Age discrimination in employment

Transcription

1 Age discrimination in employment CHAPTER 7 OVERVIEW 1 The Employment Equality (Age) Regulations 2006 came into effect on 1 October They 2 implement e EU Framework Directive on Equal Treatment in employment and occupation. As a result of e Regulations it is unlawful to: (i) (ii) (iii) (iv) (v) directly discriminate on e grounds of age, unless objectively justified indirectly discriminate, unless it can be objectively justified subject someone to harassment on e grounds of his or her age; is includes e perceived age of e victim victimise someone because he or she has made a complaint or an allegation or has given or plans to give evidence concer ning a complaint of age discrimination discriminate against someone, in certain circumstances, after e working relationship has ended. In addition, (i) (ii) (iii) (iv) employers could be vicariously liable for e acts of eir staff e upper age limits on unfair dismissal and redundancy have been removed employees have a right to request at ey should be allowed to continue working; e employer must consider such requests 3 ere are some occasions when discrimination may be lawful. THE FRAMEW ORK DIR ECTI VE The purpose of e Directive is set out in article 1 as being to lay down a general framework for combating discrimination and putting into effect e principle of equal treatment. The Directive is intended to introduce a minimum level of protection and e principle of equal treatment here means, according to article 2, at ere should be no direct or indirect discrimination on e grounds of age. Thus article 2.2(a) states at direct discrimination shall be taken to occur where one person is treated less favourably an anoer in a comparable situation. When one relates is to age, of course, ere may be a variety of problems: There may be an issue where one may not be comparing like wi like. Is e treatment of a 20-year-old to be compared to e treatment of a 65-year-old in all circumstances (except where a legitimate exception can be objectively justified)? Anoer aspect is at age groups are changeable, and during a normal lifetime one may expect to progress rough a whole range of different age groups and experience different amounts and types of discrimination. All rights reser ved; no part of is excerpt may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or oerwise wiout e prior written permission of e Publishers or a 1

2 Essentials of Employment Law Age is also closely linked wi oer grounds of discrimination and ere may be issues concerning wheer a person has been treated less favourably on e grounds of age or, say, disability. It may be difficult at times to isolate an inference of age discrimination. There is no need for a comparator to actually exist. Article 2(a) refers to comparison wi anoer who has been or would be treated in a comparable situation. Thus it is possible to use a hypoetical comparator. Article 2.2(b) states at indirect discrimination is taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular age at a particular disadvantage wi oer persons, unless (i) at provision, criterion or practice is objectively justified by a legitimate aim and e means of achieving at aim are appropriate and necessar y. As a result of e need to show a disparate impact as between groups, e issue of statistics is important in indirect discrimination cases, alough e House of Lords has stated at e cour ts have already shown emselves ready to interpret purposively e concept of indirect discrimination so as to lessen e reliance on statistics. In Ruerford 4 e House of Lords held at sections 109 and 156 ERA 1996 (which, prior to e Age Regulations, stopped ose over normal retirement age receiving protection from unfair dismissal and also any entitlement to redundancy payments) did not have an adverse impact on a substantially higher propor tion of men an women and erefore did not constitute discrimination on e grounds of sex. More men an women work after normal retirement age and Mr Ruerford had claimed at erefore a higher propor tion of men an women were affected. The Court, however, took e whole workforce as a comparison and said at e percentage of employees who were not adversely affected was about 98.8 per cent. In at group ere was virtually no difference between men and women. A difference in treatment of individuals, according to e Court, at was based purely on age could not be transformed by statistics from age discrimination into sex discrimination. Justification Article 2.2(b)(i) provides a defence of justification. This can be where e provision, criterion or practice is objectively justified by a legitimate aim and e means of achieving at aim are appropriate and necessar y. Thus ere can be objective justification for a difference in treatment between groups if: e difference in treatment deserves protection e difference in treatment is sufficiently substantial for it to take precedence over e principle of equal treatment e means for achieving is difference in treatment are bo appropriate and necessar y. It is for e employer to justify e difference in treatment, if necessar y, in accordance wi article 9 of e 5 Directive on e Burden of Proof. 2 All rights reserved; no part of is excerpt may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or oerwise wiout e prior written permission of e Publishers or a

3 Age discrimination in employment Mangold v Helm Case C-144/04 (2006) IRLR In e case of Werner Mangold e European Court of Justice considered a situation where German law allowed for e employer to conclude, wiout restriction, fixed-term contracts of employment wi employees over e age of 52 years. There were issues connected to e Fixed-term Workers Directive, but also wi regard to e age aspects of e Framework Directive on Equal Treatment. The purpose of e German legislation, according to e national government, was to encourage e vocational integration of unemployed workers. The Court agreed at such a purpose could be objectively and reasonably justified. The question en was wheer is legitimate objective was appropriate and necessar y. The problem was at e national legislation applied to all people over e age of 52 years and not just to ose who were unemployed. The Court concluded: In so far as such legislation takes e age of e worker concerned as e only criterion for e application of a fixed-term contract of employment, it has not shown at fixing an age reshold, as such, regardless of any oer consideration linked to e structure of e labour market in question or e personal situation of e person concerned, is objectively necessar y to e attainment of e objective pursued. Observance of e principle of propor tionality requires every derogation from an individual right to reconcile, so far as is possible, e requirements of e principle of equal treatment wi ose of e aim pursued. Thus e Court held e measure to be not in accord wi Community law. Taking away e employment protection rights from employed older workers was not appropriate and necessar y when introducing a measure to help unemployed older workers. Harassment Article 2.3 declares at harassment is anoer form of discrimination. It occurs when ere is unwanted conduct which takes place for e purpose or effect of violating a person s dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment. Instruction to discriminate An instruction to discriminate against persons on e grounds of age will be deemed to be a form of direct or indirect discrimination. This is intended to stop discrimination by ird parties on behalf of e employer. One example might be wi employment agencies used by employers to supply permanent and/or temporary staff. An express or implied instruction to supply only candidates wiin a particular age range will effectively discriminate against oers on e grounds of age. Presumably also instructing an advertising agency only to place recruitment advertising in certain journals which appeal to a particular age group might also be seen as an instruction to discriminate. Furer exceptions Article 2.5 states at e Directive is wiout prejudice to measures laid down by law which, in a democratic society, are necessar y for public security e maintenance of public order All rights reser ved; no part of is excerpt may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or oerwise wiout e prior written permission of e Publishers or a 3

