Defining ‘Discrimination’ in UK and Australian Age Discrimination Law

Population ageing is a challenge facing governments across the Organisation for Economic Co-operation and Development. In a bid to increase employment rates for older workers, extend working lives and acknowledge the inherent dignity of workers of all ages, governments have introduced age discrimination laws, to make differential treatment on the basis of age largely unlawful. While the core ideas and rationales of age discrimination laws are similar in the UK and Australia, the countries differ in the way in which the notion of ‘discrimination’ has been developed in the case law. Drawing on employment age discrimination cases in the UK and Australia, I argue that the Australian cases have conceived of age discrimination in a far narrower way than those in the UK, possibly due to the inability to justify direct age discrimination in Australia. This has resulted in a restricted jurisprudence in Australia, which potentially undermines the development of the law and effectiveness of legal protection in this area.