Age Discrimination Law in Northern Ireland by jennyyingdi

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									                                      Age Discrimination
                                      13 November 2008

The Equality Commission for Northern Ireland has responsibility for
enforcing the Employment Equality (Age) Regulations (Northern
Ireland) 2006, and working for the elimination of unlawful discrimination
on grounds of age. It also has general duties with regard to promoting
equality of opportunity and positive action, as well as a duty to keep
under review the operation of the Regulations.

This paper, read in conjunction with the presentation, aims to provide participants with an overview
of the Age Regulations with a particular focus on age discrimination in recruitment.

The Regulations implement Northern Ireland’s obligations under European Council Directive
2000/78/EC also known as the Framework Employment Equality Directive 2000 (“the Framework
Directive”) in relation to discrimination on grounds of age.

The Framework Directive establishes a general framework for equal treatment in the field of
employment and occupation. The Directive gave Member States three years to implement the
Directive’s provisions. Some changes came in to effect in 2003 e.g. Employment Equality (Sexual
Orientation) Regulations (Northern Ireland) 2003. However, Member States were also allowed
extra time to bring in some changes in respect to disability and age.

The rights were introduced in several other EU states, including Ireland, in 2003. This has helped
us see the impact and interpretation of the directive in other countries. General predictions were
that age discrimination had the potential to be bigger than any other discrimination jurisdiction
within the tribunal system. In the Netherlands age discrimination forms 30% of the caseload of the
Dutch equivalent to the Equality Commission. The Employers Forum on Age reports that 11% of
cases in the Republic of Ireland are on age grounds.
In the past year, April 2007 to March 2008, 8% of enquiries from individuals to the Equality
Commission for NI legal team related to age discrimination. This was consistent with the previous
period, October 2006 to March 2007, when the regulations were first introduced.

The range of issues in this short time has included recruitment, retirement, terms & conditions,
harassment, redundancy, dismissal, equal pay, pensions and family status.

In the last year 20% of enquiries received by the Commission’s employer advice team related to
age discrimination compared to Fair Employment 32%, Disability 29%, Gender 10%, Race 8% and
Sexual Orientation 1%.



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January 2008 saw the first NI tribunal decision on age discrimination. In the case of McCoy v J
McGregor & Sons the NI tribunal ruled that Mr McCoy, then aged 58, was discriminated against
on the grounds of his age when he was not appointed to a post of salesman with a timber firm.

Huge questions were raised at the time of introduction of such a wide-ranging discrimination
ground as age. Everyone is of some age, and the legislation does not limit its protection only to
older people. Indeed the law covers all workers and includes children as young as 13 who can
legally work. In regards to age categories or age bands that are relevant for comparison the law is
silent and it will depend on the circumstances. In Perry v Garda Commissioner DEC -E2001-029
the Irish Equality Tribunal considered 2 days in the difference of a person’s age was relevant
where a cut off date for voluntary retirement was used yet in Superquinn v Freeman Labour
Court, 14-11-2002, DEE0211, the Labour Court decided 3 years was not relevant in a promotion
case.

When we have thought of age issues in the past, it has usually been in the context of concern and
care for older people or for the protection of the young. Many issues revolved around the social
and domestic environments where we were accustomed to the views that you were too young or
indeed seen to be too old to do certain things. Peer pressure had its part in such social control. So
much so that the concept of age occupies a particular psyche in us all, and the potential for
outlawing actions based upon age presents us with particular cultural and intellectual challenges.
Age has so all too often been used as a determinant for ability or linked to societal expectations of
what a person of a particular age can or cannot do. Indeed some of the cases in Ireland articulate
the particular societal construct that is attached to age.

In the case Equality Authority v Ryanair (DEC – E2000-014) the company advertised posts for
candidates who were ‘young at heart’. The Equality Authority took action under the discriminatory
advertising provisions of the Employment Equality Act 2000.

In the case of a Firm of Solicitors v a Worker Labour Court, DEE011 a solicitors firm dismissed a
woman to employ ‘a young girl’, as was the custom. There were no issues in respect to the
performance of the older female employee.

