Age discrimination – special report

From 1 October, discrimination, harassment or victimisation in employment or training on the grounds of age will be unlawful.

The much-anticipated move fulfils the UK’s obligation to implement the European Employment Directive 2000, and follows six years of debate on how age discrimination should be tackled.

Patrick Gratton, chief executive of The Age and Employment Network which campaigns on age and employment issues, says debate in the UK has been more extensive than in most of the rest of the EU, where the directive has just been waived through.

Prior to this, the UK had a voluntary code of good practice on age, introduced in 1999.

The regulations:

The Employment Equality (Age) Regulations 2006 make it unlawful for employers or training bodies to:

• Directly discriminate against people, by treating them less favourably because of their age.

• Indirectly discriminate, by applying a practice that disadvantages people on age grounds.

• Subject people to harassment on age grounds, meaning unwanted conduct that violates people’s dignity or creates an intimidating, humiliating or offensive environment.

• Victimise people who make a complaint or give evidence in relation to a complaint about age discrimination.

• Discriminate, in certain circumstances, after the working relationship has ended.

The provisions on discrimination, both direct and indirect, apply to hiring staff, dismissals, access to training and promotion, terms and conditions and retirement.

An example of indirect discrimination is making employment conditional on a qualification that has only existed for a few years, thereby excluding people over a certain age.

But the provisions could also protect younger workers. For instance, asking for a minimum number of years’ experience could be indirectly discriminating against younger workers, who have the required skills for the job in question.

An example given of harassment in guidance for the regulations is describing a younger worker as “straight out of the pram”. Harassment need not be intentional nor be directed at particular individuals, but could consist in a general culture of ageism. And employers could be held responsible for harassment caused by their employees.

Exceptions and exemptions

As with other forms of discrimination law, there are exceptions and exemptions, but these are more extensive in the case of age, on the basis that it may genuinely be a relevant factor in employment or training.

Generally, with other forms of law, direct discrimination can only be justified if there is a “genuine occupational requirement” – the nature of the position requires someone of a particular race etc – or to correct under-representation of a particular group, so-called positive action.

A disability charity can legitimately claim that it is a genuine occupational requirement that its chief executive should be a disabled person.

However, with age, direct discrimination will also be permissible if it is a “proportionate means of achieving a legitimate aim”, something which flows from the European directive.

The regulations have not defined what constitutes a legitimate aim, to avoid inflexibility; what this means in practice will be decided through case law.

But possibilities include economic or health and safety reasons, for instance protecting younger or older workers.

Such discrimination must be proportionate – there should be no easier, non-discriminatory way of achieving the aim, and its benefits must outweigh the costs of discrimination.

Age discrimination is also subject to a number of specific exemptions relating to public policy, some of which have provoked significant opposition from older people’s groups.

Patrick Gratton, of The Age and Employment Network, says: “We would certainly argue that several of these are unnecessary and unlawful and could be challenged as not implementing the EU directive.”

Most controversially, the regulations introduce a default retirement age of 65, at or above which it will be legal to retire people, something Gratton describes as “a retrograde step”. The flipside is that retirement ages below 65 are now illegal, and that people approaching 65 will have the right to request to stay on and have their employer consider that request.

Another policy exemption Gratton objects to is on redundancy, where the current arrangements, by which people aged 21-40 receive a week’s pay for every year of service while those aged 41 and over receive one-and-a-half week’s pay, will continue.

Then there is the minimum wage, where there are different bands for those aged 16-17, 18-21 and 22 and over, in order to give younger people an incentive to stay in education.

Enforcement

Employees are advised to pursue informal means of settling cases of discrimination or harassment initially, for instance talking to their manager or the company’s equality adviser or human resources department, if it has one.

If these channels do not work, the next stage is using the company’s grievance procedure.

If this is not successful or if people feel too intimidated to use the grievance procedure, they can apply to an employment tribunal.

As part of this, employees can require their employer to answer a set of questions from a standard questionnaire produced by the Department for Trade and Industry.

Employment tribunal claims should be brought within three months of the act of discrimination or harassment. There is no cap on potential damages.

The future

The new regulations will still leave age lagging behind the five other main dimensions of equality law – race, gender, disability, sexual orientation and religion.

The Equality Act 2006 bans discrimination in this area on grounds of sexual orientation, religion or belief, adding to existing provisions on race, gender or disability.

Last year, the government launched a review into laws on discrimination, which, among other things is considering banning age discrimination in the provision of goods and services.

In a speech in April, then DTI junior minister Meg Munn strongly suggested the government would bring forward proposals in this area.

If so, they would be included in a Single Equality Bill it is hoping to introduce in this parliament, though on this Gratton adds: “I wouldn’t hold my breath.”

Another area, where age lags behind race, disability and gender is in terms of a duty on public authorities to promote equality. This has been in place in race since 2001, and comes into force for disability in December and for gender next April.

Age Concern, among others, is campaigning for such a duty on age to be included in the Single Equality Bill.

National development manager Richard Baker says: “There are two reasons for levelling up [equality laws]. It is right in principle and [harmonised regulations] make things easier to handle for organisations.”