Age Discrimination - Do you comply?

Age discrimination has long been recognised as being a problem in society, particularly in relation to older workers who may find it difficult to find employment.

New regulations, the Employment Equality (Age) Regulations 2006, came into force on 1 October 2006 outlawing age discrimination. They protect employees, job applicants and a host of other individuals within the employment field from discrimination in relation to recruitment, terms and conditions, promotion, training and dismissal.

The Regulations make it unlawful to discriminate directly, indirectly, harass or victimise employees on the grounds of age (which covers the individual’s perceived age, as well as his or her actual age).

Direct Discrimination

Direct discrimination occurs where, on the grounds of age, the employer (A) discriminates against the employee (B) by treating B less favourably than he treats or would treat other persons and A cannot show he has sound (and proportionate) business reasons for the discrimination.

The protection from direct discrimination, on the grounds of age, is likely to assist those individuals who believe their age is a barrier to them obtaining employment or progressing their careers – either because they are too young or too old. Employers must be aware of this in respect of advertisements, application forms and criteria used in promotion and training opportunities. References to age need to be avoided as do age-related terms, such as ‘dynamic’, ‘experienced’ and ‘lively’.

Indirect Discrimination

Indirect discrimination occurs where the employer (A) applies to the employee (B) an age neutral provision, criterion or practice, which puts or would put persons of the same age group as B at a disadvantage, and B is put at that disadvantage. If A cannot objectively justify this (by reference to a legitimate and proportionate aim), indirect discrimination will be established. For instance, having to have a certain number of years’ experience to apply for a post may indirectly discriminate against younger workers.

Clear evidence is likely to be required when attempting to justify a practice which disproportionately affects a certain age group. Employers will have to think carefully (and laterally) when considering their actions, policies and decisions during the employment relationship.

Harassment

Under the Regulations, a person (“A”) subjects another person (“B”) to harassment where, on the grounds of age, A engages in unwanted conduct which has the purpose of effect of violating B’s dignity; or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. An objective test is applied although the perception of B will be taken into account. An unusually sensitive employee may not be able to establish harassment.

The employer will be responsible for the acts of its employees which are committed during the course of employment. This is the case whether or not those acts have been done with the employer’s knowledge or approval.

Therefore employers should ensure, so far as is reasonably practicable, that discrimination in the workplace is not tolerated, whether that be office ‘banter’ or more serious forms of harassment. Existing equal opportunities policies should be amended to include reference to age and managers and employees should be made aware of the policies and should be given training on the relevant issues. Refresher training should be given from time to time.

Where an employer can prove that he took such steps, as were reasonably practicable to prevent an employee from committing a discriminatory act, then he will have a defence to a discrimination claim.

Exceptions

The Regulations contain a number of exceptions where age discrimination will be permitted such as statutory authority, national security; positive action; payments in accordance with the national minimum wage legislation; enhanced redundancy payments; and life assurance cover for retired workers. Benefits based on length of service are also allowed although there must be some justification for service based benefits which require more than five years’ service. For instance, encouraging the loyalty or motivation of workers.

The employer will also be exempt from the Regulations if an employee is dismissed due to retirement, provided the employee is 65 or over. However, it will be unlawful to retire an employee below the age of 65 unless it can be objectively justified.

Retirement

An employer will also be under a duty to consider requests to stay beyond retirement and the Regulations set out the procedure which must be followed in order to fairly retire an employee. Where an employer fails to comply with the ‘duty to consider’ procedure, the employer can be ordered to pay the employee compensation not exceeding eight weeks’ pay. A week’s pay is subject to the statutory maximum, currently £290.

There are also transitional provisions in respect of those employees whose intended date of retirement falls before 1 April 2007. Employers should seek legal advice if faced with this situation.

Importantly, the upper age limit for bringing an unfair dismissal claim (currently, the normal retirement age or the age of 65) is removed by the Regulations. Where there has been a failure to follow the notification procedures, the dismissal will be unfair and the employee will be entitled to a minimum basic award of four weeks’ pay, unless the Tribunal believes this will result in injustice. Therefore, in order to dismiss an employee fairly for retirement, the procedures must be followed.

Compensation for age discrimination will be unlimited and a successful claimant will be able to claim injury to feelings as well. This could prove very costly.

 Clearly, the Age Regulations will have a significant impact on the workplace from the job application to the termination of employment. Behaviour and policies within the workplace will have to be considered and changed if necessary. With the Regulations coming into force in just a few months, employers are advised to act now in order to be prepared.

For more information on this subject or other employment issues, please contact David Gibson on 0191 233 9762.

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