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Age Discrimination
Age discrimination is now unlawful in Britain. The age regulations – introduced on 1 October 2006 - cover contract workers, temporary workers, casual staff and even some self-employed staff who are taken on to do the work personally, people applying for jobs, as well as those who have left their job.
Direct discrimination
Employers cannot now refuse to employ someone, dismiss them, refuse to train them, deny them promotion or offer them worse terms and conditions on the ground of age. This is known as direct discrimination.
Unlike other equality legislation, however, direct age discrimination can be justified. Employers have to show that the less favourable treatment was necessary to achieve a “legitimate aim” and was “proportionate” to meeting that aim.
A legitimate aim could be something that makes the employer’s business more efficient, or it could be a health and safety requirement. Whatever it is, it has to relate to some real business need on the part of the employer.
Indirect discrimination
Indirect discrimination is also unlawful under the regulations. This is when an employer operates a “provision, criterion or practice” which, on the face of it, seems to affect everyone equally, but which, in reality, works to the disadvantage of a particular age group.
Like direct discrimination, indirect discrimination can also be justified by employers where the less favourable treatment is a necessary means of achieving a legitimate objective and is proportionate to meeting that aim.
Harassment
Harassment can range from serious teasing and name calling to physical abuse.
The regulations state that harassment occurs when someone is subjected to unwanted conduct which has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
Victimisation
As with other discrimination legislation, the age regulations contain provisions that prevent employers from penalising or deterring staff from bringing or getting involved with a complaint of age discrimination. So, for instance, if a member of staff gave evidence in support of someone else who brought a complaint of age discrimination, employers cannot treat that person less favourably.
This also includes issues that may arise at the end of a working relationship, such as a request for a reference.
“Duty to consider” procedure
Employers have to follow a “duty to consider” procedure if they want to retire an employee at age 65 or above, or (if they can justify it) at a lower retirement age.
This involves the employer giving between one year and six months’ notice of the retirement date to the employee. The employee can ask to stay on but must give at least three months’ notice.
If the employer does not agree to the request, they have to invite the employee to a meeting to discuss it. Employees are not entitled to a reason if it is refused, but they do have the right to appeal the decision.
Exceptions
There are extensive exceptions to the regulations, which will significantly limit their application, as follows:
- Retirement: employers are allowed to retire their employees at age 65 or above
- Genuine Occupational Requirement: this only applies if someone has to be of a certain age, for instance an actor required for a play
- Pensions: trustees and pension scheme managers can discriminate on the basis of age in certain circumstances
- Redundancy: statutory redundancy payments using age-related criteria are still lawful
- Differential wage rates are allowed if they mirror the National Minimum Wage
- Actions required by statute or regulation are exempted
- Service related benefits that require less than five years’ service are exempted, but any above that have to be justified
