838.This paragraph creates an exception from the prohibition of age discrimination in employment and certain other work relationships for benefits which relate to the provision of child care, and to which access is restricted to children of a particular age group. The exception applies not only to natural parents, but also to others with parental responsibility for a child.
839.The exception covers benefits which relate to the provision of care for children aged up to and including 16.
840.This is a new provision. Following the ruling of the European Court of Justice in Coleman v Attridge Law and another (Case C-303/06) [2008] ECR I-5603) it could potentially be direct discrimination for an employer to treat an employee less favourably because of the age of an employee’s child. There is, therefore, a potential impact on the provision of facilities, such as child care, where access is limited by reference to the child’s age.
841.The exception allows employers to continue to offer employees child care facilities based on the age of a child without being open to a challenge of direct discrimination from other employees.
An employer may provide a crèche for employees’ children aged two and under; or a holiday club open only to employees’ children aged between 5 and 9. In each of these examples, the exception allows an employer to discriminate against employees because of their association with a child who does not fall within the specified age groups.
The exception does not apply to employee benefits which do not have a close relationship with the provision of child care. For example, if an employer offers luncheon vouchers, gym membership or a company car only to those employees with children of a particular age group, the exception does not apply as none of these benefits involves child care.
Neither does the exception apply to benefits conferred as a result of the employee’s employment, but applying directly to the child, where child care is not involved. For example, an employer may offer private healthcare to employees’ children up to a certain age, or use of the employer’s services (e.g. free train tickets if the employer is a train company) by such children.