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28 FAQs people ask about age discrimination
Legislation came into force in 2011 making it unlawful to treat people differently on grounds of age, unless such treatment could be justified or falls within one of the exemptions to the law (see 26).
The default retirement age of 65 has been phased out. Employers are only able to compulsorily retire workers if it can be objectively justified.
The Employment Equality (Age) Regulations came into force on 1 October 2006. The default retirement age was phased out between 6 April 2011 and 1 October 2011.
You need to worry about them if you employ anyone at all. They affect every area of employment - recruitment and selection, training and promotion, terms and conditions, and the whole of the retirement process. They not only make it unlawful to discriminate on grounds of age, directly and indirectly, but also to harass anyone intentionally or unintentionally (by subjecting them to behaviour which violates their dignity, or creates an intimidating, hostile, degrading, humiliating or offensive environment), or to victimise them (by treating them adversely because they have complained or assisted someone else in complaining about their treatment on grounds of age).
This being the case, you need to worry not only about your own proceedings, but also those of your employees, who must be deterred (by disciplinary process if necessary) from making offensive or hurtful comments about youth, age, or anything in between.
As with other areas of discrimination, if an employee can prove that there has been a difference in treatment which is probably due to discrimination, it will be up to you as employer to prove otherwise - or at least, to demonstrate that you have done everything possible to stamp out such discrimination. Since there is no limit to discrimination awards, and they often include an element for hurt feelings, failure to do so could be expensive.
You need to ensure that you are not discriminating for or against anyone on grounds of age. So for instance you need to remove all references to age in your job advertisements, unless you can justify them (see 26). Your safest course is to select against objective skills and competencies.
You also need to be certain you can justify the level of experience you are asking for. Asking for a safe and experienced van driver is one thing; asking for a van driver with a 10-year accident-free record is quite another. The first leaves it open to youngsters to apply, and you can then make a decision on them as against the competition. The second effectively rules out anyone short of his or her late 20s, and could be difficult objectively to justify.
Other points you need to consider when recruiting:
Once you have recruited someone, train managers and staff to recognise and avoid potentially discriminatory behaviour. In one case, off-the-cuff ageist comments in an employee's performance review (including that "ambition is not a motivation for Joe (due to age)") was held to be harassment on grounds of age.
Also ensure policies and procedures make clear that discrimination and harassment in any form is not acceptable. Ensure that staff are properly trained in relation to equality and diversity issues; particularly, that managers are able to spot and deal with potentially discriminatory incidents that arise.
If you interview a 60 year-old, and they turn out to be as good as or better than your existing team, you must not let their age affect your decision whether to recruit them or not.
Employers have, in the past, been able to refuse to interview anyone over a given age; since October 2006 it has been unlawful to refuse to interview anyone based on their age. There is very little any employer can lawfully do to control the age composition of a team, except in exceptional circumstances (see 11 and 26, below).
So yes, you might have to recruit someone in their 60s into a young sales team.
You do not have to recruit a 17-year old for a job dealing with customers if you have satisfied yourself (and can, if necessary, prove it) that someone else can do the job better. But the mere fact that a 17-year old is only 17 is insufficient as a reason for refusing to consider them for the job. For example, a 19-year old has won an age discrimination claim after convincing an Employment Tribunal that her employer, a London membership club, had dismissed her for being too young.
No. In fact the consultation document quite specifically excluded any legal requirement for quotas. It did, however, suggest that it would be good practice for employers to establish how many employees they had within what age groups, and use this to check whether they conformed to the spirit of the age discrimination legislation - for example, whether each age group was receiving similar levels of training.
This might be one of those occasions when a decision to treat people differently on the grounds of age may be justified (see 1 and 26). The consultation document discussing the legislation did suggest that the need to get a reasonable period of employment out of someone before retirement might be a justifiable reason for imposing age limits on potential recruits. However, the arguments for justification rely so much on individual circumstances, that it would be wise to obtain legal advice before going ahead.
No. If you ask for a level of fitness in excess of the requirements of the job, you are imposing 'an apparently neutral position, criterion or practice' which 'puts or would put persons of a certain age group at a particular disadvantage compared with other persons', and which cannot be objectively justified: in other words, you are indirectly discriminating against people over 40 (and possibly against people with disabilities, as well).
If someone over the age of 40 were to apply for a job with you and get turned down, they could certainly argue that your fitness requirements were discriminatory, and an Employment Tribunal would find in their favour unless you could prove that they were not.
Yes - but only where:
The conditions under which such positive action is allowed are very specific. You could not use them, for instance, to recruit from only one age group, or to exclude applications from another age group. To do that without falling foul of the law, you would have to be able to justify your actions through the general test of objective justification (see 26).
If in doubt, take advice.
Have you identified, without reference to any potential candidates, the characteristics and skills you need for this job, and decided how much weight you are going to apply to each? They might, for instance, include strength of character, confidence, the ability to remain cool under fire, leadership skills or potential and the ability to get on with people, as well as competence, experience and drive. From October 2006 they may not (except in some very limited circumstances: see 26 and 27) include age.
