Age Discrimination

As of the 1 October 2006, UK employees were given new rights not to be unfairly treated in the workplace on account of their age. This protection extends to all aspects of employment including job applications, promotion, pay and benefits, pensions and retirement. The regulations provide that an employer may not lawfully discriminate against an employee on the basis of age unless the employer is able to show that the discrimination is justified. For these purposes, age means any age, whether young, middle or old.

What is age discrimination?

The provisions relating to age discrimination are set out in the Employment Equality (Age) Regulations 2006.

Age discrimination occurs where one person is treated less favourably than another and the reason for that unfavourable treatment is because of their age. For the purposes of the legislation, this does not mean just old age. A person can equally be discriminated against because they are too young or because they are either slightly older or slightly younger than another person.

There are essentially four ways in which a person can be discriminated against:

• Direct discrimination – where, for example, the discrimination is specifically aimed at one particular person
• Indirect discrimination – where a criteria or policy is applied in such a way that those either of, or not of, a particular age are treated less favourable
• Harassment – where a person is subject to unwanted behaviour by reason of their age, and
• Victimisation – where a person is treated less favourably because they have attempted to assert their rights under the age legislation.

There are also specific provisions relating to retirement which will be looked at later.

What constitutes direct discrimination?

Direct discrimination can occur where a person is treated less favourably because of their age and there is no lawful justification for that adverse treatment. Note that the ability for there to be lawful justification to direct discrimination in this way is something which is unique to the age legislation – although there are some parallels in the law applying to disability.

Thus, it is unlawful for an employer to use age as a reason for:

• deciding not to employ someone,
• dismissing them,
• refusing to provide training to them,
• failing to promote them,
• paying them less or providing fewer benefits (subject to certain provisos)
• subjecting them adverse terms and conditions
• requiring them to retire before the employer’s standard retirement age or before the default retirement age of 65 without good cause.

Thus, if an employer decides not to employ someone because they are aged over 50 because they want to create the impression of having a young team, then this would be discrimination if the person over 50 was at least as able as the younger candidates who were appointed. Similarly, if an employer paid less to a 25 year old new recruit than they paid to a 40 year old new recruit merely because they were younger, this could also constitute direct discrimination.

What constitutes indirect discrimination?

Indirect discrimination occurs where an employer applies a method of selection or imposes a procedure or requirement upon a number of people the effect of which was to put at a disadvantage those of a particular age and the practice of doing so cannot be justified.

Thus, for example, if an employer made a requirement that all employees needed to have GCSEs, then this would discriminate against those who had passed through the school system before GCSEs were in existence. The same could apply to any qualification which had only existed at a certain time or even to a requirement that an applicant hold a degree – on the basis that older employees may have come through the system at a time when it was not common for degrees to be obtained in that sector.

In all cases of indirect discrimination, it is open to an employer to show that the criteria was valid. Thus, for example, if an employer placed a fitness requirement such that many people over the age of 50 were unable to comply, that would be a reasonably justified criteria provided that it was a necessary requirement for the job.

When is it lawful to discriminate?

Thus there is a limited number of circumstances in which it is lawful to treat people
differently because of their age and this can in certain circumstances apply both to direct and indirect discrimination.

The kind of circumstances where it would be legal to treat a person differently because of their age include:

• where there is an objective justification for doing so – for example, because a person of a particular age is needed to undertake work of a particular type or because the business needs to provide for a structured system of progression and succession. This would be particularly the case where substantial training was needed and the applicant would not be able to work for very long before retirement. If an employer is to rely upon objective justification the they must be able to support the claim – simply stating that it is the case will not be sufficient. Moreover, the less favourable treatment will only be capable of being justified if it is both a proportionate way of achieving the end in question and a legitimate reason. Thus if the discriminatory effect should significantly be outweighed by the benefit to the business and there must not be another, non-discriminatory means by which the same object could be achieved.
• over 65 - where a person is older than, or within six months of, the employer’s normal retirement age or if the employer doesn’t have a normal retirement age, 65
• specific exemption - where there is a specific exemption allowing employers to refuse to recruit a particular person or a person of a certain age
• exceptions and exemptions - where the discrimination related to one of situations covered by exceptions or exemptions to the regulations – for example pay related to the National Minimum Wage or where an employee has to be of a certain age by law to undertake a particular duty
• where there is a genuine occupational requirement (GOR) that a person must be of a certain age – for example, in relation to a theatrical production where a character needs to be of a particular age.

