Age Discrimination Law

Transcription

1 Age Discrimination Law London: One Crown Court Cheapside London EC2V 6LR T: F: Reading: Sovereign House Vastern Road Reading RG1 8BT T: F: Canary Wharf: Level 10 One Canada Square London E14 5AA T: F:

2 Age Discrimination Law 1. Introduction 1.1 The current law on age discrimination is found in the Equality Act 2010 (the Equality Act ), which came into force on 1 October Age discrimination has been unlawful in Great Britain since 1 October 2006, when the Government introduced the Employment Equality (Age) Regulations 2006 (the Regulations ) to give effect to the EC Equal Treatment Framework Directive 2000 (the Framework Directive ). 1.2 Age discrimination took a while to take hold but there has been a big increase in age claims brought in the Employment Tribunal in the last two to three years, and some high profile discrimination claims which have brought the issue into the public eye. For example, ex- Countryfile host Miriam O'Reilly won her case against the BBC on the grounds of ageism. The 53-year-old claimed she had been unfairly dropped from the rural affairs show when it moved to a prime time Sunday evening slot in April The Tribunal heard allegations that O'Reilly had been asked if it was "time for Botox" and was warned to be "careful with those wrinkles when high definition comes in". 1.3 This summary has been written from the viewpoint of an employee/employer relationship. Many of the cases referred to below were considered under the old law, before the Equality Act. However they are still relevant under the current law. We will have to wait some time for an equivalent body of cases under the Equality Act to build up. 2. Basic Structure 2.1 One of the main purposes of the Equality Act was to harmonise the law on discrimination, bringing together the different strands. The Equality Act centres around nine protected characteristics, of which age is one. Individuals are protected against direct and indirect discrimination, as well as harassment, and victimisation. It is also unlawful to instruct, cause, induce or aid someone to discriminate against, harass or victimise another person, or to attempt to do so

3 2.2 The most important difference in relation to age compared to the general structure of other discrimination laws under the Equality Act is that direct discrimination as well as indirect discrimination can be justified i.e. it is lawful to discriminate against an individual where it is a proportionate means of achieving a legitimate aim of the business. This is very different from other areas, where direct discrimination (for example, race) is unlawful and cannot be justified. 2.3 Age discrimination protects a wide range of individuals in the workplace, including employees, agency and contract workers, office holders, those who do work personally, job applicants, partners, the Police and servants of the Crown, although the protections are not the same for all. Former employees are also covered. The Armed Forces, unpaid office holders and unpaid volunteers, are excluded. 2.4 Age discrimination applies to all parts of the employment relationship, including recruitment, terms and conditions, promotions, transfers and training and dismissal. 2.5 How old do you have to be? The basic principle is one of non-discrimination on grounds of age, which means any age. We tend to think of age discrimination protecting the old, but this is not what the law says, and it does not simply cover workers over a certain age (as in the United States). This perception is beginning to change - in the last few years there have been a few claims where younger workers have been successful for example, showing that they were dismissed for being thought too young to do their job. In Wilkinson v Springwell Engineering Limited (ET 2007), Miss Wilkinson was dismissed on grounds of capability. She was 18 and Springwell made a number of inaccurate, stereotypical assumptions about her abilities based on her age. Springwell did not put forward any arguments to objectively justify their actions and Miss Wilkinson won her claim for direct discrimination. 2.6 What is age? To bring a complaint of age discrimination, the individual first needs to establish their age. For the purposes of the Equality Act, this is done by referring to their age group. An age - 3 -

4 group is a group of persons defined by reference to age, whether to a particular age or a range of ages (see further below). 2.7 Occupational Requirement An occupational requirement can apply as a defence to claims of discrimination in respect of recruitment, access to promotion, transfer or training, or dismissal (that is, where, having regard to the nature or context of the work, being a particular age or a member of a particular age group is an occupational requirement). To be able to use this defence, the application of the requirement must be a proportionate means of achieving a legitimate aim. This defence is very narrow in practice. In Prigge and others v Deutsche Lufthansa AG (ECJ 2011), the ECJ held that air safety was a legitimate aim under Article 4(1) of the Directive. However, the maximum age of 60 for airline pilots, set out in the relevant collective agreement, was out of step with German and international laws, which fixed an upper age limit of 65 for airline pilots. For this reason, an age limit of 60 was not "proportionate" and therefore could not amount to a genuine occupational requirement. 2.8 Positive Action Positive action is permitted in limited circumstances. thinks that: Where an employer reasonably persons who share a protected characteristic suffer a disadvantage connected to the characteristic; persons who share a protected characteristic have needs that are different from the needs of persons who do not share it; or participation in an activity by persons who share a protected characteristic is disproportionately low; it is lawful for the employer to take positive action by taking proportionate measures to overcome a group s disadvantage, to meet specific needs or to enable or encourage participation. Separate positive action provisions apply in connection with recruitment and promotion (see below)

