Employment Law: What Is All the Fuss About the Age Discrimination Regulations?

The Age Discrimination Regulations came into force on 1 October 2006 and implement the age component of the European Framework Employment Directive. The DTI Regulatory Impact analysis predicts that 8,000 Age Discrimination claims will be brought in the Employment Tribunals per year. Employers need to familiarise themselves with their obligations under the new provisions to avoid costly litigation.ScopeThe Age Discrimination Regulations apply equally to employees of all sizes of companies. As is so often the case, small firms will in some ways be expected to operate their policies as if they had the benefit of a human resources department of a large corporation at their disposal. There are no exclusions for part-time workers and unlike the position in the USA, there are no exclusions for employees below a certain age.They apply to employees and the self-employed (“workers”), contract workers (such as those provided by third party agencies), adults receiving training or education from employers; further and higher education institutions and adult education programmes; those in work experience and members or an applicant for membership of a trade organisation, including a trade union. Unpaid volunteers are not protected.Default Retirement AgeHowever, the Age Discrimination Regulations are nothing to do with the debate on extending the retirement age. In fact, the Age Discrimination Regulations provides for a default retirement age of 65 and excludes employees from claiming age discrimination in respect of forced retirement of those aged 65 and over. Interestingly, this particular limitation only applies only to “employees”. Of course, one must remember that even for those employees over 65 a new retirement dismissal procedure must be followed for the dismissal to be fair. A mandatory retirement age for non-employees, even of the age of 65, will have to be “objectively justified”.What Is Unlawful Age Discrimination?For the purpose of the Age Discrimination Regulations, there are two types of age discrimination: (1) Direct age discrimination; and (2) Indirect age discrimination. A person (A) directly discriminates against another person (B) if on grounds of B’s age, A treats B less favourably than he treats or would treat other persons. Indirect Age Discrimination is 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 actually puts B at that disadvantage. There is also protection for those of a perceived age. If someone is discriminated against because they look too young, or too old, for a particular job, they will be able to complain successfully even if the discriminator is wrong about their actual age.The distinctive feature of the Age Discrimination Regulations is that direct, as well as indirect, discrimination will be capable of being “objectively justified”, and the same test will apply to both forms of discrimination.How Does One Objectively Justify Age Discrimination?The Age Discrimination Regulations are new and there is not yet a body of UK case law, but it is highly unlikely that the high costs of employing older people, for example, will be a justification for an employer that would allow him to discriminate on the basis of age. It is further highly unlikely that customer preference will be a legitimate aim allowing employers to discriminate on the grounds of age. In other words justification for age discrimination cannot be related to age discrimination itself. The DTI have given the following example: “A retailer of trendy fashion items wants to employ young shop assistants because it believes that this will contribute to its aim of targeting young buyers. Trying to attract a young target group will not be a legitimate aim, because this has an age-discriminatory aspect.” There is also the need to be proportionate. This means that employers must use the least discriminatory measure possible even to achieve a legitimate aim. An employer may have to show why it was proportionate to use directly discriminatory age barriers rather than age neutral potentially indirectly discriminatory policies.Age-based HarassmentA subjects another person (B) to harassment where, on grounds of age, A engages in unwanted conduct which has the purpose or effect of: (1) violating B’s dignity; or (2) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. Harassment will only be regarded as having had the effect of violating the B’s dignity or of creating an offensive working environment if it “should reasonably be considered as having that effect”. Ageist jokes and teasing may very well create such an environment. Conduct must be “unwanted” by the recipient.ConclusionWe can see that there are many aspects of human resources and discrimination policy that will have to be fundamentally reviewed in light of the Age Discrimination Regulations.Copyright (c) 2006 Ian Mann

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