The Employment Equality (Age) Regulations 2006

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Introduction The Employment Equality (Age) Regulations 2006 came into force on 1st October 2006.  The Regulations aim to eliminate discrimination helping everyone to have an equal opportunity to work and to develop their skills.  There is already legislation to protect people against discrimination on the grounds of sex, race, disability, gender reassignment, sexual orientation and religion or belief.   The following is a summary of the key provisions of the regulations.   Who is covered by the law? The law covers:

  • All workers including self employed, contract workers, office holders, the police and members of trade organisations.
  • People who apply for work and, in some instances, people who have left work.
  • People taking part in or applying for employment related vocational training, re-training or work experience including all courses at Further Education and Higher Education Institutions and training provided by employers or private and voluntary sector providers.

 Who isn’t covered?

  • Members of the regular armed forces, full-time and part-time reservists
  • Unpaid volunteers

clip_image002_001   What the Regulations Cover Direct Discrimination Direct discrimination occurs where because of B’s age, A treats B less favorably than he treats other persons, unless A can objectively justify that treatment. “Objectively justify” means that an employer will have to show that there is a very good reason for treating a person less favourably.  The greater the effect of the discrimination on the individual, the greater the burden will be on the employer to show it was necessary.  It will be up to an Employment Tribunal to decide whether or not the employer’s discrimination was justified. Justification applies to both direct and indirect discrimination. Direct discrimination includes discrimination based on a person’s apparent age so even if discrimination was based on an incorrect assumption about someone’s age, it will be possible to being a claim.  Someone bringing such a claim will not be required to disclose their age – it will be enough that they have suffered a disadvantage because of the assumptions made about their age.  It will not be possible, in defense, to argue that the claimant was in fact older or younger than he appeared or was inferred to be. Examples of direct discrimination would be:

  • Not including a manager in a group attending a new company management development initiative on the grounds that she is too old.
  • Deciding not to employ someone because of their age.
  • Dismissing someone because of their age.

Indirect Discrimination Indirect discrimination occurs where A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same age group as B, but

  • Which puts or would put persons of the same age group as B at a particular disadvantage when compared with other persons, and
  • Which puts B at that disadvantage.

So, indirect discrimination means that although particular arrangements are applied to all employees, they have the effect of disadvantaging people of a particular age. If a person can show that he suffers in this way, then the provision, criterion or practice is indirectly discriminatory unless the employer can show that it is a proportionate means of achieving a legitimate aim.  Proportionate means balancing the discriminatory effects of a measure and the importance of the aim pursued and it is this which will be tested where a case is brought. Examples of indirect discrimination might be:

  • Where the person specification for a job specifies “must be recently graduated” as relatively few people in an older age group are likely to meet this performance criterion.  An employer would have to demonstrate that the importance to the performance of the job of a job applicant being recently graduated, justified any discriminatory effect.
  • Where a job advert requires a specified number of years of a particular type of experience which a younger candidate might be very unlikely to have.  Again an employer would have to be able to demonstrate that a genuine requirement for the specified number of years experience could be demonstrated.

Discrimination by way of victimisation Victimisation occurs where A discriminates against B if he treats B less favourable than he treats or would treat other persons by virtue of something done by B under or in connection with the Regulations. Examples of victimisation would be:

  • If victimization occurs, or an employer fails to take reasonable steps to prevent it occurring, they may be required to pay compensation.
  • If a manager dismissed an employee who had given evidence on behalf of another employee who had claimed age discrimination.
  • If someone was ignored or “cold shouldered” by colleagues because they claimed that they were not selected for promotion because of their age.

clip_image004_000   Harassment on grounds of age Harassment occurs where A subjects B, on the grounds of age, to unwanted conduct which has the purpose or effect of:

  • Violating B’s dignity; or
  • Creating an intimidatory, hostile, degrading, humiliating or offensive environment for B

In practice, there is considerable overlap between these two provisions. Harassment includes behaviour that is offensive, frightening or in any way distressing.  It may be intentional bullying or may be more subtle or even unintentional.  It can include name calling or teasing or may involve tolerance or a general culture where, for example, the telling of ageist jokes in accepted. Harassment is only to be considered to occur if, taking into account all of the circumstance, A’s conduct “should reasonably be considered” as having violated B’s dignity or having created an offensive environment for him.  This includes a requirement to particularly take into account B’s perceptions of the conduct. Harassment is a challenging area.  What may be considered by some to be harmless, acceptable banter may cause hurt or offence to an individual or group of individuals who may find in difficult to speak up.  Employers will need to fully consider the implications of this provision. Examples of Harassment might include:

  • Bullying of a younger worker by always giving him unpleasant or unpopular tasks that should reasonably be shared between colleagues with the same role and responsibilities.
  • Having a nickname for an older worker for example “granddad” or dinosaur” if it makes him feel demeaned or insulted.

