All about age - How to avoid age discrimination claims

Ian Chapman-Curry: Hello and welcome to this All About Age Webinar from Gowling WLG. We will be focussing on some fascinating age discrimination cases and some of the wider policy and HR issues that are emerging and I'm joined today by Liz Wood who is a Director in our Combined Human Resource Solutions Team - hello Liz.

Liz Wood: Hi Ian.

Ian: ...and by Ruth Ormston who is a Principal Associate, also in our CHRS Team. Hi Ruth.

Ruth Ormston: Hello.

Ian: So Liz and Ruth will be presenting for about 40 minutes and there's going to be time for some of your questions at the end. Just before we get started, just some housekeeping points, you can ask questions at any time, just click on the "ask a question tab", type your question in and then click submit and we are going to try and answer as many of those questions as possible in the time available. We have also got a couple of polls and these are just going to flash up on your screen and it would be great if you could participate in one of those.

So now to go over the agenda of what will be covering - over to Ruth.

Ruth: Thanks Ian. So in this Webinar we are going to just give you a brief refresher on objective justification, looking in quite a lot of focus and detail at some recent cases on this. We touch on potential policy developments and finally, as some of you may have noticed there has been a General Election recently, so we will end with some comments on that. But before we get started over to Ian for our first poll.

Ian: Yeah so this has been labelled "objective justification - a refresher". So we will just go over to that poll now. What we're asking you is can both direct and indirect age discrimination be objectively justified. So the option should be there on screen for you - yes/no or I don't know. So you just fill in one of those and let us know what your response to that is...we're just getting a few responses to that now. Just give it a few seconds to let people respond to that and...with pretty much everyone having voted I'm going to pass to Ruth to give us the answer to that.

Ruth: Thanks Ian. Well I'm not going to give you the answer straight away but it will come up don't worry. So the next slide we look at - direct discrimination. Direction discrimination is set out in Section 13 of the Equality Act 2010 and here it prohibits less favourable treatment on the grounds of age. Age here capturing apparent age, a specific age or an age group and a comparator or a hypothetical comparator is required. This applies to both employers and trustees. So trustees are directly covered by the Equality Act and can't discriminate against people. We then move onto indirect age discrimination contained in Section 19 of the Equality Act. Indirect discrimination occurs where you have an apparently neutral provision, criterion or practice which is applied, but that puts or would put employees or members of a particular age or age group at a disadvantage and does put or would put the Claimant themselves at that disadvantage. So this is sometimes a little bit trickier to spot than direct discrimination I would say.

Unlike the other protected characteristics in the Equality Act, such as race, sex, disability, uniquely with age both direct and indirect age discrimination can be objectively justified, that is it won't be unlawful if it can be shown that the treatment or the provision, criterion or practice is a proportionate means of achieving a legitimate aim. I think the majority got that right on the poll question. So there are two limbs to the objective justification test here:

1. Is there a legitimate aim and importantly in all cases costs alone can't form a legitimate aim as an employer. So you can't just say you've treated somebody differently on the basis of age because it's cheaper.
2. Having established a legitimate aim, you then need to look at whether or not it's proportionate, i.e. appropriate and necessary. Was the treatment or the provision, criterion or practice both appropriate and necessary in terms of achieving the aim that you have. This requires a balancing act between the legitimate aims of the employer or the trustees for example and the impact on the employee or the member.

I am now going to handover to Liz who is going to look at objective justification in some recent cases.

Liz: Thanks Ruth.

The two of the most important and potentially far reaching age discrimination cases we've seen this year have been in relation to pension scheme changes and these are likely to be highly relevant for employers and trustees of occupational pension schemes that provide defined benefit or final salary benefits because so many schemes have, over recent years, or are currently planning to, changed the structure of their pension schemes so as to manage the scheme's liabilities. These cases consider how those kind of scheme change exercises might give rise to discrimination case law.

They are not just relevant to pension scheme changes, however, they are important reminders of the different ways in which the Courts and tribunals might approach the question of objective justification. Interestingly both cases involve attempts to soften the blow for older workers when defined benefit pension schemes have been changed by putting in place transitional or tapering arrangements.

