Age discrimination
By: Age discrimination
Summary
The Employment Equality (Age) Regulations 2006 prohibit age discrimination in employment (and in further and higher education), although there are a number of specific exemptions to the general principle that age must not be a factor in employment decisions. The regulations also permit employers to take age-discriminatory action or apply age-discriminatory policies in circumstances where they can show objective justification for their actions or policies.
The scope of the age regulations is very wide and the regulations have also resulted in some amendments to other employment laws.
Checklist
General Provisions
The Employment Equality (Age) Regulations 2006, implemented on 1 October 2006, prohibit:
direct age discrimination, ie where an individual is personally treated unfavourably on grounds of his/her age;
indirect age discrimination, ie where the employer applies a provision criterion or practice which has a disparate impact on older or younger people. “Provision, criterion or practice” can include any policy, procedure, rule, requirement, condition, criterion, management guideline, decision, arrangement or practice (whether formal or informal);
victimisation, ie detrimental treatment of an employee or job applicant because he or she has previously complained of age discrimination, or assisted someone else in a complaint, whether through an internal grievance procedure or at an employment tribunal;
harassment.
Employers may seek to justify decisions that are age discriminatory if they can show that their actions or policies are appropriate and necessary in relation to the achievement of a legitimate business aim.
Age discrimination legislation protects all workers (including, for example, employees, agency staff, contractors and casual workers), job applicants and, in some cases, ex-employees (provided their treatment is connected to their previous employment). Unpaid voluntary workers are, however, not protected.
There is no length of service required for an employee or worker to bring a claim for unlawful age discrimination to an employment tribunal.
An employer may lawfully discriminate on grounds of age if doing so is required or permitted by other legislation, for example, an individual aged 17 may not be employed in licensed premises.
Recruitment
Age discrimination can be unlawful at all stages of the recruitment process, for example advertising, application forms, the criteria used for screening, the short-listing process, interviewing, requests for references, medical tests, selection testing and the final selection.
External job applicants who are aged 65 or over or within six months of reaching age 65 (or within six months of the employer’s contractual retirement age if that is higher than 65), and who are refused employment on account of their age are excluded from the right to complain of age discrimination. This exclusion does not, however, apply to internal applicants.
Employers should ensure that any requirement for candidates to have a minimum or maximum number of years experience can be shown to be relevant and necessary for effective performance of the job in question, as such requirements will be indirectly age-discriminatory against younger or older candidates respectively. Instead, interviewers should seek to explore each candidate’s type and breadth of experience, competencies, skills and achievements.
Employers should avoid age limits and ageist terminology in job adverts and be aware of the image portrayed by words such as “mature”, “energetic” or “senior”.
Application forms should not require job applicants to disclose their age or date of birth.
Staff conducting recruitment interviews should not ask age-related questions, for example, a question to an older applicant as to how he or she would feel about reporting to a younger supervisor.
Personal preference will not be sufficient to justify an age-discriminatory selection decision.
Pay and Benefits
Affording less (or more) generous contractual terms or benefits to an employee on age-related grounds will be direct age discrimination and will be unlawful (unless objectively justified).
Acas in their Guidance to the age regulations suggest that “economic factors such as business needs and efficiency” may justify age discriminatory treatment, but the regulations do not allow for an employer to deny an employee a particular benefit on the grounds that it costs more for older (or younger) staff, for example health insurance.
Any employment term or benefit that is dependent on the employee having gained a minimum period of service with the employer will discriminate indirectly against younger staff because they are less likely than older employees to have long service.
The regulations allow employers to make increased pay or enhanced benefits dependent on a period of service of up to five years without the need for any justification. Where the length of service criterion is in excess of five years, the employer may seek to justify the policy on the grounds that it reasonably appears to them that the way in which the length of service criterion is used “fulfils a business need, for example by encouraging the loyalty or motivation, or rewarding the experience, of some or all the workers”.
Performance, Promotion and Training
It may be age discriminatory to penalise an employee on account of deteriorating performance that is due to an age-related condition, for example failing eyesight or hearing, or loss of memory due to the onset of Alzheimer’s disease.
Training and promotion opportunities must be available to all staff irrespective of their ages, and there should be no upper age limit imposed on access to training, unless the age limit can be objectively justified as a necessary means of achieving a legitimate business aim.
Managers should refrain from assuming that an older employee will not be interested in or capable of undertaking job-based or development training.
Harassment
The definition of harassment in the age regulations is very broad. Where an employee genuinely finds a colleague’s behaviour offensive or distressing and where the behaviour is linked in any way to age, then the behaviour will amount to harassment irrespective of whether it was deliberately designed to cause upset or offence. Ageist jokes and banter, referring to someone using ageist terminology and teasing, taunting or ridicule on age-related grounds could all be unlawful.
Termination of Employment
The upper age limit that previously applied to the right to claim unfair dismissal and redundancy pay (65) has been removed, allowing employees of all ages to bring such claims (subject to their having the requisite length of service).
Dismissal for a reason linked to the individual’s age (other than retirement) will amount to age discrimination (unless justified).
