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The Employment Equality (Age) Regulations 2006 come into force on 1 October 2006. They apply in England, Wales and Scotland. Similar provisions contained in the Employment Equality (Age) Regulations (Northern Ireland) 2006 will apply in Northern Ireland.
The Regulations apply to all employment and vocational training. They do not extend to education (apart from vocational training) nor to the provision of goods and services.
Who the Regulations apply to
Discrimination
Exemptions
Vicarious Liability: responsibility of
employers and principals
Positive Action
The duty to consider working
beyond retirement
Dismissal: age discrimination and unfair dismissal
Unfair dismissal and
redundancy compensation
The Regulations apply to 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 where they are personally engaged to do the work.
The Regulations apply to anyone who is in employment, those applying for jobs, and those whose employment has terminated.
There is no service requirement in discrimination cases, so a worker is protected from their first day at work, or prior to their employment if they are discriminated against in their application for employment.
Vocational training is covered by the Regulations, defined in terms of all types and levels of training “which would help fit a person for any employment”. Other types of vocational training, such as practical work experience, are also covered. Higher and further education institutions are covered in relation to the terms on which students are admitted and their access to benefits.
As with other discrimination legislation, the activities of trade unions fall within the Regulations. A union is subject to the requirements of the Regulations both in relation to its own staff and also in relation to its members: their application for membership, the benefits they receive and any other service or aspect of membership.
Unpaid office holders, such as members of boards, MPs, councillors and serving members of the armed forces are excluded.
The Regulations apply to employment or work “at an establishment in Great Britain”. This includes situations where the work is carried out entirely or partly in Great Britain, and also situations where the work is entirely outside but where:
• the employer has a place of work in Great Britain
• the work is for the purpose of the business carried on at that establishment, and
• the employee is ordinarily resident in Great Britain when they apply for or are offered the employment, or at any time during their employment.
As with other equality legislation, this is likely to be interpreted by employment tribunals as covering people only working in Great Britain for limited periods of time.
The Regulations make it unlawful to discriminate directly or indirectly, on the grounds of age, and also to harass or victimise a person.
Direct discrimination occurs when a person is treated less favourably than another on grounds of age. This involves a comparison between how the claimant has been treated, and how a person of a different age (“the comparator”) has been or would have been treated.
The Regulations cover treatment based on a perception of someone’s age, even if their actual age is not known, or an assumption made about a person’s age is incorrect.
Proving that a person has been treated less favourably than another on the grounds of age may be difficult.
Recruitment processes that state or imply that people of a certain age are more welcome than others are relatively straightforward to challenge. In a recent Irish case, Ryanair lost an age discrimination claim when they advertised for “a young and dynamic professional”. Their defence that the word “young” was intended to refer to energy and dynamism rather than age, was unsuccessful1 .
But discrimination is rarely so obvious. It often arises as a consequence of stereotypical assumptions about characteristics associated with age: that an older person will be unsuitable for a dynamic role or is likely to take increased sick leave; that a younger person is not reliable.
One of the key distinctions between direct discrimination on grounds of age and direct discrimination on the grounds of, for example, gender or race, is that an employer can lawfully justify direct age discrimination. To do this, the employer must show that the treatment was necessary to achieve “a legitimate aim” and that it was “proportionate”. A legitimate aim must be shown to correspond with a real need on the part of the organisation, and is appropriate and necessary for achieving that aim.
It is likely that the justification defence could include economic and budgetary factors but discrimination will not be justified simply because it is more expensive not to discriminate.
Indirect discrimination applies to a policy or practice, which on the face of it has nothing to do with age but which, in its practice, operates to the detriment of people of a particular age group.
Examples of working practice that may impact on groups of one age rather than another include:
• service related benefits, such as service related holiday or notice entitlement, which generally will favour older workers at the expense of younger worker
• a requirement for IT qualifications which are likely to be more common in younger workers than older
• flexible hours or shifts, which may impact on people in their 30s and 40s who have child care commitments.
Defining the age group is the first step. The Regulations say this means a group of persons defined by reference to age, whether by reference to a particular age or a range of ages.
The Government’s consultation document uses the example of a business requiring applicants for a courier job to have held a driving licence for five years. This, the document says, could be discriminatory because more people aged, for example, 40 will fulfil this requirement than those aged, for example 25.
The key issue with this example, as with indirect age discrimination generally, will be whether or not the policy can be justified. It is likely that employment tribunals will interpret justification similarly for both direct and indirect discrimination, given that the structure of the Regulations uses the same definition for both.
The Regulations define harassment as occurring where, on grounds of age, a person subjects another to unwanted conduct which has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
This definition covers a broader range of conduct than might commonly be associated with harassment. The sorts of stereotypical conduct, comments or banter that associate older people with incompetence, ill-health, or inability to cope with technology, may well be regarded as humiliating or contributing to an offensive environment. Likewise, conduct or comments that associate younger workers with unreliability or irresponsibility may fall foul of this definition.
