On 1 October 2006 the Employment Equality (Age) Regulations 2006 come into force (now superseded by the Equality Act 2010), making it unlawful to discriminate against employees because of their age. This briefing paper sets out your rights as an employee and how to enforce them.
Have you experienced age discrimination?
Age discrimination is something which may affect every single person at some time in their career. A Manpower survey states that 36% of employees believe they have experienced age discrimination at some time. A further 43% have not applied for a position in the belief that they are the wrong age.
Effect of Discrimination on Employees
Employees, who feel that they have been discriminated against may be less productive, worried, likely to take time off and suffer from depression. This is exacerbated if they feel that their employers do not address their concerns properly or even that they are being ignored. Many employees who have not been able to resolve their problems directly with the employer will resort to a claim in the employment tribunal.
Direct Discrimination – where A treats B less favourably than he treats other persons on the ground of B’s age.
Indirect Discrimination – where A applies to B a criterion or practice which he applies to persons not of B’s age group but which puts persons of B’s age group at a particular disadvantage when compared to other persons, and puts B at that disadvantage.
Harassment – where A engages in conduct which creates a hostile, degrading, or offensive environment for B, or violates his dignity.
Victimisation – where A treats B less favourably than others because B has been involved in proceedings against A under anti-discrimination legislation, or alleged that A has contravened it.
These are subject to the provision that the discrimination could be proportionate to a legitimate aim. Proportionality involves a balancing exercise between the impact of the treatment and the aim. The aim may include health and safety, facilitation of employment planning, encouraging loyalty and training requirements. Discrimination will not be justified if there is a less discriminatory way of achieving the aim that is equally practicable.
Conduct will only be regarded as harassment if it may be “reasonably considered” as having that effect. The perception of the individual will also be taken into account.
If the allegation or information was false or not made in good faith, these provisions do not apply.
[Age Discrimination] Recruitment
Application Forms: Employers typically ask for the date of birth of applicants or for other information from which age can be guessed. ACAS (the advisory and conciliation service) is recommending that employers not to require the provision of such information on the main part of the application form. In itself this is not evidence of discrimination but you will probably want to refer to this if you believe you have not got the job because of your age
Advertisement and Job Specifications: Certain terms in the job advertisements can reveal a discriminatory intent, such as age-related traits (“maturity”, “young and dynamic”) or describing the job as “ideal first job”. Requiring a certain number of years’ experience as to oppose to the type and breadth of experience may discriminate against younger candidates. Rejecting a candidate as “over-qualified” may discriminate against an older person on the grounds of their age. Requiring the ability to “work late hours” or being “willing to socialise” may indirectly discriminate against older workers because of their outside commitments.
Case Study ( Ireland ):
In Noonan v Accountancy Connections , the employer’s requirement of a maximum of three years’ post-qualification experience amounted to age discrimination. Limiting the post to those with a maximum of 3 years’ PQE excluded most candidates over 30. The legitimate aim of employing motivated candidates could be tested with an interview. “Mere generalizations” equating length of experience with level of commitment could not be used to justify indirect indiscrimination.
Discrimination may be implied where a candidate for promotion in preference to you is given the job and no other distinguishing factor than age is apparent.
Here are some other examples of possible discriminatory actions by your employer:
If bonuses are performance -related and the employer does not adequately monitor older workers.
Promotion or training opportunities are advertised to employees of a certain length of service or age or only in an areas where such employees predominate.
Use of “experience” as a key factor in appointing new recruits higher-up a pay structure than they are entitled to be.
There are some exemptions such as Service – related benefits based on up to 5 years service if they reasonably appear to the employer to fulfil a business need and. There are also a number of exemptions in relation to pension schemes.
Case Study ( Canada ):
In Morris v Canadian Armed Forces , the respondent was ordered to promote the complainant to the rank which he had failed to get due to age discrimination, plus pay the difference in salary and special compensation. The ranking system used by the complainant had devalued the complainant’s score on the grounds that the number of qualified applicants exceeded the number of promotional opportunities available.
Dismissal on the grounds of age is a form of direct discrimination and will also form the basis of an unfair dismissal claim whatever your age.
Case Study ( Canada ):
In Larente v Canadian Broadcasting Corp., we may see the balancing exercise undertaken by the Tribunal to ascertain the real reason for the dismissal. The complainant’s employment was terminated on the recommendation of the management team who were enforcing cutbacks, and only those staff “likely to meet the challenge of tomorrow” were kept on. The Tribunals concluded that the complainant’s expertise, knowledge and 20 years’ experience enabled her to perform adequately the duties of the job and it was “more probable” that her employment was terminated because of her age.
The test for fairness: Is retirement the only reason for dismissal?
The usual test for fairness (s98(4) Employment Rights Act 1996) is modified by the regulations for retirement dismissals.
Case Study ( Australia ):
In Christie v Qantas , a pilot was retired at 60 as many countries had a “Rule of 60” whereby 60 year olds could not pilot planes. In spite of this requirement he was ruled to have had his employment terminated by reason of his age and therefore discriminated against.
If redundancy selection criteria show an age bias such as where “last in first out” is applied.
If you can show that another reason is given as a pretext for what is really an age-related dismissal the decision will be discriminatory.
Older Applicants – If the applicant has attained the employer’s normal retirement age it will be lawful for the employer to refuse to employ him. This exception only applies in relation to candidates who would come within the scope of retirement provisions. Similarly, employers who provide life assurance cover to workers who have had to retire early on ill health grounds will be able to discontinue that cover when that worker reaches the normal retirement age.
Occupational Requirements – If being of a particular age is necessary for the position, it is not unlawful.
Minimum Wage – If remuneration is based at a different rate for different ages in accordance with the minimum wage, this will not be unlawful. However, if two employees are in the same “band” of age e.g. 18-21, and are paid differently, this may form the basis of a claim.
Enforcing your rights
To the person who is doing this. However, if you feel intimidated or bullied or if this has no affect you should take out a grievance against the employer. At a grievance hearing you will have a right to be accompanied by a work colleague or certified trade union representative.
If you do not achieve a successful outcome internally you may seek redress in the Employment Tribunal . Before you put in a claim you need to have made a complaint in writing to your employer (i.e. submitted a formal grievance) and waited 28 days. In most circumstances there is a time limit of three months from the act of which you are complaining applies to the date you make your application to the employment tribunal. The complaint will be against your employer but you may also name an individual discriminator.