Age discrimination

Unlike other discrimination legislation, age discrimination is relatively new. The Employment Equality (Age) Regulations 2006 only came into force on 1 October 2006. It has the same effect as other discrimination legislation, with the addition that there is a ban on all enforced retirement ages below the age of 65. Employers can however refuse to employ someone who is within six months of reaching the age of 65 or someone who is six months away from the employer’s retirement age (if higher). Furthermore, the regulations mean that there is no upper limit to be entitled to redundancy pay or to bring a claim for unfair dismissal.

Age discrimination legislation has caused real practical problems for employers. For example, employers must now take care with regards to what language they use in job advertisements as words such as “mature”, “senior” or “junior” could all cause employers problems. It is also recommended that employers remove all questions about age or date of birth from their application forms.

Types of Age Discrimination

As with the other types of discrimination, there are four types of age discrimination:

  • Direct Age Discrimination;
  • Indirect Age Discrimination;
  • Harassment; and
  • Victimisation

Direct Age Discrimination

Direct age discrimination takes place when an employee receives less favourable treatment from their employer because of their age. Direct age discrimination could involve discriminating against the employee in any of the following areas:

  • Recruitment
  • Pay
  • Training and Promotions
  • Disciplinary

Direct age discrimination is only justifiable, according to employment lawyers, where the employer’s act of discrimination was proportionate and that the employer was trying to achieve a lawful aim. This could be proved by looking at business needs, health and safety concerns, training requirements and so on.

Indirect Age Discrimination

Indirect age discrimination will take place if an employer introduces a company wide provision that unintentionally discriminates against employees of a certain age.  For example, if employees with too few or too many years experience are prevented from applying for certain jobs.

As with direct age discrimination, indirect age discrimination is only justifiable where the employer’s act of discrimination was proportionate and the employer was trying to achieve a lawful aim.

Harassment

An employee can bring a claim a claim for harassment where an employer engages in unwanted conducted with the employee which violates the employee’s dignity or creates an environment that is frightening or intimidating. Harassment includes verbal, non-verbal and physical conduct.

Victimisation

An employer will be guilty of victimisation if they treat the employee differently not because of the employee’s age but because the employee has been involved in an age discrimination complaint.

Vicarious Liability

Employers should also be weary of the fact that they could be vicariously liable for the acts of any employees whose actions discriminate against other employees based on age, particularly if there is evidence of the employer being aware of the discrimination but not taking sufficient steps to prevent it.

Bringing a Claim

An employee should bring a claim for age discrimination only after unsuccessfully attempting to deal with the matter via their employer’s policy. An age discrimination claim should be brought in an employment tribunal within three months of the act of discrimination otherwise the employee may be barred from doing so.

Further information on age discrimination is available from the Citizen’s Advice Bureau (CAB) and ACAS (the Advisory, Conciliation and Arbitration Service), an independent organisation responsible for improving employment relations.