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Detailed Practice Notes written by our Professional Support Lawyers, guiding you through the key issues in each topic.
Age - overview
Age discrimination legislation came into force on 1 October 2006, except the pension provisions which came into force on 1 December 2006.
The legislation has two main strands:
making discrimination on the grounds of age unlawful
fundamentally changing the law relating to dismissal by reason of retirement
Age discrimination affects the way in which employers should approach redundancy situations and redundancy pay.
There is a great deal of commonality between the provisions relating to discrimination on grounds of:
religion or belief
However discrimination on the grounds of age differs from the others significantly in two important ways:
the defence of justification is available for direct discrimination on the grounds of age if it is a 'proportionate means of achieving a legitimate aim'
there are significant areas where the age discrimination provisions do not apply
There are four types of discrimination:
The time limit is normally three months from the discriminatory act or omission (except for the armed forces where it is six months). The time limit can be extended whenever the tribunal considers it just and equitable to do so.
With effect from 6 April 2009 the statutory dispute resolution procedures were repealed, but they continue to apply in certain circumstances. In certain circumstances where the statutory dispute resolution procedures do apply, the operation of the statutory dispute resolution procedures will extend the basic time limit by an extra three months. For further details on when the statutory dispute resolution procedures will still apply, see Dispute resolution procedures - transitional provisions.
Discriminatory contractual terms are treated as continuing acts for the duration of the contract. Acts which extend over a period are treated as being done at the end of that period. These must be distinguished from single acts with continuing consequences.
No qualifying period of employment is needed to make a discrimination claim. A claim that the dismissal was discriminatory can be made without any qualifying period of service.
For further information, see Discrimination time limits.
Effect of statutory dispute resolution procedures
STOP PRESS! The dispute resolution procedures were repealed with effect from 6 April 2009, but they continue to apply in certain circumstances. For further details on when the statutory dispute resolution procedures will still apply, see Dispute resolution procedures - transitional provisions.
The statutory dispute resolution procedures are potentially important to the bringing or defending of any discrimination claim. You need to clarify whether the grievance procedures apply, the dismissal and disciplinary procedures apply, or both. Where the grievance procedures apply, if a claimant fails to send a grievance to his employer at least 28 days before presenting his tribunal claim, the claim will be rejected. Failure by either party to complete any relevant statutory dispute resolution procedure will affect the amount of compensation awarded. Where a discrimination claim also includes a claim for unfair dismissal and the dismissal and disciplinary procedures apply but have not been completed through the employer's fault, the dismissal will be automatically unfair.
For further information, see Statutory dispute resolution procedures and discrimination claims.
Effect of Acas Code of Practice
Where specified types of claim are brought by an employee, and the circumstances of that claim are such that a relevant Acas Code of Practice could apply, then the tribunal may increase or decrease any award made by up to 25%, if there has been an unreasonable failure to follow the Code of Practice. Schedule A2 sets out the types of claim which are covered by this provision, which includes all discrimination claims. It is more likely that the grievance procedure in the Code of Practice will apply in discrimination claims, but it is possible the disciplinary procedure may also apply.
For further information, see Assessing discrimination compensation - Adjustment of awards for failure to complete statutory procedures and Acas disciplinary and grievance code - application, Acas disciplinary and grievance code - procedural requirements and Acas disciplinary and grievance code - effect of non-compliance.
Events which give rise to a claim
Events before, during and after employment may give rise to a claim.
During employment, discrimination regarding access to promotion, transfer, training, benefits, facilities or services, or by subjecting a person to any other detriment is unlawful.
After employment ends, it remains unlawful to discriminate against an ex-employee where that discrimination or harassment 'arises out of and is closely connected to' the former employment relationship.
For further information, see Events which give rise to a discrimination claim.
Claims by employees
Discrimination claims can only be made in relation to employment at an establishment in Great Britain. This includes claims brought by applicants for positions at an establishment in Great Britain. Employees working wholly outside Great Britain will generally not be covered (but there are exceptions).
Employers may be liable for discrimination on their own behalf, vicariously liable for the acts of their employees and as principal for the authorised acts of their agents. Employers can only escape vicarious liability by showing they took all reasonably practicable steps to prevent the employee from doing acts of the relevant type. Employers are not generally liable to employees for the acts of third parties. Anyone who knowingly helps another to do an act of unlawful discrimination is liable as if they did the act themselves.