Instructions to discriminate If A treats B less favourably than he treats of would treat others in the same circumstance and he does so because B has:

  • Not carried out an instruction to do an act which is unlawful because of these Regulations or
  • Having been instructed to do such an act, complains to A or someone else about that instruction

Then the less favourable treatment of B will in itself, constitute discrimination of the grounds of age. It does not matter whether the instruction to discriminate was given by A or someone else, or whether B complains to A or a third party about being given that instruction. clip_image006_000   At the end of a working relationship Discrimination, harassment or victimisation covers issues such as references either written or verbal.   Retirement The regulations set a default retirement age of 65 for both men and women ( to be reviewed in 2011)   This means that an employer can retire employees at or above the age of 65, but not before unless an employer can satisfy the test of objective justification.  This does not affect the state pension age.   It is not unlawful for an employer to discriminate against a person in deciding to whom he should offer employment or by refusing to offer employment where, at the time of the person’s application to the employer he is over the employer’s normal retirement age or he is over the age of 65 if the employer has no normal retirement age (or will reach this within 6 months of applying to the employer).  For this to apply, the employer’s normal retirement age must be over the age of 65.   Employers will normally be able to dismiss on the grounds of retirement, employees who are over the age of 65 without this being regarded as age discrimination.  However where an employee has a normal retirement age which exceeds 65, if he is dismissed on the grounds of retirement, before he reaches that age, this could amount to age discrimination.   Employers will have the right to request to continue working beyond their retirement date and an employer will have a duty to consider such requests. clip_image008   Fair Retirement A fair retirement is one that:

  • Takes effect on or after the default retirement age (or on or after the employer’s normal retirement age, if there is one) and
  • Where the employer has given the employee written notice of the date of their intended retirement and told them about their right to request to continue working.  This must be given between 6 and 12 months before the intended date.

The request has to be made between three and six months before the intended retirement date and following the request, the employer must hold a meeting, at which the employee has the right to be accompanied by a work colleague or Trade Union representative to discuss the request within a reasonable period of time and notify the employee of the decision as soon as possible.  An employee can appeal against an unfavourable decision, but an employer is not obliged to give details of the reason for the decision.  If the correct decision has not been followed, the employee can claim unfair dismissal and if less than 6 months notice was given a tribunal can award up to 8 weeks pay subject to a maximum of £290 per week.   Employees retiring on or shortly after 1st October 2006 Transitional arrangements for these employees have been produced by the Department for Trade & Industry and can be found on the DTI website.   Situations in which discrimination may occur The Regulations makes it unlawful for employers to discriminate against job applicants or employees:

  • In the recruitment and selection for employment process
  • In the terms of employment afforded to employees
  • In the implementation of opportunities afforded to employees for promotion, transfer, training or receiving any other benefit
  • In dismissing or subjecting employees to any other detriment

It is also unlawful to harass anyone who is employed or has applied for employment.   Genuine Occupational Requirement The Regulations allow an employer, when recruiting for a post, promoting transferring or training persons for a post and when dismissing from a post to treat persons differently on grounds of age, where a Genuine Occupational Requirement exists in respect of the post.  This means that it is absolutely necessary for the job that the requirement exists.  In practice, this is likely to be very difficult to demonstrate.   The National Minimum Wage It will be lawful to follow the age bands and minimum wage levels set out in the national minimum wage legislation.   Service Related Benefits An exception included in the Regulations means that Employers may continue to awarde benefits to employees using the criterion of length of service.  However, for any worker whose service exceeds 5 years, any disadvantage experienced by that worker when compared with another person in receipt of a service related benefit, must reasonably appear to fulfill a business need.  (for example, by encouraging loyalty or motivation or reward the experience, of some or all workers).   Employers affected by this provision should refer to Regulation 32   Unfair Dismissal, Redundancy and Statutory Sick Pay The regulations remove the current age limit for unfair dismissal, statutory redundancy payments and statutory sick pay.  It will continue to be lawful for the amount of redundancy payments to be calculated using employee’s age, length of service and weekly pay.  It will also be legal to make enhanced payments.  Employees affected by this provision should refer to Regulation 33. clip_image010   Occupational Pensions The regulations will generally allow occupational pension schemes to continue as before.   Positive Action The Regulations permit positive action to prevent or compensate for disadvantages linked to age.  Action may

  • Afford persons of a particular age or age group access to facilities for training which would help fit them for particular work
  • Encourage persons of a particular age or age group to take advantage of opportunities for doing particular work.

An advertisement might, for example, encourage applications from people in an age band that is under represented in a particular workforce.   Appointments, however must be strictly on the basis of merit.   Enforcement of the Regulations If a person wishes to bring a complaint of discrimination or harassment under The Employment Equality (Age) Regulations 2006, they must do so in the employment tribunal (except for regulation 23 – institutions of further and higher education, which should be brought to county/sheriff court).  A complaint must be brought within 3 months of the act being complained of.  A court may consider a claim out of time if it considers it just and equitable to do so.  An employee does not have to leave their job to bring a complaint.   Burden of Proof Once the person making the complaint has made a prima facie case that discrimination or harassment has taken place, it is for the respondent to the case (eg the employer) to prove that he did not commit the act of discrimination or harassment. Remedies on Complaints The tribunal may make:

  • An order declaring the rights of the complainant or respondent
  • An order for compensation to be paid – no limit is set on the amount
  • A recommendation that the respondent take, within a specified period, action to obviate or reduce the effect on the complainant of any act of discrimination or harassment.