5 2.9 The Equality and Human Rights Commission (EHRC) Code gives as an example of different needs an employer whose monitoring data on training shows that its workers over the age of 60 are more likely to request training in advanced IT skills compared to workers outside this age group. The employer could take positive action by providing training sessions primarily targeted at this group of workers However, positive action needs to be handled carefully as it carries with it the inherent risk that taking positive action in respect on one group (older workers), ends up discriminating against another group (younger workers). It also requires some analysis of the employer s resources to see whether the conditions are met and whether it was reasonable for the employer to think that there actually was a disadvantage, different needs or low participation in a certain age group. Thinking based on stereotypical assumptions will not be reasonable and is likely to be discriminatory Under the old law, employers were not allowed to take positive action in selection for employment they could not recruit someone, or promote them, because of their age or to address any under-representation. The Equality Act (Section 159) changes this and makes positive discrimination possible at the recruitment stage but only to a very limited extent. Where an employer reasonably thinks that persons who share a protected characteristic suffer a disadvantage connected to the characteristic; participation in an activity by persons who share a protected characteristic is disproportionately low the employer can treat the person more favourably in connection with recruitment or promotion in order to enable them to overcome or minimise the disadvantage or participate in the activity but this is only where the candidates are as qualified as each other. If there are two candidates for a job, one, say, in her thirties and one in her sixties, and there are disproportionately few older workers in the employer s organisation, then age can tip the balance in the older woman s favour but only if the comparative merits of the two employees are otherwise equal. Otherwise, the employer would be guilty of unlawfully discriminating against the younger worker and would have no defence. Positive - 5 -

6 discrimination in recruitment is possible, but not mandatory - if the two candidates are equal, the employer can positively discriminate, but does not have to. It will be interesting to see how many employers try to rely on this provision, and how easy it is. How ready will a Tribunal be to agree that two candidates were otherwise equal, which is a subjective and uncertain test? And how often will an employer want to put its neck on the line and try to rely on this very narrow exception? 3. Direct and Indirect Discrimination, Harassment and Victimisation 3.1 Direct Discrimination The basic concept of direct age discrimination is that A treats B less favourably because of age than A would treat other people in a comparable position. This includes discrimination based on the perception of age, whether right or wrong. This focuses on the employer s reason (conscious or subconscious) for the treatment. This means that any age requirement for a job or position is potentially capable of amounting to direct discrimination because of age unless, of course, it can be justified. A minimum age for someone to be appointed to a particular position, or to be promoted to that position, may bear no relevance whatsoever to the necessary levels of experience and qualifications required for the role. When scrutinised, it may appear arbitrary. The same applies to a a maximum age which disqualifies someone from applying for a job. Other examples of direct age discrimination could include stereotypical, ageist tendencies (for example, not recruiting an older applicant into a junior position on the basis of a mistaken assumption that the older employee would not like to be managed by a younger employee, and/or was too old to adapt) An example of direct age discrimination is Baker v National Air Traffic Services Limited (ET 2007), where the respondent Company had a blanket ban on anyone over the age of 36 applying to become a trainee Air Traffic Controller. The Employment Tribunal found that this was direct age discrimination and could not be justified. The employer was criticised as it did not approach the issue of the age bar with an open mind and instead worked backwards by relating evidence to back up its pre-conceived view that the age bar was justified. This case is also a good reminder that the test for objective justification has two steps. Not only must there be a legitimate aim, but the means of achieving that aim must - 6 -

7 be proportionate. Here, the employer failed at the second step, and was criticised for failing to consider any other, less discriminatory, alternatives to a blanket age bar, which might have addressed its concerns. Whilst the employer had a legitimate aim (i.e. achieving a high success rate in training, providing an adequate pool of qualified individuals, allowing for a reasonable period of service after training and also ensuring safety), there was a lack of correlation between these aims and the blanket age bar. Although ability may tend to decline over time, this will not be enough to make stereotypical assumptions about a particular individual s ability lawful The Equality Act makes clear that discrimination is unlawful if it is because of age, but this does not have to be because of the victim s age. You can be discriminated against because of someone else s age (for example, if you are discriminated against because you have young children) In order to demonstrate direct discrimination, the individual must identify a comparator. The nature of age means that identifying the comparator can be more difficult, or more flexible, than is the case with the other strands of discrimination. Comparisons made between men and women, for example, are more straightforward obviously, a comparator for a man is a woman. With age, we have to make a comparison with another person of a different age or age group. But what age? Is it correct to compare a 50 year old to a 45 year old? There are no hard and fast rules as this will depend on the facts of each case. The explanatory notes to the Equality Act give the example of a protected age group comprising a group such as the over-fifties, or people of a particular age, such as 21-year-olds. It is up to the Claimant to specify the age group they want to compare themselves against. They will need to consider whether their case is best made out by comparing themselves against a wide age gap (for example, under 18s ), or a narrow age group (for example, people born in 1976 ), or even a relative age group (for example older than me ). This flexibility means that one person can belong to various age groups. The EHRC Code gives the example of a man of 86, who would be in all of the following age groups: 86 year olds (the narrow, specific end of the spectrum), over 65s, pensioners, senior citizens, older people and the elderly (at the wider, looser end of the spectrum). 3.2 Indirect Discrimination - 7 -