In Northern Ireland an advert in the jobs pages stated the applicant ‘Must be over 25, fluent in
English, physically fit and possess a current clean driving licence’ (Belfast Telegraph 29 Sept
2006) and another where it stated ‘Professional mature responsible female required to run
Bed and Breakfast’ (Belfast Telegraph 12 May 2003).

In Ireland the questions of interviewers have yielded some interesting views of what people think
others should or shouldn’t be doing at certain ages:

‘considering that you have been teaching for 27 years, why would you now be bothered with the
hassle of the job of Deputy Principal’ Ms Margaret O’Neill vs Board of Management, St
Gabriel’s National School DEC-E-2005-007 and in O’Mahony and others v Revenue
Commissioners DEC – E2002-018 only those over 50 were asked ‘why (are you) seeking
promotion at this stage of your career?’.

The European Directive and the Age Regulations which transpose it thus pose a challenge to us all
in redefining what age considerations are acceptable for making determinations on the suitability of
individuals for employment and training. They also challenge our stereotypes of age.
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Recent UK Litigation issues:

There have been a number of cases taken to tribunal in respect of age discrimination and
redundancy schemes including MacCulloch v Imperial Chemical Industries plc and Loxley v BAE
Systems Land Systems (Munitions & Ordanance Ltd.

The use of inappropriate age related language has been an issue in several cases including
McCoy v J McGregor & Sons. The Tribunal drew an inference of discrimination from the use in the
recruitment advertisement of the phrase “Youthful enthusiasm”. The Tribunal also concluded that
there was a linkage made “between the issue of age and the concept of what has been variously
referred to in the case as ‘enthusiasm’, ‘motivation’ and ‘drive’. The Tribunal also said that “ the
claimant was asked age-related questions. . . . . . . Queries were raised with him regarding such
matters as his drive and motivation at the age of 58.”

The Tribunal concluded that “but for his age [Mr. McCoy] would more probably than not have been
selected for one of the two posts.”

In Thomas v (1) Eight Members Club (2) A Killip, Miss Thomas was dismissed from her job at
‘Eight’ a private members club. She claimed that she had been told by Mr Killip that she was too
young to do the job. The tribunal ordered £1500 compensation for injury to feelings.

At the beginning of October 2008, the Advocate General of the European Court of Justice advised
that the Framework Directive requires that the UK Government’s national default retirement age
falls within the scope of the Framework Directive. However this decision has not yet been ratified
by the Court.

If the AG’s decision stands, this will mean that the Government will have to take its case for the
justification of the Default Retirement Age to the High Court.

In relation to Heyday’s challenge to the justification of direct age discrimination, Heyday argue that
Article (6) of the Framework Directive does not allow Government to justify general direct age
discrimination. The Advocate General has taken a more liberal view in relation to the setting of
direct discrimination exemptions.

What should employers and others do?

The Commission recognises that for employers and others this far-reaching legislation poses many
practical questions. Employers in particular should ask themselves whether they have taken the
steps necessary to comply with this major development in workplace law.

The Commission would recommend that employers review their practices and procedures to
ensure compliance. One way to do this is using the Equality Commission’s Employment Equality
Plan model.

An Employment Equality Plan is:
    An action plan outlining how a company’s equal opportunity policy will be implemented;
    A voluntary initiative driven by the needs & priorities of an organisation;



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      A plan that allows for an integrated approach to the promotion of equality across nine
       grounds (age, sexual orientation, religious belief, race, disability, political opinion, sex,
       marital status, persons with or without dependants);
      A flexible structure which can be tailored to meet the specific needs of different types of
       company.

The Plans provide a practical framework for:
    Co-ordinating all aspects of equality work undertaken within a company.
    Equality Impact Assessing employment policies & practices.
    Integrating equality into performance management systems, quality initiatives and
      corporate planning processes.
    Developing action plans to promote affirmative & positive action.

The CIPD Age and Recruitment Paper, published last summer, provides an overview of key issues
in recruitment and identifies good practice adopted by employers. Their research, which was
carried out by the Cranfield School of Management and Beechcroft LLP, highlighted a number of
key issues that employers should consider in trying to create an age-diverse workforce.


