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Age Discrimination
The Employment Equality (Age) Regulations, introduced in 2006, outlaw discrimination in employment, training and adult education on the grounds of age. They also cover discrimination based on a perception of someone's age, even if their actual age is not known.
What do the Regulations cover?
The Regulations outlaw age discrimination in relation to recruitment, terms and conditions, promotions, transfers, dismissals and training. They cover all employment, which is widely defined as meaning employment under a contract of service or apprenticeship, or any contract to do work. This definition includes contract workers, temporary workers, casual staff, even self-employed workers who are personally engaged to do the work. And the Regulations apply to all employers, private and public sector vocational training providers, trade unions, professional and employer organisations and trustees and managers of occupational pension schemes. They do not, however, cover the provision of goods and services, nor unpaid voluntary work.
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Who is protected?
All job applicants, trainees, employees and workers are protected from age discrimination as well as partners of firms and anyone in vocational training or further and higher education, although different treatment can be justified in certain circumstances. Unpaid office holders, such as members of boards, MPs, councillors and serving members of the armed forces are excluded.
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Where do the Regulations apply?
The Regulations apply to people whose work is done wholly or partly "at an establishment in Great Britain", as well as people who work here for limited periods of time.
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What do the Regulations outlaw?
Direct discrimination
This means treating a person less favourably than someone else because of their age, or how old they appear to be. However, unlike other forms of direct discrimination, employers can justify the treatment if they can show it was "a proportionate means of achieving a legitimate aim". When deciding whether someone was treated less favourably, tribunals compare like with like to ascertain how the employer would have treated another person in similar circumstances. This does not mean that there has to be an actual person identified as a comparator, but tribunals can look at how an employer would have treated a hypothetical person in the same circumstances.
Indirect discrimination
This arises if an employer applies a provision, criterion or practice (whether formal or informal) which seems to apply to everyone equally, but which puts an individual or people from a particular age group at a disadvantage and the employer cannot justify it.
Like direct discrimination, employers can justify indirect discrimination if they can show it was "a proportionate means of achieving a legitimate aim".
Harassment
This occurs when one person subjects someone else to unwanted conduct on grounds of age that has the purpose or effect of violating the other person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive working environment. This covers overtly ageist behaviour such as verbal put downs or expressions or assumptions about the employee as a person, as well as bullying behaviour with no direct ageist content but which is only directly at that person because of their age. For instance, if an employer shouts at a younger employee when they would not have shouted at an older colleague. To decide whether the behaviour is harassment, tribunals ask whether that individual employee, (judged against the standard of the reasonable employee, would have found the comments or behaviour offensive.
Victimisation
This occurs when an employer treats a person less favourably because they have:
- brought proceedings under the Regulations
- given evidence or information in connection with proceedings that someone else has brought
- done anything else such as raising a grievance or giving evidence in someone else's grievance
- made allegations of a breach of the Regulations
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When can age discrimination arise?
Age discrimination can arise in relation to:
- the arrangements made for deciding who should be offered employment such as shortlisting and interviews (unless the person is within six months of the employer's normal retirement age, or 65 if there is no normal retirement age)
- the terms upon which employment is offered (although there are exceptions relating to some service-related benefits of five years or less)
- refusing or deliberately omitting to offer employment
- the ways in which access to opportunities for promotion, transfer, training or other benefits, facilities or services are offered
- dismissal or any other detriment
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How do claimants prove discrimination?
It is often difficult for claimants to provide clear evidence of direct discrimination, particularly if it takes the form of unwritten policies or general attitudes. However, tribunals are aware of this and, if a claimant can show a clear difference in treatment, they will look to the employer to explain the reason for that difference.
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What time limits apply?
Claims must be brought within three months of the act of discrimination that the person is complaining about. In exceptional circumstances the three month time limit may be extended if a tribunal believes that it is just and equitable to do so. In some cases, it is possible to complain about a series of events that have occurred over a long period of time, if they make up a continuing act extending over a period. A claim must then be brought within three months of the last act in the series of acts. Claimants should raise a grievance with the employer before lodging their complaint with a Tribunal, as a failure to do so may result in a reduction of any compensation awarded.
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What remedies are available?
There are three remedies available to a Tribunal:
- Declaration
- Compensation
- Recommendations
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Declaration
A declaration states the rights of the claimant and sets out how the employer and/or any employee involved has acted unlawfully.
Compensation
Compensation can be awarded for injury to feelings and financial losses, if there are any. There is no limit on the amount of compensation, which can include loss of earnings (past and future), loss of pension, interest and any other outlays associated with the discrimination.
The amount of compensation for injury to feelings can vary enormously. The severity of the discrimination will influence the amount ordered by the Tribunal.
Claimants can also ask for compensation for personal injury if they have been seriously affected by the discrimination, particularly in harassment cases which can lead to illness and depression. If so, claimants need to produce a medical report to support their claim.