4 Essentials of Employment Law e prevention of criminal offences e protection of heal e protection of e rights and freedoms of oers. Scope The Directive applies to bo e public and e private sector and has a wide scope, albeit limited to e areas of employment and vocational guidance and training. In particular it applies to: conditions for access to employment, self-employment or to occupation. This includes selection criteria and recruitment conditions all types of activity and at all levels of e professional hierarchy, including promotion access to all types and all levels of vocational guidance and vocational training, including practical work experience employment and working conditions pay dismissals membership of, or involvement in, workers and employers organisations, including any benefits provided any organisation of which e members carry on a profession, including any benefits provided. The Directive also specifically excludes: payments of any kind made by state schemes, including social security or social protection schemes e armed forces, at e Member State s discretion. Thus e scope is wide, but it is still limited to e fields of employment and vocational training. Age discrimination has a more limited scope an ose measures concerned wi sex and race. The Race Directive, for example, includes all e areas of application as for age, but also includes social protection, such as social security and healcare, social advantage, education and access to and supply of goods and services which are available to e public, including housing. Occupational requirements and justification of differences of treatment on grounds of age Articles 4 and 6 of e Framework Directive provide for e exceptions to e principle of equal treatment as ey apply to age. Article 4.1 specifies at Member States may determine at a difference of treatment which is based on a characteristic related to age shall not constitute discrimination where such a characteristic constitutes a genuine and determining occupational requirement, provided at e objective is legitimate and e requirement is propor tionate. Article 6 en takes is furer. It actually provides for specific exceptions to e principle of equal treatment. They must be 4 All rights reserved; no part of is excerpt may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or oerwise wiout e prior written permission of e Publishers or a

5 Age discrimination in employment objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives. In addition, e means of achieving e aim must be appropriate and necessar y. It is not clear what legitimate employment policy means. Article 6 en continues to give some specific examples of differences in treatment which could be justified. The list is: (i) (ii) (iii) e setting of special conditions on access to employment and vocational training, employment and occupation (including dismissal and remuneration conditions) for young people, older workers and persons wi caring responsibilities in order to promote eir vocational integration or ensure eir protection e fixing of minimum conditions of age, professional experience or seniority of service for access to employment or to certain advantages linked to employment e fixing of a minimum age for recruitment which takes into account e training period and e need for a reasonable period of work before e individual retires. This difference of treatment assumes a retirement age which will limit a person s working life and erefore limit e return at an employer might receive in return. Positive action The Directive (Article 7.1) provides at e principle of equal treatment will not stop Member States from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to age. Positive action is a term at includes measures designed bo to counter e effects of past discriminatory practices and to assist members of e protected group to compete on an equal basis wi ose not in e protected group. This may include, for example, e encouragement of applications from e disadvantaged group, rough extra advertising; or e provision of special training opportunities for employees in e disadvantaged group. Information and dialogue Member States are required to ensure at e provisions of e national rules are brought to e attention of e persons concerned by all appropriate means, for example at e workplace. There is erefore a need to publicise and disseminate information about e Age Regulations. THE AGE REGULA TIONS The United Kingdom was one of a number of countries at were able to delay e implementation of e Framework Directive for up to ree years. The final date for implementation was erefore December 2006, but e government has a commitment, where possible, to introduce new employment regulations only twice a year. 1 October was e latest date at e Regulations could take effect to be in compliance bo wi e Directive and wi its own policy on e introduction of new regulations. All rights reser ved; no part of is excerpt may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or oerwise wiout e prior written permission of e Publishers or a 5

