AGE DISCRIMINATION

DISCRIMINATION

The regulations define four main forms of discrimination - direct discrimination, indirect discrimination, harassment and victimisation.

Firstly, the regulations outlaw direct discrimination which is when an employer treats someone less favourably than someone else because of their age. However, unlike most other discrimination legislation, employers can objectively justify direct discrimination if they can show it is "a proportionate means of achieving a legitimate aim".

The second form is indirect age discrimination. This is when employers operate a provision, criterion or practice which, although applied to everyone, disadvantages people of a particular age. For instance, service related benefits which generally favour older workers. It is unlawful whether intentional or not, but employers can justify it if someone is near retirement age or the employer can show a genuine occupational requirement (see below).

Thirdly, the regulations outlaw harassment which is unwanted conduct that violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment. It cannot be objectively justified.

Finally, victimisation occurs when someone has been treated less favourably because they brought age discrimination proceedings against their employer, gave evidence at proceedings or simply alleged age discrimination. This also includes issues that may arise at the end of a working relationship, such as a request for a reference.

EXCEPTIONS

Recruitment over normal retirement age

Employers can discriminate against a job applicant if they are within six months of reaching 65 or if they are already older than the employer's normal retirement age. Once the person is appointed, however, they cannot be treated any less favourably.

Retirement exception

Employers are allowed to retire their employees at age 65 or above. Or, if they can objectively justify it, at a lower retirement age than normal.

They have to give between one year and six months’ notice of the retirement date to their employees, and must comply with the procedures set down in the regulations to consider any request by the employee to stay on past the intended retirement date.

The employee has the right to ask to stay on at least three months before the due date, and if the employer does not agree to the request, must invite them to a meeting to discuss it. Employees are not entitled to a reason if their employer refuses their request to continue working, but have the right to appeal the decision. This is known as the "duty to consider" procedure.

If the employer fails to notify the employee up to two weeks before the retirement date, they can claim compensation of up to eight weeks’ pay. After that, normal unfair dismissal compensation rules apply.

This provision is being challenged by Heyday (an offshoot of Age Concern) on the basis that it deprives people over 65 from having the right to work. However, the European Court of Justice has ruled in the Spanish case of Palacios de la Villa v Cortefiel Servicios SA that member states can have national laws that set down a compulsory retirement age. The President of the Employment Tribunals has said that all claims about the statutory retirement provisions have to be stayed until the Heyday case has been decided.

Pensions exception

The regulations cover all aspects of occupational pension schemes, as well as employer contributions to personal pension schemes, but not state pensions.

They state that trustees and managers of pension schemes must not discriminate against or harass members on grounds of age. However, they contain pages (literally) of exemptions. If a practice in a scheme is covered by one, it does not have to be objectively justified. The exemptions include the following:

• Setting minimum or maximum ages for joining schemes
• Setting ages for entitlements to benefits
• Fixing early and late retirement ages
• Using age in actuarial calculations
• Varying contribution rates according to age
• Linking pension levels to pensionable service

Minimum wage exception

This exemption allows employers to pay 16 and 17 year old employees less than those aged over 17, and 18-21 year old employees less than those aged 22 and above.

Pay and benefits exception

To avoid claims of indirect discrimination, the regulations allow employers to continue to award pay and benefits to employees based on length of service as long as they don’t last longer than five years.

Any benefits that have a longer length of service will only be lawful if employers can provide evidence that they fulfil a business need of some sort (perhaps to reward an employee’s loyalty, or to motivate employees).

Redundancy exception

The regulations make clear that even though statutory redundancy payments are calculated using age-related criteria, they are lawful. This exception is to cover employers who make more generous redundancy payments than those under the statutory scheme.

However, if an employer calculates the payment based on length of service, they would have to be able to objectively justify the payment in the event of a discrimination claim.

Life assurance exception

If an employer provides life assurance cover and a worker retires early due to ill health, this exemption allows the employer to stop providing cover at the normal retirement age. If there is no normal retirement age, then they can stop providing it when the worker reaches 65.

GOR exception

In very limited circumstances, employers can rely on a genuine occupational requirement that a post holder has to be of a particular age to do a job, such as an actor.