Once you have identified what characteristics and skills you want, and how much you want them, you can go ahead and score all the candidates for promotion against them; and whoever comes out on top should get the job. If this turns out to be a 27 year-old who will in consequence find themselves in charge of people with 20 years' more experience - well, that's how legislation against age discrimination works.
What you have to do then is back the winner. Make it plain that you are doing so, and that anyone who objects must do so through accepted channels (your grievance procedures), or face disciplinary action. But also make sure that you take steps to address any training requirements in your chosen candidate. In particular, if this is their first experience of supervisory responsibilities, make sure they have adequate training in disciplinary and grievance procedures. It will not do management's credibility any good if they take actions in an excess of zeal, which you then have to undo under threat of appeal to an Employment Tribunal.
It will help if you take early steps to introduce your workforce to the idea that discrimination (including harassment) on grounds of age is unacceptable, at either end of the spectrum. Training sessions, posters and group meetings on the subject may also protect you, if anyone takes legal action against you because of unlawful behaviour on the part of your employees. If you think the whole business is going to be tricky anyway (and unless you have an ideal candidate it almost certainly will be), consider taking professional advice, at least until your employees have had time to wrap their minds around what will be a very big culture change.
It depends - partly on the job, and partly on the individual. Assuming, first, that two years' training is really necessary - not in theory, but in practice - and secondly, that the individual in question will want to retire at 65, you may be able to justify different treatment on grounds of age ('objective justification': see 26 and 27). But the test of objective justification is a stiff one, and you will have to be able to produce evidence to back your assertions. Take legal advice.
However, a case in 2008 is encouraging for employers. An employer's new pay structure required employees to hold a law degree to qualify for a higher pay grade. A 61-year old employee argued (correctly) that he did not have time to obtain the qualification before retiring. On that basis, he brought a claim before the employment tribunal for indirect age discrimination.
The Employment Tribunal upheld the claim, on the ground that employees in the age range 60-65 were discriminated against by this requirement, and such discrimination could not be justified. However, the Employment Appeal Tribunal (EAT) allowed the employer's appeal, ruling that it was no more difficult for an older employee to obtain the qualification than for a younger one, and the fact that an older employee would enjoy the benefit for a shorter length of time was not discriminatory. Also, the Tribunal had been wrong to identify employees within five years of retirement as a distinct group.
However, the EAT did state that, if it had concluded that there was discrimination in this case, it would have upheld the Tribunal's finding that such discrimination could not be justified, which shows how careful employers need to be in this area.
Possibly. Succession planning is accepted as a possible reason for treating people differently on grounds of age, but whether it is acceptable ('objectively justified') depends entirely on the facts of the case. Take legal advice.
No, that’s their choice: the law makes no difference to that, one way or the other. If they can afford to retire at 55, or plan to do something else instead, there is nothing you can do to stop them. What legislation does do is prevent you from ‘retiring’ them unless you can come up with ‘objective justification’ (see 26).
Collect enough evidence to prove your point, then have a chat with them. They may be willing gradually to reduce their hours, or to work from home two or three days a week, or to shed some of their more onerous responsibilities - with an appropriate amendment to their terms and conditions. Or it may simply be that they have been doing what they are doing for so long, that they hadn't realised their pace had slowed. In most cases you should be able to resolve the situation to the satisfaction of both parties. If a reasonable and flexible approach does not work, however, you may have to make it a disciplinary matter. Take legal advice.
Unless you can provide ‘objective justification’ (see 26), or can justify dismissing them, you cannot compulsorily retire your workers. In some occupations which, for instance, require a very high level of physical fitness it may be possible objectively to justify a retirement, but if for example you have been comfortable functioning with employees of 61, you might have a hard job maintaining that most become incapable by 64.
In theory, yes. In practice you are unlikely to be sued for unfair dismissal if you retire an older worker if it can be objectively justified and you have followed all the correct procedures.
Well, he might still take early retirement; but if not, you will be wasting a lot of management time and energy over the next seven years. It would be better to grasp the nettle, and try to get an improvement in behaviour, by way of the disciplinary process if necessary, with dismissal as the ultimate sanction. In one recent case, the Court of Appeal ruled that dismissal of an 'obnoxious' employee was not unfair, even though it was the way he did things, rather than what he did, that was causing problems. You will, however, have to be able to justify your actions if you take this route, so take legal advice.
Yes, by agreement. You cannot amend them unilaterally to any significant degree - for example, hours worked or level of pay - without risking a suit for constructive dismissal. If you recognise a trade union working on behalf of these employees, you can renegotiate the terms with the union otherwise you will have to get agreement from your workers on an individual basis.
Since the phase out of the default retirement age you can no longer compulsorily retire older workers unless it can be objectively justified. Workers are free to continue working as long as they wish and they are no longer required to request to work beyond 65.
Whilst there is no obligation to do so, it can be helpful to talk to employees about their future plans in order to assist your organisational planning. However, you should be careful not to single out older workers. Including general questions about future aims, aspirations and development needs in all annual appraisals can help you gauge employees' intentions without singling out specific groups of workers.