6 Essentials of Employment Law Direct discrimination Regulation 3(1)(a) states at a person A discriminates against a person B if, on e grounds of B s age, A treats B less favourably an he or she treats or would treat oers. The obvious example of direct discrimination wi regard to age is e placing of age limits in job advertisements. Stipulating at a person must be of a certain age or wiin a certain age range is likely to be direct discrimination against ose of oer ages, except for ose nearing retirement age (see below). Less obvious examples of discrimination in recruitment might be e stipulation of a certain leng of experience or of e requirement for certain qualifications if such requirements cannot be justified. The use of advertising media which only appeals, or is accessed by, a certain age group might also infer discrimination. Of course direct discrimination is unlikely to be as obvious as is, and e problem to be tackled might be an unwritten policy wiin an organisation not to recruit outside a certain age range. A major issue here is at it is possible to objectively justify direct age discrimination. There is a proviso in Regulation 3(1) which allows A to show at e less favourable treatment is a propor tionate means of achieving a legitimate aim. The meaning of is is discussed below, but discrimination on e grounds of age is e only ground for which it is possible to justify direct discrimination apart from e limited possibility of a genuine occupational requirement. Regulation 4(b) provides at a reference to B s age includes B s apparent age. This is an important inclusion because it applies to all ose who appear to be older (or younger) an ey actually are. It is also important because, in a way, it is a step towards stopping discrimination because of a person s appearance. Indirect discrimination Section 3(1)(b) declares at discrimination takes place when A applies to B a provision, criterion or practice which he or she applies or would apply equally to persons not of e same age group as B, but which puts or would put persons of e same age group as B at a disadvantage when compared wi oer persons and which also puts B at at disadvantage. This, of course, is now a standard definition of indirect discrimination. One example might be at of a business which requires applicants for a driving job to have held a driving licence for ten years. The requirement does not mention age, but it is likely at a higher propor tion of workers over e age of, say, 40 years will meet e requirement an ose aged, say, 25 years. Objective justification One of e areas at weakens e impact of e Age Regulations is e wide scope for justifying exceptions to e principle of equal treatment. The tests for objective justification are, firstly, at e discrimination has a legitimate aim, and, secondly, at it is an appropriate and propor tionate means of achieving at aim. In e 2005 draft Regulations some specific examples of treatment which depending upon e circumstances may be a legitimate and propor tionate aim and being justified exceptions to e rule on direct discrimination were included. In e event ese examples were left out of e final Regulations, but it is likely at any Court might first turn to Article 6 of e Framework Directive, which permits exceptions in a way at it does not to oer forms of discrimination. Two examples of legitimate aims are business needs and considerations of efficiency. In emselves, of course, ese are meaningless phrases but e scope at ey imply is potentially wide. 6 All rights reserved; no part of is excerpt may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or oerwise wiout e prior written permission of e Publishers or a

7 Age discrimination in employment Discrimination by way of victimisation Regulation 4(1) provides at victimisation is less favourable treatment by A on e grounds at B had done someing in relation to e Age Regulations, such as bringing proceedings or giving evidence or 7 information. This protection is subject to someing done being done or said in good and fai is identical in wording to e provisions in oer measures on discrimination. Instructions to discriminate If A instructs B to carry out an act which is unlawful under e Age Regulations and B does not carry out e instruction, or complains to A or anoer about e instruction, en any less favourable treatment of B by A would amount to discrimination on e grounds of age. Harassment on grounds of age Throughout e Age Regulations ere are statements at it is unlawful to subject a person to harassment. 8 Harassment is en defined in Regulation 6(1). There now seems to be a standard definition of harassment in all e anti-discrimination measures. The Age Regulations adopt is standard approach. Thus harassment on e grounds of age takes place when A engages in unwanted conduct which has e effect of violating B s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. There is also a reasonableness test, including taking into account B s perception, in Regulation 6(2). Harassment is always unlawful and ere is no possibility of justification. DISCRIMINA TION IN EMPLOYMENT AND VOCA TIONAL TRAINING Applicants and employees Regulations 7(1) and 7(2) set out what an employer may or may not do in relation to age discrimination in employment. Two limitations are at it is (i) only e employer s actions in relation to employment at count, and (ii) only employment at an establishment in Great Britain. In so far as applicants are concerned, it is unlawful for an employer to discriminate in e arrangements made for e purpose of deciding to whom employment should be offered, in e terms on which e 9 person s employment is offered or by not offering employment. As far as ose who are employed at an establishment in Great Britain, an employer may not discriminate in e terms of employment offered; in offering promotion, transfers or training; or in receiving any oer benefits or refusing or deliberately stopping such opportunities; or by dismissingor subjecting to any oer detriment. Regulation 7(4), however, does allow discrimination on e basis of age for ose applicants who would be employees if recruited and who are older an e employer s normal retirement age or 65 years of age if e employer does not have such an age. This exception also applies to applicants who would reach such an age wiin a period of six mons from e date of e application. In such cases it will be permissible for employers to discriminate in e recruitment process on e basis of age. An employer may decide not to offer employment or may decide to offer less favourable terms an to oer employees. The provision in Regulation 7(4) is closely connected to e age limit on retirement. It would not be logical to have a default retirement age of 65 and en not allow employers to discriminate so at ey did not recruit a replacement who was e same age or older. If an employee was forcibly retired at e age of 65 and e employer advertised e post, receiving an application from someone aged 66, it would be absurd if e employer was not allowed to discriminate against at person. The problem really starts wi having a default retirement age in e first place. It is were removed, ere would not be a logic in having is age limit on recruitment. All rights reser ved; no part of is excerpt may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or oerwise wiout e prior written permission of e Publishers or a 7

8 Essentials of Employment Law The 2005 consultation document did state at recruitment, selection and promotion decisions should be made on e skills required, raer an age, but ere are situations where direct or indirect discrimination can be justified. Age issues 12 Examples of where ere might be issues are: bir dates on job application forms might help an employer to make decisions based upon age requiring a certain leng of experience for recruitment or promotion might have to be objectively justified because it is likely to discriminate against young people requiring a certain qualification might put people at a disadvantage. The example given is of an older person who may never have had e opportunity to take media studies graduate recruitment schemes might have to be open to students of all ages or open to oer sources of recruitment vocational training any age limits concer ning access will have to be objectively justified employment agencies will have to be able to justify any age limits or specialisms related to age. Regulation 7(3) makes harassment in relation to ose employees or ose who are applicants unlawful. Regulation 7(6) states at benefits provided by e employer for e public, or for part of e public, from which e employee benefits as a member of e public or of at part are not covered by e Regulations. This is unless ere are differences in e benefits given to e employees and e public, or unless e benefits are regulated by e contract of employment or are concerned wi training. Exceptions for genuine occupation requirement, etc This Regulation is identical to e equivalent provisions contained in e Sexual Orientation and e Religion or Belief Regulations. It declares at all e provisions, except ose relating to terms of employment, in Regulation 7(1) and 7(2) concerning applicants and ose in employment do not apply where possessing a characteristic related to age is a genuine and determining occupational requirement. 13 The example given in e 2005 consultation is at of an actor who might be required to be of a certain age, but even at would need objective justification to show at it was propor tionate to apply at 14 requirement in e particular case. The same consultation pointed out at it is unlikely to be a great issue for age discrimination. This Regulation is used in e oer statutes and regulations concerning discrimination because it is an exception to e rule at ere can be no justification of direct discrimination. As we have seen above, somewhat depressingly, is rule does not apply in e case of age discrimination, where it is permissible to justify such discrimination generally. Contract workers 15 This Regulation provides for contractworkers to be given similar rights in relation to Regulations 7 and 8, where relevant, to ose workers in employment. Thus Regulation 9(1) makes discrimination against a contract worker by a principal unlawful in respect of e terms on which he allows him or her to do e work, by not allowing him or her to do it or continue to do it, in granting access to benefits or refusing e 16 same, or by subjecting e contract worker to any detriment. A principal is defined as a person who 8 All rights reserved; no part of is excerpt may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or oerwise wiout e prior written permission of e Publishers or a