So the first case is that of McCloud and this is an Employment Tribunal decision handed down in January of this year and this case involved changes to the pension scheme offered to High Court and Crown Court Judges. In the context of the Government concerns that the existing pension scheme needed to be restructured so as to reduce costs and after much consideration the Government introduced a replacement pension scheme - the New Judicial Pension Scheme, which provided less generous retirement benefits.

The Government was very conscious that there might be some Judges who were relatively close to their retirement age and for whom it was felt that they needed additional protection. So when the old scheme was closed and Judges were moved to the new scheme, transitional protections were put in place for members of certain ages depending on their years of pensionable service and their normal retirement date. This resulted in mass age discrimination claims from 210 members of the judicial system who claimed that transitional tapering protections were age discriminatory.

So, what was the potential issue with the transitional tapering arrangements?

Well essentially the Judiciary were divided up in three ways, so there were unprotected Judges who were moved to the new less generous scheme and they had no transitional protection and these were mainly younger Judges.

Then you had taper protection Judges, so the middle column, whose normal pension age was between 2022 and 2025 and they benefited from tapered protection. So instead of moving to the new scheme immediately they were transferred to that scheme at the end of that transitional period.

Then those whose normal pension age was much sooner, sooner than the other two cohorts, they were allowed to remain in the old scheme and they were the 'protected Judges'. So you can see why, based on the structure of these transitional arrangements, that there was a risk of age discrimination claims being brought. Because the more generous treatment was granted to those who were older and younger Judges felt that they were being discriminated against.

Now the Government expected that the transitional provisions involved less favourable treatment of the Claimants because of age, but they said that the transitional provisions were a 'proportionate means of achieving a legitimate aim' and the legitimate aim put forward in this case was to protect those closest to retirement from the financial effects of pension reform.

So essentially, the Government was saying that the older Judges would be more likely to have made fixed or concrete plans for retirement which they would find difficult to change if their pensions were changed very close to retirement. On this basis the differences in treatment were justified and therefore lawful.

So what did the Judge say?

Well, as Ruth mentioned, there are two tests to be satisfied in order to objectively justify a claim of age discrimination. Firstly establishing a legitimate aim and then showing that the means adopted to achieve that aim are proportionate in the circumstances.

In McCloud the Judge was critical of the suggestion that protecting those closest to retirement from the financial effects of pension reform was a legitimate aim and much of the criticism came down to the Judges confirming that insufficient thought had been put by the Government in considering why the tapering provisions had been put in place in the first place.

It is clear from the evidence given that the decision had been made by the Government to protect Judges very early on, particularly those who were closest to retirement, but there wasn't a great deal of evidence about why the Government had considered this necessary and much of the evidence seems to be linked to the fact that other public sector pension reforms have followed a similar approach and the unions strongly wanted these kind of transitional arrangements in place for this scheme as well. The Tribunal said that the lack of precision in formulating that legitimate aim doesn't mean that it can't be justified but the Court did need to look at the wider context to see if there was a legitimate underlying aim in this case.

The Employment Tribunal concluded that the Government's rationale for introducing tapering based on the idea that the reforms would most adversely affect those closest to retirement and those nearest to retirement would be in particular need of protection, was a generalised assertion.

It was critical of the fact that Government had come to this conclusion very early on but without really thinking about the evidentiary basis for doing so.

In particular the Tribunal noted that no evidence had been put before it that any of the Claimant Judges had fixed or concrete retirement plans which would be difficult change, more so for example than the case of younger Judges.

Indeed the Tribunal found that the contrary was true. Not only was there no evidence, it is said that the old Judges would suffer greater hardship than younger Judges, but actually the evidence was consistently to the contrary, noting for example that younger Judges might have their own financial commitments, for example house mortgages, or dependants.

The legitimate aim that had been put forward was not a legitimate aim it was no more than speculation. So the Tribunal didn't have to consider proportionality but it did go onto do so in this case. Again it is said that there was a real critical assessment which was needed here in considering the question of proportionality - where the means adopted appropriate and reasonably necessary to achieve the legitimate aim.

Here the Judges compelled to transfer from the old scheme to the new scheme, suffered an extremely serious adverse impact on the value of their pensions, particularly by comparison with the protected Judges, but also those protected by the transitional tapering provisions. The effects of these provisions overall was that the younger unprotected Judges would suffer significant losses.