What constitutes harassment?

Harassment occurs where a person is subjected to behaviour or comments that are offensive, frightening, unpleasant or create which create an oppressive or unpleasant atmosphere within the work place. The behaviour does not have to intentionally harass the person in question – it is enough that the behaviour was objectively capable of amounting to harassment and had the effect of harassing the person subject to it.

Harassment does not have to be either a major single act nor take place over a long period of time. One incident of sufficient severity can amount to harassment as can a sequence of minor incidents, no one of which would amount to harassment in its own right.

Examples of behaviour that could amount to harassment could be the telling of ageist jokes, a culture in which people over a certain age were always called granddad, constantly treating younger colleagues as if they were children. It may not even be targeted at specific individuals but simply be the culture of the workplace.

Employers need to be aware that they may be held accountable for the actions of your employees – as well as the employees who perpetrated the harassment themselves being individually responsible. An employer may be ordered to pay compensation unless they can show that they had used their best efforts to prevent the harassment from occurring and that despite this the harassment had still occurred. Employers should also bear in mind that they can also be liable for harassment that occurs outside of the work place if it was in some way associated with the workplace, for example at a work-related social gathering or during drinks after work at a local pub.

Employers should therefore take steps to ensure that such harassment does not occur within the work force and should train staff to be aware of what kinds of activities and words could constitute harassment. There should also be in place a system whereby those who are experiencing harassment can bring it to the attention of their employer. Be mindful when looking into incidents of harassment that it is often a very subjective thing and can be the culmination of a series of incidents of which the current incident is only the final straw.

What constitutes victimisation?

Victimisation occurs when a person is treated less favourably because they have:

• made a complaint or intend to make a complaint about discrimination or harassment,
• assisted another person in making a complaint about discrimination or harassment, or
• given evidence or intend to give evidence relating to a complaint about discrimination or harassment.

The kind of behaviour which can count as victimisation takes a number of forms and can come either from colleagues or the employer. Thus if colleagues refused to sit at the same table in the canteen as them, or refuse to speak to them, or even subject them to physical or other abuse because of it, then this would amount to both victimisation and harassment. If the employer labelled them a troublemaker, passed them over for promotion or failed to give them responsibilities they would normally have given to someone in a similar position then this can also be victimisation.
If as an employer you are aware that colleagues or managers are doing this then you need to take immediate steps to ensure that it is stopped otherwise you could be held accountable for the victimisation despite it having been carried out without your authority.

Who is protected by age legislation?

Age discrimination legislation applies in almost all areas of employment – from job applications and recruitment through to dismissal, retirement and beyond. Thus a person can equally be discriminated against if they are refused a job on account of their age as they can if, having left the firm, they are denied, or receive an unfairly negative, reference as a result of their age.

The legislation applies to all employees and workers of any age and covers applicants for jobs, partners, contract workers, post-holders (for example public appointments), barristers, the police, members of the armed forces and anyone undergoing vocational training. It is irrelevant whether you are actually described as an employee or whether you have a written contract of employment. You can even be discriminated against in relation to vocational training outside of employment – for example university courses or colleges – and in relation to admission to trade association or professional body.

Age discrimination so far relates only to the work environment or to vocational training, however, and does not offer any protection in relation to the provision of goods and services.

In what kind of situations is protection offered?

Retirement

One of the main areas in which protection is offered to employees is in relation to retirement. There is still considerable controversy surrounding this provision in that many feel that it does not go far enough in protecting the rights of older workers.

The position in relation to retirement at present is that an employer must not, unless there is objective justification for doing so, compel an employee (whether male or female) to retire before the age of 65.

The national default retirement age is 65, although this is not a compulsory retirement age. It does not mean that an employer cannot set a retirement age of above 65, or indeed set a retirement age at all. They can keep employees on beyond 65 provided that they do not attempt to retire them before that age.

Employees who have reached the age of 65 have the right to request to continue to work beyond their retirement date and the employer is under a duty to give consideration to such requests. They are not under any obligation, however, to agree to such requests.