9 Age discrimination in employment makes work available for doing by individuals who are employed by anoer person who supplies em under a contract made wi e principal ; contract work is e work which is made available; and a contract 17 worker is an individual supplied to e principal to do e work. Regulations 9(2) to 9(4) provide e same protection as before concerning harassment, genuine occupational requirement and benefits supplied to workers and e public, as in Regulation 7(6). The provision of vocational training It is unlawful for a training provider to discriminate against a person seeking or undergoing training in e arrangements made for e purpose of selecting who should be offered training; in e terms on which e training provider affords access to any training; refusing access; terminating e training; or subjecting e 18 applicant or person to be trained to any oer detriment during e training. Regulation 20(2) also makes harassment of an applicant or a person undergoing training unlawful. Training here means all types of instruction at help fit a person for any employment vocational guidance facilities for training practical work experience assessment related to e award of a professional or trade qualification. There is one exception in e Regulations. This is at it will not be unlawful to discriminate if e training is for employment which e trainee or potential trainee would not get because e employer could lawfully 19 refuse to offer employment on e grounds of Regulation 8 (genuine occupational requirement). Employment agencies, career guidance, etc This Regulation applies to employment agencies, including agencies at provide guidance on careers or 20 any oer service related to employment. It is unlawful for an employment agency to discriminate in e terms on which it offers its services, or by refusing to provide its services, or in e way it provides its 21 services, or for it to subject a person to harassment. There is also an exception in Regulation 21(3) which states at it is not discrimination if it concerns employment for which e employer will claim a genuine occupational requirement. An employment agency will not be liable for a claim of discrimination if it can show at it relied upon a statement by e employer at e genuine occupational requirement exception applied, and at it was reasonable for e agency to rely on e statement. The agency will, erefore, still have to exercise its own judgement, alough it is difficult to see how it could avoid relying on an employer s statement. There is provision, ough, in Regulation 21(5) for a person who knowingly or recklessly makes such a statement to be liable to a fine. Relationships which have come to an end If, during a relationship, an act of discrimination has taken place against B, en it is unlawful for A to discriminate against B, by subjecting him or her to detriment, or to subject B to harassment, after eir 22 relationship has ended, if is discrimination arises out of or is closely connected to e relationship. This is true even if e relationship came to an end before e Age Regulations came into force in October 2006, provided at e original act of discrimination would have been unlawful if it had taken place after e commencement date of e Age Regulations. All rights reser ved; no part of is excerpt may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or oerwise wiout e prior written permission of e Publishers or a 9

10 Essentials of Employment Law This same provision applies to e Sexual Orientation and Religion or Belief Regulations and is designed to stop continuing discrimination or harassment, such as inhibiting a person s attempts to get anoer job. OTHER UNLA WFUL ACTS Liability of employers and principals Anying done by a person in e course of his or her employment is to be regarded as having been done by e employer as well as him or her. It is not relevant wheer e employer had knowledge of e ings 23 done or approved em. Similarly, anying done by an agent for anoer person wi e auority will be treated as having been done by e original person as well as e agent. There is a defence in Regulation 25(3) where a person such as an employer can prove at he or she took steps as were reasonably practicable to prevent e employee from doing at act or acts in e course of employment. Aiding unlawful acts If a person knowingly aids anoer person to commit an act at is made unlawful by e Age Regulations, en at person is to be treated as having done an unlawful act of e like description. A person may have a defence to e provisions of is Regulation if he or she relies upon a statement by e oer person at e act done would not be unlawful by virtue of some aspect of e Age Regulations and at it is reasonable for him or her to rely on e statement. Again, if a person knowingly or recklessly makes such a statement which in a material respect is false or misleading, en at person will be liable to a fine on conviction. GENER AL EXCEPTIONS 24 The Age Regulations 2006 contain eight general exceptions. These are exceptions for: statutory auority national security positive action retirement national minimum wage e provision of benefits based on leng of service e provision of enhanced redundancy payments e provision of life assurance cover for retired workers. Exceptions for statutory auority and national security These provide at noing in Parts 2 or 3 shall make unlawful any act done in order to comply wi a statutory provision or for e purpose of safeguarding national security. An obvious statutory example quoted in e 2005 consultation document is e Licensing Act 1964, which prohibited e employment of persons under e age of 18 years in a bar when it is open for e sale of alcohol. Exceptions for positive action Because of e availability of e test of objective justification in direct and indirect discrimination, e need for someing more is seen only narrowly by e Regulations and e 2005 consultation. There are only two areas described in e Regulations as fulfilling a less demanding test for positive discrimination. These are, firstly, allowing persons of a particular age or age group to have access to facilities for training which 10 All rights reserved; no part of is excerpt may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or oerwise wiout e prior written permission of e Publishers or a