In particular there was a ten year transitional protection period and the Tribunal Judge was very critical about why that hadn't been thought through, there was no research or analysis that suggested that perhaps maybe four or five years might be sufficient as a transitional period, rather than ten years.

So in conclusion the balance was not properly struck. There was a failure by the Government to show that a shorter would not have achieved a legitimate aim.

Then we have the Sargent decision, just a month later, in February of this year.

So this was another tapering arrangement with a different result to the Employment Tribunal. So it was also about the same context, that the Government was looking to make changes to various public sector pension schemes in order to put them on a more sustainable footing for the future.

Again discussions with the trade unions were in no small part influential in terms of the decision to put in place a ten year transitional arrangement, does it sound familiar?, which was intended to soften the blow for fire fighters who were within ten years of the normal retirement age, this time under the Fire Fighters' Pension Scheme.

The transitional provisions put in place were very similar, you had three sets of membership groups:

• individuals who are going to be put immediately into the less generous Fire Fighters' Pension Scheme;
• those active members who were within ten years of the scheme's normal pension age and they were able to remain in the old scheme until they retired; and
• then you also have the transitional protection, so those within 10 to 14 years of their normal pension age and they would get the tapered provisions.

So what were the arguments put forward by the Government in this case to justify why they had the taper?

Well there were more coherent I think legitimate arguments put in place, there was a more coherent rationale. So there were four reasons put forward as legitimate aims:

• protecting those closest to normal pension age;
• member expectation -so members would expect that their pension entitlement wouldn't change significantly when they were close to retirement;
• preventing a cliff edge between the protected and the unprotected groups and the taper would achieve that; and also
• ensuring consistency across the public sector where similar changes were being made to the other pension schemes.
• As such the Government argued in Sargent that the aims were legitimate and the means adopted were proportionate.
• So where does the Judge land in this case?
• Well interestingly in Sargent the Judge was aware of, but chose to disregard, the decision that had been made and handed down just a month before in McCloud. And that's not an unreasonable approach, Employment Tribunal decisions are not binding on other Tribunals. But it is very interesting and it has brought an extremely different outcome because here the Judge concluded that the introduction of the transitional arrangements for the fire fighters scheme was not age discriminatory.

So why did he come to a different conclusion to the Judge in McCloud?

Well, in Sargent, the Claimants argued that the legitimate aim must explain why the older group is being protected.

A legitimate aim can't be established unless there is a social need to show that those nearer retirement are in greater need of protection and more evidence simply was needed to show that this was case.

The Judge here disagreed, she was much more willing to accept the latitude of the Government, the employer here, to determine its legitimate aims - including that political considerations might form part of those aims and here she relies on previous case law which says that justifications based on moral or political considerations might not be capable of being established by evidence but nonetheless might be a legitimate aim. The Judge also relied on a number of cases which stressed the wide degree of margin available to member states i.e. Government to determine their legitimate aims for the treatment.

So whilst she was willing to accept that there might be good reasons for treating different age groups differently, she didn't seem to want to know what the evidential basis sitting behind those reasons might be.

So, firstly, she accepted that the stated aims in this case were indeed legitimate, both for reasons that we saw in the previous slide.

She then moved onto proportionality and she was willing to accept that again the Government had a pretty broad decision making ability to decide firstly whether the legitimate aims were proportionate, but also whether they had struck that necessary balancing act between achieving those objectives and the impact on the individual members in question.

She rejected the Claimants' arguments that the impact on the individual fire fighters was catastrophic and unfair. She accepted that a line needed to be drawn somewhere, that was a social policy choice and inevitably some individuals would be disadvantaged. Overall she found it was reasonably necessary for the Government to draw the line at some point and therefore the proportionality test had been met.

So what's the difference between these two cases?

Well given the similarity of the issues, the background, the similar approach to tapering, the arguments made by the Claimants, it makes sense that these decisions are both now on appeal, given how different the outcomes were.

But is there sufficient difference between the two cases to justify the different outcomes?

Well, there isn't entirely the same set of facts. McCloud concerned very specific circumstances faced by members of the Judiciary. Sargent considers that of fire fighters. But actually that aside, they are remarkably similar, being about employers putting in place transitional arrangements intended to soften the blow of pension scheme changes for older employers.