8 3.2.1 Indirect discrimination looks at group disadvantage. It occurs when A applies to B a provision, criterion, or practice which he applies or would apply equally to persons not of the same age or age group as B, but which puts persons of B s age or of the same age group as B at particular disadvantage when compared with other persons, puts B at that disadvantage and A cannot show that the provision, criterion or practice is a proportionate means of achieving a legitimate aim. Indirect discrimination provides protection where requirements are ostensibly neutral (for example, a requirement for ten years experience which applies across the board, to young and old alike) but which, in fact, have the effect of disadvantaging employees of a particular age group (as younger people are less likely than older people to have ten years experience). Another example could be the requirement to hold a particular qualification Indirect discrimination, can be justified. Last in first out (or LIFO ) as a selection criterion for redundancy, on its own, might indirectly discriminate against younger workers. The lawfulness of Last in first out was considered in Rolls-Royce v Unite the Union (CA 2009). The Court of Appeal said that, in the particular circumstances of that case, the use of length of service as a selection criterion in redundancy was lawful. Rolls- Royce and Unite had collectively agreed that length of service would be used as a selection criterion in any future redundancies. Rolls-Royce wanted to circumvent this criterion. In an unusual move, Roll-Royce decided to apply to the High Court for a determination as to whether the criterion could be used or if it would be indirectly discriminatory against younger workers. On appeal, the Court of Appeal decided that the length of service criterion could be justified and was in fact a proportionate means of achieving the legitimate aim of securing loyalty and a stable workforce, when viewed objectively. It was one of a number of criteria used and length of service alone was not determinative. Ultimately, use of the criterion in this context was fair. This does not mean that length of service is automatically safe to use in a redundancy selection exercise. If it had been the only criterion for redundancy and had not been determined with assistance from the Union, then it is possible that the Court would have decided that the criterion was indirectly discriminatory and could not be justified. 3.3 Harassment A subjects B to harassment where A engages in unwanted conduct related to age which has the purpose or effect of either: - 8 -

9 a) violating B s dignity; or b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. In deciding whether conduct has one of these effects, the Tribunal must take into account B s perception; the other circumstances of the case; and whether it is reasonable for the conduct to have that effect When it comes to age, harassment might occur in a number of ways. For example, younger workers ridiculing someone who is older, or shunning an older worker from work-related social activities because they regard him/her as too old to fit in. Or take the example of an older manager, who harasses or undermines a much younger worker through bullying behaviour or commenting about the individual being fresh faced or too young to know. Management could also be guilty of harassment if, for example, in wanting to get rid of an older worker, it embarks on a campaign of criticism, setting difficult (if not impossible) deadlines, making unwelcome remarks about them, or through isolation or freezing them out. Harassment can also occur though expressly ageist behaviour, for example, telling ageist jokes, or making disparaging comments such as the grey workforce One of the important changes made by the Equality Act was to clarify the position on association and perception harassment across all the protected characteristics (including age). The new law makes clear that harassment is unwanted conduct related to a relevant characteristic. It does not have to relate to the victim s characteristic here, their age. This means that an employee who found ageist jokes offensive (irrespective of their own age) could claim that they had been harassed for example, a young employee who took offence at a lot of jokes and remarks in the office about old codgers. 3.4 Victimisation Victimisation occurs where a person, B, is subjected to a detriment by A because B has made or intends to make (or is suspected of making or intending to make) a claim or allegation of age discrimination, or has assisted another in their claim or allegation of age - 9 -

