Age discrimination
Definition of age discrimination
It is unlawful to treat a person less favourably because of their age, their perceived age or beause they associate with someone of a paticular age (direct discrimination) and unlawful to impose a provision, criterion or practice which puts persons of a different age group at a disadvantage when compared to others (Indirect discrimination).
Scope of unlawful age discrimination
The scope of unlawful discrimination against job applicants and employees includes prohibition of discrimination in offering employment, in the terms of employment, refusing employment, in the way the employer provides access to promotion, transfer, training or receiving any other benefit, subjecting a person to a detriment or dismissing them.
Age related harassment is also unlawful. Harassment is defined as unwanted conduct which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading humiliating or offensive environment. This could, for example cover unofficial “initiation rites” imposed on new workers.
It is also unlawful to victimise someone for complaining about age discrimination.
Justification
Discrimination on the grounds of age is lawful as long as it is a “proportionate means of achieving a legitimate aim.”
So, for example a requirement that a job applicant has a certain number of years experience could indirectly discriminate against younger job applicants but might be justified if experience is required for the role.
Specific exceptions : age discrimination which is lawful
Some age related discrimination is specifically allowed. This includes different rates of the National Minimum Wage for young workers, service related benefits, redundancy payments, and age related rules in pension schemes.
Retirement
The government has abolished the default retirement age of 65, so unless an employer has given notice of retirement before 6th April 2011, it is only in exceptional circumstances that an employer can justify compulsory retirement. An employer can only justify dismissal because the employee has reached a certain age if the employer’s contractual retirement age can be objectively justified. Objective justification has to be a proportionate response to a legitimate aim. In practice this is likely to be difficult for an employer to justify.
If there is no normal or contractual retirement age, then an employee cannot be dismissed fairly because they have reached a certain age unless the employer has given notice of retirement before 6th April 2011 to take effect up to 30th September 2011 (or 30th September 2012 where the employee has been granted an extension) and the employee was age 65 on or before 30th September 2011.
A dismissal for retirement can be fair as long as:-
1. The employee has reached age 65 by the retirement date which must be no later than 30th September 2011; and
2. The employer gave between 6 months and 12 months notice before 6th April 2011;and
3. The employer informed the employee of their right to request an extension to their retirement date; and
4. If the employee made a request to extend their employment, the employer has considered any request, offered the employee a meeting to consider the request and offered the employee an appeal against a refusal to extend the time and a meeting to hear that appeal.
If the employer gives less than 6 months notice, or that notice was given on or after 6th April 2011 then unless the employer has a contractual retirement age which can be objectively justified, and acts reasonably in relying on that reason, the dismissal will be unfair and amount to unlawful age discrimination.
Enforcing rights
Claims of unlawful discrimination can be brought by job applicants, employees, workers, contractors, and others by issuing a claim in the Employment Tribunal. There is no qualifying period of employment, before a claim can be made, but any claim must be registered with the Tribunal within 3 months of the act of discrimination, or where there has been a series of incidents which can be characterised as a single act of discrimination, within 3 months of the latest incident of discrimination.
There is a provision for a potential Claimant to obtain information in relation to a potential claim of discrimination by sending a questionnaire to the employer.
Employers are liable for the discriminatory conduct of their employees even if they did not know about it at the time. Exceptionally, if an employer has done all it can do to prevent unlawful discrimination, it may be able to avoid liability.
Claims can also be brought against the individuals who caused the discrimination, employees might choose to do this because they want the individual to be liable for what they did, if there is a risk that the employer can avoid liability, or if there is a risk of the employer’s business going into liquidation.
Tips for finding a solicitor to deal with a claim of discrimination
Specialist legal knowledge and experience is a good start, but to “get the edge” it is useful to find a solicitor with experience of representing clients at Employment Tribunals, particularly at the Employment Tribunal where your case is likely to be heard. This is because familiarity with the way a Tribunal is likely to assess particular cases and particular circumstances helps effective advice and preparation right from the start.
Most of our experience here at John Halson solicitors is based in representing clients at the Liverpool Employment Tribunal which covers claims arising from people who have worked in north and central Cheshire including Chester, Warrington, Northwich, Middlewich, Winsford, Tarporley, Ellesmere Port, Great Sutton, Frodsham; and Merseyside including Liverpool, Birkenhead and the Wirral, Widnes, Runcorn, St Helens, Kirkby, Maghull, Skelmersdale, Ormskirk, Southport, and Formby.
We also regularly appear in the Manchester Employment Tribunal and occasionally in the Leeds, Birmingham and Shrewsbury Tribunals.
Links
Equality and Human rights Commission
Disclaimer
Please note that the information on this page is intended to be a guideline and is therefore a summary of the law only and not a complete guide. Before taking any action based on this information you are strongly advised to take legal advice. Whilst every effort has been made to ensure that the information contained on this page is up to date and accurate, no guarantee can be given to this effect.