So, I think much of the difference in outcome lies in the different Judge's approach to very similar facts.

In McCloud, the Judge's key concern being a lack of proper analysis of the justification for the tapers, so the legitimate aim or aims.

By contrast, in Sargent, the Judge's ability to accept the legitimate aims being put forward, particularly because the Government, the Judge believed, had a very wide discretion to determine those legitimate aims. I think at this stage it is very difficult to predict where an Appeal Court will land on this, but we definitely watch this with interest.

So where does it leave employers for now?

Well I suggest you take care when introducing tapering provisions if you are introducing scheme benefit reductions. This risks age discrimination claims as we have seen.

Even if on appeal it is decided that the tapering provisions in the cases we've seen here were not discriminatory, these might be difficult to rely on as grounds for introducing some sort of transitional arrangements if you are not a public sector employer.

If you do introduce tapering provisions consider the rationale for doing so. Don't make assumptions about the impact of for example a scheme closure on the affected employees. Older employees might be more vociferous in demanding protection and unions might be on their behalf. But it might not factually be the case that they are the cohorts that are going to be most vulnerable when scheme changes are made. The greater impact might be on younger workers.

Once you've established the rationale, consider the impact on the affected members. Would there be a disproportionate impact on certain age groups and if so could a less discriminatory taper be adopted instead?

Take care when you are making decisions based on union involvement, some cases, including the McCloud decision, talk about union agreement. But they also make it clear that just because you have union sanction doesn't mean that an otherwise discriminatory practice will then become lawful as a result.

Finally document those decisions, put a paper trail in place to justify what your legitimate aims are and the proportionality test that you need.

I'm now going to handover to Ruth to consider two more recent age discrimination cases.

Ruth: Thanks Liz and just a reminder to everybody on the Webinar that you can keep submitting questions, so ask questions at any time by just clicking on your "asking a question tab", type in your question and then click submit and we will try and answer as many of those as we can at the end.

But now onto another case involving the public sector, this time we're looking at Police Officers.

So this was a class action involving around 200 Police Officers and was brought by them against the Chief Constables of five separate Police Forces. So to set the context, this involved something called Regulation A19, which was a piece of legislation which allowed compulsory retirement to Officers on the grounds of efficiency of the Force. In particular it allowed compulsory retirement after Officers had become entitled to a pension of at least two thirds of average pensionable pay, which should generally be achieved at around 30 years' service.

As a result of the wide-ranging austerity measures affecting a number of public services including the Police in 2010, it was decided by some Police authorities, that all Officers potentially within the ambit of this Regulation A19 would be required to retire, save for some very limited exceptions.

It is probably worth pausing to note at this point that Police Officers are not employees and they are office will only terminate unless there is some misconduct or capability upon retirement. So it wasn't possible to deal with this need to make cutbacks and efficiencies by implementing redundancies here.

As a result of the application of Regulation A19 by a number of Forces, the officers who had been made to retire brought claims of indirect age discrimination. Because clearly this would apply only to those who had accrued a certain level of pension, usually after 30 years of pensionable service, so it was going to have a more disproportionate adverse impact on the older officers.

The Employment Tribunal agreed with the Officers, saying that A19 had been indirectly age discriminatory and it upheld the Officers' claims, saying that the practice of requiring the retirement of nearly all of the Officers in the Forces who could be required to retire under A19, was not a proportionate means of achieving a legitimate aim. The Employment Tribunal looked at other ways the Forces could have achieved the same cost saving, such as part time working or encouraging people to take career breaks for example. But this went on appeal to the Employment Appeal Tribunal and they allowed the appeal for the Forces and held that the application was not discriminatory and the Court of Appeal agreed with that decision, so agreed with the Employment Appeal Tribunal.

So why? Well the Court of Appeal held that this was not age discriminatory because the wording of A19 in itself, whilst potentially discriminatory, was separate from the way in which the Forces had adopted or applied A19 and that wasn't a further act of discrimination.

So in the absence of a statutory provision such as this, any decision to limit the selection pool to employees with at least 30 years' service, could be potentially age discriminatory. But if a statutory provision makes it unlawful to include anyone with less than 30 years' service in the pool, the selection method is inevitable and a claim for unfair dismissal or age discrimination therefore fails.

