As you may be aware the law relating to discrimination is about to change to provide protection to employees who claim to have been discriminated against on grounds of their age. The new laws, which are due to come into effect on 1 October 2006, will follow established patterns of discrimination: direct discrimination; indirect discrimination; victimisation and harassment.
The proposed legislation is at present in the form of "Employment Equality (Age) Regulations 2006".
Who is protected?
Applicants, employees, contract workers, office-holders, police officers, barristers and advocates, agency workers and students. Regulation 23 even makes it permissable for an individual to bring an action against a previous employer for discrimination after the relationship has ended, however the act complained of must arise out of and be closely connected to that relationship.
Those serving in the forces, full and part-time reservists, unpaid office workers and volunteers are outside the scope of the regulations.
Direct and indirect discrimination
Regulation 3(1)(a) prohibits direct discrimination. This will occur if on the grounds of an employee's age, an employer treats him less favourably than he treats others because of his age, for example the employer promotes a younger employee when the older employee is better suited to the job.
Regulation 3(1)(b) prohibits indirect discrimination. This will occur if an employer applies a provision, criterion or practice, which applies or would apply equally to persons not of the same age group as the employee, but which puts him at a disadvantage with those others because of his age. An example of this would be requiring a youthful appearance for certain sales positions.
In each of these situations the employee must show that he has been treated less favourably than a comparator, either actual or hypothetical, whose circumstances other than age are not materially different from his. (Regulation 3(3)).
Applicants
It is unlawful for an employer to discriminate against applicants due to their age when making arrangements for determining who should be offered employment, or the terms in which he offers employment, or by deliberately not offering employment (Regulation 7).
However, for those over 65, there is no law protecting them from being discriminated against in such job application arrangements.
The defences
When discrimination is justifiable
Regulation 3(1) provides employers with a defence for both direct and indirect discrimination. Discriminating on grounds of age will not be unlawful if the employer can show that the treatment, provision, criterion or practice is a proportionate means of achieving a legitimate aim.
Regulation 3(2) lists examples of when direct discrimination may be a proportionate means of achieving a legitimate aim, such as fixing a minimum age to qualify for certain advantages, to promote vocational integration of people in a particular age group and for fixing a minimum age for recruitment based on training requirements, or the need for a reasonable period in post before retirement.
Justification is an objective test and the burden of proof is on the employer to produce evidence to support this.
Genuine occupational requirement
If a particular age is a genuine occupational requirement and it is proportionate for the employer to apply the requirement then an employer can favour one age group over another (Regulation 8). This could be applicable to particular modelling or acting jobs.
Dismissal of the over 65s
Under regulation 29 it is perfectly lawful for an employer to dismiss an employee who is over the age of 65 provided the reason for dismissal is retirement.
Retirement age
Employers can still set a retirement age below 65 if they can objectively justify it.
Victimisation
Regulation 4 describes victimisation as when A treats B less favourably due to the fact that B has made an allegation, brought proceedings or given evidence in connection with any proceedings brought under the regulations. B's actions must have been made in good faith to afford any protection under this regulation.
A will also be found to have discriminated against B if A instructs B to carry out instructions which are unlawful under these regulations, or having been instructed to do so, B complains to A or another over the instruction and suffers detriment.
Harassment
Harassment on grounds of age is where an employer engages in unwanted conduct which has the purpose of violating an employee's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the employee. In determining whether there has been harassment the tribunal will consider all the circumstances, including the employee's perception, as to whether it is reasonable for the conduct to have had that effect.
The exemptions
Positive action
An employer is permitted to afford a particular age group access to training or encourage the use of employment opportunities so long as he expects that in doing so he is preventing or compensating for disadvantages linked to their age (Regulation 28).
Benefits related to service
The government recognises that it is appropriate in some circumstances to reward loyalty and experience therefore regulations 32 to 37 contain a number of exceptions where benefits can be related to length of service.
* Benefits dependant on a length of service of 5 years or less are exempt.
