Age discrimination

Contents

1. What do the regulations mean? 2. What do the regulations protect against? 2.1. Stop unjustified age discrimination in employment and work-related training 2.2. Outlaw harassment and victimisation on the grounds of age 2.3. Improve the rights of employees facing retirement 2.4. Remove the upper age limit for unfair dismissal and redundancy rights 3. Can you be refused a job because you are too young? 4. Disputes

On 1 October 2006, legal protection against age discrimination came into force making it unlawful to discriminate on grounds of age.

The Employment Equality (Age) Regulations 2006 (or Employment Equality (Age) Regulations (Northern Ireland) 2006) apply to all employers in the private and public sector, vocational training providers, trade unions, professional organisations, employer organisations and trustees and managers of occupational pension schemes. They cover employees of any age, and workers, office holders (directors) and partners of firms.

The regulations make the following changes to the law:

Employers must make sure that any redundancy policies do not directly discriminate against older workers. They must not discriminate indirectly – for example, by selecting only part-time workers for redundancy, when a large number of these may be older workers. The only exceptions are where an age requirement can be objectively justified.

Victimisation: If your employee is treated less favourably than you would treat other employees because they have made or intend to complain that they have been discriminated on the grounds of age or if they are supporting another employee’s claim of age discrimination, then your behaviour will amount to victimisation and is a form of discrimination.

In order to succeed with the victimisation claim, your employee must show that a person who has not done the act would be treated differently.

Harassment: Although there is no specific definition of harassment, ACAS define it to be ‘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’. An employer has a duty to protect their employees from harassment from other members of staff and the public whilst at work. For conduct to amount to harassment it must occur on more than just one occasion.

You can require your employees to retire upon reaching the age of 65. You can only require your employees to retire when below the age of 65 where you can show that having a lower retirement age is appropriate and necessary.

You must inform your employee in writing, at least six months in advance, of their intended retirement date.

Your employee has a statutory right to request working beyond the compulsory retirement age, which you must consider.

The regulations remove the upper and lower age limits for the entitlement of statutory redundancy pay. The upper age limit on unfair dismissal claims has also been removed.

You will therefore have to pay your employee the statutory minimum redundancy payment no matter what their age so long as they have worked for you for at least two years.

Older people experience most age discrimination. However, it also takes place against young people. It is unlawful for an employer to impose a lower age limit when recruiting, unless this age restriction can be objectively justified or is imposed by law.

As an employer you should not:

• Subject an employee or worker to any detriment (whether directly or indirectly) by acting or deliberately failing to act, because of their age. Examples of detrimental treatment include denial of promotion, facilities or training opportunities which normally would have made available to the employee/worker
• Dismiss or select an employee or worker for redundancy because of their age
• Harass and/or victimise an employee or worker or allow then to be harassed or victimised by other employees

If you dismiss an employee, or if an employee resigns because of any of these circumstances, then they may make a complaint of unfair dismissal to an employment tribunal. In addition, they also apply for damages on the grounds of age discrimination which they will be able to do regardless of their length of service.

While there is a limit on the amount of compensation a tribunal can award for unfair dismissal, there is no limit in cases of unlawful discrimination.