Age discrimination in the provision of services to the public became unlawful from 1 October 2012. The new law impacts on the retail sector, so have you taken steps to comply yet, or assessed whether you can rely on the exemptions?

There are circumstances where a difference in treatment is justifiable or beneficial. As such, retailers are able to treat people differently on the basis of their age where a particular exemption applies. For example, it is lawful to treat people differently because of their age where legislation requires it e.g. where there is a minimum age set for the purchase of goods such as cigarettes or alcohol. In addition, the legislation specifies the following particular exceptions, which are particularly relevant for retailers:

Under 18s

The protection does not apply to those under the age of 18, so that retailers can continue to apply provisions which could potentially disadvantage children or teenagers without further consideration.

Concessions

A particular exemption has been included to allow retailers to continue offering concessions to customers of a particular age or category e.g. those over 65 or students. A concession is any sort of discount, special offer or arrangement or offer that is open only to people of a particular age or age group. There is no need to explain why the concession is being applied and no restriction on the type of concession that can be applied.

Age Challenges

Unsurprisingly, retailers are still permitted to ask for proof of age where they are selling age restricted goods. The retailer can specify an age e.g. 25, and request ID if a customer looks below that age, provided they inform customers that they will ask for proof of age in this way.

Justification

If a potentially age discriminatory practice is not permitted by the above exceptions, retailers may still be able to continue with the arrangements if they have a good reason. To satisfy this test the retailer would need to show that they have a legitimate aim and that the arrangements are a proportionate way of achieving that goal. Where a business need is identified it will generally be necessary for a business to show a wider social benefit as well e.g. providing access to retail services for a particular age group. The exceptions which have been built into the legislation are likely to limit the impact of this change for the retail sector in practice. Despite this, it is important to check that your business does not have any practices which might fall outside the law. All retail business should carry out the following steps to mitigate any potential risk arising from the introduction of the new law:

  • ensure that all staff receive training to make them aware of the new protections afforded to customers audit practices to ensure that any potentially age discriminatory arrangements are either permitted by one of the specified exceptions or capable of justification
  • where a practice is in need of justification, a record should be kept of the aim that is being pursued and the alternative methods that were considered in order to pursue the goal in question. A brief note should be kept to indicate why the alternatives were not considered viable in the circumstances
  • check any policies to ensure that they expressly prohibit discrimination on the grounds of age where the exceptions do not apply and where the treatment cannot be justified.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.