Individual employees who discriminate may be joined as additional respondents to a claim but cannot be the only respondent.
For further information, see Discrimination claims by employees.
Claims by non-employees
The discrimination legislation covers: self-employed persons working under a contract to do work personally, contract workers, Crown employees, partnerships, barristers, the police, trade unions, organisations responsible for conferring qualifications, bodies that provide or arrange training, employment agencies or LEAs providing employment-related services and office holders.
For further information, see Discrimination claims by non-employees.
Burden of proof
In deciding whether a claim is proven or not, the tribunal is required by statute to use a two-stage test. At stage 1, the tribunal must decide if the claimant has proved facts from which the tribunal could, in the absence of an adequate explanation, conclude that the respondent has discriminated. If (and only if) the answer to stage 1 is 'yes', the tribunal proceeds to stage 2, when it is for the respondent to prove (by producing appropriate evidence) that it did not in fact discriminate. If the respondent fails to do that, the tribunal must find in the claimant's favour. The Court of Appeal has given the detailed 'revised Barton guidance' on this topic in Igen v Wong.
For further information, see Burden of proof in discrimination.
Direct discrimination is treating someone less favourably than another on one of the prohibited grounds (ie on grounds of age, sexual orientation etc). A comparison must be drawn between the claimant and a comparator. That comparator may be a real or a hypothetical person but, in either case, that comparator's 'relevant circumstances' must be the same or not materially different. A person can be shown to act on prohibited grounds if 'but for' the age, sexual orientation etc, of the claimant, their treatment would have been better. It is not necessary that the employer should have an intention to discriminate, or have a discriminatory motive.
In contrast to the position under other discrimination legislation (concerning discrimination on grounds of eg sex, race, religion etc), under age discrimination legislation an employer may escape liability for direct discrimination if it can show that the less favourable treatment was 'a proportionate means of achieving a legitimate aim'.
For further information, see Direct discrimination.
Indirect discrimination is when an employer applies a provision, criterion or practice (PCP) to a group including the claimant which places those within that group who share a characteristic (eg age, sexual orientation etc) with the claimant at a particular disadvantage compared to those who do not. An employer may escape liability if it can show that imposing the PCP was 'a proportionate means of achieving a legitimate aim'.
Claimants may seek to prove indirect discrimination claims using statistics, in which case the tribunal will first have to establish the correct pool of persons to be involved in the comparison, which must contain both those who find it difficult (or are reluctant) to satisfy, or cannot satisfy the PCP and those who willingly satisfy it. The PCP is discriminatory if the percentage of those within the pool that willingly satisfy the PCP, and share the relevant characteristic with the claimant, is significantly lower than the percentage of those within the pool that cannot satisfy or have difficulty in satisfying the PCP who share that characteristic.
For further information, see Indirect discrimination.
Unusually, the justification defence can be used in cases of direct age discrimination and indirect age discrimination. It cannot be used in cases of victimisation or harassment on the grounds of age.
By contrast, under other discrimination legislation (concerning discrimination on grounds of eg sex, race, religion etc), the justification defence is only available for claims of indirect discrimination.
To show justification, the employer must demonstrate that:
the less favourable treatment (in a direct discrimination claim), or
imposing the PCP (in an indirect discrimination claim)
was a 'proportionate means of achieving a legitimate aim'. Proportionality means balancing the degree of impact against the justification offered.
In indirect discrimination cases, a respondent can argue justification even if it did not consider the point when it imposed the PCP.
For further information, see Age - justification.
Employers victimise employees if they retaliate against them for asserting their rights under the discrimination legislation. It does not include honest and reasonable steps to protect its position taken by an employer facing discrimination proceedings, even if they amount to 'less favourable treatment'. The tribunal has to decide if the employee performed a 'protected act', then whether they have been less favourably treated, and finally whether the less favourable treatment occurred because the employee performed the protected act.
Protected acts include bringing discrimination proceedings, giving evidence in them, or merely alleging that someone has done something which would amount to unlawful discrimination. The protected act need only be part of the discriminator's conscious, subconscious or unconscious motivation.
Respondents can avoid liability if they can show that the allegation which formed the protected act was false and made in bad faith. It is also a potentially valid (albeit difficult) defence for an employer to show that they treated the claimant as they did not because of the fact that they did a protected act, but because of the way they went about it.
For further information, see Victimisation.
