Date:   17 July 2007

WHAT DOES AGE DISCRIMINATION MEAN TO YOU?

The Employment Equality (Age) Regulations 2006 came into force on the 1 October 2006 and the legislation was deemed necessary to counteract ageist behaviour and practices, either conscious or unintentional, in the workplace.  The regulations apply to all employers, private and public sector, vocational training providers, trade unions, professional and employer organisations and managers of occupational pension schemes.

There is now a national default retirement age of 65 which should not be confused with “pension age”.  This renders it unlawful for an employer to insist upon compulsory retirement below that age.   Protection is provided for those applying for employment and for those already employed.  An employee has the right to request to work beyond 65 or any other retirement age set by the company.  In turn, the employer has to consider this request under a “duty to consider procedure”.

There are two types of age discrimination, namely: 

• direct:  treating someone less favourably because of their age
• indirect: having a policy or practice that puts people of a certain age group at a disadvantage, compared to other people

 There are limited circumstances when it is lawful to treat people differently because of age, the main ones being: 

• objective justification –  the employer may have fixed a maximum age for the recruitment or promotion of employees to reflect the training requirements of the post or the need for a reasonable period of employment before retirement;
• genuine occupational requirement, for example an actor playing the part of a person of a particular age;
• where there is a need for “positive action” by the employer i.e. targeting recruitment at older people as long as the position itself is open to all ages;
• if a job applicant is within 6 months of the employer’s normal retirement age (if the employer has one) or the age of 65, then an employer may refuse to recruit on the grounds of age.

Individuals: 

What should I do if I feel that I am being discriminated against in the recruitment process?

The DTI’s website is a good starting point and contains a questionnaire which can be completed and returned to the employer for their response.  You may need help completing this form from a solicitor or employment specialist and should, in any event, seek assistance upon receipt of the response from the employer to consider an application to the employment tribunal which has to be made within three months of the discriminatory act.

What should I do if I feel that I am being discriminated against in my workplace?

• speak to the person concerned informally;
• if the problem persists speak to your manager;
• make a formal complaint using the grievance procedure;
• if the grievance procedure has been exhausted and you need more evidence or information, complete the questionnaire procedure;
• make a claim to the employment tribunal – remember time limits. 

Employers:

All employers are now required by law to make sure they have fair procedures in place to avoid discrimination on grounds of age.  Some of the positive steps being taken by employers to comply with the new legistlation might include:   

• revising recruitment, selection and promotion criteria – for example removing dates of birth, periods of employment and other indicators of age from application forms to ensure that shortlisting decisions are based on skills and ability alone;
• updating the following policies to include age discrimination:
• equality
• harassment, bullying and victimisation
• training
• removing upper age limits from unfair dismissal and redundancy payments;
• considering pay, benefits and other conditions;
• following correctly the “duty to consider” procedure.

As the age discrimination regulations are relatively new, it is too early to assess their effectiveness, but the introduction of legislation is a positive step and shows the Government is taking this area of employment law very seriously.

Denise Brosnan