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CAP: The use of the justification test in age discrimination cases

Researcher : Dr. Rory O’Connell

This research project, generously funded by the Changing Aging Partnership, focuses on age discrimination laws in three jurisdictions (UK, Ireland, Canada) to see what lessons may be learnt about the application of the justification test in age discrimination cases in employment.

There is considerable debate on reform of the age discrimination laws within the UK, as evidenced in the introduction of the Human Rights Act 1998, the adoption of a statutory equality duty in Section 75 of the Northern Ireland Act 1998, the expansions of the anti-discrimination laws, the  Equalities Review and the Discrimination law review, the debates on single equality acts in both GB and NI, and the debate on domestic Bills of Rights, most especially in Northern Ireland.

These developments make it necessary to consider the position of age discrimination in a “single equality” context.  The research project will examine the experience of discrimination cases in three jurisdictions to determine whether there is a distinctive approach to dealing with questions of justification in age discrimination in employment cases,  different from other forms of discrimination.

In particular, the project will examine the following questions:

Is the possibility to justify direct discrimination different in age discrimination cases?

Is the possibility to justify indirect discrimination different in age discrimination cases?

If there is a justification test, is it applied with the same degree of intensity as in other examples of discrimination? Specifically:

  • are purposes considered legitimate in age discrimination cases that would not otherwise be considered legitimate (e.g. economic justifications, etc.)?
  • is the concept of “necessity” associated with justification tests applied as rigorously as in other contexts?
  • does the intensity of the justification test vary according to the subject matter, and in particular vary as between policy decisions made by the legislature at one extreme and individual employment decisions  at the other?