What is the law that governs age discrimination in the workplace?
The law relating to age discrimination in the workplace is contained in the Employment Equality (Age) Regulations 2006.
On 8 April 2010 the Equalities Act 2010 was passed. However, since it was considered necessary to allow time for people and organisations affected by the Equalities Act 2010 to prepare for the new law, only a few provisions of the Act came into force that day. It is currently envisaged that most of the main provisions of the Act will come into force in October 2010, although since there has been a change of government since the Act was passed this is currently not clear.
When the Equalities Act 2010 does come into force most of the provisions contained in the Employment Equality (Age) Regulations 2006 will be revoked.
What acts are prohibited by the Employment Equality (Age) Regulations 2006?
Under the Employment Equality (Age) Regulations 2006 the following acts are prohibited:
Direct discrimination occurs where a person is treated less favourably than other persons on grounds of age.
Indirect discrimination occurs where a provision, criterion or practice, which is applied or would apply equally to persons not of the same age group, puts persons of a particular age group at a disadvantage and cannot be shown to be a proportionate means of achieving a legitimate aim.
Discrimination by victimisation
Victimisation occurs where a person receives less favourable treatment than others by reason of the fact that he has brought, or given evidence in, proceedings, made an allegation, or otherwise done anything under or by reference to the Employment Equality (Age) Regulations 2006.
Discrimination by failure to carry out instructions or complaint about such instructions
Discrimination by failure to carry out instructions or complaint about such instructions occurs where a person is given less favourable treatment for not carrying out an instruction to do an act which is prohibited by the Employment Equality (Age) Regulations 2006, or complaining about the instruction.
Harassment on grounds of age
Harassment occurs where a person is subjected to unwanted conduct on grounds of age which has the purpose or effect of violating his dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for him.
When do the Employment Equality (Age) Regulations 2006 apply?
The Employment Equality (Age) Regulations 2006 apply to employment, vocational training and the administration of occupational pension schemes.
The Regulations protect applicants for employment as well as employees. They protect contract workers, office-holders and those applying for such offices, constables, pupil and tenant barristers and those applying for pupillage or tenancy, partners in firms and those applying for partnership, Crown servants and Parliamentary staff.
The Regulations also apply to trade organisations, bodies conferring professional and trade qualifications, providers of vocational training, employment agencies and institutions of further and higher education.
The Regulations also extend to acts of discrimination against or harassment of, a person where such acts arise out of, and are closely connected to, a relationship which has ended.
Are there any exceptions?
The Employment Equality (Age) Regulations 2006 provide for the following exceptions:
Where age is an occupational requirement
Exceptions are provided where there is a genuine and determining occupational requirement for a person to possess a characteristic related to age for a post and where it is proportionate to apply that requirement in the particular case and the relevant person, for example a job applicant, does not meet the requirement or the employer is not satisfied that he meets it. It may, for example, be proportionate for a construction firm hiring for physically demanding work and where a good level of physical fitness is required to set a maximum age limit on grounds of health and safety.
The regulations do not render unlawful any acts done for the purpose of safeguarding national security, if the doing of any such act was justified.
The helping of disadvantaged groups
The regulations do not render unlawful any acts done in or in connection with affording persons of a particular age or age group opportunities or facilities which prevent or compensate for disadvantages linked to age suffered by such persons.
Persons at or over the age of 65
The Regulations do not prevent certain persons who are at or over the age of 65 from being dismissed where the reason for the dismissal is retirement.
What about acts of colleagues and co-workers?
If an act which is prohibited by the Employment Equality (Age) Regulations 2006 is carried out by another employee the act is treated as having been done by his employer as well even if it was done without the employer’s knowledge or approval. However, it is a defence for an employer to prove that he took such steps as were reasonably practicable to prevent the employee from contravening the Regulations.
A person who knowingly aids another person to do an act which is unlawful under the Regulations is treated as doing the unlawful act himself.
How are the Regulations enforced?
If a person has been discriminated against it is open to them to bring proceedings in an employment tribunal or in the County Court.