Retirement
Employers may, if they wish, implement compulsory retirement for employees aged 65 or over and employees properly retired cannot claim either unfair dismissal or age discrimination.
Retirement below age 65 may give rise to claims of age discrimination and/or unfair dismissal unless the employer can show that the lower retirement age is an appropriate and necessary means of achieving a legitimate business aim (which is likely to be difficult in practice).
Employers must, by law, provide each employee with written notice of his/her intended date of retirement between six and twelve months before that date, and at the same time notify the employee that he/she has the right to request to continue working beyond that date.
Employees have the right to submit a written request to continue working beyond their notified retirement dates. This is a right to “request” and not a right to insist on being allowed to continue in employment.
On receipt of a written request from an employee to continue working, the employer must:
either agree to it and confirm the agreement in writing, or
invite the employee to attend a meeting to discuss the request (at which the employee has the right to bring along a colleague of his/her choice if he/she wishes)
notify the employee in writing of the decision “as soon as is reasonably practicable” after the meeting
offer the employee a right of appeal against any decision to refuse to grant the request, and if the employee does appeal, hold an appeal meeting and issue the final decision in writing.
There is no requirement for an employer to provide a reason for refusing an employee’s request to continue working beyond his/her notified retirement date.
If the employer agrees to allow the employee to stay on, the requirement to notify and the duty to consider procedure must be followed again before any subsequent or revised retirement date, unless the new date of intended retirement falls within six months of the first retirement date.
Where an employer has failed to give the employee notification of his/her intended retirement date by two weeks before that date, or has failed to follow the “duty to consider procedure”, the termination of the employee’s contract by reason of retirement will constitute an automatically unfair dismissal.
Redundancy
Employers should not adopt a policy of pre-selecting for redundancy employees who are over a specified age, as this would constitute direct age discrimination and would be very difficult to justify.
Employers should take care that the criteria used for redundancy selection do not impact adversely on employees of particular ages, for example LIFO (last in, first out) would, in general, discriminate indirectly against younger staff because they are likely to have shorter service than older employees.
The three age bands used in the formula for calculating statutory redundancy pay (each of which have different multipliers) have been retained. The Government claims that this system reflects a legitimate employment policy and is objectively justified.
Any contractual redundancy pay scheme operated by an employer must, if it is to be lawful, mirror the statutory scheme.
I am offering aboutmybusiness members, a no obligation needs analysis to discuss 'face to face' their individual business needs on both HR and Health & Safety. To arrange your meeting, email me at alan.steel@cronerconsulting.co.uk
Summary
The Employment Equality (Age) Regulations 2006 prohibit age discrimination in employment (and in further and higher education), although there are a number of specific exemptions to the general principle that age must not be a factor in employment decisions. The regulations also permit employers to take age-discriminatory action or apply age-discriminatory policies in circumstances where they can show objective justification for their actions or policies.
The scope of the age regulations is very wide and the regulations have also resulted in some amendments to other employment laws.
Checklist
General Provisions
The Employment Equality (Age) Regulations 2006, implemented on 1 October 2006, prohibit:
direct age discrimination, ie where an individual is personally treated unfavourably on grounds of his/her age;
indirect age discrimination, ie where the employer applies a provision criterion or practice which has a disparate impact on older or younger people. “Provision, criterion or practice” can include any policy, procedure, rule, requirement, condition, criterion, management guideline, decision, arrangement or practice (whether formal or informal);
victimisation, ie detrimental treatment of an employee or job applicant because he or she has previously complained of age discrimination, or assisted someone else in a complaint, whether through an internal grievance procedure or at an employment tribunal;
harassment.
Employers may seek to justify decisions that are age discriminatory if they can show that their actions or policies are appropriate and necessary in relation to the achievement of a legitimate business aim.
Age discrimination legislation protects all workers (including, for example, employees, agency staff, contractors and casual workers), job applicants and, in some cases, ex-employees (provided their treatment is connected to their previous employment). Unpaid voluntary workers are, however, not protected.
There is no length of service required for an employee or worker to bring a claim for unlawful age discrimination to an employment tribunal.
An employer may lawfully discriminate on grounds of age if doing so is required or permitted by other legislation, for example, an individual aged 17 may not be employed in licensed premises.
Recruitment
Age discrimination can be unlawful at all stages of the recruitment process, for example advertising, application forms, the criteria used for screening, the short-listing process, interviewing, requests for references, medical tests, selection testing and the final selection.
External job applicants who are aged 65 or over or within six months of reaching age 65 (or within six months of the employer’s contractual retirement age if that is higher than 65), and who are refused employment on account of their age are excluded from the right to complain of age discrimination. This exclusion does not, however, apply to internal applicants.
Employers should ensure that any requirement for candidates to have a minimum or maximum number of years experience can be shown to be relevant and necessary for effective performance of the job in question, as such requirements will be indirectly age-discriminatory against younger or older candidates respectively. Instead, interviewers should seek to explore each candidate’s type and breadth of experience, competencies, skills and achievements.