The Court questioned the Tribunal's take on the decision-making process of the Forces, i.e. looking at whether or not they could have made a decision on another basis or achieve cost savings in a different way, saying that the emphasis should be on whether the outcome of this decision is justified.

So the legitimate aim here was to reduce Officer headcount to the fullest extent possible and the measure take was proportionate because no other option was available. Because of the absence of general powers to dismiss serving Officers, the use of A19 was the only way in which that aim could be achieved and there was no legal way to reduce numbers on the mass basis with the same certainty.

So this was a fairly specific piece of public sector legislation. Could it be of wider application? Well the case could be of relevance if you are looking at the effects of the application of a particular piece of legislation, so if it's the legislation rather than the application that is potentially discriminatory this case could be of use.

So now taking a look at the other end of the spectrum. I wanted to just touch on a case involving younger workers and a reference that was made from the Italian Courts to the European one. This case involves an Italian national provision on on-call contracts, i.e. contracts where an employee makes himself available to an employer who can assign them work on an intermittent basis dependent on the employer's needs, so what we would term as a zero hours contract.

Under the Italian legislation, these contracts could be used by employers regardless of the age of the worker where certain objective conditions were met and those were to do with the nature of the services being performed being intermittent according to requirements specified in collective contracts between employers and employees' associations.

But secondly this bit of legislation could also be used in any event for workers aged under 25 or over 45, i.e. that objective condition didn't need to be met.

For workers younger than 25, the national provision had been construed as entailing an automatic termination of the relationship on that basis when the age of 25 was reached.

So in this particular case with Abercrombie & Fitch, the employee had been employed by them on an on-call contract for around one and half years. When he turned 25 he was no longer included in the work schedule, so up until that point he had been given fairly regular work, and after enquiring about this by email he was told his dismissal had occurred due to the fact that he had turned 25. So he no longer complied with the conditions for the intermittent contract as laid down by Italian legislation.

He felt this was unfair and challenged it as unlawful and the Appeal Court in Italy held that it was but on appeal to the [Italian] Supreme Court they said that they weren't sure that it had been infringed and gave a reference to the European Court on whether the Italian provision on these on-call contracts, to the extent that it contained specific access and dismissal conditions for people under 25, was contrary to the principle of non-discrimination on grounds of age under the European Directive.

So the Italian Government put forward a number of different reasons underlying the measure, they said that it allowed for the first opportunity to be employed by individuals, so allowing for additional and subsequent relevant experience on the job market, even if that wasn't stable employment. They said that it was part of a legal framework aimed at promoting flexibility in the job market, i.e. to increase the employment rate. It was aimed at fostering the entry of young people into the labour market in the first place.

In the opinion the Advocate General said that each of the aims put forward by the Italian Government could constitute a legitimate aim but that clarity of aim was needed.

It was then up to the member states to determine what was appropriate and necessary but the Advocate General did comment on the fact that with promoting flexibility in the job market the National Court must decide whether flexibility only for a specific age group was appropriate and that needed to be balanced against precariousness and clusters of the job market.

On facilitating youth employment, they said again it's for the National Court, but they need to examine whether there were less intrusive alternatives to automatic dismissal.

On providing employment opportunity, again, for the National Court to ascertain, but also to look at whether less onerous means could have been envisaged.

So the conclusion was that the Directive For Equal Treatment and Employment must be interpreted as not precluding national legislation such as this, but as long as that legislation pursues a legitimate aim linked to employment and labour market policy and it achieves that aim by means which are both appropriate and necessary.

It is worth mentioning that this was the Advocate General's opinion, so it might not be followed by the European Court. It will be interesting to see where this ends up, particularly in the wider context of where zero hours contracts might be heading, given the likely disparate impact they do tend to have on younger workers. Interestingly this was the first but probably not the last reference inviting the [European] Court to consider a national measure which includes specific conditions for younger workers, in regard to access for a particular type of flexible employment contract.

So what lessons can we learn from all of this?

Well one which we would suggest is formulate your legitimate aim prior to implementation of the policy so that you've really thought it through and so that it can be legitimately rationalised.

