Age Discrimination

For information only

The Employment Equality (Age) Regulations 2006 came in force in October 2006. This is the result of the long awaited Labour manifesto pledge (dating from 1997) to put in place legislation to combat age discrimination. 

The regulations join the long standing anti sex and race discrimination laws enacted by the previous Labour Government in the mid 1970’s and is probably the most major change in employment law since that time. 

The essence of the regulations is very simple. After October 1 2006 it is illegal to treat anyone differently and to their detriment because of their age or age group (or apparent age/age group). But the regulations also make it an offence if someone is treated less favourably because they complained or challenged  such treatment, or is treated less favourably because they did not carry out an instruction to act unlawfully with regard to age discrimination. The regulations also cover circumstances where an environment is created that is itself intimidating or hostile as a result of age discrimination.  

The rules apply to virtually every workplace scenario (recruitment, training, promotion and dismissal) and applies specifically to employment agencies in the way they provide their services. Importantly, the regulations apply to employers where their staff act in an unlawful manner, even when the employer was not aware of this.  

The rules specifically allowed positive discrimination, the awards of enhanced treatment for long service in employment and for retirement and minimum wage rules. The regulations will be enforced via the Employment tribunals and the burden of proof is on the respondent (the employer in most cases) to demonstrate their innocence. Damages can be awarded even if there is no material loss in the shape of ‘compensation for injury to feelings’. There is even a statutory form to challenge anyone who is suspected of breaching the regulations. 

So, what does it all mean? For most employment agencies, not much. Agencies despite their well documented faults in many respects are rarely discriminating unless instructed/forced to be so. They always want the candidate to be offered the job – that’s how they earn their living. Refusing to do so for some unsupportable reason is an anathema to all recruitment agents for that reason alone, even in the absence of more laudable motives. However, all employers must be careful how they word job ads, recruit, train, promote and dismiss staff. Many employers are blatant age discriminators and that includes the great and the good of the self appointed ‘Human Resources’ profession.  

One of the only real changes was the incorrect belief that it was now illegal to ask or know someone’s age or date of birth. Somewhat ironic when HMRC require date of birth for each and every employee as a form of identification.

Nevertheless these laws are clearly good news for workers. Candidates must be careful not to claim unlawful discrimination every time they get turned down for a job. Discrimination on the grounds of merit remains and will remain. Moreover, it does not mean that experience of the right quantity and type will still not be essential or that one can no longer have a reasonable expectation of earning more as experience (and inevitably, age) is accumulated. The point is age alone cannot be used as a factor.  

The power of the regulations is not the law itself but the effect it has on attitudes. There is no doubt since the race and sex laws came into effect adherence to the rules was at first ignored then done grudgingly until finally the long held prejudices disappeared (in the most part). Few people would argue that discriminatory practices throughout society have reduced hugely in the last 40 years and there is no doubt with age it will be the same. 

Age discrimination, nevertheless differs from other types in one way. We all grow older and pass from one group (the under 30’s are the worst offenders) to another (the over 55’s are most likely to be the victims). In most cases of other types of unlawful discrimination, race, sex, sexual orientation, religion and disability the status of the victim is constant. While one might think this should make age discrimination and the prejudices that fuel it easier to eradicate, we all know that the relationship and tensions between young and old are deep seated and in some aspects go back to our human nature itself. 

For Full text of the The Employment Equality (Age) Regulations 2006 click here.