10 discrimination. In essence, victimisation is discrimination by retaliation. Normally the employer (or its employees) or former employer will be the culprit, but, conceivably, a prospective new employer could be liable for victimisation if it refuses to employ someone because, for example, they gave evidence against a previous employer in a discrimination case. There is no protection if a person makes allegations or gives evidence which they know to be false, but a person who complains mistakenly but in good faith is protected. This should raise a warning light as soon as someone alleges discrimination or harassment in a grievance or elsewhere, as this could form the platform to go on to claim victimisation A detriment in the context of victimisation can take many forms, and has no definition in the Equality Act. The EHRC Code explains that it is anything which the individual concerned might reasonably consider changed their position for the worse or put them at a disadvantage. It gives the examples of being rejected for a promotion, being denied an opportunity to represent the organisation at external events, being excluded from opportunities to train, or being overlooked in the allocation of discretionary bonuses or performance-related awards. It can also cover grievances such as exclusion and marginalisation at work. An example of victimisation in the context of age could be that a senior manager hears a worker s grievance about harassment on the basis of being the subject of ageist jokes, and constant references to when he intends to hang up his boots and spend time with the grandchildren. The manager upholds the grievance and directs the perpetrators to be disciplined. As a result, the manager falls into bad favour and is denied promotion and shunned by his colleagues. This is likely to amount to victimisation against the manager. Employers often find it hard to ignore the fact that an employee has complained of discrimination and, inadvertently can end up (albeit unintentionally) shunning and excluding an employee or treating him differently. Care needs to be taken to make sure things continue in as normal a way as possible, as otherwise this could amount to victimisation. 4 Who is liable? 4.1 If one employee discriminates against or harasses another, the employer will be liable, although it has a defence if it has taken reasonable steps to prevent such conduct from taking place. The offending employee may also be personally liable. Employers may also be liable for actions of their agents and third parties. This can cover employment agencies, and so care is needed in giving instructions to them to make sure they do not discriminate

11 4.2 Showing that the employer has taken reasonable steps to prevent discrimination and harassment can be hard. As a starting point, the employer should have an accessible and up to date Equal Opportunities Policy, and should be able to show a commitment that not only does it have the written policy, but that this is reinforced with training, which is kept up to date and refreshed. It should also be able to demonstrate in actions as well as words that it takes complaints seriously. 5 Objective Justification 5.1. If a policy or act is discriminatory then, as we have seen above, an employer may be able to objectively justify its actions. This is likely to be absolutely key in most cases. In order to rely on justification, the employer must show two things. One, that there is a legitimate aim (that is, a real business need) and, two, that the discriminatory measure is a proportionate means of achieving that legitimate aim (which means showing that the measure is both reasonably necessary in order to achieve that aim and that there are no less discriminatory means available). Part of this is getting away from and questioning stereotypical assumptions. Age needs to be replaced by considerations of relevant experience, skills, and qualifications for the role The Equality Act uses the same wording for objective justification for both direct and indirect discrimination. However, this ignores that the two tests are not, in fact, the same under the Framework Directive. In Seldon v Clarkson Wright and Jakes (Supreme Court, 2012), the Supreme Court ruled that when justifying direct age discrimination it is necessary for the aim relied upon by the employer to be linked to social policy aims. Employers cannot therefore rely on purely individual business reasons. The aims relied on must be linked to social policy aims such as distributing work fairly amongst the generations and avoiding disputes with older workers over fitness to work. By contrast, an employer seeking to justify indirect age discrimination can rely on their own private business aims Legitimate aims are not set out in the Equality Act and it is for the tribunals and courts ultimately to decide what can be a legitimate aim. When the Government consulted on the Regulations, the following examples of legitimate aims were given which are still useful in giving a flavour of what might pass the test: health, welfare and safety;

12 facilitation of employment planning; particular training requirements; encouraging and rewarding loyalty; the need for a reasonable period of employment before retirement; and recruiting or retaining older people Many age cases at the Employment Tribunal have turned on the question of whether the discrimination was justified. In MacCulloch v Imperial Chemical Industries PLC (EAT, 2008), ICI used a contractual redundancy scheme, whereby employees received payments calculated with regard to age. The EAT found that encouraging turnover and facilitating career progression for other staff are, in principle, capable of being legitimate aims. ICI argued that one of the aims of their redundancy policy was to cushion older employees from the effects of joblessness. However, and crucially, it was not required to produce evidence that older workers find it harder to obtain work than younger workers, and it was permissible for the ET to draw on its own experience or perception in this regard. However, in this case, the ET had failed to go on to consider the second part of the test for objective justification and to consider the proportionality of the means of achieving the stated aims i.e. was there a less discriminatory way of achieving the aim? The differential between the payment Ms MacCulloch received and the payment received by her older comparators was massive. The ET should have considered whether the differential was reasonably necessary to achieve the stated aims, or whether it went too far (meaning that there was a less discriminatory way of achieving the aim). The EAT also commented that direct discrimination is likely to be harder to justify than indirect discrimination. When the case returned to the Employment Tribunal, it held that the measures were proportionate. Changing the scheme to make it less discriminatory would have been detrimental to the legitimate aims of maintaining a contented workforce and promoting good industrial relations, which in turn would affect the commercial viability of the company In Bloxham v Freshfields Bruckhaus Deringer (ET 2008), Freshfields introduced changes to its partners' pension scheme in an attempt to provide a scheme which was more financially-sustainable and was fairer to younger partners. Mr Bloxham argued that he was put at a disadvantage (by 4.5m in income) as a result of transitional arrangements that had been put in place for partners over the age of 55 and therefore claimed direct and indirect discrimination. The ET found that, although the arrangements were discriminatory, they were justified. Freshfields argued that their aim was to reform the pension scheme,

