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Ask Employment Law |
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Remember: There is no substitute for legal advice on the actual
situation you find yourself in. The information posted on this site is for general
information only, is based on |
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Question: |
Is Age Discrimination unlawful? |
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Answer: |
The Employment Equality (Age) Regulations came into force
on the 1st October 2006, finally making discrimination on the
grounds of age unlawful. These provisions will be covered under the Equality
Act 2010 from the 1st October 2010. In Brief: ·
Age related discrimination and harassment outlawed ·
Indirectly discriminatory acts covered ·
Default retirement age of 65 imposed ·
Right to request to work beyond retirement age ·
Right to claim unfair dismissal beyond normal retirement age Direct
Discrimination: It is unlawful to discriminate to treat a person less
favourably by reason of that person’s age. For example: ·
Asking for someone’s date of birth on the job application form will be
lawful as long as you can justify the reason for asking for it, for example
to establish the normal retirement date. ·
A job advert asking for applications from people aged between 25 and
35 would be unlawful for the bulk of occupations. ·
Rejecting someone for a job because of their age will be
discriminatory. ·
Denying an employee a promotion, either because they are too old or
too young will normally be rendered unlawful. ·
References to a ‘young and vibrant’ sales team in a job advert is
likely to be age discriminatory. Indirect
Discrimination: It is unlawful to apply a criterion that applies equally
to all people regardless of their age but which puts people of a certain age
group at a disadvantage unless you can show that that practice is ‘proportionate
to achieve a legitimate aim’. Some Examples: ·
A job advert invites applicants with between 3 and 7 years experience.
A greater proportion of older applicants are going to have 7+ years
experience. Is there any legitimate reason for excluding people with over 7
years experience? Probably not. ·
The employer requires all job applicants to undergo a health and
fitness assessment, rejecting applicants who do not attain a certain level of
fitness. This requirement will adversely affect a greater proportion of older
applicants. This may be a legitimate requirement for a sports instructor, or
a fireman, but not for someone employed to sit behind a desk all day tapping
away at a computer. ·
Employment related insurance is likely to be covered. Therefore if an
employer only offers death in service benefits to employees subject to
passing a health test or on the basis of age, this may well be discriminatory
unless it can be objectively justified. ·
Selection for redundancy on the grounds of proximity to retirement age
is also likely to be discriminatory. However it is at least arguable that it
would be proportionate to achieve a legitimate aim if the employer needs to
ensure that in future a disproportionate number of employees with similar
skills all retire at roughly the same time. Instructions to
Discriminate: It is unlawful to discriminate against an employee for
refusing to discriminate against another on grounds of age. For example: The CEO tells the HR Manager to make sure he
does not employ any old fuddie duddies. The HR Manager refuses to
discriminate by reason of age and the CEO strips him of his share options as
a result. This will then be unlawful under the regulations. New Employees: Employers can still turn down job applicants on the
grounds of their age if: ·
If they’re already older than the normal retirement age ·
If they’d reach their normal retirement age within six months of the
job application So if a job applicant was aged 64 and two months when they
applied for a job with you, it’d still be unlawful to reject them on the
grounds of age. Nb. Don’t turn people down (for
example) due to ‘lack of flexibility’ if that assumption is made on the basis
of the applicant’s age as this will also be discriminatory. Age Related Benefits: It is lawful to impose length of service related
employment benefits. For example: ·
A contractual entitlement to additional days holiday per annum linked
to length of service. ·
Service related contractual sick pay Where the employee’s length of service exceeds five years,
it must reasonably appear to the employer that the length of service
criterion fulfils a business need (such as encouraging loyalty or motivation,
or rewarding experience) Enhanced redundancy
payments: Enhanced redundancy payments calculated in relation to
length of service are still lawful. An example of this would be when the
employer gives a full weeks pay for each full year worked. Harassment: Harassment on the ground of age is unlawful. This is where
a person’s dignity has been violated; or that he or she has been subject to
an intimidating, hostile, degrading, humiliating or offensive environment. In order to determine whether either of the situations
specified above exist, a tribunal will have regard to all the circumstances,
including the employee's perception and also whether it is reasonable to
consider the offending conduct as having either effect. For example: ·
Persistent jokes about a colleague based on their age will amount to
harassment. ·
A jokey birthday card could conceivably amount to harassment, however
the test is not an entirely subjective one; in other words it has to be