    The style of recruitment                   Entry onto graduate recruitment
     campaigns can help attract                  schemes should not be limited
     diverse candidates.                         to those who have recently
                                                 graduated or to those with a
    The adoption of flexible working            particular level of UCAS points.
     practices and forging links with
     the local community may help to            Graduate programmes should
     attract a more age-diverse                  be branded so that they are
     workforce.                                  perceived as accessible to
                                                 graduates of all ages.

    Age restrictions and age-related           It is essential that recruiters and
     terminology should be removed               assessors are educated and
     from recruitment                            trained effectively so that they
     advertisements, job descriptions            are aware of the requirements of
     and person specifications.                  the age legislation.


    The requirement for applicants
     to have a particular length of             Notes should be taken at
     experience should be replaced               appropriate stages of the
     with more specific details of the           recruitment process.
     type of experience needed.
                                                External providers, such as
    Vacancies should be advertised              recruitment or advertising
     widely enough to reach potential            agencies, should be fully briefed
     applicants of all ages.                     on the organisation’s
                                                 requirements regarding age and
    Consider removing date of birth             should be monitored to make
     and indicators of age from the              sure that they maintain these
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       application form or CVs that                standards.
       have been received.
                                                 The age of the current workforce
    The use of electronic or online              and applicants at each stage of
     screening and telephone                      the recruitment process should
     interviews may help to ensure                be monitored and this data
     that age is not a factor in the              should be used systematically to
     initial screening stages.                    identify any problematic areas
                                                  that need to be addressed.
    Assessment and selection
     should be based on objective
     criteria needed for the job.



Employers should be proactive in dealing with age equality issues. The alternative route, reacting
to difficulties when they arise, can result in cases of discrimination occurring, with all the resulting
hurt to the individuals affected, damage to staff relationships and the costs of tribunal cases and
compensation.

Further information

The following information provides an overview of the regulations (pages 7-11) and some practical
examples of age discrimination in recruitment (pages 12-15).

The Equality Commission can provide information, advice and training to employers on the age
legislation and recommended good practice. We can also work with you to develop an Employment
Equality Plan tailored to your needs. Please contact us for further information:-

Enquiry line - 028 90 890 890
Website – www.equalityni.org


The following relevant publications are available free of charge from the
Commission and on our website:
           Age Discrimination in Northern Ireland - A Guide for Employers
           Age Discrimination in Northern Ireland - A Guide for Employees
           Harassment & Bullying in the Workplace
           Model Equal Opportunities Policy
           Model Harassment Policy and Procedure


                                  ____________________________

Michelle Morris, Employment Development Division, Equality Commission for NI
Jim Glackin, Promotion and Education Division, Equality Commission for NI




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              Age Discrimination Law in Northern Ireland
The Law
The Employment Equality (Age) Regulations (Northern Ireland)
2006 (the Regulations), make discrimination on grounds of age
unlawful in the following areas:
       • employment and occupation;
       • further and higher education;
       • vocational training.

What is Age Discrimination?
The Regulations define the following types of unlawful discrimination:

      • Direct discrimination is where, on grounds of a person’s age (or perceived age), an
      employer, without objective justification, treats that person less favourably than he treats, or
      would treat, other persons in circumstances that are the same, or not materially different.

      • Indirect discrimination occurs where an employer, without
      objective justification, applies a provision, criterion or practice
      which, although it was applied to all persons equally, puts persons of the same age group as
      the individual at a particular
      disadvantage compared to other persons. An example of this
      might be where an employer, without objective justification, applies a minimum experience
      requirement to a job and therefore puts persons of a particular age group at a disadvantage.

      • Age victimisation means treating someone less favourably
      because they have, for example, in good faith complained of
      alleged discrimination or have assisted someone else to do so.

      • Age harassment occurs where, on the grounds of age, a person is subjected to unwanted
      conduct which has the purpose or effect of violating his or her dignity, or creates an
      intimidating, hostile, degrading, humiliating or offensive environment for him/her. An
      example of this might be where a young manager receives comments such as “you are wet
      behind the ears” from an older employee.

      • Discrimination for failing to carry out an age discriminatory instruction occurs when
      an individual is treated less favourably than other persons because that person failed to
      carry out or complained about receiving an instruction to do an act which is unlawful under
      the regulations. This form of discrimination can not be objectively justified.

