Age Discrimination Advice for Lawyers and Businesses

Contents

A Summary of the Regulations
To Whom do They Apply?
Those Who are Protected
Those Not Protected
What Do The Regulations Say?
Obvious Examples of Behaviour Covered under the new Act

Direct Discrimination
What May Constitute Direct Discrimination
Recruitment – Advertising /Job Descriptions/ Training/Pay

Retirement
Notification
Request not to Retire
Duty to Consider Request to Stay On
The Decision
The Appeal
Fairness of Retirement Dismissals
Transitional Period

Justification
The Legitimate Aim

Burden of Proof
Territorial Jurisdiction

Indirect Discrimination

Harassment
Victimisation
A Protected Act

In What Instances are Otherwise Discriminatory Acts Lawful Under the Regulations?
Pension Exemptions

Practical Steps for Businesses
Introduce Flexible Policies
Diversity Policies - Training Staff about What may Constitute Harassment
Positive Action
Recruitment
Pay/Terms and Conditions
Handling Retirement
Redundancy
Business Checklist

Introduction

The Irish introduced age discrimination provisions through the Employment Equality Act as far back as 1998 and since then age discrimination cases have constituted 25 percent of all discrimination claims reaching a tribunal. With unlimited awards in discrimination cases being promulgated and claims to employment tribunals up on this side of the water, businesses and practitioners have every reason to keep one eye the new law. What follows is a general summary of the new Age Discrimination Regulations with commentary.

Many commentators have hailed the emergence of age discrimination law in this country as an attempt to tackle the last area where employers have been able to unfairly discriminate in the workplace. Furthermore, this battleground will become more relevant to all of us as the proportion of the population aged over 65 increases. A 2001/02/14 DfEE Press Release stated that, ‘there are around 19 million people aged 50 and over in the UK, that constitutes 40% of the adult population’. By 2006, 45 to 59 year olds will become the largest single group in the workforce, by 2010, in the UK over 40% of everyone aged 16 and over will be aged over 45 and by the mid 2030’s well over a third of the workforce will be over 50. Older people will become an ever more significant proportion of the population and society will need to protect them as we depend increasingly on their contribution.

The new regulations, however also protect those younger workers who for example, find that older workers are being rewarded unfairly on the sole basis of their age. Some surprising suggestions as to what may fall foul of the new law have been put forward and are discussed below.

A Summary of the Regulations

To Whom do They Apply?

The Regulations apply to all employers, private and public sector vocational training providers, trade unions, professional organisations, employer organisations and trustees and managers of occupational pension schemes and crown-appointed (including unpaid) office holders (N.B. Reg 30 provides that a dismissal for retirement will not constitute age discrimination provided that the employer observes the retirement procedure set down in Schedule 6 to the Regulations. This provision, which renders lawful an otherwise discriminatory dismissal, only applies in relation to employees as strictly defined by S.230 ERA, a person in Crown employment, and relevant members of the House of Commons and House of Lords staff).

Those Who are Protected

Employees, those on fixed term contracts, job applicants, self employed such as barristers, members of trade unions, anyone in vocational training, persons applying for a place on a vocational training course or persons applying to become members of trade organisations, police officers.

Those Not Protected

Members of the armed forces and unpaid volunteers

What Do The Regulations Say?

The Regulations make it unlawful on the grounds of age to:

• Discriminate against anyone i.e. treat them less favourably than others because of their age, unless objectively justified.

• Discriminate against them indirectly against anyone i.e. to apply a criterion, provision or practice which disadvantages people of a particular age unless it can be objectively justified.

• Subject someone to harassment i.e. to conduct that violates a person’s dignity or creates an intimidating, hostile, degrading humiliating or offensive environment for them having regard to all the circumstances including the perception of the victim.

• Victimise someone because they intend to make a complaint or give evidence in relation in relation to a complaint of discrimination on grounds of age.

• Note: Employers can be liable for acts of employees who discriminate on grounds of age and so training staff about the regulations is vital.

• Upper age limits on unfair dismissal and redundancy will be removed.

• The natural default retirement age of 65 is introduced which means the compulsory retirement age of below 65 unlawful unless objectively justified.

• The employer has to consider any request by a worker to work on past 65.

Obvious Examples of Behaviour Covered under the new Act

1. Subject to a defence of objective justification, discrimination by an employer or other person or body covered by the Regulations is unlawful if it relates to one of the following matters:

• the arrangements an employer makes for the purpose of determining to whom he should offer employment
• refusing to offer, or deliberately not offering, a person employment, or the terms on which employment is offered
• the terms afforded by an employer to a person in employment
• the opportunities the employer affords (or refuses to afford) the person for promotion, a transfer, training, or the receipt of any other benefit
• dismissing the person, or subjecting him or her to any other detriment.

