Age Discrimination - The Employment Equality (Age) Regulations 2006

The Employment Equality (Age) Regulations 2006 came into force on 1st October 2006, making it unlawful for employers and a number of other bodies to discriminate against a person on the ground of his or her age. The Regulations apply to employees, agency workers and job applicants alike.

The Regulations provide protection for younger workers as well as protecting older workers from discrimination. The Regulations apply to recruitment procedures, job offers and rejections, terms of employment, promotions and training, dismissals and ‘any other detriment'.

The Regulations prohibit direct and indirect discrimination, victimisation and harassment in employment. However, the Regulations provide a defence in that direct and indirect discrimination will both be lawful if they can be objectively justified as a ‘proportionate means of achieving a legitimate aim'.

If an employee brings and succeeds in a claim for age discrimination then the Employment Tribunal may award compensation for injury to feelings as well as compensation for loss of earnings.

So what does this mean for employers?

Direct Discrimination

As of 1st October 2006 it is unlawful to:-

reject a job applicant because they are too old or too young
apply an upper or lower age limit to jobs
pay younger workers less than older workers

unless the employer has a justification defence for doing so.

Example:-
An employer requires its machine operatives to retire at 55. This would be directly discriminatory against the over-55's unless it could be objectively justified by the employer. If the employer was able to show that his legitimate aim was to protect the health, welfare and safety of his employees, then he may well have a defence. However, the employer would be likely to have to prove that it was potentially dangerous for the over-55's to use the machinery, and provide evidence that the over-55's were more likely to injure themselves when working the machinery than younger workers. Assumptions will not be sufficient. It would be very unlikely that this policy would be a proportionate means of achieving a legitimate aim, and this employer would be better advised to require his employees over-55 to undergo more regular health checks.

Indirect Discrimination

As of 1st October 2006 it is unlawful to:-

make recruitment or promotion conditional on a certain number of years experience
select employees for redundancy on the basis of length of service
use length of service as a criteria for access to benefits
apply unnecessary health and fitness tests in recruitment

unless the employer has a justification defence for doing so, or the practice is covered by the Special Rules relating to service related pay and benefits.

Example:-
An employer decides to consider applications for a senior position from individuals with over 15 years experience only. It is a perfectly legitimate aim for the employer to want to employ an individual who can perform the job adequately. It is likely, however, that it will be quite difficult to show that a blanket policy of rejecting all applicants with less than 15 years experience is a proportionate means to achieving their aim. Unless the employer can show a very good reason why they require someone with over 15 years experience, a better option would be for the employer to produce a less discriminatory selection criteria focussing on the skills and abilities required.

October 2008

This article gives a general overview only and the legal position at the time of writing this article. It cannot be relied upon in any particular case. Specific legal advice must always be considered to include consideration as to whether the legal position contained in this article has changed since going to print. For further information and advice, please contact Paul Archer or Lauren Harkin on 01793 527141 or alternatively by email on Paul.Archer@lemon-co.co.uk or Lauren.Harkin@lemon-co.co.uk.

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