      • Discrimination after a relationship has come to an end occurs when an individual is
      treated less favourably or harassed on grounds of age after the employment relationship
      has ended. An example of this might be an employer refusing to provide a former employee
      with a reference.

People who believe that they may have suffered unlawful discrimination may take legal action
through an Industrial Tribunal or County Court.


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Employment Provisions
The Regulations prohibit all employers, regardless of size, from
subjecting job applicants and employees, including contract workers and
former employees, to age discrimination and harassment. It is unlawful
for an employer to discriminate in all aspects of the employment
relationship, such as:
       • recruitment and selection;
       • terms and conditions of employment;
       • working environment (conduct and harassment);
       • access to (employment related) benefits;
       • termination of employment – such as dismissal and
          redundancy; and
       • post-employment situations – such as the provision of
       references.


Age Harassment
Age harassment is explicitly defined in the Regulations as unwanted
conduct which has the purpose or effect of violating a person’s dignity,
or which creates an intimidating, hostile, degrading, humiliating or
offensive environment for him/her. Such harassment is unlawful and
discriminatory.
Age harassment can take many forms including physical conduct such
as serious assault, verbal conduct such as jokes, banter and name
calling or written conduct such as graffiti, posters, pictures or e-mails.
Complaints of age harassment may be made against the employer as
well as the harasser. In certain circumstances, individual employees can
be held personally liable to pay compensation awards.

Employers are liable for any age harassment committed by their
employees in the course of their employment (this includes work
related social activities outside normal working hours) even if they
did not know about the harassment or would not have approved of it,
had they known. Employers can be held liable for the discriminatory acts
of their agents if the agent acts with the employer’s express or implied
authority. Employers can also be held responsible for a failure to
prevent acts of harassment carried out by customers or clients against
their employees. Employers can successfully defend an age
harassment case only if they can demonstrate they took such steps as
were reasonably practicable to prevent the harassment happening.


Do These Provisions Apply Only To Employers?
No. Bodies and organisations other than employers are prohibited from
discriminating including:
       • employment agencies;
       • persons who appoint office holders;
       • persons with statutory power to select employees for others;
       • trade organisations – including trade unions and professional
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       organisations;
       • partnerships (in business/es);
       • barristers;
       • The Police Service of Northern Ireland and other police
       bodies;
       • trustees and managers of occupational pension schemes;
       • The Crown – which includes government departments and
       agencies;
       • career / training guidance providers who assist others in
       accessing work and training;
       • organisations which confer professional and trade
       qualifications;
       • vocational training providers; and
       • institutions of further and higher education (including
       universities).


Exceptions
There are exceptions in the legislation. Some examples of exclusions
and excluded activities include:

       • genuine occupational requirement;
       • national minimum wage;
       • provision of enhanced redundancy funds;
       • life assurance cover;
       • statutory exceptions including the armed forces, statutory
       authority and national security;
       • retirement;
       • recruitment of over 65s;
       • length of service exemptions;
       • objective justification.

Direct and indirect discrimination may be permitted where an employer
can demonstrate that his/her actions or provisions, criteria or practices
are objectively justified. Objective justification cannot be used as a
defence for victimisation and harassment or discrimination for failing to
carry out an age discriminatory instruction.

Objective justification will be established if an employer can show that
what it has done is a proportionate means of achieving a legitimate
aim.
This means that:
       • the decisions or provisions which an employer makes or the
       criteria or practices which are applied must actually contribute to
       the pursuit of the legitimate aim. For example, if the employer
       uses an age-related practice in order to promote health and safety
       (the legitimate aim), then the employer should have evidence
       which shows that the practice actually promotes health and safety.


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       • the importance and benefits of the legitimate aim should be
       weighed up against the discriminatory effects. For example, a
       discriminatory criterion which helps to protect employees’ safety is
       more likely to be regarded as proportionate than one which
       results in a marginal improvement in production efficiency.

       • the employer should not discriminate more than necessary. For
       example, where a legitimate aim can be achieved equally as well
       by a measure that has a substantial discriminatory effect and one
       that has a lesser discriminatory effect, or none at all, the latter
       should be used.