13 which included making the division of the firm's annual profits fairer on younger partners, and this was found to be legitimate and necessary. The firm had taken detailed steps to consider the options and achieve the aim, including: ensuring that lengthy and thorough consultation took place, representations were given due consideration and queries answered; seeking legal advice from Leading Counsel with regard to the proposals; by the end of the consultation period, no less discriminatory alternative had been identified; the reforms had been subject to the consent of a two-thirds majority of partners; and putting in place transitional arrangements to mitigate the impact of the change. It was found that the aim could not have been achieved in any less discriminatory way and was therefore proportionate In the case of Swann v GHL Insurance Services UK Limited (ET, 2008), GHL offered a flexible benefits package to its staff with which staff could purchase benefits such as private health insurance. The ET held that the provision of that package could not amount to less favourable treatment on grounds of age. However, the Tribunal went on to decide, by majority, that if the offer of the health insurance to its staff was age discriminatory, the company would have been able to justify this as a proportionate means of achieving staff recruitment and retention. This was another case where the company provided robust evidence. The Tribunal was swayed by the following: GHL wanted to enhance recruitment and retention of staff (note that this might not justify direct age discrimination now as it may not be found to be related to a social policy aim); GHL sought professional advice in order to identify a package of benefits that fulfilled its aim; GHL surveyed its employees about the benefits which they considered to be most attractive and used this in order to establish which benefits to offer through the flex funds. This included health insurance;

14 The health insurance company used actuarial assessments in order to arrive at the premiums. This was not decided by GHL The case of Rainbow v Milton Keynes Council (ET 2008), provides a good contrast and shows the hurdles employers will have to get over to convince a Tribunal of objective justification. In this case, the employer was unable to provide such evidence and was therefore unable to justify its actions. The Council advertised for a teacher and stated that the role would suit candidates in the first 5 years of their career. Mrs Rainbow was 61 years old and had 34 years experience. As a supply teacher at the school, she made an application for the new role. Mrs Rainbow was not even shortlisted for interview and claimed that this was due to age discrimination. At Tribunal, the Council argued that Mrs Rainbow would be too expensive to employ and, on this basis, they tried to justify their actions. However, they did not provide any evidence to support this. The Tribunal stressed that, whilst cost on its own will not usually be a decisive factor for justification purposes, it is a relevant consideration. Given the lack of evidence from the Council, the Tribunal concluded that they had not balanced the cost against the discriminatory consequences of their actions, which is key In Martin v SS Photay (ET 2007), the employer tried to justify the forcible retirement on health and safety grounds of a 70 year old employee who cleaned a medical surgery. The employer simply thought that the older employee was in a higher risk category for health and safety, but had not presented any medical evidence upon which to justify its decision. The employee s claim succeeded, because the employer had no evidence as to Mrs Martin s abilities and had not consulted with her about any health issues In Pulham and others v London Borough of Barking and Dagenham (EAT 2008), the Borough operated a scheme whereby those with long service were entitled to extra pay. The payment was awarded when the employee reached both 55 years of age and had 25 years continuous service. When the Regulations came into force, the Borough reviewed the scheme and felt that it was potentially discriminatory. In consultation with the Unions, it was agreed that the scheme would be closed to new entrants and those who had received increments under the scheme would not receive any further. Mrs Pulham had 25 years service but she had not reached 55 years of age. She complained that the scheme was discriminatory and she was entitled to a pay increase from the date the Regulations

