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Legal services: Age discriminationBackground The European Employment Directive 2000/78/EC was agreed between member States in 2000. The age strand of the Directive is being implemented by the UK via the Employment Equality (Age) Regulations 2006 (the “Regulations”) which are intended to come into force on 1 October 2006. The Regulations are currently in draft form and have the aim of establishing a general frame work for equal treatment in employment and vocational training so far as it relates to age. A Consultation Document entitled “Equality and Diversity: Coming of Age” was issued in July 2005 by the DTI which has since published a report on matters arising out of that consultation. The draft Regulations have now been laid before Parliament and it is anticipated at the time of writing this article (in March 2006) that the necessary debates will take place before the end of that month. Subject to any final amendments and Parliamentary approval, the Regulations will come into force as mentioned above on 1 October 2006. Scope of the draft Regulations The Regulations make it unlawful to discriminate on grounds of age in employment and vocational training. They prohibit direct discrimination, indirect discrimination, victimisation, instructions to discriminate and harassment. Direct discrimination; defined in Regulation 3(1)(a), arises where a person is treated less favourably than another on grounds of his age or apparent age. Discrimination will occur if the treatment cannot be objectively justified, that is, the difference in treatment or disadvantage cannot be shown to be a proportionate means of achieving a legitimate aim. For example, direct discrimination would occur where an Employer applies an upper age limit for recruitment or promotion without justification. Indirect discrimination; defined in Regulation 3(1)(b), arises where a provision criterion or practice, which is applied generally, puts persons of a particular age or age group at a disadvantage. As with direct discrimination, indirect discrimination will occur when the difference in treatment or disadvantage cannot be shown to be a proportionate means of achieving a legitimate aim. An example of indirect discrimination provided in the DTI consultation document is a situation where an Employer requires applicants for a courier job to have held a driving licence for five years. This requirement does not mention age, but it is ikely that a higher proportion of those aged 40 will fulfil this requirement than of those aged 25. Victimisation; defined in Regulation 4, occurs where a person receives less favourable treatment than others because he has brought (or has given evidence in) proceedings, made an allegation or otherwise done anything under or by virtue of the Regulations. Instructions to discriminate; defined in Regulation 5, is a form of discrimination whereby a person is less favourably treated than another because he has failed to carry out an instruction to discriminate, or because he has complained about receiving such an instruction. Harassment; defined in Regulation 6, occurs where a person is subjected to unwanted conduct on grounds of age with the purpose or effect of violating his dignity, creating an intimidating, hostile, degrading, humiliating or offensive environment for him. Therefore, giving a birthday card to an older colleague who you know is extremelysensitive about his age which says; “Happy birthday, you’re now well over the hill!” could theoretically amount to harassment. Who will be affected? Those with new obligations include: Employers; Providers of vocational training (including adult, further and higher education); Trade Unions, Professional Associations, and Employers’ organisations; Trustees and Managers of occupational pension schemes. The Age Regulations will apply to all workers and to people who apply for work. In addition they will cover access to vocational training. Defences It is worth noting that unlike the Regulations on Age Discrimination, legislation dealing with other forms of discrimination (eg Race and Sex) provide for only very limited opportunities of justifying direct discrimination. Although in most situations it will be unlawful to treat people differently on the grounds of age, the Age Regulations are unique in that there will be the possibility for Employers to justify both direct and indirect discrimination. Essentially, Employers will be able to justify age discrimination if it is appropriate and necessary in the particular circumstances. This is described within the Regulations as “objective justification”. Employers will have to produce supporting evidence if challenged. Mere assertions will not be enough to defend a case successfully. As is the case in the legislation on most of the other discrimination strands, the Age Regulations contain specific provisions for “Genuine occupational requirements” and positive action. What is Objective Justification? As mentioned above, different treatment will be justified on the grounds of age if the Employer shows the different treatment was for a legitimate aim; and it is an appropriate and necessary (or proportionate) means of achieving that aim. To put this into context, it is worth considering a number of examples of direct age discrimination serving a legitimate aim. These may include the fixing of a minimum age to qualify for certain advantages linked to employment or occupation (e.g. long service loyalty benefits); and the fixing of a maximum age for recruitment or promotion which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement. Genuine Occupational Requirements The Age Regulations stipulate an Employer is entitled to use an age requirement where (having regard to the nature of the employment or the context in which it is carried out):
Age will only be a GOQ in very few cases. One obvious example would be the case of actors in a TV soap or theatre production where it is a requirement for individuals to be of a particular age. |
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