Compensation may be reduced if the claimant failed to follow the statutory grievance procedure (if applicable).
Recommendations
The Tribunal's powers to make recommendations are limited to actions that will benefit the individual employee and lessen the effect of the discrimination on them. They must be practical, have a time limit and avoid or reduce the effect of the discrimination that she complained about. For instance, they might include a requirement for all members of management to be trained in equal opportunities, or for the employee who has been discriminated against to be provided with additional training or mentoring, or to be invited to interview in relation to future job applications.
If the employer fails to comply with a recommendation, then the Tribunal may order the compensation to be increased.
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Is there an age limit for claiming unfair dismissal and redundancy?
Not any more. Employees who have reached the age of 65, or the normal retirement age for their job, can claim unfair dismissal and/or a statutory redundancy payment if they have been unfairly dismissed or dismissed by reason of redundancy.
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Can employers require employees to retire at 65?
Yes, employers can fairly retire an employee who is aged 65 or over if the retirement is genuine and they have complied with the "duty to consider" an employee's request to work beyond retirement.
This provision was challenged unsuccessfully by Heyday (an offshoot of Age Concern) before the European Court of Justice (ECJ). Heyday claimed that "forced retirement" at age 65 was inconsistent with the EU Equal Treatment Framework Directive.
The ECJ, however, decided that a retirement age of 65 could be justified (at least in theory) and that it was for the UK courts to decide whether it was a proportionate means of achieving a legitimate aim. The UK High Court decided that the retirement age of 65 was lawful. The ruling was influenced by the Government's decision to bring forward its review of the default retirement age from 2010 to 2010 and the expectation that it may be abolished.
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What is the "duty to consider" procedure?
Employers must follow the "duty to consider" procedure if they intend to make an employee retire at 65 (or the normal age of retirement for that organisation). This involves the following steps:
Duty to inform
Employers must give no more than twelve and at least 6 months' written notice of an employee's impending retirement and must notify the employee in writing of their right to request to work longer. If the employer fails to notify the employee accordingly, the duty to inform continues until 14 days before the employee is due to retire.
Making the request
The employee can then make a written request not to retire, making clear whether they want to work indefinitely, for a fixed period or until a fixed date. Considering the request. The employer may agree with the employee's proposal in writing, specifying how long the relationship will continue. If they don't, they should try to meet with the employee within a reasonable period. but if that is not possible the employer must inform the employee in writing of their decision and confirm the date on which their employment will end as soon as is reasonably practical. If a meeting is held the employee has the right to be accompanied by a companion of his or her choice, who is employed by the same organisation and can be a trade union representative if desired.
The right to appeal
Employees may appeal against their employer's decision to refuse their request as soon as is reasonably practicable after the employer's decision, setting out the grounds of appeal.
Complaints to an employment tribunal
If the employer fails to comply with the procedure, the
employee may bring a tribunal claim. If an employee believes
that their dismissal had nothing to do with retirement, they
may also be able to challenge it as an unfair dismissal.
The claim must be brought within three months of the
dismissal.
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What are the exceptions/exemptions under the Regulations?
There are extensive exceptions under the Age Regulations which significantly limit their application, including the following:
Recruitment over normal retirement age
This applies when a candidate for a job is over the employer's lawful normal retirement age or, if none, over 65 (or is within six months of these ages when they apply). As it only relates to the recruitment process itself, the Regulations apply once the person is appointed to ensure that they are not treated any less favourably in their terms and conditions or treatment at work.
Genuine occupational requirement (GOR)
The Regulations do not apply when the employer can show that there is a genuine reason to do with the nature of the job, which requires the recruitment of someone of a certain age. There are very few circumstances where age can be a valid occupational requirement for a job. An example would be where an acting part requires an actor of a particular age.
Statutory redundancy pay
This is calculated using age-related criteria. Enhanced redundancy payments are exempt if they follow the statutory redundancy scheme.
The minimum wage
Differential wage rates for younger people, reflecting the national minimum wage provisions, are exempted from the Regulations.
Service-related benefits
Any benefits (such as holiday entitlement or pay linked to length of service) that depend on less than five years' service are specifically exempted from the Regulations. If the benefit requires more than five years' service, employers have to show that providing it fulfils a business need, such as encouraging loyalty and motivation or rewarding experience.
Thompsons provides updates to trade union activists on the law, the series of updates includes:
- Unfair Dismissal & Redundancy
- Stress at Work
- Equal Pay
- Sex Discrimination
- Pregnancy & Maternity
- Sexual Orientation Discrimination
- Accidents at Work
- Strain Injuries
- Disability Discrimination
- Working Time
- Family Friendly Rights
- Race Discrimination
- Religion or Belief
- Age Discrimination
The above information is not a substitute for legal advice. You should talk to a lawyer or adviser before making a decision about what to do.
Information correct at May 2011
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