15 came into force. The EAT considered that Mrs Pulham had been discriminated on grounds of her age, but that the ET had not considered correctly whether or not the actions of the Borough were justified as they had attached too much weight to the negotiations with the Unions and the fact that the Borough did not have funds set aside to pay for equal pay/discrimination claims. These factors by themselves cannot be decisive when determining whether the discrimination is justified and therefore should not be relied on by themselves as a means of demonstrating objective justification Whether costs alone can be used to justify discrimination has been a vexed question. In Woodcock v Cumbria Primary Care Trust (CA 2012), the Court of Appeal accepted that case law from the European Court of Justice precludes an employer from relying on costs alone as a justification for discriminatory treatment. This is known as the costs plus approach. However, the EAT in this case did say that preventing cost alone from being able to justify discrimination meant that employers, employees and the Tribunal would have to play an artificial game of looking for the additional factor. In this case, the Council timed Mr Woodcock s redundancy dismissal notice to expire before his 50 th birthday, when he would have become entitled to an enhanced pension at an additional cost of 500,000. The Court of Appeal concluded that this was justified. The additional factor it found here (in addition to costs savings to meet the cost plus test) was to give effect to the Trust s decision to end Mr Woodcock s employment on grounds of redundancy and to prevent him from receiving a pure windfall. This case, does not, however, give carte blanche to end employment to avoid pension liabilities it turned very much on its own, unusual, facts and consultation history leading up to Mr Woodcock being given notice The EHRC Code also gives a number of good examples of possible justification of age discrimination. For example, a fashion retailer rejects a middle-aged woman as a sales assistant on the grounds that she is too old for the job. They tell her that they need to attract the young customer base at which their clothing is targeted. If this corresponds to a real business need on the part of the retailer, it could qualify as a legitimate aim (although it is now doubtful whether there is a social policy aspect to this aim). However, rejecting this middle-aged woman is unlikely to be a proportionate means of achieving this aim; a requirement for all sales assistants to have knowledge of the product and fashion awareness would be a less discriminatory means of making sure the aim is achieved

16 5.12. These cases demonstrate the importance of clearly indentifying a legitimate aim from the outset. Then consideration should be given to whether the treatment or policy is discriminatory. If so, the employer then needs to go on to consider whether there is another, less discriminatory means of achieving the same aim. It is essential that proper analysis of the financial and other considerations is carried out before the policy is implemented. A Tribunal is much more likely to be swayed by evidence and information gathered before the policy was put in place than that cobbled together after the event, in defending an employment tribunal claim. As demonstrated in Swann v GHL (above), it is often a good idea to obtain external advice and/or the views of the workforce when deciding on and implementing new policies. Without this written contemporaneous evidence, it may prove difficult to demonstrate justification. 6 Recruitment 6.1 Employers must make sure that they do not make recruitment decisions that are directly or indirectly age discriminatory. This means making sure that recruitment decisions are specific to the role in question and stand up to objective scrutiny. As mentioned above, employers can take positive action in recruitment in very limited circumstances. 6.2 As a first step, job descriptions or person specifications should only include requirements that are necessary to the role. Job titles should show that all applicants are welcome. Titles such as office boy could, unconsciously, suggest that the employer intends to recruit a younger (male) person and would not welcome applications from, for example, someone in their 60s. 6.3 Employers should also take care to make sure that person specifications for the role are not discriminatory. In the age context, it would be direct discrimination to state in a job description that the post is only open to those under 40. Indirect age discrimination might be harder to spot. It could be indirect age discrimination to ask for, say, 10 years experience, unless this requirement could be objectively justified not only in the need for experience, but for ten years experience. Employers should also avoid specifying qualifications that were not available when some applicants were younger (for example, GCSEs). This can be dealt with by making sure that any request for GCSEs makes clear that equivalent qualifications are also acceptable

17 6.4 Employers should also consider the risk of age discrimination in the arrangements it makes for advertising its jobs. For example, if an employer s workforce is drawn largely from one age group and it recruits mostly friends/contacts of its employees by word of mouth rather than relying an advertising, this could lead to self selection and the continued exclusion of older people. The role should therefore be advertised widely, so that older applicants have the chance to apply and be considered. 6.5 Employers should also check that any adverts do not put off applicants of a particular age group, referring to youthful or specifying that the role would be suitable to those at the start of their career. In McCoy v James McGregor & Sons Ltd, Dixons and Aitkens (ET 2007), the use of the words youthful enthusiasm in a job advert and the employer s focus on drive and motivation at interview were used as evidence to support a claim of direct age discrimination. 6.6 Employers also need to be aware of allowing stereotypes to creep in for example, rejecting a candidate because they seem too young, or, at the other end of the spectrum, too old. Discrimination based on perceived age, as well as on actual age, is unlawful. 6.7 As we have seen, in certain, very limited cases, positive action at the recruitment stage is allowed. The EHRC Code gives the following example: The vast majority of workers employed by a national retailer are under the age 40. Consequently, people over the age of 40 are under-represented in the organisation. The retailer is looking to open new stores and needs to recruit more staff. It would be lawful for that retailer to place a job advert encouraging applications from all groups, especially applicants over the age of It can help reduce the risk of discrimination (or inference of discrimination) if the section of the application form used for recruitment or requesting personal information (including age, or date of birth) is detachable or requested separately so that it is not used when decisions are made and will emphasise the positive message that the employer really does not consider that age is relevant to the appointment. 6.9 There used to be an exemption which meant that employers do not discriminate because of age by refusing to recruit someone who is older than 64 years and six months old or within six months of the normal retirement age, where such normal retirement age is over