Don't just link it to the age of the workers, because that is a short cut but it is not one that is without significant risk. Think carefully about the wording of any legitimate aim and if you are targeting a particular age group think about why. Then finally ensure you have a lot of evidence to back up your aim because the Courts will look behind it.

So onto ...

Ian: ... yes so we're going to have our second poll now.

What we're asking you if you have ever had to consider objective justification for a potentially age discriminatory practice, have you set out your analysis and evidence in writing? So if you have provisions that might be potentially discriminatory have you recorded the objective justification potentially. So the options there are yes/no or I don't know. So we are just waiting for some of the responses to come in there. It seems from the cases, if there are some common threads there, then evidence and being able to prove that evidence and that thought plan is definitely something that the Courts and Tribunals are looking towards.

Liz: Absolutely, Ian, yes.

Ian: So that's interesting how ... it's a very mixed bag there but with a lot of people saying that they don't know and that could be very interesting. Perhaps what the Courts and the Tribunals expect might not be actually what people are doing in practice and there's often that disconnect between the very high standards expected and what is actually happening on the ground when you've got a million and one things to actually be getting on with.

Liz: Yes and I think that's also true in terms of some practices might have been in place for donkeys years and actually there's never been any cause to assess whether actually if they give rise to potential age discrimination issues what might have been the rationale for putting them in place in the first place and whether we can rationalise them now. So that might also explain why perhaps provisions or practices haven't had that thought process attached to them.

Okay so I'm going to move on now and talk about some of the recent policy developments we've seen for the first part of this year. And I think some of these really can be broadly summarised as intergenerational fairness which is something that came through in the General Election as well. So really the question of how the social contract is affecting younger, older and middle aged people.

The first one that I want to mention is an independent report that we had from John Cridland which examined how to judge the best balance for a fair and sustainable State Pension Age and this continues to be a really big issue in terms of what the state pension age currently is and whether it needs to move upwards in future.

It is particularly in recognition of the fact that in 1908 when the state pension was originally introduced it was available to those aged 70 which is a pretty old age and actually only one in four people at that time would ever reach that age and even if they did they might only expect to live for further nine years.

By contrast, a baby girl born in 2017 can expect to live until she is 95, a baby boy to live until they are aged 91. Meanwhile those already in receipt of the state pension are currently expected to live for at least 20 years.

So there's that real desire to balance providing a state pension as against the recognition that the growing and aging population will require some pretty significant funding by tax payers in order to remain sustainable over the long term.

So John Cridland's review concluded that State Pension Age should increase to 68 between 2037 and 2039 to provide a greater measure of intergenerational fairness and to make the state pension more affordable and State Pension Age should not however change more than once in a decade with at least ten years' notice of the change to be given so that people feel that they have been properly consulted with before that happens.

So what I thought was particularly interesting about the Cridland Report was the fact that although it's ostensibly a review of the State Pension Age it also wanted to consider a more holistic approach to the changing demographics of the population. So whilst it had those recommendations as to how the State Pension Age might rise over time - it had a number of policy suggestions that would sit alongside this to smooth the transition to an increased State Pension Age and these policy suggestions included:

• that all employers should have elder care policies in place which set out a basic care offer;
• that the Government should directly support a statutory carer's leave programme;
• That people should be able to access a midlife career MOT and review facilitated by the employers and the Government, with the intention that this supports a gradual transition to retirement; and
• Also interestingly that the Government 2017 review of automatic enrolment thinks a little bit more about improving coverage for women. So for example possibly following the Swiss model were couples are given the option to combine the pensions savings to make up for many women's absence in the labour market due to caring responsibilities. Also Cridland suggested that automatic enrolment is opened up to the self-employed as one of the identified groups who are currently more likely to find it difficult in terms of having to keep working up to the State Pension Age because of their lower private pension savings.

So I thought that was quite interesting in terms of what we had around State Pension Age and also in terms of some the points that we are going to talk about from the General Election manifestos but I am just now going to hand over to Ruth on another report that we've seen.

Ruth: Thanks Liz. I just wanted to again look at the other end of the spectrum and this idea of intergenerational fairness. So the Resolution Foundation Intergenerational Commission Report says that the social contract between generations is showing signs of fraying.

Of particular relevance I think the questions of intergenerational fairness is evidence that the pay of today's workers has been depressed to some extent by firms filling deficits in defined benefit pension schemes that provide for older or retired workers.

