some of the points for employers in relation to those. So by way of a reminder, the age discrimination legislation is now set out in the Equality Act 2010.
The main strands of discrimination I am going to look at today are going to be direct age discrimination, so discrimination because of an individual's age which requires a tribunal to consider the reason why the claimants were treated less favourably. Thinking about what the employer's conscious or subconscious reasons for the treatment was. Or there is also indirect age discrimination, where an employer applied a provision, criteria or practice (or PCP) which places individuals of a certain age or age group at a particular disadvantage when compared to other persons. So the PCP might appear to be neutral if applied across the workforce, i.e. applying to all regardless of age, but it has an effect of disadvantaging employees of a particular age group. Unusually in age discrimination cases, both direct and indirect age discrimination potentially can be justified by an employer. It is the usual objective justification test in any other form of discrimination under the Equality Act 2010.
There has got to be the thought process, gone through in terms of what are the aims of the employer in making the change, are they legitimate? Then has the employer introduced a proportionate means of achieving those aims - are they both appropriate and also reasonably necessary? So essentially this requires a balancing act between the employer's aims in making the change and the potentially discriminatory impact on the employee. So turning to the first case this of Sturmey v the Weymouth & Portland Borough Council, which is an Employment Appeal Tribunal decision. Mrs Sturmey joined the West Dorset District Council in 1974, remained employed for a number of years and she was still employed by the Council when it entered into a shared service partnership with another council in 2010 to make cost savings and efficiencies. Part of those cost savings involved the reorganisation of the two Councils which were amalgamated and that included the finance function in which Mrs Sturmey worked. Mrs Sturmey was put through a redundancy consultation process as a result.
As part of that consultation she was placed in a redeployment pool which was used by the Council as standard to try and find suitable alternative vacancies before ultimately the employee might be dismissed on the grounds of redundancy. Mrs Sturmey bought a claim of direct age discrimination and her claim was not phrased that the dismissal itself was discriminatory but rather that the timing of the dismissal was discriminatory. At first instance, so at the Employment Tribunal, it disagreed and said that she ultimately had been dismissed because her job was redundant and she had no real prospects of redeployment. So her age had nothing to do with it. The Employment Tribunal hedged its bets and said even if there had been a potentially discriminatory aspect of the dismissal, redundancy was a potentially legitimate aim. Mrs Sturmey was not happy with this and appealed to the Employment Appeal Tribunal. The EAT agreed with Mrs Sturmey.
The question was not about the dismissal, the question was that of the timing of the dismissal.There were particulars about the case here which shows that perhaps the Employment Tribunal should have thought more carefully around the weeks leading up to the date when Mrs Sturmey was given notice of dismissal. In particular whilst Mrs Sturmey was placed in the redeployment pool trying to find suitable alternative employment there was evidence to suggest that she had been placed in that pool for a relatively short period of time by comparison with other employees. In particular, during the period when she was placed in the pool, there was an Olympic moratorium during Summer 2012 for an eight week period when there were sailing events near to the Council which meant that everybody internally accepted that there were not going to be any suitable alternative roles coming up. But this was essentially skirted over by the Employment Tribunal and instead it relied very heavily on the Woodcock decision to justify the treatment of the employee. At this point it is worth reminding ourselves of the facts of the Woodcock decision. It is an important Court of Appeal decision we have had from 2012. In this case the Chief Executive was subject to a redundancy process. Mr Woodcock's role was clearly redundant but due to various timing delays for example his and other parties' unavailability for meetings over the course of the months leading up to his dismissal it meant that the Primary Care Trust involved did not manage to undertake redundancy consultation with Mr Woodcock. It finally dismissed him so that the dismissal took effect just before his 50th birthday. The facts were complicated by the fact that he had a 12 month notice period as well. So there were real attempts being made behind the scenes to make sure that Mr Woodcock was dismissed before he hit age 50.