18 65. This exemption was repealed on 6 April 2011, along with the default retirement age (see below). 7 Service Related Benefits and other exemptions 7.1. Many employers use length of service when deciding upon benefits. For example, after a certain period of service, the employee may qualify for extra holiday leave, sick pay, private medical cover or share options. The Equality Act contains an exception permitting employers to provide benefits which reward long service, providing that certain conditions are met. The reason for this is that, otherwise, younger workers (who are less likely to have had the opportunity to accrue the qualifying length of service) would be indirectly discriminated against. A length of service requirement is generally exempt (i.e it will not be discriminatory) but, where it exceeds 5 years or more, it must reasonably appear to the employer that, if it disadvantages older workers, it will fulfil a business need. The Equality Act does not give examples of business needs which will qualify for this purpose, but the EHRC Code says that this could include rewarding higher levels of experience, or encouraging loyalty, or increasing or maintaining the motivation of long-serving staff. It is generally considered that the test of fulfilling a business need is an easier one to satisfy than the test of objective justification but the employer will still need to be able to support its reasonable belief with evidence. Ideally, an employer should be able to point to evidence gathered before any decision is implemented, for example, from monitoring, staff surveys and focus groups If employers use a service requirement of less than 5 years, they don t have to go on to consider the business need test. Length of service can be calculated either by the length of time doing work at a particular level or length of time in total for the employer. The employer must choose from the outset which will apply and should keep a clear record of its decision and of the thinking behind it Enhanced Redundancy Schemes - There are also exemptions which apply to redundancy schemes. Statutory redundancy pay is calculated with reference to both age and length of service and so is inherently age discriminatory on two counts, but this has a special legislative exemption. There is also an exemption for enhanced redundancy schemes, which recognises that they often work on similar lines to the statutory redundancy scheme. This is necessary because the service related benefits exception does not cover

19 benefits provided by virtue of the employee s ceasing to work, so does not cover enhanced redundancy schemes. To rely on this exemption, enhanced redundancy payments must be based on the statutory formula but can include one or more of these permitted changes: disapplying (or increasing) the statutory cap on a week s pay; multiplying the amount allowed per year of service by a factor of more than one; and/or multiplying the overall amount by a factor of more than one. Enhanced Schemes which do not fall squarely within these permitted changes will be discriminatory unless justified National Minimum Wage ( NMW ) - A special exemption applies here so that if an employee is paid below the adult rate of the NMW but at least the relevant NMW in the young worker groups (sixteen to seventeen and eighteen to twenty-one), they cannot complain about discrimination, if someone over twenty-two is paid at a higher rate. If a worker in a young worker group is paid less than someone older than him within the same young worker group, this must be objectively justified. The exception is narrow and only applies if the young worker receives less than the adult national minimum wage rate - if a young person is paid more than the adult rate of NMW, they are entitled to complain of age discrimination if an older worker is paid more, unless objectively justified. The Equality Act also provides that it will not be unlawful age discrimination to pay an apprentice who does not qualify for the national minimum wage at a lower rate than an apprentice who does Life Assurance There is an exemption which allows employers to cease providing life assurance at the age of 65. However, this is problematic, as it seems only to apply if the employer ceases life assurance at the age of 65 on the dot, and not later. This could cause problems in relation to employees who work beyond 65 and may mean the employer has to fall back on objectively justifying ceasing cover for these employees. Getting this wrong could be costly because of the amounts which could be involved

