At first glance it would seem that the Employment Equality (Age) Regulations 2006 have had far less of an impact than first predicted. There has been the odd case that has hit the headlines, the occasional article featured in the press and even a royal blunder.
However, don’t be misled into thinking the legislation can be ignored. Within the first 12 months of the regulations being introduced there have been approximately 2000 cases lodged with employment tribunals, a statistic that is bound to increase. By way of comparison this is around six times as many cases as were brought in the first year of the Religion or Belief Regulations or the Sexual Orientation Regulations.
Why so high? Well, we all get older and we were all young once! The regulations could potentially be applicable to us all at some point in our lives.
An ACAS survey has revealed that many small businesses are failing to take the regulations seriously and are refusing to change their recruitment and employment practices. The ostrich approach may well store concerns up for these businesses in the future as more claims come through the system and employees become familiar with their rights. A number of surveys carried out since the introduction of the regulations have highlighted that age discrimination is prevalent in the workplace and so it is easy to predict that the number of claims will increase. There have been DBERR (formally the DTI) predictions for 2007/2008 of over 5000 tribunal claims.
Cases of Interest
Compulsory Retirement Ages
The ECJ has handed down its opinion in the Spanish case of Palacios v Cortefiel Servicios. The ECJ had to consider whether a law allowing for a compulsory retirement age was in breach of the EU Equal Treatment Directive 2000. The ECJ found that:
- General mandatory retirement ages did fall within the scope of what is prohibited under the directive.
- However, the ECJ found that a general mandatory retirement age was justified as it was a proportionate means of achieving a legitimate social aim of promoting employment opportunities and reducing unemployment.
The judgment is of great relevance to the campaign group Heydey’s forthcoming challenge to the retirement provisions contained in the regulations. The High Court in the Heydey case referred a number of questions to the ECJ about the UK’s interpretation of the directive. In addition to challenging the mandatory retirement provisions, Heydey is also claiming:
- The UK’s standard for justification for direct discrimination is not as strict as the requirement under the directive.
- It is unacceptable that an employer is not required to provide a reason when refusing to allow a worker to continue beyond 65.
It is unlikely that the ECJ will make a ruling before 2009 and so we will have to wait with anticipation as to the response. Public sector employers could face a number of backdated claims as the directive has direct effect on them. Heydey Challenge
A royal blunder
We all love a royal scandal. However, for 2007 we will have to make do with the blunder over advertising a job at Buckingham Palace but limiting it to those under 64 years old. The default retirement age is 65 and the law only allows six months’ grace to employers recruiting new employees, not an entire year. Not an ideal bit of press for Prince Charles as a patron of Help the Aged!
Law firms are not immune from challenges
Peter Bloxham, a former partner at Freshfield Bruckhaus brought a claim against the firm following his retirement. He claimed that he received less generous pension benefits than the other retiring partners on the basis of his age. The tribunal found that there was no direct or indirect age discrimination and said “the unanimous judgment of the tribunal is that [Bloxham’s] complaint of discrimination on the grounds of age is not well-founded and is dismissed.” Bloxham v Freshfields Bruckhaus Deringer 2007
You only need to look through any job page in a newspaper and you will see a number of potential age discrimination issues. The following are merely examples of extracts from adverts which have appeared in the papers in the last week:
- “Are you an experienced manager with a proven track record?”
- “Join our young reservations team.”
- “This is a young and dynamic office.”
It may be possible to justify some of the above comments, but it would surely be simpler for businesses not to leave themselves open to claims in the first place. Further, a number of jobs are only advertised online, which could present issues for older workers who are perhaps less likely to have computer and internet skills.
Review your advertisements and ensure those in charge of writing the adverts are properly trained in age discrimination law. Consider where the adverts are placed and whether any group could be excluded.
Young as well as old
The majority of cases which have made the headlines relate to older workers bringing claims, but we must not forget that the Regulations apply equally to young workers. Comments such as “still wet behind the ears” and “whipper snapper” should be avoided.
In a recent case, a twenty-year-old woman won a discrimination claim against her employer, who dismissed her as she was considered too young to deal with club members. The London Central Employment Tribunal ruled that she had been unfairly dismissed and discriminated against on the grounds of her age. This case is thought to be the first of its kind to apply the Age Regulations for the protection of a young worker. Megan Thomas v Eight Members Club 2007
Age Discrimination Checklist
- Updated your equal opportunities policy?
- Provided training to your employees?
- Amended your application forms to remove age related questions? Such information would be better requested in equality monitoring forms.
- Reviewed your redundancy and retirement procedures?
- Opened training up to all employees regardless of age?
- Reviewed your employment practices to ensure they are not discriminatory on the basis of age?
The legislation has been around for 12 months, With increased press attention employees are becoming wise as to their rights and defending a discrimination claim is an expensive business. Don’t forget there is no cap on the amount of compensation which can be awarded by a tribunal in an age discrimination case. Get your house in order now!