2.4 Objective justification

Even if something doesn’t fall under one of the exceptions in the Equality Act, it can still be lawful for a trader or service provider to treat you differently – or even discriminate against you – because of your age.

Objective justification can be used for both direct and indirect age discrimination. The trader or service provider would have to show they have a good enough reason for discriminating against you. For example, a gym refusing membership to someone over 80 could be justified if the owner cannot obtain affordable insurance for users over that age.

However, a reason may not be good enough if the provider could have acted in a less discriminatory way. In the gym example, this might mean charging all members a small extra fee to cover higher insurance costs for older users. The Equality Act requires providers to show they considered the discriminatory impact of their decision and that the action was necessary. They must demonstrate that it is a proportionate means of achieving a legitimate aim.

Here are examples of legitimate aims supported by evidence:

• Ensuring health and safety. For example, limiting the number of pushchairs or wheelchairs on public transport to allow quick boarding and exit.
• Protecting welfare. The fire service requires applicants to pass physical tests for firefighting roles. This could seem like indirect age discrimination, as older people are less likely to pass. However, the fire service can justify this because firefighting demands physical capability. The aim is to ensure firefighter safety and maintain an effective service. Physical tests are a proportionate way to achieve this.
• Enabling people of particular groups to enjoy activities together. For example, offering age-specific swimming sessions or women-only sessions.
• Targeting services to those who need them most. For example, promoting breast screening and mammograms to people over 50.