Obvious examples of such discriminatory conduct are:

1. Noting in a job specification that the post must be filled by a person of a particular age.

1. Refusing to offer, or deliberately not offering, a person employment, or the terms on which employment is offered, it may be possible, as with the other strands of discrimination, to prove facts from which an inference of discrimination can be drawn  Reg 7(1)(a)(c)

1. The terms afforded by an employer to a person in employment  Reg 7(2)(a)

1. The opportunities the employer affords (or refuses to afford) the person for promotion, transfer, training, or receiving any other benefit: this would cover the situation where an employer withdraws access to training or benefits, such as offering life insurance, from workers over a certain age  Reg 7(2)(b) and (c)

1. dismissing the person, or subjecting him or her to any other detriment  Reg 7(2)(d).

Direct Discrimination

The most important difference is that, unlike all other forms of discrimination, direct discrimination on the ground of a person’s age can be lawful if it constitutes a proportionate means of achieving a legitimate aim. Direct discrimination occurs where, on the ground of an employee’s age, the employer treats him/her less favourably than he treats or would treat other persons Reg 3(1)(a). This involves examination of someone in the same relevant circumstances as the employee Reg 3(2).  NB Reg 3(3)(b) makes it clear that discrimination of the ground of a person’s age applies to those cases where the person is discriminated against on account of a mistaken belief of age.

Once the discriminator has demonstrated the existence of a legitimate aim he/she must then show that the provision, criterion or practice was proportionate. The ECJ has explained that such proportionality requires that the means used to achieve an aim must not exceed the limits of what is appropriate and necessary to achieve that aim e.g C-157/96 R v Maff ex parte NFU [1998] ECR I-1211.

What May Constitute Direct Discrimination

Recruitment – Advertising /Job Descriptions/ Training/Pay

Job specification criteria accompanying advertisements and the way in which potential job applicants are targeted may constitute ‘arrangements an employer makes for the purpose of determining to whom he should offer employment’ under Reg 7(1)(a) and a candidate may point to the advertisement as an intention to discriminate. The way in which potential job applicants are targeted may constitute ‘arrangements an employer makes for the purpose of determining to whom he should offer employment’ and be caught by the Regulations.

7(1)(a) would apply to practices such as the milk-round, whereby employers target graduates. It is recommended that if employers choose to continue operating a graduate recruitment programme, that there are visible, alternative entry methods for older graduates and others. Employers should also consider the appropriateness and justifications for other programmes such as, leadership and management development programmes. Only 13.2 percent of undergraduate qualifiers in 2003 were aged 40 years and over (reported in Croner HR centre online, 2001). Questions on application forms, and job specification requirements could also fall within its scope. Hence, employers should be aware of asking when a candidate started at school and should ideally ask any age related questions in an age monitoring form.

When predicting what impact the Regulations will have over here we can use Ireland as a touchstone as they introduced age discrimination provisions through the Employment Equality Act as far back as 1998. In the Irish case of, Equality Authority v Ryanair DEC-E/2000/14, Ryanair was fined £8000 fro breaching Irish discrimination legislation by advertising for a job for a ‘young and dynamic professional’. The respondent’s argument that the word ‘young’ in an advertisement specifying a ‘young’ candidate was a euphemism for ‘enthusiastic’ and ‘passionate’ rather than a reference to age was rejected. It therefore follows that all job advertisements should attempt to be as age neutral as possible. Further steps to take may be:

Instead of focusing on the number of years experience required, employers might be better off setting requirements as to the type of experience needed for the job. Adverts such as, ‘Graduated in the last seven years’ will be deemed ageist under the new regime. Any request for a number of years experience must be objectively justified.

Employers must also be aware of alienating older candidates by stating that a candidate with little or no experience will be preferred or referring to a position as ‘ideal for a first starter’. This sort of advertisement will be strong evidence leading to an inference of age discrimination. Even requesting that recent graduates apply (most are in their 20s) may be a criterion likely to discriminate against older graduates. Furthermore asking for degrees only offered in the last 20 years or so would be likely to be deemed to discriminate against older candidates. Monitoring shortlists and applications for a job to make sure that all age groups are represented is a good way of ensuring fairness.

In the Irish case of, Tom O Connor v Lidl Ireland Gmbh (DEC – E – 005/12) Lidl sought district managers and it advertised for a graduate with not more than 2-3 years experience in a commercial environment. The Equality Officer found that the advertisement was indirectly discriminatory on grounds of age. In light of Lidl destroying all CVs and applications for the district manager position the Equality officer ordered them to refrain from issuing similar advertisements, to remove the requirement specifying dates of birth, to retain information on recruitment for 12 months and to hold a clear record of the objective criteria in deciding not to call

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