Assessing whether or not unlawful harassment has taken place involves an objective test. This means that it would be for a tribunal to assess whether or not the conduct fell within the description of harassment in the Regulations, though particular regard has to be paid to the views of the victim.
Victimisation applies where someone is treated less favourably because they have brought age discrimination proceedings against their employer, given evidence at proceedings or simply alleged age discrimination.
The individual is protected even if the allegations of age discrimination turn out to be untrue. This is unless the allegations that are made are not only untrue but were not made in good faith.
Extensive exemptions apply to the Age Regulations which significantly limit their application.
The exemption in relation to recruitment over normal retirement age applies where 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 as at the date of their application for the job).
In these circumstances, a person is not protected by the Regulations if they are refused a job on grounds of their age.
This exemption only applies to employees, so does not apply to the broader concept of worker.
The exemption only applies to the recruitment process itself. Once a person over the normal retirement age is appointed, then the Regulations apply to ensure that they are not treated any less favourably in their terms and conditions or treatment at work on grounds of their age.
The Regulations will not apply where the employer can show that there is a genuine reason, to do with the nature of the job, which requires the recruitment of a person of a certain age.
There will be very few circumstances where age can be a valid occupational requirement for a job. The example that is usually used is where an acting part requires an actor of a particular age.
Differential wage rates for younger people, reflecting the national minimum wage provisions, are exempted from the Regulations.
Service related benefits, such as holiday entitlement or pay linked to length of service, are potentially indirectly discriminatory on grounds of age in that younger workers are less likely to be able to benefit from them than older workers.
But because service related benefits are very common, and in addition are generally regarded by both employers and employees alike as a useful way of rewarding service, the Regulations set out an overarching justification for these benefits.
Any benefits that depend on less than five years’ service are specifically exempted from the Regulations. But where the benefit is dependent on more than five years’ service, the employer has to show that it reasonably appears to them that the provision of the benefit fulfils business needs, for example by encouraging loyalty and motivation or rewarding experience.
This exemption relates to service and not age-related benefits. So if, for example, an employer offers a benefit for workers over a certain age, that is a directly discriminatory benefit (which may or may not be justified) and not an indirect service related benefit. This exemption will not therefore apply to it.
The Regulations follow the pattern of the other discrimination laws, so that an employer will generally be liable for any discriminatory acts of their staff.
This, though, is subject to the defence where the employer can show that they “took such steps as were reasonably practicable” to prevent the discrimination from taking place. In these circumstances, the employer may succeed in establishing the defence, though a claimant may still have a case against the individual member of staff.
Positive action is lawful. Positive discrimination is not.
The Age Regulations allow for an employer, training provider, or trade union to grant a certain age group or groups access to training or encouragement to take advantage of opportunities to do work, where people of that age group are disadvantaged in relation to work because of their age.
For example, where older people within an organisation have less experience of IT, an employer would be allowed to target training at them. If there is no evidence of disadvantage, such targeted training cannot be done.
These provisions only extend to providing access to facilities for training and encouragement to take advantage of opportunities for doing work. An employer cannot appoint someone to a job, or positively discriminate in any other way, simply by virtue of a particular age group being underrepresented.
A trade union can lawfully take steps to encourage people of a particular age group to join the union where that group is disadvantaged for reasons linked to age.
A union can also encourage members of a particular age group to undertake training to help fit them for a post within the union, or encourage them to take advantage of opportunities for holding such posts, where they have been disadvantaged by reason of age.
The Regulations create a new right. When an employee is approaching normal retirement age they have the right to request that their employer allow them to continue working beyond retirement age.
The right is only one of request and the employer is under no obligation to grant the request, or even to provide reasons why it has been refused. The right is also only available to employees, not the broader category of workers. The process that has to be followed is set out below.
(i) An employer who intends to retire an employee must notify them in writing between six and 12 months before the intended date of retirement of:(a) their right to make a request to continue working beyond retirement, and
(b) the date on which it is intended that the retirement take place.
This duty to notify applies whether or not similar notification already exists in the employee’s contract of employment or elsewhere.
(ii) If an employer fails to notify the employee within six months of the retirement date, there is still an ongoing obligation to notify, in writing, no later than 14 days before the retirement date.
(iii) Where the employer has notified of the right to request, and the request is made and granted and a different retirement date no more than six months after the original date is agreed, the employer does not have to re-notify about the new date.
(iv) If an employer fails to notify but the employee has reasonable grounds for believing that they are going to be retired, then they have the right to make a request anyway.
(i) The employee’s request must be in writing, and state:
(a) That they want a different retirement date (usually later);
(b) That they are exercising their statutory right to request under by the Age Regulations, and
(c) The date they want the employment to continue until, which can be a date or period, or simply indefinitely.
(ii) An employee can only make one request in relation to each intended date of retirement.
(iii) The request must be made between six and three months before the intended retirement date where the employer has given between 12 and six months’ notice. Where the employer has failed to give notice, the employee simply has to make the request before the intended date of retirement.
