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The characteristics of age discrimination as provided for in the Employment Equality (Age) Discrimination Regulations set it apart from existing anti-discrimination schemes. The ambit of the Regulations is limited to the employment field. Within this area, the legislation does not simply seek to identify a characteristic of a specific minority group and then remove that factor from the decision-making process. Instead, working from a quality common to all (age), the Regulations seek only to prevent reliance on it for purposes that are ‘illegitimate’ or if the consequences of doing so are ‘disproportionate’. This is necessary: first because the Regulations do not seek merely to protect discrete age groups, and in practice the interests of persons of different age may well be in conflict; secondly because many decision-making criteria that appear objective are in substance, age-related. In order to sort ‘bad’ discrimination from ‘good’ discrimination a notion of substantive equality must exist. The Regulations themselves give little indication of what equality should mean. There is no existing consensus from which the answer can be drawn, and the rationales that have underpinned previous anti-discrimination legislation are not easily transposed to age discrimination. The practical application of the justification defence contained in Regulation 3 will shape the substantive meaning of equality in this area. This article seeks to identify what the proper approach should be to the provisions of Regulation 3, and suggests that this should be derived from considerations of transparent decision-making, and the need to respect the dignity of the individual.
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