11 Age discrimination in employment will help em find particular work, and, secondly, encouraging persons of a particular age or age group to take advantage of opportunities for doing particular work. Exception for retirement and e duty to consider working beyond retirement Regulation 30(1) is concerned wi e exception for retirement and states at Noing in Part 2 or 3 shall render unlawful e dismissal of an employee at or over e age of 65 years where e reason for e dismissal is retirement. 25 This also applies to ose in Crown employment and relevant members of e House of Commons and e 26 House of Lords staff. What is means, of course, is at provided e employer follows e rules (see below), e employee may be dismissed for reasons of retirement at any age on or after e age of 65 years. Section 98(2) of e Employment Rights Act 1996 had a new subsection (ba) inserted wherein e retirement of e employee 27 was made an additional fair reason for dismissal. If e operative date of termination for such an employee is before e employee s 65 birday, retirement shall not be taken as e reason for e dismissal (unless ere is an objectively justified earlier retirement age). 28 If e operative date of termination falls on or after e employee s 65 birday and e employer has followed e correct notification procedure (see below), retirement is e only reason at can 29 be taken for dismissal, provided at e employment does terminate on e intended date of retirement. If, despite following e duty to notify procedure, e contract is terminated before e intended date, retirement cannot be e reason for dismissal. 30 There are particular matters to be considered wi regard to e fairness of e reasons for dismissal. These are: wheer or not e employer has notified e employee in accordance wi paragraph 4 of Schedule This paragraph is concer ned wi an employer s continuing duty to notify e employee of e intended retirement date and e employee s right to make a request (see below) if e employer has notified e employee, in accordance wi paragraph 4, how long before e notified retirement date e notification was given wheer or not e employer has followed, or tried to follow, e procedures in paragraph 7 of Schedule 6. Paragraph 7 is concerned wi arranging and holding a meeting to consider e employee s request. It is clear at employers procedures will have to be robust in order to ensure at events take place at e correct time and at all e procedures are correctly followed. A retirement dismissal will be unfair if e employer fails to comply wi obligations under paragraph 4 (notification of retirement if not already given under paragraph 2), paragraphs 6 and 7 (duty to consider employee s request not to be retired) and 32 paragraph 8 (duty to consider e appeal) of Schedule The 6. one-year qualifying employment period for protection against unfair dismissal does not apply in ese cases, and, of course, e upper age limit on 33 being able to make a claim for unfair dismissal was removed. All rights reser ved; no part of is excerpt may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or oerwise wiout e prior written permission of e Publishers or a 11

12 Essentials of Employment Law Schedule 6 Schedule 6 of e Age Regulations is about e duty to consider working beyond retirement. The Schedule imposes two duties upon an employer: (i) Firstly, ere is e duty to inform e employee of his or her intended retirement date and of his or her right to make a request. This information must be given not more an one year and not less an six mons before e dismissal. This is a continuing duty of e employer and such an obligation exists 34 until e fourteen day before dismissal. The employee may make a request to e employer not to retire on e intended retirement date. The employee must propose at, following e intended date of retirement, his or her employment should continue indefinitely, for a stated period or until a stated date. 35 This request must be in writing and can only be made once under is paragraph. In a case where e employer has complied wi its duty to notify, e employee s request must be made more an ree mons but not more an six mons before e intended retirement date; in a case where e 36 employer has not complied wi e duty, en wiin e six mons before e intended date. 37 (ii) Secondly, ere is e duty to consider e request. According to paragraph 6, considering a request means: holding a meeting wi e employee to discuss e request e employer and employee taking all reasonable steps to attend e meeting. The meeting is to be held wiin a reasonable period after e request has been received. In e draft Regulations ere was a time limit of 14 days for e employer to notify e employee of e decision. In e final Regulations is changed to as soon as reasonably practicable. The decision, which must be in writing, is eier to grant e request, stating wheer e employee s employment will continue indefinitely or wheer it will continue for a specified period, or to refuse it and to confirm e date of dismissal as well 38 as informing e employee of his or her right to appeal. It is possible for e decision to be given in writing wiout a meeting taking place, if it has not proved reasonably practicable to hold one wiin a period at is reasonable (again ere was a time limit of two 39 mons in e draft). The appeals procedure, contained in paragraph 7, follows a similar procedure and, again, time limits for decision-making were removed. Employees have a right to be accompanied to e first 40 meeting and any subsequent appeal meeting. The accompanying person must be a fellow-employee, which excludes trade union representatives who are not employees. The accompanying employee may address e meeting and confer wi e employee, but not answer questions on behalf of e employee. If e employer dismisses e employee after e request has been made but before a decision has been reached, e contract of employment will continue in force for all purposes including e purpose of determining e period for which e employee has continuity of employment until e day after e date of 41 e employer s notice of e decision made. Where an employer fails to inform e employee of e retirement date or of his or her right make a request, an employment tribunal may award compensation of 42 a maximum 8 weeks pay from e employer to e employee. It was proposed in an earlier consultation by e government at e duty to consider procedure would be 43 modelled on e right of parents wi young children to request flexible working. In e Age Regulations, however, ere is no list of possible reasons for turning down a request not to retire, nor is ere any obligation upon e employer to give any reasons for turning down e request. The only obligation is to notify e employees of e decision and eir right of appeal. 12 All rights reserved; no part of is excerpt may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or oerwise wiout e prior written permission of e Publishers or a

