Law guide: Employment

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Age discrimination

Age discrimination

Contents

Age discrimination

It is unlawful to discriminate on grounds of age.

The Employment Equality (Age) Regulations (Northern Ireland) 2006 and its subsequent amendments apply to all employers in the private and public sector, vocational training providers, trade unions, professional organisations, employer organisations and trustees and managers of occupational pension schemes. They cover employees of any age, and workers, office holders (directors) and partners of firms.

What do the regulations protect against?

The regulations make the following changes to the law:

Stop unjustified age discrimination in employment and work-related training

For example, employers must make sure that any redundancy policies do not directly discriminate against older workers. They must not discriminate indirectly – for example, by selecting only part-time workers for redundancy, when a large number of these may be older workers. The only exceptions are where an age requirement can be objectively justified.

Remove the upper age limit for unfair dismissal and redundancy rights

The regulations remove the upper and lower age limits for the entitlement to statutory redundancy pay. The upper age limit on unfair dismissal claims has also been removed.

You will therefore have to pay your employee the statutory minimum redundancy payment whatever their age, so long as they have worked for you for at least two years.

Refusing job applicants

It is unlawful for you to impose an age limit when recruiting, unless this age restriction can be objectively justified or is imposed by law.

Types of age discrimination

Direct age discrimination

This is where a worker is treated less favourably because of their actual age when compared with another worker (known as a 'comparator') of a different age group, but who otherwise shares the same or similar (but not materially different) circumstances as the complaining worker.

The comparator's circumstances do not need to be identical (in terms of the type of job, job level, job experience and seniority, etc.), but must not be wholly dissimilar. If a suitable comparator cannot be found, then a 'hypothetical comparator' can be used instead, who would be deemed to have the same employment as the complaining worker (such as their title, role, level etc). An Industrial Tribunal has the power to decide the particular circumstances of a hypothetical comparator (such as their personality).

For example, if after their 50th birthday party a television presenter is suddenly moved to a position where they no longer present programmes, whilst a younger co-presenter is not moved, it could be a case of unlawful direct age discrimination.

You could be liable for direct discrimination even if you did not intend to discriminate against your employee.

Indirect age discrimination

This will occur where you apply a formal or informal provision, criteria or practice equally to all the workers in the workplace that puts members of an age group at a particular disadvantage when compared with other workers, and a worker within that group actually suffers the particular disadvantage.

It does not matter whether or not this has been done intentionally.

For example, if you state that only 'recently qualified' employees can attend a managerial training course, this will be indirectly discriminatory to older employees as they are less likely to have 'recently qualified'.

Defences

You can defend a claim of direct and/or indirect age discrimination by justifying your actions or the use of the unlawful practice, provisions or criteria, if you can show that it is a proportionate means of achieving a legitimate aim.

There is, however, a further exception whereby direct discrimination is allowed in circumstances where it is required, in order to comply with another law or a genuine occupational requirement of the role. For example, a dramatic performance or other form of entertainment that requires a person from a particular age group for authenticity.

Harassment

Harassment is unwanted conduct towards a worker by an employer or another worker because of that worker's age. This applies to any conduct that violates a worker's dignity or creates an intimidating, hostile, humiliating, degrading or offensive environment, even if it was not intended as such.

For example, if the general conduct at the workplace is to tolerate the telling of ageist jokes, this can be age harassment.

If it is reasonable that the unwanted conduct has had an intimidating or humiliating effect on the worker, then you may have a harassment claim made against you (even where the harassment was unintentional). A worker will not be protected if they are over sensitive and unreasonably take offence to an innocent comment.

Employers are liable for any acts of harassment undertaken by their employees in the course of their employment – whether they knew about it or not – if they fail to take reasonable steps to prevent it. 'In the course of employment' means 'done whilst at work' or 'done while 'in a workplace-related environment'. Employers can't defend a claim of harassment by showing that they did not authorise it or on the grounds that the actions were reasonable or warranted.

You can, however, escape liability for harassment, if you took reasonably practicable steps to prevent it.

Victimisation

Victimisation under the age discrimination regulations happens when a worker is treated less favourably than another worker because:

  • They have asserted their right not to be discriminated against on the basis of their age by making a complaint
  • They gave evidence or information in a complaint of age discrimination made by another worker
  • They have taken any other action under legislation protecting them from age discrimination
  • They have alleged that you or another worker have contravened age discrimination legislation
  • You know that they intended to do, or you suspect that they have done or intend to do, any of these things

For example, a worker might have grounds for a victimisation claim if they are prevented from going on training courses; subjected to unfair disciplinary action; or excluded from company social events because they took any of the above mentioned action.

Positive action

In some circumstances, you may encourage or offer support specifically to employees of a particular age where such an age group is under-represented. This 'positive action' is allowed under age discrimination laws. An employer may, for instance, have incentives such as additional days leave to reward employees during their employment for long service.

This does not mean that you can discriminate in favour of the members of a particular age group when it comes to choosing people to do the work or fill the posts, as that could be unlawful discrimination.

Positive action is not the same as 'positive discrimination', which is where members of a particular group who have a protected characteristic are treated more favourably regardless of their circumstances. Positive discrimination is unlawful.

Tribunal claims

If you dismiss an employee, or if an employee resigns because they claim that they have been discriminated against by you, then they may make a complaint of unfair dismissal to an Industrial Tribunal. In addition, they may also claim for damages on the grounds of discrimination which they will be able to do regardless of their length of service.

A complaint must be presented within three months of the date of the incident, unless the tribunal considers that it is fair and reasonable in the circumstances to hear the claim outside that period.

While there is a limit on the amount of compensation a tribunal can award for unfair dismissal, there is no limit in cases of unlawful discrimination.

Further information

You can get more information from the Labour Relations Agency (LRA), which offers free, confidential and impartial advice on all employment rights issues. You can call the LRA helpline. The Equality Commission for Northern Ireland can help with advice regarding discrimination and equal opportunities.