Making sense of employment law - workplace discrimination
age discrimination law
who is protected?
From 01 October 2006 the Employment Equality (Age) Regulations made it unlawful to discriminate against workers, employees, job seekers and trainees because of their age.
Agency workers are also protected from age discrimination by either the agency or the end user to whom they are supplied. Whilst political offices are excluded, office holders, partners and members are all protected by this legislation.
types of age discrimination in the workplace
direct discrimination
This is where someone is treated less favourably than others because of their age unless the treatment can be objectively justified.
indirect discrimination
This is where a criteria provision or practice disadvantages people of a particular age, unless the practice can be justified. Indirect discrimination is unlawful whether it is intentional or not.
harassment
Harassment is unwanted conduct that violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for them having regard to all the circumstances including the perception of the victim. Harassment is unlawful whether it is intentional or not and does not have to be targeted at an individual.
victimisation
This is where someone is treated detrimentally because they have made or intend to make a complaint or allegation or have given or intend to give evidence in relation to a complaint of discrimination on grounds of age.
retirement
The Regulations have set a default retirement age of 65 (which will be reviewed in 2011). This means that employers can retire employees or set retirement ages at or above 65. Employers can still set a retirement age below the age of 65 but they will need to justify this.
Under the age discrimination legislation regulations an employer will need to inform the employee in writing of their intended retirement age and their right to make a request to work beyond retirement at least 6 months but not more than 12 months before the intended retirement date. If the employer does not, the retirement will be unfair.
If the employee has been notified and wishes to continue working, they must request to do so more than 3 months before they reach the intended retirement age.
If the employer fails to notify the employee 6 months in advance of retirement they may be liable for compensation. They have an ongoing duty up until 2 weeks before the retirement dismissal to inform the employee of both the intended date and their right to request working longer. Failure to do this will result in the dismissal being automatically unfair. If the employee is not notified of their intended retirement age and of their right to request to continue working, the employee is still able to make a request not to retire at any stage until dismissal. If the employee does make such a request then the employment must continue until the day after the employer notifies the employee of their decision to the request.
If the employee makes a request in writing not be retired, this request must be considered before the employee is retired. Failure to do so will make the dismissal automatically unfair. The employer must meet the employee to discuss their request within a reasonable period of receiving it, (unless they agreed to the request or it is not practicable to hold a meeting) and inform them in writing of their decision as soon as is reasonably practicable. There is no obligation to supply reasons for the decision.
The employee has the right to be accompanied at this meeting and any subsequent appeal meeting. Although the employee’s employment continues until after the employer has informed them of their decision on their request to continue working beyond retirement age, the appeal meeting can be held after the retirement has taken effect.
This procedure must be repeated each time an individual nears an extended point for retirement, provided that the procedure is followed correctly then the dismissal will not be unfair.
There are transitional provisions under the Regulations for dismissals when notice is given before 01 October 2006 with an expiry date before 01 April 2007.
These Age Regulations also remove the upper age limit on unfair dismissal and redundancy claims.
want to talk to us?
If you would like to discuss age discrimination law or for any other information relating to discrimination in the workplace please email Fiona Martin or phone 01273 609911.