This was absolutely key because once he reached age 50 he would have been entitled to an extremely generous final salary pension. This went all the way up to the Court of Appeal which agreed with both the Employment Tribunal and the EAT that the decision to dismiss Mr Woodcock was not age discriminatory. He would have been dismissed as redundant regardless of his age. You can see the echoes with what happened in the Sturmey decision as well. Mrs Sturmey was going to be dismissed in any event. But in the Woodcock decision it was held that his dismissal was potentially age discriminatory on the timing point but it could be objectively justified as a proportionate means of achieving a legitimate aim. Here the PCT's legitimate aims were to give effect to the Trust's genuine decision to terminate his employment on the grounds of redundancy but also to save the Trust the additional and significant element of costs that would have been incurred absent that dismissal. Essentially this redundancy process had dragged on and on. The Court of Appeal said Mr Woodcock ultimately had no right or expectation to those enhanced benefits that he would have got once he hit age 50. Essentially it would have been a windfall. But the circumstances arguably in the Sturmey case are quite different.
In particular the Employment Appeal Tribunal pointed to the fact that this case involves an individual who was in a relatively different situation to that of Mr Woodcock. The EAT describes Mrs Sturmey as an employee of more ordinary financial status. In particular the EAT criticised the Employment Tribunal for not making any findings or indeed considering any evidence regarding whether there was any budget for the costs of employees who were approaching or reaching age 55, whether that budget had been exceeded or whether there was any policy dealing with the treatment of employees approaching age 55 who had been considered for redundancy. The next case considers that of Braithwaite and Others and Edie and Others v HCL Insurance BPO Services Limited. This is also an EAT decision. In this case we are looking at a situation where there were various TUPE transfers as HCL took over the administration of life insurance and pension policies from or on behalf of a variety of other companies. This resulted in a workforce with a wide range of terms and conditions.
There was an economic downturn in 2009 and HCL found itself in a position where it was finding it difficult to gain new business and it was under pressure from existing clients to reduce service costs. So as a result it undertook an urgent review of its staff costs in order to make efficiencies. At this point it was finding that employees' pay as a percentage of revenue was 115%. So an extraordinary cost for just paying its staff as against what it was actually bringing in. HCL undertook a benchmarking exercise of its staff costs against industry data and found that some employees' terms and conditions were significantly more generous than that of the industry standard. Significant cost savings could be achieved by reducing those terms. In addition HCL also decided that a number of the terms were indirectly discriminatory in favour of older employees because they provided more generous benefits from longer serving employees. So there was an extensive consultation period with employees. All employees were issued with notice of dismissal and reemployment on the new terms. The vast majority of the employees accepted the changes but some did not and did not return to HCL's employment.
They therefore claimed indirect age discrimination as a result. Now in this case the EAT held, agreeing with the Employment Tribunal, that the dismissal and reengagement involving requirements for employees to enter into a new contract of employment can amount to a provision, criterionor practice under the Equality Act 2010 even if the new terms and conditions do not themselves place any group at a particular disadvantage. This is a new point of law because essentially what it is saying is that even though employees were essentially on the same terms and conditions following the dismissal and reengagement exercise, the actual act of imposing those changes on the employees could be a PCP and employees could claim an indirect age discrimination claim as a result. Essentially here the PCP placed older employees aged 45 to 64 at a disadvantage because older employees were more likely to lose valuable benefits as a result of giving up those more generous contractual benefits. You can see some of those on the slides so no private health insurance, no carer days, no enhanced redundancy payments, a longer working week and less annual leave. But in this case it was held that it was possible for the employer to objectively justify making those changes. In this case the Employment Appeal Tribunal decided that the Tribunal had properly engaged in the critical evaluation required to determine justification. It had, in the context of the discriminatory effects of the changes, considered the balancing act between the needs or legitimate aims of the employer and the impact on the employees.
The EAT held that the ET was entitled to find that the changes were justified. There were legitimate aims to make the changes because for example to reduce staff costs to ensure future financial viability given the dire financial situation of HCL at that time. Also to have in place market competitive non-discriminatory terms and conditions. The proportionality test was also held to be met. The EAT agreed with the Tribunal that the means used to achieve those aims were proportionate taking into account the position of HCL balanced against the discriminatory impact on the employees. Finally that the alternatives put forward by the claimant, for example voluntary redundancies, implementing the measures after redundancies and delaying any pay increases, would not have delayed or reduced the savings to HCL. So HCL's legitimate aims in making the changes held good. In particular, HCL's aim was to make cost savings to ensure its future viability and it was not clear that any of the alternatives put forward by the claimants would have achieved this result. Its justification was therefore not undermined. The third case that I am going to look at today is that of CLFIS, otherwise known as Canada Life v Dr Mary Reynolds. This a Court of Appeal decision. In this case a 73 year old consultant, Dr Reynolds, was engaged in providing work for Canada Life. She was dismissed and brought claims of both unfair dismissal and direct age discrimination.