This generational concentration of wealth is being driven in no small part by the closure of access to those schemes to younger workers. Instead younger workers have to make do with defined contribution pensions. The introduction of auto enrolment is providing an important boost to coverage, but average contributions are below 5%25 with just 2.9%25 coming from employers.

In the absence of significant improvement in these figures, 'millennials' face much more uncertain retirement than the 'baby boomers' currently entering this phase.

According to the Pensions and Lifetime Savings Association, almost half of 35-54 year olds are looking to property to finance their retirement. However 23%25 or 1.9 million within this group have yet to buy a property, which suggests that some may be basing their future financial security on an asset that they might not ever own.

So what does all this mean really for trustees and employers?

Well this continues to be a transitional time in the world of pensions and HR and a lot of other things as age and intergenerational unfairness continue to frame the discourse to some extent.

Perhaps approaches like the one in the Abercrombie & Fitch case we discussed earlier will be looked at more, but employers of choice will be those that look to close this gap rather than inflate the discourse and target a holistic approach that takes into account the wants and needs of all their workers of all ages.

Liz: Well, as Ruth mentioned, we felt we really couldn't finish today's All About Age Webinar without mentioning the recent General Election. Not least because so many of the main political parties manifestos touched on issues which affect different age groups. So for example housing allowance for younger workers, tuition fees, changes to the State Pension Age, whether or not to change the triple lock, not to mention the debate around the future provision of social care and how that is to be funded. In fact we felt that there's a compelling argument that with so many of the debates in the lead up to the election touching on issues of intergenerational fairness we might conclude that the General Election 2017 was 'All About Age'.

So what do the parties say on some of the cornerstone HR issues?

Well I'm going to whizz through mine on pensions aspects. So we have the State Pension Age, I've already mentioned the Cridland Report. The Conservatives were looking at recognising the need to continue to provide the state pension, but at the same time protecting each generation fairly which I think suggest that, reading between the lines, the Conservatives would be minded to increase the State Pension Age in line with the Cridland Report. Meanwhile Labour rejected proposals to increase the State Pension Age beyond age 66 at 2020 and instead wanted to look at reviewing the State Pension Age taking into account particularly wide variations and life expectancy and the arduous continuance of some work.

We had different party views on the issue of the 'triple lock' introduced by the Conservative/Lib Dem Coalition Government in 2010 and now an acceptance by at least the Conservatives that whilst the triple lock increased every year by the higher of inflation, average earnings or minimum of 2.5%25 might be maintained until 2020 but actually then it would be better to introduce a 'double lock' so removing that 2.5%25 annual flow accepting that Labour and the Liberal Democrats think that the triple lock should be committed to maintain for this Parliament.

Then in terms of party specific manifesto promises on older workers, well there wasn't actually a lot about older workers, as I've mentioned there were plenty of policy decisions which did bear on older people generally but not older workers in particular. So what about younger workers Ruth?

Ruth: Well, from looking at the main party manifestos apprenticeships are here to stay as a way to help young people in particular enter in the job market.

But there was divergence amongst the main parties on how these would be delivered and in particular how they would be monitored for quality. The changing nature of the economy, so this 'gig economy' we keep hearing about was given reference in most manifestos with Labour saying they would ban zero hours contracts and the Conservatives saying they will review the report from the Matthew Taylor Review.

Finally there is some divergence on wages policy. Labour looking to extend the Living Wage in particular to those over 18 and the main parties were commenting on wages in a way which will be likely to impact on younger workers in particular.

So how does all this impact voter turnout well I'm probably not short-sighted enough to think that HR policy was the main thing affecting voter turnout although it probably will have fed into the larger discourse that we have been touching on around having a fair social contract that listens to the needs and priorities of all ages in this country. So there were lots of figures being lorded around on Friday about youth turnout, 72%25 was one that I saw a lot, saying that there was a 72%25 turnout amongst 18-24 year olds. But it isn't clear exactly where that figure came from so it may end up that was in the words of Donald Trump "fake news".

The latest poll from Lord Ashcroft did show that around two thirds of those aged 18-24 said they voted Labour, as did more than half of those aged 25-34 and 50%25 of 35-40 year olds with only 30%25 of that age category voting Conservative. But that was a relatively small poll so there will no doubt be much further scrutiny and analysis of the numbers in the weeks and months to come but we do leave you as Liz said with the thought that the Election was at least in part 'All About Age'.