reasonable to consider the card to violate a persons dignity (etc) For most people in most organizations, this will simply be
a matter of common sense. However in some organizations in which youth is
considered a premium, for example in some City trading environments or sales
teams, a culture of harassment on the grounds is sometimes almost encouraged
by management. Such organizations will have to radically shift their approach
to age in the work place. Victimisation: Victimisation of an employee for a reason connected to the
regulations is unlawful. For example: ·
Mervin raises a grievance claiming he was passed over for a promotion
because he was too young. His grievance is rejected but he then finds that
his bonus is slashed because he is considered to be a trouble maker. In this
case, Mervin would be able to claim victimization as a result of bringing
this complaint, even though his original complaint was unfounded as long as
he brought it in good faith. Genuine Occupational
Requirements: Genuine Occupational Requirements (GORs) apply where an
employer is entitled to use an age requirement: ·
this is a genuine and determining occupational requirement; and ·
it is proportionate for the employer to apply the requirement. For example: ·
In the acting profession, a young actor may be able to play an older
character with a suitable application of make up, but an older actor is
unlikely to get away with playing a callow youth. ·
A 60 year old ‘youth worker’ may not be able to relate so well to a
spotty 13 year old although again this exception may prove hard to justify. Positive Action: It is lawful to give people of a particular age group
access to facilities for training which would help fit them for particular
work (ie giving 40 + applicants guidance in how to do interviews) It is lawful to encourage people of a particular age group
to take advantage of opportunities for doing particular work (ie advertising
in ‘the Oldie’ magazine) It won’t however be lawful to set out to recruit more
people from a particular age group because they are under represented in your
work force. Occupational Pension
Schemes: Occupational pension schemes will continue largely the
same as before, although there are complicated subsidiary regulations dealing
with this in detail. It will be unlawful for pensions administrators to
discriminate on the grounds of age in the admission of members to the scheme A schedule to the regulations contains a full list of
age-related rules or practices in occupational pension schemes that are
effectively exempted. Minimum and maximum ages for admission to the scheme
and a minimum period of employment will still be lawful. Working Beyond The Retirement Age: Employees have the right to ask to work beyond their
normal retirement age, however employers are not obliged to agree. See www.askemploymentlaw.org.uk/6.htm
Getting It Wrong:
Unfair Dismissal Claims: Dismissals at age 65 or over is fair when the reason for
dismissal is retirement. The employee will be regarded as unfairly dismissed if and
only if there has been a failure on the part of the employer to comply with
the following provisions: ·
Notification of retirement ·
Duty to consider employee’s request not to be retired ·
Duty to consider appeal In other words, if you go through these hoops, but still
decide to bring the employee’s employment to an end by reason of retirement
at age 65, then the employee will not have been unfairly dismissed. Getting It Wrong:
Discrimination Claims? It does not appear that it would be possible to bring a
claim of age related discrimination on the grounds that someone’s employment
had been ended by reason of retirement. However it might be able to rely on other discrimination
legislation. For example a claim could be brought under the Sex
Discrimination Act if more women than men were allowed to continue working
after their sixty fifth birthday. Consistency is extremely important. If an employer
consistently refuses the request to work beyond the normal retirement date,
then this would not appear to be open to legal challenge. If the employer
agrees to some employee’s requests (but not others) then there may well be
more scope for a legal challenge. Getting It Wrong:
Other Penalties: ·
If the employer fails to notify the employee of the right to ask to
work beyond the normal retirement date, a Tribunal may award a sum not
exceeding 8 weeks pay ·
If the employer is denied the right to be accompanied at the meetings,
a Tribunal may award up to 2 weeks pay. What to do now: The basic check-list for employers is: ·
Update your equal opportunities policy and staff handbook ·
Check and update your other policies with care to ensure that they are
not indirectly discriminatory. ·
Check the requirements of any benefits you offer. ·
If you’re standard retirement age is not already sixty five, either
change it or consider very carefully
why a lower retirement age is justifiable. ·
Get your occupational pension administrators to review your scheme in
the light of the new regs. ·
Put the systems in place to ensure that you inform staff in good time
of their right to ask to work beyond their normal retirement age ·
Start training your staff, especially in HR, senior managers and
recruiters now. For some at least, the new regulations will require a
complete change of the working culture. See also our page on the Equality Act 2010 Last updated: July 2010. |
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Employment
Solicitor Reculver Solicitors Tel
0207 324 6271 Regulated
by the Solicitors Regulation Authority ©
Reculver Solicitors. 2005- |
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