Once an employee has indicated that they wish to retire or scale back their responsibilities or working hours there is nothing to stop you discussing the retirement or any adjustment to working arrangements. Bear in mind that an employee is entitled to change his or her mind. However, if they have given you formal notice to leave you are under no obligation to let them withdraw that notice.
Yes. There may be a certain amount of leeway on this – if an older worker makes a crack about himself, for instance, it may be okay for a younger worker to echo it – but from your point of view, it is safer just to deter people altogether.
No. It would be difficult to argue that a requirement for a single year's service counted as an age-based criterion for higher benefits; but in any case, one of the specific exemptions to the legislative requirement that people should not be treated differently on grounds of age relates to any length-of-service requirement of five years or less. Where eligibility for a benefit depends on up to five years' service, there is no problem over offering it.
Probably. The second specific exemption to the requirement that people should not be treated differently on grounds of age relates to length-of-service requirements that mirror a similar requirement in a statutory benefit - as for example contractual redundancy schemes where service-related provision is more generous than under the statutory scheme. If in doubt, take advice.
Possibly. Although legislation bans different treatment on grounds of age, there is a general exemption where:
If you believe that the business will in future benefit from the experience and loyalty of your longer-serving employees, it may therefore be both reasonable and lawful to allow them the pick of the holiday dates. If, however, you allow one group of long-serving employees the pick of the holiday dates, but insist that other equally long-serving employees must vie with everyone else on a first-come, first-served basis, you might well fall foul of the legislation.
In general terms, it would be advisable to review all your pay and benefits, if you haven't already done so, to ensure they comply with the requirements of age discrimination legislation.
Objective justification is what you need, if you want to stay on the right side of the law while treating people differently on grounds of age, unless you can claim:
To prove 'objective justification', for either direct or indirect discrimination on grounds of age, you must be able to show that what you are doing is an appropriate and necessary ('proportionate') means of achieving a 'legitimate aim' (see 27).
To prove that what you are doing is appropriate and necessary, you must be able to show:
If you have age-related practices that fall outside the general and specific exemptions, don't rely on being able to prove that they are justified, or not, without consulting your lawyers first.
The concept of 'objective justification' (see 26) is hard to pin down partly because it depends on employers establishing that they have a 'legitimate aim'; and there is neither definition nor description of what a 'legitimate aim' may be. If you want to claim 'objective justification', therefore, it is going to be up to you to argue that your aims were legitimate. Even case law, as it builds up, is unlikely to help much, because the outcome of each case depends on its own particular circumstances.
Broadly speaking, however, you only have a 'legitimate aim' which may justify you in treating people differently on grounds of age, where you have a real need, and there is no reasonable alternative: for example (and they are only examples):
You will need to be able to prove that:
Don't attempt this without taking legal advice: it is nowhere near as innocuous as it looks.
Be very careful - and take legal advice. Older employees are likely to have been with you longer, so using length of service as a criterion is potentially age discrimination against younger employees. Men may also have longer continuous service than women, so it is potentially sex discrimination too.
However, the High Court has said in one case that using length of service as one of the criteria when selecting employees for redundancy can, in some circumstances, be objectively justified - it is not necessarily age discrimination (although using 'last in, first out' is likely to be discriminatory).
In that case, the employer argued that taking long service into account was a 'benefit'. The age discrimination rules contain an exception that allows an employer to use length of service as a criterion in relation to the award of a 'benefit' that is potentially discriminatory, where it fulfils a business need (eg by encouraging the loyalty or motivation, or rewarding experience, of some or all of the workers).
The court decided that the policy of giving credit for long service on a redundancy amounted to a benefit for the employee concerned - the benefit was the retention of employment which would otherwise be lost.
The tribunal also found that the criterion fulfilled a business need, because length of service equated to loyalty and experience, and meant that older workers were better protected from losing their jobs than younger workers in a difficult economic climate. The employer had therefore justified the impact of the age-related benefit.
However, in another case concerning a pay scheme that rewarded longer service (but, significantly, a claim based on indirect sex discrimination on the grounds that women generally have shorter periods of continuous service than men, rather than an age discrimination claim) the European Court of Justice accepted that, in general, length of service went hand in hand with experience, and experience would enable a worker to perform better. So normally, employers do not need to provide a justification for using length of service as a criterion in pay schemes in order to avoid indirect sex discrimination claims.
But in the particular case, the Court also accepted the 'serious doubts' the claimant had raised as to whether, once a worker had reached a certain level of experience, further service made a real difference to their performance. So where a worker can raise serious doubts about the benefit provided by extra experience, using length of service may be a form of indirect discrimination. It is unclear whether this 'serious doubts' test could also be applied in an age discrimination case to defeat a justification that, by rewarding length of service, the employer is rewarding experience.
The article above was written with considerations from Corporate Law tutors in Lancaster and Commercial Law advisors based in Wigan. In relation to the article above our solicitors who serve areas such as Southport, are able to offer expert legal advice on this subject.
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