For a retirement to be fair, the employee must also be given notice of their impending retirement of their right to request to work beyond their retirement age.
There are specific time limits for the giving of this notice. The employee needs to be informed in writing of their intended retirement date and of their right to make a request to work beyond retirement age at least six months in advance of that retirement date (but no more than 12 months before. Ideally the employer should inform the employee as to how they will manage the retirement process and that the right is only to have their request considered and that it may be refused. The employer is not required to give a reason for their decision provided they have followed the correct procedure, although it may be thought to be a good working practice to do so. Failure to give the employee the correct notice may result in the retirement being regarded as an unfair dismissal.

In the event that the employee does want to continue to work, and they have been served with correct notice, then they must request to do so no less than three months before the intended retirement date.

If you are an employee and you believe that you have been unfairly retired or if you are an employer and you want to be sure that any retirements which you carry out are fair, then contact employmentlawhelp on 0844 8044 800 and we will be pleased to help you.

Redundancy procedures

An employer must ensure that if they are making employees redundant that they do not directly or indirectly discriminate against workers on account of their age. Age must not be one of the factors which the employer uses when ascertaining who should be in a pool of employees selected for possible redundancy or as a criteria for scoring employees within that pool. (See separate section on redundancy for a further explanation of pools and selection criteria).

Thus if an employer selects older workers for redundancy on the grounds that younger ones have families to look after then, even if done for the best of motives, it would nevertheless be discrimination on the basis of age. Similarly if an employer selected only people from a particular department and that department was principally staffed by older workers, then this would also be discriminatory unless the employer could show that it was that department that was principally affected by the need to rationalise the workforce.

There is also no upper or lower age limit now on entitlement to statutory redundancy pay and an employer must pay the statutory minimum redundancy payment even if the employee is under 18 or over 65.

Service related benefits

It is not uncommon for employers to want to use pay and/or benefits as a means of rewarding staff for loyalty and long service. The age discrimination legislation makes allowance for this.

Any employer can give length of service benefits to employees provided that the period of service to which this relates is not more than five years. Any employer who wants to go beyond five years must be able to justify their decision by showing that there was a business need.
Thus, if an employer finds that there are expensive training implications in losing staff to competitors, then this may be a valid reason for increasing the salaries of those who have shown loyalty to the firm.

What to do next

If an employee believes that they have been discriminated against because of their age then they may be able to make a claim in the Employment Tribunal. However, the employee should talk to their employer first to try to sort out the matter informally.

The level of proof is known as the “balance of probabilities” level of proof – that is to say a Tribunal would not need to be absolutely certain that discrimination had occurred, simply that it is more likely than not that the way a person was treated was on the grounds of their age. Having established that there are facts from which a Tribunal could decide that there had been discrimination, the burden then moves over to the employer who must then show that notwithstanding the evidence, no discrimination occurred.

Other than in exceptional circumstances, before an employee can take a matter to the Tribunal they must first raise the discrimination in writing with their employer and follow the employers grievance. Employees are allowed to serve a questionnaire on the employer. The Employment Equality (Age) Regulations 2006 provides a set form of questionnaire which an employee can use to ask questions of someone whom they believe has discriminated against them. This is a similar to provision to that in relation to the sex, race and disability anti-discrimination rules. A copy of the questionnaire form can be obtained from the web site of the Department for Business, Enterprise and Regulatory Reform.

Normally the questionnaire must be served within 3 months of the alleged discrimination (6 months if the complaint is about an institution of Higher Education or Further Education) and the employer must reply within 8 weeks. Whilst there is no statutory obligation on an employer to answer the questionnaire an employment tribunal will be entitled to draw whatever inferences it considers appropriate from a failure to answer within the time allowed or from evasive or equivocal replies. The questionnaire will not, however, replace the need to raise a formal grievance.

A complaint is made on form ET1 which you must send to the Regional Office of Employment Tribunals. You can obtain a form ET1 from a number of places including Jobcentres, the local employment tribunal or online at the Employment Tribunal web site. The complaint must be made within three months, less one day, from the date upon which the discrimination first happened or, if you have gone through the grievance procedure, six months less one day. Note, however, that an employer must be given at least one month to sort out your grievance before you can proceed to the Employment Tribunal so it is vital that you complain to your employer and start the grievance process as soon as possible.

For more information on taking matters to the Employment Tribunal see elsewhere on this web site or contact employmentlawhelp on 0844 8044 800 and we will be pleased to help you.