The meeting
(i) Unless the employer and employee reach agreement about a revised retirement date, the employer must arrange a meeting to discuss the request within a reasonable time of receiving it.
(ii) Both employer and employee must take reasonable steps to attend the meeting.
(iii) If it is not reasonably practicable to hold a meeting within a reasonable time period, the employer may consider the request without a meeting, providing they consider all representations made by the employee.
(iv) The employer must notify the employee in writing of their decision as soon as is reasonably practicable.
(v) If the employer rejects the request, or grants it but for a shorter period of time than requested, then they must notify the employee of the intended retirement date, and of their right to appeal.
Where a request is rejected or a shorter period of continued working is allowed than was asked for, the employee may appeal. The appeal must be submitted as soon as possible after notification of the decision. The process to be followed by both employer and employee is similar to the process that has to be followed in relation to the original right to request.
The employee has the right to be accompanied by a colleague of their choice, (who must be employed by the same employer) to the request meeting and the appeal. The companion can address the meeting and confer with the employee, but cannot answer questions on behalf of the employee.
If the companion is unable to attend the meeting on the date that has been fixed, then the employer must postpone the meeting, providing that the alternative time proposed is convenient to all parties and is within seven days of the first meeting date.
The companion has the right to paid time off in accordance with the usual provisions for time off for union activities.
Where an employer dismisses the employee prior to notifying them of their decision following a request, the employment will be deemed to continue until the day after the notice has been given.
If an employer fails to notify the employee of their right to request within six to 12 months prior to the intended date of retirement , the employee has the right to pursue a tribunal claim.
This must be done within three months of the employer’s failure. If the employment tribunal upholds their claim, they are entitled to a maximum of eight week’s pay (with the week’s pay capped at the standard statutory limit, currently £290).
Where the employer has failed to allow a companion to attend a meeting, a tribunal may award up to two weeks’ pay, again capped at the statutory limit.
The Age Regulations impact on dismissals in two ways. Firstly a dismissal for an age-related reason may amount to a breach of the Age Regulations themselves. Secondly, it may amount to an unfair dismissal.
Dismissal, by reason of an employee reaching retirement age, potentially amounts to direct age discrimination requiring justification. However, there is a significant exemption that excludes the operation of the Regulations where the termination is due to “retirement” at or over the age of 65 (“the default retirement age”).
“Retirement” is defined in the Regulations as follows:
• Where there is no normal retirement age, and the dismissal occurs when the employee is aged over 65. Here the dismissal will be by way of retirement providing the employer had provided notification to the employee of their right to request working beyond 65 between 12 and six months before that date; or
• Where there is a normal retirement age and the dismissal takes place when the employee is aged over that normal retirement age. Again, in these circumstances the dismissal will be by reason of retirement providing due notification is given of the right to request.
This default retirement age amounts to a broad exemption that operates more or less regardless of the circumstances, providing the employer shows that the employee is aged 65 or over, a “retirement” has taken place and due notice of the right to request is given.
On the other hand, where a dismissal is due to retirement under the age of 65, or where the employer cannot show that they have given due notice of the right to request, then the dismissal may be directly discriminatory requiring justification if it is not to be unlawful.
The bar has been removed on bringing unfair dismissal (or redundancy) tribunal claims by people who have reached normal retirement age (or 65 if none). This means that any employee who is dismissed over the age of 65 can now bring an unfair dismissal or redundancy claim.
However, the circumstances in which a person aged over retirement age (or 65 if none) are limited.
If the employer can show that the reason for dismissal is retirement and.they have complied with their duty to notify, then the dismissal will be automatically fair.
If, however, the employer cannot show that the dismissal is a retirement, then the dismissal is likely to be unfair. And where the employer has failed to notify the employee of their right to request to work 14 days prior to the termination date (as opposed to within the 12 to six-month timescale), or has failed to consider the request at a meeting or failed to consider an appeal, then the dismissal will be automatically unfair.
If the employer has failed to notify within the 12 to six-month timescale, but has notified within 14 days of retirement, the dismissal is not automatically unfair but the employee will still have the separate tribunal remedy for the failure to notify in time, so attracting compensation of up to eight weeks’ pay.
What is remarkable by its absence is any right to claim unfair dismissal where the employer unreasonably dismisses an employee or rejects a request to continue working. Where the employer can establish that retirement is the reason, and complies with the basic duty to notify procedure, there is no sanction at all in the Regulations in relation to the dismissal or the refusal of the request.
The tapering reduction for calculating the basic award for unfair dismissal and redundancy payments, depending on proximity to retirement age, is removed by the Regulations. But the age-related factors for calculating the statutory basic award and redundancy calculation remain: half a week, one week and one and a half weeks depending on age. Likewise the service related factor (up to a maximum of 20 years) remains.
Providing the same structure is used to calculate contractual redundancy terms as for statutory redundancy terms (even though the amounts may be higher) then these contractual terms will be lawful without the need for employers to justify them.
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