Exception for acts under statutory authority

Employers can continue to follow any age criteria set down in legislation (for instance, to qualify for various licences), without contravening the age regulations.

Positive action

The regulations allow employers to grant certain age groups access to training or encouragement to take advantage of opportunities to do work, if they have been previously disadvantaged because of their age.

Unfair Dismissal

The regulations removed the bar on bringing unfair dismissal (or redundancy) tribunal claims by people who have reached normal retirement age (or 65 if none). This means that employees who are dismissed over the age of 65 can now bring unfair dismissal or redundancy claims.

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TIME TO PAY

What happened?

Ms Voss, a part time teacher, was contracted to work 23 hours per week, compared to full timers who were contracted to work 26.5 hours. Under German law, teachers were paid overtime at a lower hourly rate than the standard rate.

However, because Ms Voss worked fewer hours than the full timers, that meant she went onto the lower rate once she had done her 23 hours, unlike full timers who did not drop onto it until they had worked 26.5 hours.

Ms Voss claimed that her overtime rate should be calculated at the same hourly rate as full-time teachers. The German court asked the ECJ to decide whether it was against equal pay law to pay a part time worker doing overtime less than a full time worker for the same hours.

The ECJ said that to show whether German law was indirectly discriminatory contrary to Article 141, it had to establish whether:

• part-time workers and full-time workers were being treated differently
• a considerably higher number of women than men were affected by that difference
• there were objective factors wholly unrelated to sex discrimination which could justify the difference in treatment

As a result it was satisfied that the German legislation gave rise to a difference in treatment that was detrimental to part time workers. This would be contrary to the principle of equal pay if considerably more women than men were affected and the difference could not be justified by objective factors. This had to be considered by the national court.

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REASONABLE PROTEST

What happened?

Mr Robinson had worked as a Territory Manager from 1995 mainly in south east England (known as area 6), but was asked in 2006 to take over other work which involved travelling all over England. When he refused, the company offered to restrict his patch to two areas (3 and 6).

He lodged a grievance which was unsuccessful, although the company did agree to review the situation in 12 months and to have review meetings with him. On 25 September, he wrote to his manager saying that he would work as per the new terms, but under protest as he considered the variation to be a breach of his contract.

After an unsuccessful appeal, the company told him the new contract would be implemented on 16 October. Mr Robinson then wrote on 25 October saying that he would only work in area 6. He was dismissed with effect from 24 November. The tribunal said that the change to Mr Robinson’s contract was a unilateral variation that he was entitled to treat as a breach of contract. He could therefore have resigned and claimed constructive dismissal.

However, by failing to do that and by writing his letter of 25 September he had instead affirmed the contract as amended by the company. As Mr Robinson then failed to co-operate with his employer's reasonable instructions to follow the terms of his amended contract, the dismissal was fair.

And the EAT agreed. It said that Mr Robinson had agreed to work under the terms of the new contract in his letter of 25 September, albeit under protest. If things had not worked out, he could then have resigned and made a claim for damages.

As a result, the company's letter of 16 October asking him to start work under the new terms was lawful. He had agreed to work to the new job description and "having so agreed, could be compelled by his employer to do so. He did not however keep to his side of the bargain, but insisted on working to the terms of the original contract and ignored the new job description he had agreed to work to."

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IN BRIEF

The booklet describes the 11 building blocks that ACAS considers every business needs to make them effective. These include:

• the attitudes and values that can help healthy relationships to flourish
• the techniques that can help build trust between management and employees
• the policies and procedures needed to reward fairly, work safely, communicate, and manage discipline and grievance issues.

It argues that promoting health and wellbeing will include:

• helping line managers play a crucial role in setting the tone for the way people interact with each other
• involving employees in decisions employers make about their jobs and how things are done in the workplace
• managing organisational change effectively in order to minimise the potentially negative impact on employees’ health
• redesigning working practices and jobs to enable workers to have greater control in the way they do their day to day work.

To download the booklet, go to: www.acas.gov.uk/CHttpHandler.ashx?id=854&p=0

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