The Age Discrimination Regulations cover both ‘Direct Discrimination’ and ‘Indirect Discrimination’.
Direct Age Discrimination
Direct age discrimination occurs where an employer treats a person less favourably than others on the grounds of their age. Any discriminatory treatment will be unlawful if it is in relation to one of the following 5 areas:-
- Arrangements made for the purpose of deciding whom to employ;
- Refusing to offer, or deliberately not offering, a person employment, or the terms on which employment is offered;
- The terms afforded to a person in employment;
- The opportunities provided for promotion, transfer, training or any other benefit;
- Dismissing the person or subjecting them to any other benefit.
However, age discrimination can be lawful if it is a ‘proportionate means of achieving a legitimate aim’. A legitimate aim would include health and safety or rewarding loyalty.
However, we expect this to be a very difficult test to satisfy. Direct age discrimination will only be permitted in very exceptional circumstances.
Age discrimination may also be justified in limited circumstances where being a particular age may be a genuine occupational requirement. One example would be the hiring of actors, where the age of the character portrayed is a relevant consideration.
Indirect Age Discrimination
Indirect Age Discrimination occurs where:-
- an employer (A) applies a provision, criterion or practice to an employee (B) which is applied equally to persons not of the same age group as B; and
- that provision, criterion or practice puts person of B’s age group at a particular disadvantage when compared with other persons; and
- B suffers that disadvantage.
Examples would include the requirement for a minimum number of years’ experience or requiring applicants to be recent graduates.
As above, indirect age discrimination can be lawful if it is a ‘proportionate means of achieving a legitimate aim’. This may include economic factors, such as business needs and efficiency.
Harassment
Harassment on the grounds of age is also covered by the Regulations. It is defined as unwanted conduct which has the purpose or effect of either:-
- violating a person’s dignity or
- creating an intimidating, hostile, degrading, humiliating or offensive environment for that person,
where such conduct is done on the grounds of age.
This would include, for example, an older worker being subjected to jokes about baldness, wrinkles or difficulty with hearing. Any offensive behaviour based on physical traits that become apparent with age would be harassment under the Regulations.
It may also include an older employee not being invited to after-work drinks because he would not fit in with the social culture.
The Regulations provide that employers are liable for the acts of their workers unless they have taken reasonable steps to prevent them. You will need to ensure that you have a clear and strictly enforced diversity policy to guard against liability for acts of employees.
Age discrimination claims are often settled without the need for employment tribunal proceedings by way of compromise agreements.
Please feel free to contact one of our solicitors if you require specific advice on Age Discrimination. |