One type of harassment is common to almost all types of discrimination: where someone, on a prohibited ground (age, sexual orientation etc), subjects an individual to unwanted conduct which has the effect of violating their dignity or creating an environment that is intimidating, hostile, degrading, humiliating or offensive to them. The nature of the conduct does not matter. The claimant must show that:
it was reasonable for the conduct to have had that effect on them (whether the perpetrator intended it to have that effect or not)
the perpetrator behaved as he did because the claimant had a particular protected characteristic
For further information, see Harassment.
Associative discrimination: on grounds of a third party's characteristics
Associative discrimination (a shorthand term used to describe discrimination that is suffered by a person because of another's protected characteristics) is unlawful in relation to harassment on grounds of age. It is not, currently, expressly covered in relation to direct age discrimination, although some such claims could be brought as direct age discrimination claims. Alternatively, tribunals may be prepared to construe the Age Regulations 2006, as currently drafted, as covering such claims.
For further information, see Associative discrimination: on grounds of a third party's characteristics.
Notice of retirement
The age discrimination legislation contains a duty on employers to give formal notice to employees of when they are due to retire. The notice must inform the employee that they have a right to request to work beyond their retirement date. Failure to give proper notice will make a retirement dismissal automatically unfair.
For further information, see Notice of retirement.
Working beyond retirement
Employees have the right to ask to continue working beyond retirement age, and their employer must consider that request.
If they make such a request, employers must comply with certain set procedural requirements in consideration of it. Failure to follow the proper procedure, where a request has been made, will make any retirement dismissal automatically unfair.
However, provided the employer follows the procedure correctly, there is no obligation on an employer to agree to the request, or to give any reasons if they refuse it.
For further information, see Working beyond retirement.
Retirement and dismissal
Retirement is one of the potentially fair reasons for dismissal.
Provided proper notice of retirement is given (see above), and the correct procedure is followed if any request to work beyond retirement is made (see above), an employer can fairly (and without unlawful discrimination) dismiss an employee who has reached 65, or reached the normal retirement date if that is higher.
Any dismissal made at a normal retirement age which is less than 65 will be unfair and discriminatory, unless that lower age can be objectively justified.
For further information, see Retirement and dismissal.
Periods worked while under the age of 18 or over the age of 65 do now count towards length of service for the purpose of calculating a redundancy payment.
Statutory redundancy payments are based on length of service and age: the longer you have worked and the older you are, the more you receive. This is not discriminatory on the grounds of age as long as the employer pays the amount required by statute. An employer can only pay more than the statutory redundancy payment provided the mechanism it uses to calculate the increase complies with fixed statutory rules. Any mechanism used which does not comply will require justification.
Using length of service as a criterion for redundancy selection will be discriminatory unless justified.
For further information, see Redundancy and age discrimination.
Pension scheme claims
The trustees or managers of an occupational pension scheme may not discriminate against a member or prospective member of the scheme on grounds of age. The employer will be treated as a party to proceedings relating to pension schemes and entitled to be heard even if they have not been named expressly in the claim. The tribunal has special powers to declare that someone has a right to admission to a scheme or to membership without discrimination. It only however has limited powers of compensation in such cases as compared to the norm.
There is a number of areas in which pension provision is exempted from the age discrimination legislation, in relation to matters such as admission to schemes, use of age criteria in actuarial calculations, age-related provisions relating to benefits etc.
For further information, see Age discrimination pension scheme claims.
Defences and exceptions
Illegality: only serious illegality instituted by a claimant is likely to lead to a tribunal declining jurisdiction, particularly where the claimant gained from it.
Public benefits: no discrimination claim can be made about benefits which the employer provides to the public on substantially similar terms as it provides them to employees.
National security: it is lawful to discriminate on grounds of sex, sexual orientation, religion or belief or age (but not race) in order to safeguard national security.
Diplomatic immunity: foreign states may claim immunity from discrimination claims except in respect of personal injury claims arising out of discrimination claims.
Positive discrimination: certain specific types of 'positive discrimination' are allowed, but it is otherwise unlawful to treat one group more favourably than another on prohibited grounds.
