Age Discrimination

The Employment Equality (Age) Regulations 2006 came into force on 1st October 2006.

The Regulations apply to all employment and vocational training (employees, prospective employees and trainees).

It is unlawful to discriminate, harass or victimise job applicants, employees or trainees on the grounds of age (young or old).

Direct discrimination occurs where the employer treats a job applicant / employee / trainee less favourably than he treats or would treat other persons unless he can objectively justify that treatment. It includes discrimination based on apparent age whether or not that is in fact the correct age.

Indirect discrimination occurs where the employer applies a provision, criterion or practice which puts persons of a particular age group at a particular disadvantage and they suffer disadvantage as a result.

Discrimination by way of victimisation occurs if the employer treats an job applicant / employee / trainee less favourably because of something they have done under or in connection with the Regulations (e.g. supporting a fellow worker who has brought a claim for age discrimination).

If an employer gives instructions to an employee to discriminate against another employee and those instructions are not carried out and that employee is then subjected to less favourable treatment, this will still constitute discrimination on the grounds of age.

Harassment occurs if the employee's conduct has the purpose or effect of violating the job applicant / employee / trainee's dignity or creating an offensive environment for him.

Retirement becomes a potentially fair reason for dismissal under S.98 Employment Rights Act 1996. Schedule 6 paragraph 2 of the Regulations set out a procedure to be followed prior to retirement, (at least six months prior to dismissal, but no more than 1 year prior to the dismissal). The employer should notify the employee of the date on which he intends that employee should retire and inform the employee that he has a right to request work beyond retirement age.

The normal statutory grievance and disciplinary procedures do not apply in relation to a dismissal for reasons of retirement. Where a dismissal is found to be unfair an Employment Tribunal can award up to 4 weeks pay to the employee.

It is not unlawful for an employer to discriminate against a job applicant where at the time of the application the applicant is over the employer's normal retirement age (or over 65 where the employer has no normal retirement age). Such discrimination is also not unlawful if the applicant will reach the employee's normal retirement age (or the age of 65) within six months of the application for the job. The employee's normal retirement age for these purposes must be over 65.

It is permissible to treat job applicants differently on the grounds of age if the job requires a characteristic related to age and this is a genuine occupational requirement. This exception also applies when promoting, transferring or training persons for a post.