20 7.6. Childcare Facilities - The Equality Act introduced a provision making it lawful for an employer to provide childcare facilities for employees caring for children of a particular age group. 10. Retirement Age 10.1 The default retirement age ( DRA ) of 65 was abolished by the Coalition Government with effect from April 2011 (subject to rather complicated transitional provisions between April and October 2011). This has meant a sea change in how employers will need to approach the whole issue of retirement. While there was a DRA of 65, it was lawful for most employers to force someone to retire if they were at or over the age of 65 and the employer followed the prescribed duty to consider procedure. Special exemptions meant that the retirement would not be either unfair dismissal or age discrimination The Coalition Government set out its reasons for abolishing the DRA in its Response to the Consultation called Phasing out the Default Retirement Age, saying As the structure of our society changes we have to reappraise fundamentally the important role older people will play... A culture change is needed and we believe that removing the default retirement age is a key step in helping that change take place. Working longer is good for the economy, for society and for individuals...it is estimated that, if everyone worked a year longer, annual GDP could increase by 13bn. We want employers to draw their workforces from the widest possible talent pool and to make decisions based on merit, not stereotypes Does the abolition of the DRA mean employers cannot retire staff at all? No. Employers need to decide whether to retain a fixed retirement age, or abandon it altogether. What the abolition of the DRA means is that employers are now required to objectively justify any contractual retirement age. retirement will be unfair and also age discrimination. long loss in these cases, and so awards could be high. If they cannot, any dismissal for Claimants are likely to claim career Employers will also still be able to dismiss older workers fairly for one of the five potentially fair reasons (conduct, capability, redundancy, illegality, or some other substantial reason

21 justifying dismissal ). Capability and conduct are perhaps likely to be the most common grounds relied upon, but care needs to be taken to ensure that relying on these does not open the door to other claims, such as disability discrimination. Some other substantial reason is also likely to be a popular ground What procedure should be followed? Employers will also have to show that a fair procedure was followed before retiring an employee. ACAS s Guidance ( Working without the default retirement age ) suggests that a fair procedure would involve giving the employee adequate notice of the impending retirement and, if circumstances permit, giving consideration to requests by employees to stay working beyond the fixed retirement age as an exception to any general policy. Employers should not feel that they cannot discuss the issue of retirement with their employees. On the contrary, ACAS s Guidance is that, whatever the age of an employee, discussing their future aims and aspirations can help identify their training or development needs and provide an opportunity to discuss future work requirements and how these impact on the employee. However, in order to avoid age discrimination, it is best to have these discussions with all employees and not just older employees. These discussions will need to be handled with care. One purpose served by the DRA and the duty to consider procedure was that they provided a focal point for such conversations. This framework is now removed completely. Employers will fear age discrimination and breach of contract claims from mishandling discussions about retirement. Employees, for their part, may worry about compromising their future in the business if they show a willingness or desire to discuss retirement What is a legitimate aim in the context of retirement? As above, objective justification involves the employer showing that its actions were a proportionate means of achieving a legitimate aim. In the context of retirement, this means that the employer needs to identify the legitimate aim, that is, the real business need and as retirement will amount to potential direct age discrimination, the aim will need to be linked to a social policy aim. Then, it needs to show that the retirement age

22 selected serves that legitimate aim and that it is proportionate to that aim. This demands a balancing act on the part of the employer to look at the alternatives available, to weigh up the discriminatory impact, and to decide what is the most appropriate method to serve the aim in mind. Employers will need to show, with evidence, why they need a fixed retirement age at all, why they selected a particular age and whether they applied this consistently. While we wait for a significant body of cases on retirement age after the abolition of the DRA to build up, cases already decided against the backdrop of the DRA may provide some guidance. Examples of legitimate aims might include: workforce planning; promoting the recruitment and retention of younger employees; contributing to a pleasant workplace and protecting the dignity of older workforce by not requiring them to undergo performance management procedures; avoiding disputes with older workers over fitness to work; and having an age-balanced workforce (promoting the exchange of experience and innovation, and the quality of the work). Some of these legitimate aims are surprising, as they seem inherently to support stereotypical assumptions about age, and should be treated with caution. The case of Seldon v Clarkson Wright & Jakes (see above) may provide some guidance. In this case, a law firm had a contractual retirement age of 65 for partners. The DRA applied to employees, but not partners, so a requirement that partners retire at a certain age could be discriminatory in the absence of objective justification. Mr Seldon was a partner and was compulsorily retired on 31 December 2006, the end of the year in which he reached 65. He wanted to work beyond this, but the Firm refused and he brought a claim of age discrimination. This case went all the way to the Supreme Court, which ruled that the Firm s aims of retaining associates, facilitating work force planning and avoiding the need to performance manage partners were capable of justifying compulsory retirement. However, it remitted the case to the Employment Tribunal to consider whether compulsory retirement at age 65 (as opposed to any other age) was a proportionate means of achieving these aims. The Supreme Court said that, when justifying direct age discrimination, it is necessary for an employer s aims to be linked to a social policy aim, and the legitimate aims identified were so linked. However, the Supreme Court judgment is clear that the aim relied on must be legitimate to the particular employer s needs. Employers will need to go beyond a box ticking exercise of saying that aims identified in