In the event that an individual complains of discrimination, it will be for
an employer to convince an Industrial Tribunal that it acted in order to
achieve a legitimate aim.


Positive Action
The Regulations permit two types of positive action for the purpose of
preventing or compensating for disadvantage linked to age suffered by
persons of the targeted age or age group.
These are:
       • affording persons of a particular age or age group access to
       facilities for training which would help to fit them for
       particular work;
       • encouraging persons of a particular age or age group to take
       advantage of opportunity for doing particular work.

Please note that lawful positive action of this nature is not the same as
positive discrimination. Employers should seek advice from the
Commission and/or seek independent legal advice before taking any
positive action measure.


Goods, Facilities and Services
The Regulations do not generally prohibit discrimination by those who
provide goods, facilities and services to the public. However, those who
provide employment-related services to the public, such as employment
agencies, career guidance services, vocational training providers and
institutions of further and higher education, including universities, are
prohibited from discriminating on the grounds of age.


Further and Higher Education
It is unlawful for the governing bodies of institutions of further and
higher education, including universities, to discriminate:
        • in the terms on which they offer to admit a person as a
        student;
        • by refusing or deliberately not accepting an application for a
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         person’s admission as a student;
         • in the way it affords a person access to any benefits;
         • by refusing or deliberately not affording a person access to
         them; or
         • by excluding the person from the establishment or subjecting
         that person to any other detriment.
It is also unlawful for an institution of further and higher education to
harass a person who is a student at the establishment, or a person who
has applied for admission, on the grounds of age.


Vocational Training
It is unlawful for any training provider to discriminate against someone
who is seeking or undergoing training:
        • in the arrangements they make for the purpose of
        determining to whom they should offer training;
        • in the terms on which the training provider affords them
        access to any training;
        • by refusing or deliberately not affording them such access;
        • by terminating their training; or
        • by subjecting them to any other detriment during their
        training.
Training providers can not set age limits for entry to training unless they
can objectively justify them or rely on an exception or exemption.

                      Age Discrimination in Recruitment
                            - Practical Examples
The Commission with assistance from ACAS has developed a guide for employers which aim to
assist those who have obligations under the legislation undertake actions to reduce the potential of
breaching the law.

The guide provides a number of examples to help explain how the law will work in practice. A few
of these examples relating to recruitment and selection are noted below.


Example 1 Direct age discrimination I

Stephen is aged 50 years. He applies for a job as a clerk. The employer notes that Stephen has
all the skills and competences required to do the job. However, the employer also notes that all the
clerical staff who currently work in his office are aged 18 to 25 years. The employer assumes that
Stephen may not “fit in” with the other employees because of the differences in their ages. For this
reason, the employer decides not to offer the job to Stephen and he appoints another applicant
who is aged 21 years.

Stephen has been treated less favourably than the appointee on the grounds of his age. The
treatment is based on a biased and stereotypical assumption that an older employee will be unable
to “fit in” with younger employees. Therefore, this treatment is likely to amount to direct age
discrimination.
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Example 2 Direct age discrimination II

Rachael is aged 35 years but appears to be aged in her early 20s. She applies for a managerial
job. The information provided by Rachael in her application form and at the interview indicates that
she has all the skills and competences required to do the job. Despite knowing Rachael’s real age,
the employer makes an assumption, based on her perceived age, that Rachael lacks the degree of
gravitas and maturity that the employer expects managerial staff to have. For this reason, the
employer decides not to offer the job to Rachael.

Rachael has been treated less favourably than she would otherwise have been treated had she
looked older. This treatment was on the grounds of her perceived age. The treatment is based on
a biased and stereotypical conclusion drawn from appearances only. Therefore, this treatment is
likely to amount to direct age discrimination.

Example 3 Indirect age discrimination

Brian is aged 25 years. He is a solicitor with 2 years’ post-qualification experience (PQE). He
applies for the job of assistant solicitor with a firm of solicitors. His application is rejected because
the firm is seeking to appoint a person who has at least 5 years’ post-qualification experience. The
criterion is applied to all applicants for the job but, given the length of time that it takes to gain the
qualifications and experience necessary to meet this minimum standard, it is unlikely that any
persons aged less than 28 years can satisfy it.