Recruitment of employees near retirement age: it is lawful to discriminate on grounds of age in offering employment where the candidate is within six months of turning 65, or of reaching the normal retirement age, or older
Benefits based on length of service: benefits which increase for up to five years of service are exempt, and in some cases benefits which continue to grow after five years will also be exempt
Payment of the National Minimum Wage: paying younger workers less in accordance with national minimum wage legislation is lawful
Discrimination on the grounds of statute: where statute requires someone to be a particular age to do a task which is central to a job (eg HGV drivers must be 21), it is lawful for the employer to stipulate that age requirement
Enhanced redundancy payments: certain specific types of enhancements to statutory redundancy pay requirements are lawful, even though they involve age-related mechanisms
Life Insurance: may lawfully be restricted to those under 65, or those under normal retirement age (if that is higher)
Retirement of employees over 65: dismissing employees aged 65 or over by reason of retirement is not discriminatory (although it may still be unfair)
For further information, see Discrimination defences and exceptions.
Genuine occupational requirements
Some jobs may require the holder to have particular personal characteristics. Usually, this is discrimination but there are specific exceptions where it will be lawful to require such characteristics. This type of defence is called the Genuine Occupational Requirement defence. This defence is usually available for discrimination involving: who should be offered employment; how employees are treated in relation to promotion, transfer or training; and dismissal. It is not usually a defence to discrimination involving the terms of employment, subjecting someone to a detriment or harassment.
For further information, see Age - genuine occupational requirements.
A tribunal upholding a direct discrimination claim should consider, according to what is just and equitable:
ordering compensation and/or
making a declaration of rights and/or
making a recommendation of action
It can take the wrongdoer's motivation into account in assessing whether it is just and equitable to order a particular remedy at all but not when deciding the amount of compensation.
For further information, see Discrimination remedies overview.
Compensation may include general financial loss, injury to feelings, personal injury damages, interest, aggravated damages and exemplary damages.
Multiple respondents: the tribunal must choose between making individual awards against each respondent (reflecting their individual responsibility for the damage) or making all respondents jointly and severally liable for some or all of the award.
Statutory dispute resolution: STOP PRESS! the statutory dispute resolution procedures were repealed with effect from 6 April 2009, but they continue to apply in certain circumstances (see Dispute resolution procedures - transitional provisions). Where they apply and where the employee fails to complete a relevant statutory dispute resolution procedure, his compensation will usually be reduced by between 10% and 50%. Where the employer is at fault, compensation will usually be increased by between 10% and 50%.
Acas Code of Practice on Disciplinary and Grievance procedures: where the Code of Practice applies, and there has been an unreasonable failure by the employee to follow it, his compensation may be reduced by up to 25%. Where the employer unreasonably fails to follow it, compensation may be increased by up to 25%.
Indirect discrimination: compensation for discrimination on grounds of age may only be ordered either if the employer intended to discriminate, or if it would be appropriate to make a declaration or recommendation as well.
Interest: is calculated as simple interest on net losses from the mid-point between the date of the discrimination and the date of the tribunal's assessment (or earlier payment by the employer), at the Special Investment Account Rate, except for injury to feelings which attracts interest over the whole period from act to assessment.
Aggravated damages: will only be appropriate where malice or other bad intention of the discriminator is shown to have caused injury to feelings.
Exemplary damages: are very rare and are intended to punish and deter oppressive, arbitrary or unconstitutional action by agents of government, or conduct calculated to make a profit which may well exceed compensation otherwise payable, to mark the tribunal's disapproval and to deter its repetition.
For further information, see Assessing discrimination compensation.
General financial loss
The aim is to put the injured party in the financial position they would have been in had the discrimination not occurred, based on after-tax earnings but adjusted for tax, mitigation, accelerated receipt etc. There is no need to demonstrate foreseeability. The tribunal will often use statistical information to assess the percentage adjustment to make to reflect the chance that a future event or events would have occurred.
For further information, see General financial loss in discrimination claims.
Injury to feelings and personal injury
Damages for injury to feelings are almost always awarded, even though there is no obligation to do so, with the aim of compensating victims for the hurt caused by knowing that they have been treated in a discriminatory way. They should be similar in size to personal injury awards, not defamation awards.
For further information, see Injury to feelings and personal injury.
Declarations and recommendations
Declarations are rarely used but may be useful where compensation is inappropriate or some point of principle is involved.
Recommendations can be made that the respondent take action within a specified practicable period to obviate or reduce the adverse effect on the claimant of any act of discrimination to which the claim relates. They cannot be used to recommend that someone gets a pay rise or be given a job. It may be inappropriate to recommend that actions be taken by non-parties, or that apologies be made. Non-compliance can lead to an increase in compensation.
For further information, see Declarations and recommendations in discrimination claims.
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