13 Age discrimination in employment Exception for e national minimum wage This allows for differential rates of pay related to age. Such pay is in relation to e hourly rate set by e Secretar y of State or in relation to differential pay for contracts of apprenticeship. There are, of course, two lower bands for young people: one for ose aged 16 and 17 years; e oer for ose aged between 18 and 21 inclusive. This measure only applies to e age bands and pay levels established by e statutory measures on e national minimum wage. Objective justification would be needed to pay a 16-year-old at a different rate from a 17-year-old. Similarly, if an employer were paying rates which were above e levels of e national minimum wage, he or she would have to justify is, even if e same age bands were used. Exception for provision of certain benefits based on leng of service Regulation 32 is concerned wi e issue of benefits related to leng of service and seniority. It is not uncommon for employees to be given extra benefits related to leng of service wi an organisation. Holiday entitlement is one example of a benefit at might be linked to leng of service. Wiout furer provisions such benefits might constitute unlawful age discrimination, because it will tend to mean at older (and longer-serving) employees receive greater benefits an less experienced (and often younger) employees. It will not be unlawful for A to award a benefit to employee B less an at awarded to employee C, when 46 e reason for e difference is e relative leng of service. There is a furer proviso relating to service at is longer an five years. In is case it must reasonably appear to A at e way in which e criterion of leng of service is used fulfils a business need of his undertaking (for example, by encouraging e 47 loyalty or motivation, or rewarding e experience, of some or all of his workers). It is difficult to see why e government boered wi is proviso for service over five years when it has such a broad justification at will be almost impossible to disprove. Obvious benefits at are linked to service include pay scales, and entry into heal and employee discount schemes. It is for e employer to decide which formula to use to calculate leng of service. It may be eier e leng of time a worker has been working at or above a particular level or it can be e leng of time e worker has been working for e employer in total. This distinction is important because it means at e five-year rule can be used again and again. Thus if a worker is employed as a shopfloor operative for a few years, doing work of a like nature, and is en promoted to being supervisor, en e five-year period can start all over again while he or she does work of a like nature which is different from at done previously. Exception for provision of enhanced redundancy payments The payments were calculated using a combination of e leng of service and age. The older e redundant employee, e higher e rate of payment, at least until e age of 64 years when ere was a severe tapering off of benefit. This exception based on age is permitted by e Regulations and employers are to be allowed to pay more so long as ey follow e same formula. The age restrictions at bo ends were also removed. ENF ORCEMENT The new Commission for Equality and Human Rights will include age diversity and age discrimination wiin its scope. It will have similar roles in relation to advice and guidance on age as wi regard to oer grounds of discrimination, as well as powers to investigate and challenge discrimination itself and rough suppor t of oers. ACAS will issue guidance on e Age Regulations. All rights reser ved; no part of is excerpt may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or oerwise wiout e prior written permission of e Publishers or a 13

14 Essentials of Employment Law Burden of proof The complainant must prove facts from which e cour t could infer discrimination in e absence of an adequate explanation. It is for e respondent to prove facts showing at age discrimination was not e reason or part of e reason for e action. Alternatively, e respondent may show objective justification for e difference in treatment in e case of direct and indirect discrimination. There is no justification defence for victimisation or harassment. Remedies on complaints to employment tribunals 48 An employment tribunal may make an order declaring e rights of e complainant, award damages, and make a recommendation to e respondent to take action wiin a specified period obviating or reducing e adverse effect complained of. Help for persons in obtaining information Like e oer anti-discrimination Regulations ere is a procedure for sending a questionnaire to respondents or prospective 49 respondents. The questionnaire is contained in Schedule 3 and ere is provision wiin Regulation 41(1) for e questions to be varied as e circumstances require. The form is simple and invites e questioner to give a factual description of e circumstances and e treatment received and why such treatment was unlawful. It en asks e respondent wheer he or she agrees wi e facts and wheer he or she agrees at is amounts to unlawful discrimination or harassment. If e respondent disagrees, he or she is invited to say why, what e reason was for e treatment and how far considerations of age affected e treatment of e questioner. Question 4 is en simply a statement of any oer questions to be asked. Schedule 4 merely asks e respondent to reply to ese questions or, if he or she refuses to do so, to give reasons for not answering There are time limits for serving such questionnaires and rules about how ey may be served. The questions and answers, subject to e time limits, are admissible as evidence in e proceedings and e cour t will take em into account, and may draw inferences, if it appears at e respondent deliberately failed to reply (wiout a reasonable excuse) wiin eight weeks of e questions being served or if it 52 appears at e replies are evasive or equivocal. Period wiin which proceedings are to be brought There are e normal periods for submission: ree mons for an employment tribunal and six mons for 53 a county or sheriff cour t beginning when e complained act of was done, wi discretion to extend ese periods if it is just and equitable to do so. KEY POINTS Alough e Age Regulations 2006 are similar to ose measures taken on oer grounds of discrimination, ere are important differences, such as: They are limited to employment and occupation, us excluding e supply of goods and services. Direct discrimination can be justified if it is a propor tionate means of achieving a legitimate aim. There is an entire part of e Regulations (Part 4) which lists general exemptions comprising some eight separate clauses, in comparison to e Regulations on Religion or Belief and also ose concer ned wi Sexual Orientation, which have ree such clauses. These exemptions 14 All rights reserved; no part of is excerpt may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or oerwise wiout e prior written permission of e Publishers or a

