Case law: Direct and indirect age discrimination

In this article, Di Banks, Partner with Gilbert + Tobin (DCA′s preferred legal provider), explores two cases of age discrimination and warns employers to avoid treating any employees or potential employees less favourably due to their age.

Federal, State and Territory anti-discrimination laws prohibit discrimination against employees on the basis of their age. This prohibition applies during all stages of the employment relationship, including in relation to recruitment practices, offers of employment, the terms and conditions of employment, access to promotion and training opportunities and termination. Whilst defences are available, this is an area that requires careful handling, particularly given that employees often stay in the workforce longer and re-join the workforce later in life.

Discrimination on the basis of age may be direct or indirect. Direct discrimination means treating a person less favourably than another because of their age. For example, it would be direct discrimination to refuse to make an offer of employment to a suitably qualified applicant only because of their age.

Indirect discrimination on the basis of age occurs where conditions or criteria are applied consistently to all employees but the application of these conditions or criteria has a disproportionate impact on employees because of their age. For example, a decision to only hire employees with a certain look in order to maintain a particular corporate appearance could amount to indirect discrimination. This was the type of complaint successfully prosecuted against Virgin Blue Airlines by a group of flight attendants aged over 35 after they were not offered employment because they did not have ‘Virgin flair’. In that case, the court accepted that Virgin unconsciously discriminated against women aged over 35 by excluding them from the recruitment criteria.

In Talbott v Sperling Tourism & Investments Pty Ltd, Mr Talbot, a 75 year old bus driver, commenced proceedings against Sperling alleging discrimination on the basis of age. Mr Talbott worked for Sperling as a bus driver and tour guide operator. The facts of that case were as follows:

  • In April 2007, Mr Talbott was conducting a guided tour through Sydney, when he failed to properly engage his handbrake on Macquarie Street, resulting in his bus rolling down a hill and striking another vehicle;
  • In July 2007, Mr Talbott received what he considered to be a dismissal letter from Sperling which provided “...recognising you are now aged in your early 70s, what I suggest is that it′s time to step back from frontline your driver/guide work”;
  • In August 2007, Sperling offered Mr Talbott reduced hours conducting half-day tours in the city driving a smaller bus and said that the new arrangement “would be easier to handle”. Before that time, Mr Talbott had undertaken 12 hour shifts to and from the Blue Mountains; and
  • In January 2008, Mr Talbott received a dismissal letter from Sperling, following a second accident at Bondi where, in an attempt to avoid being hit by a vehicle in front of him, he reversed into another vehicle.
  • In relation to July 2007 letter, Sperling said that the letter and following demotion were influenced by Mr Talbott′s unsatisfactory performance. In particular, Sperling gave evidence that Mr Talbott:
    • was “a difficult person to deal with and that he did not listen”; and
    • had been counselled on many occasions including in relation to two speeding infringements, complaints received from customers about being dropped off at the wrong destination and the ‘at fault’ accident in April 2007.

In relation to the reasons for Mr Talbott′s January 2008 dismissal, Sperling gave evidence that following the ‘at fault’ accident in January 2008, it “had serious concerns about Mr Talbott's capacity as a bus driver” and “had lost confidence in Mr Talbott's ability to drive any bus safely.”

Mr Talbott gave evidence that there had been no prior counseling, no additional training and no warnings in respect of any alleged speeding incidents and that, in any event, these issues were not serious.

On the evidence, the Tribunal determined that the actions taken by Sperling were informed by Sperling′s perception that Mr Talbott was getting too old and not by any real concern about his performance.

In relation to the July 2007 letter, the Tribunal held:

The evidence shows that other drivers, who had committed more serious breaches, were given warnings of potential adverse consequences and were given the opportunity to address the problem. Mr Talbott was not. He was not given any warning that if he did not address these performance issues he would not be given any more work. It is clear from the evidence that Mr Talbott was treated more harshly than other drivers who had arguably committed more serious breaches and that the reason was his age”; and

The Tribunal is also of the view that if the ‘at fault’ accident was considered to be a breach sufficiently serious to warrant dismissal, then it is illogical that Mr Sperling would have agreed to offer Mr Talbott city tours and say in evidence that he could have had as many of those tours as he wanted, because he was happy with his performance in this regard. This is simply inconsistent with a view that the ‘at- fault’ accident was a serious concern."

In relation to Mr Talbott′s dismissal in 2008, the Tribunal said:

It is the Tribunal's view that Mr Sperling had, by 22 January 2008, determined that MBS wanted to dismiss Mr Talbott and that one of the reasons was his age, as stated in the first facsimile on 18 July 2007. In the absence of any direct evidence in this regard, the Tribunal draws this inference on the basis of all of the evidence before it and in particular, because of the way Mr Sperling treated Mr Talbott, without any written warning or counseling or even seeking an explanation as to what had occurred and asking him to show cause, as he had done with other employees who had committed infractions. The Tribunal is satisfied that a hypothetical comparator who was not Mr Talbott's age of 75 years but who had been involved in two minor at-fault accidents, three speeding breaches and minor customer complaints would not have been treated summarily as Mr Talbott was.”

The Tribunal upheld Mr Talbott′s complaint of age discrimination, noting that:

Mr Talbott was treated in a demeaning and paternalistic way on the basis of his age. The tone of the facsimile on 18 July 2007 is offensive and disempowering. The second facsimile on 22 January 2008 dismisses Mr Talbott summarily, without offering him an opportunity to explain himself.

The Tribunal ordered that Sperling provide Mr Talbott with a written apology for the acts of discrimination and pay him compensation of $25,323 for the impact of discrimination, including loss of income.

Employers should be careful to ensure that employees are not treated less favourably than others because of their age if they are able to perform the inherent requirements of the job. As Sperling found, employers will be held to account for discriminating against employees based on an inaccurate perception that employees should retire once they reach a certain age.

This does not constitute advice from DCA. If you would like further assistance on this issue contact Di Banks, Partner, Gilbert + Tobin on [email protected].