Now the unfair dismissal part of her claim was struck out because she was not an employee. But the age discrimination elements went all the way through to the Court of Appeal. This was really looking at what was in the mind of the decision maker when Dr Reynolds was dismissed. Dr Reynolds was providing these consultancy services, she had previously been employed by Canada Life for a number of years. It was Mr Gilmore, who was Canada Life's UK general manager, who made the decision to dismiss Dr Reynolds.He did so following a presentation which had been given to him by other senior managers at Canada Life who were highlighting issues with Dr Reynolds' performance. The Employment Tribunal found that in the first place Dr Reynolds had established facts which, in the absence of a reasonable explanation by Canada Life, suggested that the decision to dismiss her was influenced by her age. So under the discrimination legislation the burden of proof then shifts to the respondent, so in this case Canada Life, to show an non-discriminatory reason for the dismissal.
In this case the Employment Tribunal was persuaded by Canada Life's explanation for the dismissal. It found that there was no age discrimination on the facts. Mr Gilmore's decision to dismiss was not based on discriminatory reasons but because he felt that firstly Dr Reynolds was not performing properly but also that she was incapable of changing. The Employment Appeal Tribunal overturned the particular aspects of the Employment Tribunal decision and said that the Employment Tribunal should have taken into account the other individuals involved in the process and looked at whether there was any discrimination in their minds in putting forward that presentation for Mr Gilmore. This was appealed by Canada Life up to the Court of Appeal. Ultimately the Court of Appeal upheld Canada Life's appeal.
The Employment Tribunal's original decision on mental processes was restored. So essentially if you are looking for a scenario where there might be a possible allegation of discrimination what is absolutely fundamental is the decision making of the individual who decides to dismiss somebody. You don't have to look at all of those who might have been involved behind the scenes in putting forward a case for possible dismissal.
That is a very helpful decision from an employer's perspective to make sure that you are not involving other maybe senior individuals being involved in the organisation behind the scenes but possibly having to give evidence for example at Tribunal. That is not the case as a result of this Court of Appeal decision. So in this case, having made that preliminary decision by the Court of Appeal it then went on to look at Mr Gilmore's thought process in this particular case. Actually it upheld the Employment Tribunal decision that his decision to dismiss was based on the belief that Dr Reynolds was unable to change. It took into account the fact that Dr Reynolds refused to use email, she refused to provide advice in writing instead dictating over the phone to others, she only accepted post but not recorded delivery and she also refused to visit the Canada Life Bristol offices, meaning she had reduced opportunities for training and development opportunities. Mr Gilmore had known Dr Reynolds over a number of years and the Court was therefore comfortable in finding that he had not based the decision on stereotype but based on his own personal knowledge and judgment of Dr Reynolds. So finally I am just going to run through some of the implications I think these cases draw out for employers. Some of these points are new and some of these points are really a reiteration of previous age discrimination cases that we have seen. So the first point is to always consider the burden of proof in direct age discrimination claims. That was seen in the Sturmey decision where the EAT suggested that the burden of proof provision might have real significance.
The Employment Tribunal really had failed to address this at all in its reasoning. So in that case it really should have explored in more detail the timing of Mrs Sturmey's dismissal looking much more carefully at what was happening during that Olympic moratorium period. We have also seen that in the Dr Reynolds' case that there was a shift in the burden of proof across the employer in the absence of any other reasonable explanation for the dismissal. The employer was forced to give a cogent rationale as to why it made the dismissal and the fact that it was not discriminatory. The next element is the financial rationale that you might want to use as an legitimate aim for acts which might be alleged to be discriminatory. There is no doubt that often employers would like to make changes which would result in cost savings but which might have that discriminatory impact. Case law has been clear since the Cross v British Airways sex discrimination case that whilst costs can be taken into account when an employer is seeking to justify what might otherwise be an alleged discriminatory act, costs alone are not sufficient to objectively justify discrimination. Therefore it remains the case that employers still need to establish a costs plus rationale for changes. In Woodcock there was a costs plus rationale and that also needs to be analysed in Sturmey when it has been remitted back to the Employment Tribunal in terms of proportionality - was there a legitimate "costs plus" rationale in dismissing Mrs Sturmey in terms of her pension? The next slide shows that a change in terms and conditions can be a PCP.
