Limiting discounts is not discrimination

The decision of Martindale v TT-Line has confirmed that companies who want to provide limited discounts to pensioners or other defined groups can do so provided that it is not done on the basis of a protected attribute.

This case involved TT-Line’s policy of offering a limited number of aged pensioner discounts on each Spirit of Tasmania ferry crossing.  The complainant, an aged pensioner, Mr Martindale, felt aggrieved about having to pay for a full fare on the date he wanted to travel on the Spirit of Tasmania because when he booked his ticket all the discount fares available to pensioners had been sold.  He claimed that imposing a limit on the discounted fares discriminated against pensioners on the basis of the protected attribute of age in the provision of services.

The Tasmanian Anti-Discrimination Tribunal disagreed, finding that the characteristic of financial disadvantage could be imputed to a person in receipt of the aged pension but it could not be imputed to the protected attribute of age. Its reasoning was that not all elderly people are financially disadvantaged.  The decision demonstrates the importance of specifically identifying the protected attribute of a complainant and not just relying on what appears to be detriment applied to a common group.

Importantly, the Tribunal held that the practice of providing a limited number of discounted fares provided an advantage to pensioners rather than a disadvantage.  If the pensioner booked while the discounted fares were not sold out they obtained an advantage.  If they booked once the discounted fares had been sold out they did not suffer a disadvantage because they had to pay the same fare as everyone else.

Had the company not been successful, remedies in the Anti-Discrimination Tribunal could have included: forcing the discount to be applied, compensation (uncapped), fines and even the requirement for a public apology or training to have been implemented.

Action Items

  1. Review – your current discounts to ensure that if limits are applied they do not discriminate on the basis of one of the protected attributes (eg age, race, gender etc);
  2. Take advice – if you have any concerns in the application of your current discounting policy; and
  3. Resolve through the Early Resolution Procedure – if possible, rely on this decision to settle formal complaints, rather than incurring lost time and expense defending a complaint to the Tribunal.

If you have any questions about this article, please contact a member of our Workplace Relations Team on (03) 6235 5191.

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