15 Age discrimination in employment reflect e complexity of regulation in is area, but include discrimination against e young, in terms of e lower rate of national minimum wage, and e provision of benefits for long service. A default retirement age is retained. It is difficult to see is as anying but a national retirement age which must be open to challenge as an inadequate implementation of e Framework Directive. The position of ose workers aged 65 and over continues to be weak. They are to negotiate continuation of eir working lives from a position of considerable weakness and e provisions removing e upper limit on unfair dismissal claims could turn out to have little meaning. NOTES 1 SI 2006/ Directive 2000/78/EC 3 See ACAS guide for employers Age and e workplace, 4 Secretary of State v Ruerford (No.2) (2006) IRLR Directive 97/80/EC 6 Case C-144/04 (2006) IRLR Regulation 4(2) 8 Regulations 7(3) in relation to employees and Regulation 9(2) in relation to contract workers 9 Regulation 7(1)(a) (c) 10 Regulation 7(7) ensures at ose on fixed-term contracts and ose who effect a constructive dismissal are included in e definition of dismissal from employment 11 Regulation 7(2)(a) (d) 12 These are taken from e 2005 consultation 13 Regulations 8(1) and 8(2)(a) 14 Regulation 8(2)(b) 15 For furer definition of contract work see note on Regulation 10 below 16 Detriment does not include harassment Regulation 2(2) 17 Regulation 9(5) 18 Regulation 20(1) 19 Regulation 20(3) 20 Regulation 21(6)(b) 2 Regulation 21(1) (2) 22 Regulation 24(1) (2) 23 Regulation 25(2) wheer express or implied and wheer precedent or subsequent 24 Regulations 27 34; is is an improvement on e draft Regulations 2005 which contained eleven such exceptions 25 According to Regulation 30(1) employee has e same meaning as in Section 230(1) Employment Rights Act Regulation 30(1) 27 See Schedule 6 Amendments to unfair dismissal legislation 28 Section 98ZA Employment Rights Act 1996 All rights reser ved; no part of is excerpt may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or oerwise wiout e prior written permission of e Publishers or a 15

16 Essentials of Employment Law 29 Section 98ZB(1) Employment Rights Act Section 98ZF Employment Rights Act Schedule 6 is concerned wi e duty to consider working beyond retirement 32 Section 98ZG Employment Rights Act Schedule 5 paragraphs Age Regulations Paragraphs 2 and 4 Schedule 6 35 Paragraph 5 Schedule 6 36 Paragraph 5(5) Schedule 6 37 Paragraph 6 Schedule 6 38 Paragraph 7(3) Schedule 6 39 Paragraph 7(4) and 7(5) Schedule 6 40 Paragraph 9 Schedule 6 41 Paragraph 10 Schedule 6; e continuation of employment contained here does not count for e purposes of sections 98ZA to 98ZH Employment Rights Act Paragraph 11 Schedule 6; e rule on calculating a week s pay contained in Part XIV Employment Rights Act 1996 and e limit in section 227(1) apply here; see paragraphs 11(3) (5) Schedule 6 43 See Part VIIIA Employment Rights Act Section 1(3) National Minimum Wage Act Regulation 12(3) National Minimum Wage Regulations Regulation 32(1) Age Regulations 47 Regulation 32(2) Age Regulations 48 As wi oer areas of discrimination ere are no statutory ceilings to e amount at can be awarded 49 Regulation 41 Age Regulations See Regulations 41(3) (4) 51 Regulation 41(5) Age Regulations Regulation 41(2) Age Regulations Including omission to act 16 All rights reserved; no part of is excerpt may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or oerwise wiout e prior written permission of e Publishers or a

17 Disability discrimination CHAPTER 8 OVERVIEW This chapter deals wi discrimination by employers on e grounds of disability. The Disability Discrimination Act 1995 makes it unlawful to discriminate against current or prospective employees for a reason relating to eir disability. We examine how e Act defines disability and e duties of e employer to take such steps as are reasonable in e circumstances to stop any physical or oer arrangements placing a disabled person at a disadvantage. DISABILITY The Disability Discrimination Act 1995 (DDA 1995) makes it unlawful for employers to discriminate against existing or prospective staff for a reason relating to eir disability. 1 People are also protected if ey have 2 recovered from a disability at is covered by is Act. The DDA 1995 covers employees and contract workers, apprentices and ose working under a contract to do any work. The Act was amended by e Disability Discrimination Act 2005 which, amongst oer matters, introduced a general duty for employers to take into account e need to eliminate unlawful discrimination and harassment in carrying out its functions. The forms of discrimination made unlawful by e DDA are: direct discrimination failure to comply wi a duty to make reasonable adjustments disability-related discrimination victimisation. 3 Direct discrimination and harassment A person discriminates against a disabled person if he or she, for a reason related to e disabled person s disability, treats e disabled person less favourably an he or she would treat oers to whom at reasons does not apply 4 cannot show at e treatment in question is justified. Thus direct discrimination depends not only upon e treatment taking place because of a person s disability, but also in comparison wi e treatment given to an appropriate comparator. This must be a person who does not have e disability in question. It can be a non-disabled person or anoer person wi a different disability. Less favourable treatment can only be justified if it meets two tests. The reasons for e treatment must be bo material to e circumstances and must be substantial. If e treatment amounts to direct discrimination against e disabled person en it cannot be justified at all. Direct discrimination means All rights reser ved; no part of is excerpt may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or oerwise wiout e prior written permission of e Publishers or a 17

