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Law guide

Age discrimination

Contents

Age discrimination regulations

The Employment Equality (Age) Regulations (Northern Ireland) 2006 and its subsequent amendments provide legal protection against age discrimination. It is, with some exceptions, unlawful to be discriminated against on the grounds of your actual or perceived age.

Background to the regulations against age discrimination

Society is changing and the working population as a whole is getting older. Better health standards mean that some people are choosing to work longer and others may be forced to work longer under government proposals to extend the minimum retirement age.

The age discrimination regulations help ensure that people are no longer denied jobs or harassed because of their age, and in most cases, workers of all ages will have an equal chance of training and promotion.

Who do the age regulations apply to?

The age regulations 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 other workers, office holders, partners of firms and others. They cover people using employment agencies or related careers guidance services. They cover recruitment, terms and conditions, promotions, transfers, dismissals and training. They even cover post-employment acts such as the refusal to provide references to ex-employees. The age regulations do not apply outside the employment field and thus do not cover provision of goods or services.

What is the effect of the age regulations on the workplace environment?

  • They stop unjustified age discrimination in employment and in work-related training
  • They remove the upper age limit for unfair dismissal and redundancy rights
  • They remove the upper and lower age limits for the entitlement to statutory redundancy pay
  • They make age limits for recruitment unlawful, unless the age restriction can be objectively justified or is imposed by law
Types of age discrimination

Direct age discrimination

This is where your employer treats you less favourably than another worker, because of your actual age or perceived age (regardless of whether or not the perception is correct). The worker with whom you compare yourself must have similar circumstances to you apart from your age. For example, if you are a television presenter and suddenly after your 50th birthday you are moved to a position where you no longer present programmes while your younger co-presenter was not moved, it could be a case of unlawful direct age discrimination.

Indirect age discrimination

This will occur where your employer equally applies a formal or informal provision, criteria or practice to all workers in the workplace that puts members of your age group at a particular disadvantage when compared with other workers. It does not matter whether or not this has been done intentionally.

For example, if your employer states 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'. If you are of that older age and you would have been eligible to attend the managerial training course had it not been for that provision, this could be unlawful indirect age discrimination.

Defences

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

Harassment

Harassment on the grounds of age is where another worker, or your employer, subjects you to unwanted conduct that has the purpose or effect of violating your dignity or creating an intimidating, hostile, humiliating, degrading or offensive environment.

If the general conduct at your workplace is to tolerate the telling of ageist jokes, this can be age harassment if you reasonably find it to be so.

Furthermore, the unwanted conduct will be harassment even where it was not intended to be harassing. If it is reasonable to regard the unwanted conduct as having a harassing effect, it will be unlawful. Note that you will not be protected by the regulations if you are over sensitive and unreasonably take offence to an innocent comment.

Employers can't defend claims of harassment on the grounds that the actions were reasonable or warranted. Employers will be liable for any harassment suffered in the course of employment if they fail to take reasonable steps to prevent it. 'In the course of employment' includes 'done while at work' and 'done while in a workplace related environment'.

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

Victimisation

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

  • You have asserted your rights not to be discriminated against on the basis of your age by making a complaint
  • You have given evidence or information in a complaint of age discrimination made by another worker
  • You have taken any other action under the age discrimination regulations
  • You have alleged that your employer or another worker has contravened the age discrimination legislation
  • Your employer knows that you intended to do or suspects that you have done or intend to do any of these things

For example, you might have grounds for a victimisation claim if you are prevented from going on training courses; subjected to unfair disciplinary action; or excluded from company social events; while comparable employees, who did not take the action you did, are not subjected to such treatment.

Exceptions

In some instances, the acts of your employer which you feel discriminate against you on the basis of your age might not be regarded as unlawful because they fall within exceptions provided for by the age regulations. An age requirement will not be age discrimination where it is a 'genuine occupational requirement', provided it is proportionate and reasonable. For example, a dramatic performance or other form of entertainment that requires a person from a particular age group for authenticity.

Positive action

In some circumstances, an employer 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 employers 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.

What to do next

If you think that you're suffering age discrimination at work, you should talk to your employer, explaining why you feel discriminated against. If necessary, put your complaint in writing. An employee representative (such as a trade union official) may be able to help you.

If this doesn't help, you may need to make a complaint using your employer's grievance procedure. If your employer doesn't have a grievance procedure, you should set out your complaint in a letter and hand it to your line manager. If your line manager is the problem, then hand your letter to your HR manager or your line manager's supervisor. Your employer should then arrange a grievance meeting with you. If the outcome of the meeting is unsatisfactory, you have the right to appeal to a manager who was not previously involved in your grievance. For more information, see our article on grievance procedures in Northern Ireland.

If you're unhappy with the outcome of your appeal, you can apply to an Industrial Tribunal. You must however obtain legal advice before taking this step. An application must be brought within three months of the act of discrimination taking place. If the discrimination extends over a period, you must bring your claim within 3 months from the end of that period.

For 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 on 028 9032 1442, from 09:00 to 17:00, Monday to Friday.