As I mentioned earlier that is a new point of law. Also the cases really show that the balancing act is still required in terms of considering proportionality. So looking at the impact on the employees, butbalanced against what the employer's needs are. That is very much drawn out in a HCL case where the really difficult financial trading conditions have helped HCL justify those changes. So it would be interesting to see whether the Court had come to the same conclusion had HCL not been in that same precarious financial situation. Then finally the Dr Reynolds v Canada Life case points towards the importance of ensuring that decision makers are acting alone wherever possible to avoid taints of discrimination. But also I think a key learning point from that Canada Life case is just to ensure that generally there aren't acts being undertaken which could be tainted with discrimination generally. It goes to Ruth's earlier point around the importance of training for senior managers to ensure that individuals are not making decisions based on stereotypes or other discriminatory reasons. So I am now going to hand over to Ruth for a final and very recent case law update that we have seen.
Ruth Ormston: This is just as final call for people's questions and we have had a couple come in but if you have any more on gendered ageism or on the cases that Liz has run through this is the final call so please send those through. It is aways the case when you send out a webinar invite on a case law update that a case comes out between sending out that invite and actually doing the webinar. So this is what we are covering off on the next couple of slides because we thought it would be of interest to people. This is the case of Chief Constable of West Midlands Police and Others v Harrod and Others and it is an Employment Appeal Tribunal judgment that was handed down on 8 July. The case concerned regulation A19 of the Police Pensions Regulations. So pensions being every employment lawyer's favourite topic I am just going to delve into that in a little bit more detail just so you know the background.
This regulation in particular applies to regular police officers, so not chief of police, deputy chief and assistant chief constables. It applies to those police officers who have built up a pension that is at least two thirds of their average pensionable pay. So when they come to retire they will be able to get a pension that is two thirds of their average pensionable pay and because of the way that the pension works for these police officers that would only kick in if you have 30 years at least of pensionable service. What regulation A19 said was that if a Police Pension Authority determines that the retention in their own Force of a regular police officer who had two third of pension would not be in the interest of efficiency that police officer might be required to retire on the date that the Police Force determined. So looking at that another way it is essentially saying that retirement on the grounds of efficiency was permissible under this regulation when the officer had a pension worth two thirds of average pensionable pay.
A number of Forces retired officers using this regulation because they needed to make cost savings in the interests of efficiency. Officers brought claims saying that they had been indirectly discriminated against on the basis of their age. The Employment Tribunal upheld their complaints but the Employment Appeal Tribunal overturned this decision. The reason that they did so was because they said what was in issue here was the practice of the Forces in adopting A19. The Employment Tribunal had failed to have regard to the fact that the discriminatory element here was entirely Parliament's choice and was contained in the legislation itself. It was not the Forces that had come up with that particular practice.
The Employment Tribunal had failed to consider whether the means adopted by the Forces in applying that practice was appropriate and reasonably necessary for them to achieve their cost savings. The Employment Appeal Tribunal said it was not for the Forces to come up with or manufacture a different scheme here. They were relying on what was in the legislation. So an interesting development in that case. I also just wanted to touch very briefly on the postscript in the decision which was on whether or not this was direct or indirect discrimination in this case. It had been argued as an indirect age discrimination case but the Judge here did have some comments on whether or not it should have been argued as a direct case. Essentially he said that this regulation A19 was only ever going to affect police officers over the age of 48. That was because they needed to accrue that 30 years of pensionable service to be entitled to the minimum pension. He said that though it might be said that those over 48 are not all or inevitably going to be included in the group that can be subject to A19, since not all of the officers might have served for long enough, it is entirely permissible to see the group constituted by those over the age of 48 as being at risk of inclusion, whereas those under 48 could not be at risk. So that potentially is direct because it is on the basis of age or age categories. So I think that is an interesting one to read partly because of those postscript comments by the Judge.
Andrea Bull: OK so now it is time for your questions. So if there are any questions that you want to ask then just submit them now because we do have a few minutes to deal with questions. So I think we have had one or two in already so over to Liz and Ruth to deal with those.