Employers should avoid age limits and ageist terminology in job adverts and be aware of the image portrayed by words such as “mature”, “energetic” or “senior”.
Application forms should not require job applicants to disclose their age or date of birth.
Staff conducting recruitment interviews should not ask age-related questions, for example, a question to an older applicant as to how he or she would feel about reporting to a younger supervisor.
Personal preference will not be sufficient to justify an age-discriminatory selection decision.
Pay and Benefits
Affording less (or more) generous contractual terms or benefits to an employee on age-related grounds will be direct age discrimination and will be unlawful (unless objectively justified).
Acas in their Guidance to the age regulations suggest that “economic factors such as business needs and efficiency” may justify age discriminatory treatment, but the regulations do not allow for an employer to deny an employee a particular benefit on the grounds that it costs more for older (or younger) staff, for example health insurance.
Any employment term or benefit that is dependent on the employee having gained a minimum period of service with the employer will discriminate indirectly against younger staff because they are less likely than older employees to have long service.
The regulations allow employers to make increased pay or enhanced benefits dependent on a period of service of up to five years without the need for any justification. Where the length of service criterion is in excess of five years, the employer may seek to justify the policy on the grounds that it reasonably appears to them that the way in which the length of service criterion is used “fulfils a business need, for example by encouraging the loyalty or motivation, or rewarding the experience, of some or all the workers”.
Performance, Promotion and Training
It may be age discriminatory to penalise an employee on account of deteriorating performance that is due to an age-related condition, for example failing eyesight or hearing, or loss of memory due to the onset of Alzheimer’s disease.
Training and promotion opportunities must be available to all staff irrespective of their ages, and there should be no upper age limit imposed on access to training, unless the age limit can be objectively justified as a necessary means of achieving a legitimate business aim.
Managers should refrain from assuming that an older employee will not be interested in or capable of undertaking job-based or development training.
Harassment
The definition of harassment in the age regulations is very broad. Where an employee genuinely finds a colleague’s behaviour offensive or distressing and where the behaviour is linked in any way to age, then the behaviour will amount to harassment irrespective of whether it was deliberately designed to cause upset or offence. Ageist jokes and banter, referring to someone using ageist terminology and teasing, taunting or ridicule on age-related grounds could all be unlawful.
Termination of Employment
The upper age limit that previously applied to the right to claim unfair dismissal and redundancy pay (65) has been removed, allowing employees of all ages to bring such claims (subject to their having the requisite length of service).
Dismissal for a reason linked to the individual’s age (other than retirement) will amount to age discrimination (unless justified).
Retirement
Employers may, if they wish, implement compulsory retirement for employees aged 65 or over and employees properly retired cannot claim either unfair dismissal or age discrimination.
Retirement below age 65 may give rise to claims of age discrimination and/or unfair dismissal unless the employer can show that the lower retirement age is an appropriate and necessary means of achieving a legitimate business aim (which is likely to be difficult in practice).
Employers must, by law, provide each employee with written notice of his/her intended date of retirement between six and twelve months before that date, and at the same time notify the employee that he/she has the right to request to continue working beyond that date.
Employees have the right to submit a written request to continue working beyond their notified retirement dates. This is a right to “request” and not a right to insist on being allowed to continue in employment.
On receipt of a written request from an employee to continue working, the employer must:
either agree to it and confirm the agreement in writing, or
invite the employee to attend a meeting to discuss the request (at which the employee has the right to bring along a colleague of his/her choice if he/she wishes)
notify the employee in writing of the decision “as soon as is reasonably practicable” after the meeting
offer the employee a right of appeal against any decision to refuse to grant the request, and if the employee does appeal, hold an appeal meeting and issue the final decision in writing.
There is no requirement for an employer to provide a reason for refusing an employee’s request to continue working beyond his/her notified retirement date.
If the employer agrees to allow the employee to stay on, the requirement to notify and the duty to consider procedure must be followed again before any subsequent or revised retirement date, unless the new date of intended retirement falls within six months of the first retirement date.
Where an employer has failed to give the employee notification of his/her intended retirement date by two weeks before that date, or has failed to follow the “duty to consider procedure”, the termination of the employee’s contract by reason of retirement will constitute an automatically unfair dismissal.
Redundancy
Employers should not adopt a policy of pre-selecting for redundancy employees who are over a specified age, as this would constitute direct age discrimination and would be very difficult to justify.
Employers should take care that the criteria used for redundancy selection do not impact adversely on employees of particular ages, for example LIFO (last in, first out) would, in general, discriminate indirectly against younger staff because they are likely to have shorter service than older employees.
The three age bands used in the formula for calculating statutory redundancy pay (each of which have different multipliers) have been retained. The Government claims that this system reflects a legitimate employment policy and is objectively justified.
Any contractual redundancy pay scheme operated by an employer must, if it is to be lawful, mirror the statutory scheme.
I am offering aboutmybusiness members, a no obligation needs analysis to discuss 'face to face' their individual business needs on both HR and Health & Safety. To arrange your meeting, email me at alan.steel@cronerconsulting.co.uk
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