FAQ's
Am I covered by the Regulations?
Is there a qualifying period before I am covered?
What type of age discrimination at work is covered?
Taking Action
How do I know if I am being discriminated against on the grounds of age?
How long will a tribunal case take?
What is the difference between unfair dismissal and age discrimination?
Applying for Jobs
Am I covered when I apply for a job?
Can job adverts specify a minimum of maximum age?
Bullying at Work
Benefits and Contractual Terms
As part of bonus assessment, one factor is the consideration of our length of service. Is this fair? I am the youngest in the team which means I get the lowest bonus based on my shorter service. I am 48 and have been made redundant along with 19 other employees at my firm. We have all received enhanced redundancy payments but I have discovered my enhanced redundancy payment is substantially less than many of the other redundant employees who are over 50 because of an age-related term in my contract of employment. Is this lawful?Retirement
What is the position in relation to retirement ages?
I am 60 next year. I would like to work on for as long as I am able, to at least 65 and preferably to 70, but my contract of employment provides for compulsory retirement at 60. Is this lawful?
Q. Am I covered by the Regulations?
A. Everyone is covered by the Regulations with effect from 1 October
2006. In particular the Regulations cover employees, and anyone who
works under a contract under which they have to do the work in person.
This will include some people who are technically self employed. There
are special provisions covering the application of the Regulations to
civil servants, the Police and office holders. However, service in the
Armed Forces is not covered.
Q. Is there a qualifying period before I am covered?
A. There is no qualifying period. You have the right not to be
subjected to age discrimination from the first day of your employment.
Q. What type of age discrimination at work is covered?
A. Any detrimental treatment which is based on age can give rise to a
claim. Common examples include differences in pay, bonuses, promotion,
transfers and access to other benefits.
The Regulations cover
different types of age discrimination. Direct discrimination on the
grounds of age is prohibited. In addition, indirect discrimination is
against the law if it cannot be justified. This arises where the
employer applies the same requirement to all employees but where it has
a particular disadvantage for employees of any particular group.
Finally, discrimination by way of harassment is prohibited.
Q. What is “justification”?
A. This defence is open to an employer who can show that an action or
decision which is discriminatory on the grounds of age is a
proportionate means of achieving a legitimate aim. The tribunal has to
balance the discriminatory effect of the action or decision against the
legitimate aim in question. Examples of legitimate aims include health
and safety, training requirements, and encouraging and rewarding
loyalty.
Q. How do I know if I am being discriminated against on the grounds of age?
A. You may not know but if you suspect that this may be the case you
can serve a questionnaire on your employer under the Regulations. This
is a common step prior to bringing a tribunal claim. The employer has
to reply within 8 weeks of the questionnaire and any replies are
admissible in a tribunal claim. Tribunals understand that often
evidence of the true reason for a decision is not available to the
individual employee.
Q. How do I bring a claim?
A. A claim must be lodged with an employment tribunal within 3 months
of the decision or action about which you are complaining. Where there
is a series of individual actions it may be possible to argue that
there is a continuing act, but it is still important to lodge your
claim within 3 months of the most recent event.
Q. How long will a tribunal case take?
A. The case is likely to take at least 4 months and possibly 9 months
or even a year. A lot depends upon the issues in the case, the length
of hearing which will be needed, and how the employer responds to the
claim.
Q. What is the difference between unfair dismissal and age discrimination?
A. Unfair dismissal is a claim open to an employee who has been
employed for at least a year in the same job and who is dismissed (or
who resigns because of a fundamental breach of contract by the
employer). To pursue an age discrimination claim your employment does
not need to have ended. There is an overlap in that if you are
dismissed because of your age this may well be an unfair dismissal as
well as being unlawful age discrimination. You can pursue both kinds
of claim on one employment tribunal claim form.
Q. Am I covered when I apply for a job?
A. Yes. You can bring a claim if you are refused a job because of your age.
Q. Can job adverts specify a minimum of maximum age?
A. Adverts like this are not themselves against the law but they can
be evidence of a discriminatory decision. Sometimes the reference to
age is not so clear. Anything which creates an expectation that the
successful candidate will have to be around a certain age could
potentially be discriminatory.
Q. I am 35 and I applied
for a graduate position. I did not get the job but I believe that I
interviewed well. If this is based on my age, would I have a claim?
A. If the decision was made on grounds of your age i.e. that the employer wants to recruit 22 or 23 year-olds not 35 year-olds to graduate positions then you do have a claim under the Age Discrimination Regulations. Regulation 7 makes it clear that it is unlawful for an employer to discriminate on grounds of age in recruitment. The only defence available to the employer would be if it could show that requiring "graduate" jobs to be taken only by people in younger age groups could be objectively justified. This means they would have to show that it was a "proportionate means of achieving a legitimate aim." Simply put, this means the discriminatory effect should be significantly outweighed by the importance and benefits of the legitimate aim and the employer should have no reasonable alternative. This is a high threshold and could be difficult for the employer to show in this context.
