Age Discrimination Regulations
Introduction
The Employment Equality (Age) Regulations came into force on 1st October 2006.
These age discrimination regulations make it unlawful to discriminate against workers, employees, job seekers
and trainees on the basis of their age.
Employers are warned that employees who feel they are subject to age discrimination,
harassment or victimisation at work may be unhappy, less productive and less motivated;
resign or make a complaint to an employment tribunal. Above all, employers are
advised that such action may result in damage to reputation, the need to make payments
in compensation and an increase in costs due to a high employee turnover.
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Direct Discrimination
The age discrimination regulations make it unlawful to treat someone less favourably than another
because of their age, unless objectively justified. This applies to decisions
whether or not to employ someone, dismiss them, provide them with training,
promote them or give them normal or adverse terms and conditions of employment.
Employers are not permitted to retire an employee before usual retirement age
without an objective justification.
Indirect Discrimination
Employers are not permitted to apply a criterion, provision or practice which
disadvantages people of a particular age unless it can be objectively justified.
Objective justification could include fixing a maximum age for the recruitment
or promotion of employees (a maximum age could reflect training requirements
or the need for a reasonable period of employment before retirement).
Where a person is older than, or within six months of, normal retirement age,
the employer is exempt from objective justification for refusing to recruit
that person.
Exemptions and exceptions listed in the regulations apply to certain discriminations
- for example pay related to the National Minimum Wage.
A Genuine Occupational Requirement (for instance, a minimum legal age for a
barman) that a person must be a certain age is classified as objective justification.
Harassment
Harassment at work includes behaviour that is offensive, frightening or in any way distressing.
It may be intentional bullying which is obvious or violent, but it can also
be unintentional, subtle and insidious. Harassment at work may involve nicknames, teasing, name
calling or other behaviour which is not with malicious intent but which is upsetting.
It may be about the employee's age or it may be about the age of those with
whom the employee associates. It may not be targeted at an employee in particular
but consist of a general culture which, for instance, appears to tolerate the
telling of ageist jokes.
An employer may be held to be responsible for the actions of its employees,
as well as the employees being individually responsible. If harassment occurs
at a time associated with the workplace - even at a work-related social gathering
- the employer may be held to be liable. Given that harassment at work can be unintentional,
employers are advised to brief managers and supervisors to be aware of and deal
with any potential problems in a quick and sympathetic manner.
Victimisation
Victimisation at work occurs when an individual is treated detrimentally because they
have made a complaint or intend to make a complaint about discrimination (including age discrimination) or
harassment at work or have given evidence or intend to give evidence relating to a complaint
about discrimination or harassment. Being labelled as a 'troublemaker' or ostracism
from a group can constitute victimisation. Employers may be held liable for
any victimisation which occurs in the workplace.
Retirement
The age discrimination regulations set the default retirement age at 65. Employers can derogate
from this age - either upwards, or downwards if there is objective justification.
They also remove age limits at which employees can claim for unfair dismissal
and/or redundancy payment, unless there is a genuine retirement.
Employees have the right to request to work beyond the age of 65, and employers
have a duty to consider such requests. They are not under an obligation to retain
the employee, nor give a reason for turning down such a request.
Post-work
It is unlawful for an ex-employer to discriminate an ex-employee on the basis
of age after the employment relationship has ended. It covers issues such as
references either verbal or written.
"Proportionate Means"
- The means must contribute to the pursuit of the legitimate aim
- The importance of pursuing the legitimate aim must be weighed up against its
discriminatory effect
- If the aim can be achieved by a method that is less discriminatory, this method
should be used.
