Age Discrimination

The introduction of laws prohibiting age discrimination represents a venture into a new type of anti-discrimination measure. Age affects everybody, and may be relevant where sex, disability, sexual orientation, race or religion are not.

The Employment Equality (Age) Regulations 2006 attempt to put into law this different kind of prohibition. Consequently all discrimination save the most blatant harassment can be justified.

We also tend to think of age as a "problem" for older people rather than younger people. But younger people are discriminated against on grounds of age in terms of pay, working conditions and the extent to which their abilities are taken seriously. Age discrimination can affect you regardless of your age and the Regulations apply to all age groups. They relate to a far wider range of issues than just retirement and pension schemes.

Discrimination may be direct or indirect. Both of these types of discrimination can be justified. It may amount to harassment or victimisation.

In any of these forms of discrimination, stereotyping and the existence of unrecognised prejudice will be pivotal to many cases. Those stereotypes may be both positive and negative. For example older people are often considered to be more reliable than younger people yet lacking certain competencies, particularly technological. Younger people are frequently perceived as lacking leadership skills, dependability and experience. These stereotypes may be expressed in numerous ways and advisers should be alert to oblique references to particular periods of time or specific skills which a younger or older person is unlikely to have. Where these stereotypes act as a provision, criterion or practice used by an employer, they may constitute indirect discrimination. Employers should be careful to ensure that stereotyping has no place within their organisation.

Certain issues and questions remain about the implementation of the European law on which the Regulations are based. In particular:

a) The definition of direct discrimination refers to less favourable treatment on the grounds of the Claimant's age or perceived age. However this does not appear to implement Article 2 of the Directive which includes associative discrimination (i.e. discrimination on the grounds of someone else's age). This raises very similar questions to those in Coleman v Attridge Law under the DDA 1995. An early reference to the ECJ on this point will be necessary to clarify matters. Interestingly the definition of harassment does extend to associative discrimination.

b) The Regulations do not provide us with much guidance regarding the use of comparators in indirect discrimination. Questions remain as to how much of an age difference is needed between comparators and what the effect of perceived age will have. For example is it relevant if an employer perceives two employees to be of the same age when in fact they are not?

c) The harassment definition includes the requirement that conduct is reasonably considered as having the effect of violating the employee's dignity. This insertion of reasonableness is highly controversial and is not included in the Framework Directive.

Cloisters barristers are providing advice and training to many organisations on these issues. Declan O'Dempsey and Schona Jolly (co-author) have published a book - Age Discrimination Handbook published by Legal Action - price £35.00

Many companies have still not audited their terms and conditions. Cloisters barristers have assisted many solicitors with their advice on the implications of the age regulations for terms and conditions. Cloisters barristers are also involved in some of the early cases concerning the application of the retirement provisions including the right to request to continue working after retirement age.

Cloisters is also involved in the leading case of R (on the application of Incorporated Trustees of the National Council of Ageing) v The Secretary of State for Trade and Industry (otherwise known as Heyday). Robin Allen QC and Declan O'Dempsey are representing the Incorporated Trustees of the National Council of Ageing as they challenge fundamental issues as to the implementation of the Directive. They challenge two specific points:

a) That the default retirement age of 65 is not permitted by the Directive;

b) That direct age discrimination cannot be justified save for specific examples of what might be justifiable direct discrimination.

The matter has been referred to the ECJ.