Claims which relate to failure to be offered a job are difficult to prove compared with those relating to discrimination whilst already in employment. You would want to find out the age profile of the other candidates interviewed and eventually recruited, and obtain the interview notes and any documents stating the rationale upon which they were chosen and you were not, and scrutinise them for any evidence of discrimination. You could obtain this information by submitting a statutory questionnaire provided for under Regulation 42 of the Age Discrimination Regulations, which requires the prospective employer to answer questions about why you were not offered the job and provide relevant documents. If they do not do so within eight weeks of your request or if their replies are evasive, this would be likely to assist a claim if you decide to bring one. If you want to bring a claim to the Employment Tribunal, you need to do so within 3 months less one day of the date you were notified that you did not get the job.
Q. I was recently made
redundant and have applied to a large city firm, supplying a copy of my
CV. The HR department have written to me asking for confirmation of my
date of birth and a passport photograph. I am 57. I am concerned that I
will be filtered out before the interview stage because of my age. Is
it legal to ask for a job applicant's date of birth and a photograph?
It is not unlawful to ask for an applicant's date of birth or for a photograph on an application form or during the recruitment process. However, it is not considered best practice in light of the anti-discrimination legislation. If you fail to obtain an interview or the job you could rely upon this practice in support of an age discrimination claim. Questions about your age may be included on the diversity monitoring form which also asks questions about ethnicity and gender but you are not obliged to provide answers to these forms and in any event they should not be used in the context of your application for employment.
Q. What is harassment?
A. Harassment is unwanted conduct which has the purpose or effect of
violating a person’s dignity, or creating an intimidating, hostile,
degrading, humiliating or offensive environment for them. If the
harassment is expressly related to age, or is undertaken either
directly or indirectly because of age, there may be a claim.
Q. I am 21 and most of
my work colleagues are much older. My boss, who is in his fifties,
bullies me constantly on my youthful looks and refers to me as being
"wet behind the ears" and "the baby of the office". I find these
comments degrading and humiliating. Is there anything I can do?
A. It sounds like you are being harassed on grounds of your age which is an unlawful form of age discrimination specifically prohibited by Regulation 6 of the Age Discrimination Regulations. Harassment is defined as "unwanted conduct which has the purpose or effect of violating the victim's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the victim." The conduct will only be considered as harassment if, taking all the circumstances into account, including in particular your perception of it, it should reasonably be considered as having that effect.
You are entitled to raise a formal grievance with your employer about any form of discrimination including harassment. Your employer should invite you to a meeting to discuss your grievance and take action to investigate and resolve it. However, the first step may be to speak to your boss informally about the fact that you are unhappy about this treatment, believe it is unlawful and want it to stop. If this is not effective, you may wish to pursue it as a grievance. Ultimately, if this does not resolve the matter, you could bring a claim to the Employment Tribunal and claim compensation. In cases of harassment it is important to keep a diary of the treatment, including dates, times, places, conduct/words used and the identity of any witnesses to the behaviour. Any documents which contain harassing material such as emails should also be preserved as evidence. You will usually need to submit a grievance about your treatment at least 28 days before submitting a Tribunal Claim in respect of it. It is important to take action promptly in any case as the time limits for taking discrimination claims are very strict and require you to take action, in most cases, within 3 months less one day of the act you are complaining of.
Q. As part of bonus
assessment, one factor is the consideration of our length of service.
Is this fair? I am the youngest in the team which means I get the
lowest bonus based on my shorter service.
A. Using length of service to determine entitlement to or level of benefits or bonuses may be a form of indirect discrimination based on age as it will tend to disadvantage younger employees as they are more likely to have shorter service than older employees. However, Regulation 32 of the Age Discrimination Regulations makes a specific exception for employers providing certain benefits based on length of service. If you have less than 5 years' service and are deprived of a benefit as a result of that, the exception is automatic and absolute. Even if this seems unfair, it is not unlawful. If you have 5 years' service or more, it must "reasonably appear" to your employer that the way in which length of service is used in relation to, in this case, bonus assessment, fulfils a business need such as encouraging loyalty or motivation or rewarding experience. If the employer can show this to be case, with supporting evidence, then using length of service as one factor in the bonus assessment would not be unlawful. It would be likely to be much harder to justify if length of service was the only factor take into account in the bonus assessment.