Liz Wood: OK well I have had a question in which is a question around the impact of the Seldon v Clarkson Wright & Jakes' decision and what the impact of that is likely to be on direct age claims under the legislation. I think what the questioner is getting at the fact that the Seldon decision was a Supreme Court decision. That held that to justify direct age discrimination employers must identify a social policy aim and not just a real business need for the alleged discriminatory act complained of. This was all around the way in which the age regulations as they were and now the Equality Act implemented the European Directive in relation to age discrimination.
So I think the answer to that question is that I think direct age discrimination questions and cases will need to consider in much more detail the social policy aim of why employers are doing what they are doing. So for example the Woodcock decision might have been decided differently if the Primary Care Trust involved in justifying Mr Woodcock's decision had taken into account social policy aims. I think that might also be true of the Sturmley decision which was also a direct age discrimination case. So I think it is a really good question and I think certainly in Ruth and my experience I am not convinced that the more recent direct age discrimination cases we have seen necessarily deal with that particular question. But if you are an employer seeking to defend discrimination claims on direct grounds I think you really need to be thinking of the social policy justifications you might have lined up if a Tribunal wanted to see those.
Ruth Ormston: Thanks Liz, I have had a few questions through and the first one to do with gender and age and somebody has asked how far can you go with positive discrimination and quotas? I think this question is probably in relation to the representation at senior board level in particular and whether or not you should have mandatory quotas as to what percentage of your board is female and what percentage is male. I know that this is something that is being negotiated in Brussels at EUlevel and there is an argument there that potentially mandatory compulsory quotas could come in. But in the UK the steer definitely seems to be towards having voluntary targets and voluntary quotas I guess.
The CIPD survey that I mentioned earlier on of a number of UK employers - certainly in that survey six out of 10 said that they thought that mandatory quotas should not be in introduced. But there did seem to be a general recognition that something needs to be done to increase the representation of women on boards. So I suspect that we are not going to go mandatory yet would be my answer to that question. I have another one just relating to the police officer case that I have just mentioned. Somebody has asked how far does this apply to workers who are not in the Police Force? As I said that case was very specific to the Police Pensions Regulations and it was all about regulation A19 which contains a particular provision about being able to retire police officers in the interests of efficiency when they have a certain pension entitlement. Having said that, I think some of the principles that came out of that case could be applied elsewhere. It is certainly a case that you need to look at in particular if you are dealing with public sector employees who may have particular rights or where there might be obligations on the employers that are set out in regulations. I think that would be a case that you would definitely need to look at in those circumstances. OK thanks very much.
Andrea Bull: I think we have time maybe just for one more question and that we will wrap things up. So I think Liz is showing me that she is volunteering to answer this one.
Liz Wood: So we have also got a question in relation to the HCL decision which was the one where the employer was making changes to terms and conditions and that resulted in it being a provision, criteriion or practice for the purposes of the Equality Act. Somebody has asked what implications there might be for that new element of the law in terms of what employers might do in future.
I think there are a couple of points that strike me. The first is that this decision could have resulted in employers having to justify contractual changes which are made across the workforce i.e. regardless of age or indeed any other protected characteristics such as sex but which impact disproportionately on a certain group. So for example the removal of a childcare voucher scheme or a crèche from an employer's set of terms and conditions which might impact disproportionately on either for example females or perhaps younger employees that might now have to be justified by an employer.
I guess taking that to the extreme, this could lead employers to avoid putting in place certain benefits if they anticipate that in the long term this could result in indirect discrimination claims if they were to be later removed. I have to say that, and I think Ruth's nodding at me as well, I think that would probably be a relatively cautious approach. I expect that employers want to put in place the benefits that they consider to be appropriate now and probably not worry too much about the changes that might be a problem in the future.
Andrea Bull: OK. That is all we have got time for today. Thanks very much Ruth and Liz for that presentation and thank you to all of you out there for taking part in the polls and sending through some questions. So just a quick reminder that we do have the download tab so you can download these slides. There are also some alerts we have written on age discrimination. Also we will be putting a recording of this webinar on our website and we will email you all to let you know when that is available. Then last but not least we have a feedback questionnaire for you which is just going on to your screens right now so would welcome feedback on how you found the webinar and any suggestions for future topics. So that is it. Thanks very much everyone and goodbye.