18 Essentials of Employment Law treating e disabled person less favourably an a person who does not have e particular disability, but whose relevant circumstances (including his or her abilities) are e same as, or similar to, ose of e disabled person. 5 A disabled person wi arritis who can type at 30 words per minute applies for a job which includes typing. The disabled person is rejected because e typing speed is too slow. The correct comparator in a claim of direct discrimination would be a person not having arritis who also has a 6 typing speed of 30 words per minute. In Clark v Novacold 7 e Court of Appeal concluded at e test of less favourable treatment is based on e reason for e treatment of e disabled person and not on e fact of e disability. The employer must establish at e reasons given satisfy e statutory requirements. The employment tribunal may assess e evidence on which e employer s decision was made, but cannot substitute its own views. The approach to be taken is similar to at taken in unfair dismissal cases when e range of reasonable responses test is used wi regard to e employer s actions (see Chapter 16). In disability discrimination 8 cases e test is wheer e reasons for e employer s response were bo material and substantial. Disability-related discrimination Sometimes discrimination takes place for a disability-related reason at cannot be shown to be direct discrimination. It is when e reason for e discrimination is not e disability itself, but at relates to e disability. 9 An example of is is described in e second case study. A disabled woman is refused an administrative job because she cannot type. She cannot type because she has arritis. A non-disabled person who was unable to type would also have been turned down. The disability-related reason for e less favourable treatment is e woman s inability to type. The correct comparator is a person to whom e reason does not apply someone who can type. Such a person would probably have not been turned down. The disabled person has been treated less favourably for a disability-related reason, namely her arritis. This will be unlawful unless it can be justified. There is no direct discrimination, however, because e comparator for direct discrimination would have been a person who does not have arritis, but who is unable to type. DEFINING DISA BILITY According to section 1(1) DDA 1995, a person has a disability if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. The meaning of impairment Impairment 10 is generally determined by looking at e effect at an impairment has on e person s ability to carry out normal day-to-day activities. Some impairments are easy to identify, but some are not so obvious. A disability can arise from a wide range of impairments which can be: 18 All rights reserved; no part of is excerpt may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or oerwise wiout e prior written permission of e Publishers or a

19 Disability discrimination sensor y impairments, such as ose affecting sight or hearing impairments wi fluctuating or recur ring effects, such as rheumatoid arritis or myalgic encephalitis (ME) or chronic fatigue syndrome progressive, such as motor neurone disease or forms of dementia organ-specific, including respiratory conditions like asma and cardiovascular diseases such as rombosis, stroke and heart disease developmental, such as dyslexia learning difficulties mental heal conditions and mental illnesses produced by injury to e body or brain. The cause of e impairment is not relevant eg liver disease caused by alcohol addiction, even ough 11 e latter does not count as an impairment. See e ird example cases. A woman has obesity which gives rise to impairments such as mobility restrictions and breaing difficulties. She is unable to walk more an 50 yards wiout having to rest. A man has borderline-moderate learning difficulties which have an adverse impact on his short-term memor y and his levels of literacy and numeracy for example, he cannot write any original material, as opposed to slowly copying existing text, and he cannot write his address from memor y. It is e effects of ose impairments at must be taken into account, raer an e conditions 12 which cause e effects. This was e case Millar in v Inland Revenue Commissioners, where doctors were unable to find an organic medical reason for physical ailments which included sensitivity to light, headaches and a drooping eyelid. The Court stated at many physical impairments resulted from conditions which could not be described as illnesses. It is e fact of e claimant s condition which is important. The 2005 Act removed e requirement at mental illness had to be clinically well recognised for it to be regarded as a disability, alough e illness must still meet e definition in section 1. Persons deemed to be disabled Some people are automatically said to meet e definition of disability, so do not have to show at ey have an impairment at has a substantial long-term effect on e ability to carry out normal day-to-day activities: a person who has cancer, HIV infection or multiple sclerosis a person who is certified blind or partially sighted. Some conditions are not to be regarded in emselves as impairments: addiction to or dependency on alcohol, nicotine or any oer substance seasonal allergic rhinitis (hay fever) a tendency to set fires a tendency to steal All rights reser ved; no part of is excerpt may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or oerwise wiout e prior written permission of e Publishers or a 19

20 Essentials of Employment Law a tendency towards e physical or sexual abuse of oer persons exhibitionism voyeurism disfigurements which consist of tattoos or non-medical body-piercing. 13 Think about each of e items on is list, and consider wheer you ink ey should be regarded as a disability or not. Someone who met e requirements of e Act in e past eg wi a mental illness is still covered by e Act. The definition covers impairments affecting e senses such as hearing and sight, togeer wi learning difficulties or a mental illness. However, addictions, tattoos and body-piercing are all excluded from e 14 protection of e Act. Day-to-day activities are normal activities carried out on a regular basis and must involve one of e following: mobility manual dexterity (is covers e ability to use hands and fingers wi precision) physical co-ordination continence e ability to lift, carry or move everyday objects speech, hearing or eyesight memor y or ability to concentrate, learn or understand perception of e risk of physical danger. However, severe disfigurements are treated as disabilities alough ey have no effect on a person s 15 ability to carry out normal day-to-day activities. Impairments wi a substantial adverse effect Substantial can be defined by looking at: e leng of time it takes to carry out an activity e way in which a day-to-day activity is carried out eg someone wi obsessive compulsive disorder may wash hands after handling any single element of a meal he or she is preparing e cumulative effect of impairments. There is a need to take into account e effects of, firstly, behaviour by considering what is a reasonable expectation of e modification of behaviour eg a person wi a back problem might be expected to not go parachuting, but not give up lesser activities like gardening and, secondly, e environment because some aspects might exacerbate an impairment, like lighting, temperature, weaer. Medication or equipment is not taken into account when assessing wheer an impairment has a 16 substantial effect. One exception to is is when people wear glasses or contact lenses. 20 All rights reserved; no part of is excerpt may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or oerwise wiout e prior written permission of e Publishers or a