Q. I am 56 and although
I am healthy I am concerned what would happen if I fell seriously ill
and could not work. My employers benefits handbook provides that
employees can, as part of our flexible benefits package, apply for
Permanent Health Insurance cover, but only if you are 55 or younger. Do
I have a claim?
A. Applying an age-related requirement to applying for Permanent Health Insurance cover is a form of direct discrimination contrary to Regulation 7 of the Age Discrimination Regulations. This will be unlawful unless the employer can show that it is objectively justified i.e "a proportionate means of achieving a legitimate aim." With an insured health benefit such as this one, the employer may have various arguments in relation to their ability to put cost-effective insurance in place for individuals above a certain age, for example, if insurance cover for individuals over that age is not readily available on the market or if the cost of covering individuals over that age would mean that the employer could no longer offer the benefit to any staff at all. However, increased cost alone will not necessarily justify a decision to apply discriminatory criteria and the employer would need to produce compelling evidence to support its argument.
Q. My firm has a policy
which provides for provision of share options on 7 years of continuous
service. I have 6 years service but was thinking about leaving very
soon for a career change but if I do I will lose out financially. Is
this share option benefit legal?
A. Regulation 7(2) of the Age Discrimination Regulations makes it unlawful for an employer to discriminate on grounds of age in relation to the terms and conditions or benefits or to subject an employee to a detriment or disadvantage of any kind based on their age. As the provision of share options depends upon 7 years' service it is a form of indirect discrimination on the grounds of age because it a "provision, criterion or practice" which applies to everybody but will tend to disadvantage those employees who are younger as they will be likely to have less service.
The firm, however, could attempt to rely on Regulation 32 which allows for employers to use length of service as a criterion for the provision of certain benefits if they can show that it reasonably appears to the employer that it fulfils a business need for example by encouraging loyalty or motivation or rewarding experience. In this case, the employer would have to show good reason for providing the share options at 7 rather than 6 years. If this appears to be an arbitrary threshold, it will be difficult to justify and you may be able to take a successful claim on those grounds. However, if the firm could show that there was a need to motivate employees to remain with them, for example, at the 7 year mark or that this was vital to motivate them or reward them at that stage, they might have a defence to your claim. This would be difficult to do and their evidence would need to be specific and compelling in order to succeed.
Q. I am 48 and have been made redundant along with 19 other employees at my firm. We have all received enhanced redundancy payments but I have discovered my enhanced redundancy payment is substantially less than many of the other redundant employees who are over 50 because of an age-related term in my contract of employment. Is this lawful?
A. The Employment Equality (Age) Regulations 2006 came into force on 1 October 2006. These Regulations prohibit age-related discrimination in the workplace, subject to limited exceptions.
Enhanced redundancy payments are permitted under the Regulations to the extent that they replicate the statutory redundancy scheme. For example, it would be permissible for an employer to calculate redundancy payments on the basis of four weeks’ pay for each year of service instead of the statutory formula, which is based on one week’s pay. However, recognising service in excess of 20 years (which is the limit imposed by the statutory scheme) would fall outside the exception and constitute unlawful indirect discrimination. In such cases an employer is required to justify the operation of its particular redundancy scheme by establishing that it is a proportionate means of achieving a legitimate aim.
Q. What is the position in relation to retirement ages?
A. The Regulations contains complex new rules for termination of employment at retirement age. Broadly an employer can require an employee to retire at or over age 65 without any unfair dismissal or age discrimination claim being possible as long as the employer follows the new procedure in the Regulations. This procedure does give the employee a right to request to continue working beyond the intended retirement date. Making an employee who is under 65 retire is potentially a breach of the Regulations subject to the defence of justification.
Q. I am 60 next year. I would like to work on for as long as I am able, to at least 65 and preferably to 70, but my contract of employment provides for compulsory retirement at 60. Is this lawful?
A. A contractual requirement to retire at the age of 60 is rendered void by the Age Discrimination Regulations and your employer would not be able to enforce it against you unless the employer could show there was a compelling objective justification for having a compulsory retirement age of 60, for example, health and safety reasons.
Regulation 30(2) provides that an employer is entitled to impose a default retirement age of 65 or over. However, an employer has a duty to consider a request by an employee to continue working beyond that age. If you would like to continue working to 70 you may then have to follow the procedure set out in the Regulations (see Schedule 6) to make that request. Briefly, the procedure consists of the following steps:
- you make the request to work beyond retirement age
- your employer holds a meeting with you to discuss and consider the request
- your employer considers the request and informs you of its decision following the meeting
- you have a right to appeal against the decision and your employer must hold an appeal meeting with you before deciding upon your appeal.