Ian: Yeah and I think that's the first time that in any of our Webinars we've had a direct quote from President Trump so maybe there will be more of those to come.

There's also going to be some interesting discussions today between Theresa May and Arlene Foster the Democratic Unionist Party, the DUP manifesto like many of the other parties had a commitment the state pension triple lock. So there is already attention there and the DUP does tend to be slightly, well not even slightly, far more left wing in economic issues and things pertaining to HR than the Conservative Party so there will be some interesting stuff there.

We've had some great questions come in. We've got time to cover just a couple of them.

The first one is a very common scenario where you've got a defined benefit or final salary scheme and there's a project to close it to future accrual and move members to a defined contribution or money purchase scheme. Now what happens if you don't make any special provision for members close to retirement is there a risk of an age discrimination claim there?

Liz: Well actually, I mean, Ruth and I deal with a number of scheme closure exercises or scheme change exercises and actually I think the opposite is true. I think it goes back to the McCloud decision, in particular, but actually I think there's more of a risk where you put in place transitional arrangements or some sort of enhancement, particularly if it's for older people or people closest to retirement to soften the blow of changing that scheme's structure.

Because actually as was drawn out in that McCloud decision it's the younger workers who are more likely to be affected by for example defined benefits in closures because they are the ones that have not had the opportunity to build up the pension over the remaining period that they are going to be employed. So I would say there isn't a strong risk of age discrimination claims.

I think the bigger risk is almost around the fact that older workers tend to be more engaged with what their pension is looking like. So it might be the fact that they make louder noises about it and their trade union representative might also want some sort of cushion for those individuals. That might be more of the issue practically for employers rather than an actual risk of age discrimination claims.

Ian: And that would make sense if you look at the Tribunal where the issues that have come up is when you've had a stark age such as in the Judges and the fire fighters cases, not so much in cases where employers have taken action that covers everyone regardless of their age so we've got some indication there.

Then just finally a question just for the both of you. We've obviously had some of these really interesting age discrimination cases. There's some common themes and issues emerging from those. So what would we have as your top practical point for employers to take away if you are considering those cases. If they could take away one thing what would you urge them to do?

Ruth: I think probably for me, stepping back, age is relatively new as a protected characteristic under the Equality Act, if we compare it with things like sex and race. So I would say keep challenging your presumptions about age and how they feed into your legitimate aim in today's kind of changing economic, political, social landscape. Don't just make blanket assumptions that you then use to rationalise your legitimate aim because it will be risky.

Ian: It's a really good point, we were talking just earlier about how equal pay and sex discrimination emerges in the '70s and there's still some very dodgy practices in the '80s and '90s, but if we look back now we think I can't imagine workplaces like that. So fast forward 10 years, 20 years what would be the equivalent in the age discrimination world? Liz what would be your take away?

Liz: I think three of the four cases today certainly stressed the importance of evidence, so thinking about the rationale for a provision or measure that you've got in place in order to defend against possible age claims and we're definitely seeing more of that in terms of employers and trustees wanting to sound out, at the time they introduce new practices, exactly what their defence might be so they've got it in writing for the future in case of possible future challenge.

Ian: Yes, we're lawyers we like evidence and we like writing so that's good!

So if that's whetted your appetite for everything age discrimination don't forget there's more information available in the tabs at the top of the player.

We're going to be putting a recorded version on this Webinar on our website along with a transcript so you can either listen again, following along or even better share it with colleagues who might be interested or cover this sort of area.

There's going to be a quick feedback questionnaire at the end of the Webinar, if you could take a few seconds to fill that in that would be great because it helps us to deliver better Webinars for you and we'd really appreciate that.

Also if you want to follow this development on Twitter, just use the hashtag or search for the hashtag 'All About Age' and you can find everything all about age, amazingly enough. But it's a fascinating area that's developing and we have some of the best experts covering this issue as it develops. So that just leaves me to thank Ruth and Liz for another fascinating All About Age Webinar and to thank everyone who has made the time to join us today and I hope you can join us on another Gowling WLG Webinar very soon.