We asked Henry Doswell, Solicitor at ThomasMansfield Employment Law Specialists to provide our members with a summary of employment law in respect to Age Discrimination.
Age Discrimination – Know Your Rights
With age discrimination back in the public eye following television presenter, Selina Scott’s claim against Channel Five for reneging on an agreement because she was “too old” we thought it useful to set out a summary of the law in this complex area.
Who is covered?
The Employment Equality (Age) Regulations 2006 impose obligations on employers, providers of vocational training, trade unions, professional associations, trustees/managers of occupational pension schemes and partnerships not to discriminate on the grounds
of age.
What are the key concepts?
The key concepts are direct age discrimination, indirect age discrimination, harassment and victimisation. However, unlike other forms of discrimination, direct age discrimination can be objectively justified. Indirect discrimination can also be justified.
Direct Discrimination
This provides that A directly discriminates if it treats B less favourably than it treats or would treat a comparator on grounds of B’s age. An example would be where A advertises a job vacancy for someone “who is under 40”. Such less favourable treatment will amount to direct age discrimination unless it can be objectively justified.
Indirect Discrimination
This provides that A indirectly discriminates where A applies to B a provision, criterion or practice which it applies or would apply equally to persons not of the same age group as B but which puts or would put persons of the same age group as B at a particular disadvantage when compared with other persons;
Puts B at that disadvantage; and
A cannot show the treatment or as the case may be provision, criterion or practice to be a proportionate means of achieving a legitimate aim. An example might be where A invites applications only “from recent graduates” or where it specifies the number of years experience required.
Objective Justification
As previously mentioned both direct and indirect discrimination can be justified although it is expected that it will only be able to be relied upon in exceptional circumstances. For this defence to be successful the treatment or provision should be “a proportionate means of achieving a legitimate aim”. There is no exhaustive list of “legitimate aims” for direct or indirect discrimination as this was seen to be too restrictive. Examples of legitimate aims might include economic factors such as business needs or efficiency or particular training requirements for the post on offer.
Once a legitimate aim has been correctly identified, it would need to be assessed on the basis of proportionality. For example, an employer should not discriminate more than is necessary in the circumstances.
Harassment and Victimisation
The legal tests to be met in order to claim harassment and victimisation under age discrimination are the same as for other forms of discrimination and will not be dealt with here.
In conclusion, only time will tell whether Selina Scott is successful in her claim against Channel Five, who have stated that they “will be vigorously defending it”. Whatever the outcome, age discrimination claims can only increase as the UK workforce becomes more familiar with their new found rights.
For further information should you feel you have been subjected to age discrimination speak to an employment law specialist at ThomasMansfield on 0845 6017756 or visit www.thomasmansfield.com Disclaimer The information given in this article does not constitute legal advice.