* Benefits can be dependant on length of service over 5 years if they are intended to reward loyalty or motivate or recognise an employee's experience and there is a business benefit resulting from the higher level of experience.
* Provision of statutory benefits based on length of service is lawful, for example it is lawful for an employer to operate a contractual redundancy package based on length of service.
Enforcement
Jurisdiction
Employment tribunals will have jurisdiction to hear claims under the regulations. The employee has three months from the discriminatory act in which to bring their claim, however this period can be increased at the tribunal's discretion. As with other claims to the tribunal the claim will not be heard unless the employee has complied with the statutory grievance procedure before issuing their claim.
Burden of proof
The burden of proof is firstly on the employee to prove facts from which a tribunal could conclude a breach, then the burden shifts to the employer to prove that he did not commit the act complained of or that the less favourable treatment was justified (Regulation 40).
Vicarious liability
Employers will be liable for the actions of their employees if it can be shown that the discriminatory act was committed in the course of their employment, with or without the employer's knowledge or approval. The employer will have a defence if they can prove reasonably practicable steps were taken to prevent the employee from doing the act.
The employee can send the employer a questionnaire in order to obtain information which would assist their case. If an employer fails to answer their questions then the tribunal is allowed to draw inferences from this failure.
Remedies
If the employee is successful then the tribunal can make a declaration of rights, award compensation or recommend that the employer, within a specified period, take action to obviate or reduce the adverse effect on the claimant. If the employer then fails to comply with the recommendation without reasonable justification, the tribunal can increase the amount of compensation awarded (Regulation 41).
The amount of compensation a tribunal can award is unlimited and can include an award for injury to feelings.
National minimum wage
Under regulation 31 it remains lawful to have differing bands of remuneration dependant on age in accordance with the National Minimum Wage Act 1998.
Termination
Retirement
An employee can be dismissed by way of retirement once he has reached the age of 65 without any recourse to these regulations and an employee can be dismissed under the age of 65 if the employer can objectively justify imposing that retirement age.
The upper age limit for bringing a claim for unfair dismissal and for claiming compensation for being made redundant will be removed.
The rules regarding retirement will not apply to office holders, including the police.
Planned retirement
This is the case if the retirement takes effect on the employee attaining the age of 65 or the normal retirement age, and the employee was informed of retirement at least 6 months previously. In this situation the regulations assume retirement to be the only reason for dismissal and the burden of proof will be on the employee to show otherwise.
The employer will still have to follow the "duty to consider" procedure when making a planned retirement to avoid the dismissal being unfair (Schedule 7).
In all other retirement situations the employer will have to prove that retirement was the genuine reason for the dismissal. If the employee can show that the employer dismissed him for some other reason, or that he failed to follow the duty to consider, then the dismissal would be unfair.
Duty to consider procedure
The employer must write to the employee 6-12 months prior to any planned retirement to inform them of their right to request to work beyond the planned retirement date.
If the employee wishes to work beyond the planned retirement date then he must write to the employer between 6 weeks to 12 months prior to the planned retirement date expressing their request. The employer must consider this request seriously.
The employer can meet with the employee to discuss the situation then notify the employee in writing within 2 weeks with his decision.
The employee can appeal against the employer's decision to refuse his request within 2 weeks. The employer must then hold a meeting to hear the appeal.
Compensation relating to retirement
If the employee was warned less than 6 months but more than 2 weeks in advance of retirement then the employee can be awarded 8 weeks pay. If he is informed less than 2 weeks in advance then the normal rules regarding compensation apply.
Conclusion
Employers should review their practices and procedures now so that any necessary changes can be made prior to 1 October 2006. They should consider whether they can objectively justify their organisation's retirement age if it is under the age of 65. They should check whether their recruitment procedures favour a particular age group and in particular whether their application forms ask for an applicant's age. They should also consider whether the operation of any schemes complies with the regulations.
Introduction of new Age Discrimination Regulations