Both Brian and persons of his age group (solicitors aged less than 28 years) have been placed at a
particular disadvantage compared to other persons (solicitors aged 28 years and over) by the
minimum job criterion.

On the basis of the information given here, it cannot be said with certainty that applying this job
criterion amounts to indirect discrimination – but it is potentially so. It is possible that the firm has a
lawful, objective justification for setting the 5 years’ post-qualification criterion (perhaps on the basis
of particular business needs). On the other hand, while an Industrial Tribunal may accept that the
firm can lawfully justify asking for some level of post-qualification experience (for example, 1, 2 or 3
years), it may consider that there is no justification for seeking higher levels. It could be argued
that the less technical or specialised a job is the harder it will become for an employer to lawfully
justify asking for some level of post-qualification experience.

Example 4 Age victimisation

A year ago Catherine lodged an age discrimination complaint against her employer in an Industrial
Tribunal. A work colleague, Abigail, gave evidence on Catherine’s behalf at the Tribunal hearing.

Two months ago, Abigail applied for a promotion but her application was rejected even though she
has all the necessary skills and experience. The actual reason for the rejection is that the
employer is retaliating against Abigail for having assisted Catherine in her age discrimination
complaint.

This treatment amounts to discrimination by way of victimisation and is not capable of being
justified.

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Example 5 Discrimination for failing to carry out an age discriminatory instruction

A company has run into business difficulties and must reduce its workforce by making compulsory
redundancies. The company has an agreed redundancy selection procedure which is based on a
number of objective job-related criteria.

However, the Managing Director instructs the Personnel Manager to select for redundancy all
employees aged 50 years and above without reference to the agreed procedure.

This instruction is likely to result in direct age discrimination against those employees who are aged
50 years and above. The Personnel Manager notes this and refuses to carry out the instruction.
As a result he is dismissed from his employment.

This treatment amounts to discrimination for failing to carry out an age discriminatory instruction
and is not capable of being justified.

Example 6 Discrimination after a relationship has come to an end

Sinead was a manager for a large clothing retailer. Grainne, an ex-employee of the large clothing
store, had applied for a job with a hardware store. The Personnel Officer from a hardware store
asked Sinead for a reference regarding Grainne.

Sinead said that she could not recommend Grainne. Sinead’s reason was that Grainne was not
accepted by the other members of staff. Sinead believed the reason for this was that the other
members of staff perceived Grainne as ‘too young and inexperienced’.

This is direct discrimination on the grounds of age.

Example 7 Objective justification

Jones & Company is a manufacturing concern. It operates a compulsory retirement age of 65
years for all staff members. The company is aware that many of its production workers will be due
to retire within the next 2 years. It is worried about the effect that these personnel losses may have
on its ability to maintain production efficiency. Consequently, it decides that for the next 3 years it
will only recruit workers who are aged between 16 and 25 years. It does so “in order to maintain
the ‘age profile’ of the organisation”. If the company can provide evidence through the age profile
of its workforce that there is a severe imbalance in its employment of older and younger workers
and that as a result there is a real danger that production efficiency will be substantially decreased,
then it may be possible for it to establish that there are legitimate grounds for taking some form of
discriminatory action to fix the problem (“a legitimate aim”).

However, the action that the company takes must also be shown to be proportionate. Restricting
recruitment to persons aged 16 to 25 years for a period of 3 years is unlikely to be deemed to be
proportionate without cogent evidence that it is necessary. The company would have to show why
other, less discriminatory, measures (or, a combination of measures) could not be equally effective.
For example, the same outcome might equally be achieved by permitting older workers to retire
later than usual; and / or, by restricting recruitment to workers aged 16 to 60 years; and / or, by
imposing the restriction for 1 year only instead of 3 years.



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Example 8 Genuine occupational requirements

A film company which is making a film of Oliver Twist may lawfully apply a genuine occupational
requirement to hire a young boy to play Oliver and an adult man to play Fagin.

However, it may not be proportionate to apply a genuine occupational requirement that requires the
adult actor to be aged over 50 years if, for example, any adult male actor (or alternatively, any actor
aged over 40 years) could play the role with as much credibility.


END




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