Calling time on age discrimination by fdjerue7eeu

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Calling time on
age discrimination
A mini-guide to age
discrimination at work
Contents
1. Your new rights                                    3
2. What does the new law cover?                       5
   What areas won’t be covered?                       7
   Who has rights under the new law?                  8
3. The different types of age discrimination          9
4. When is age discrimination allowed?               13
   When age discrimination can be justified          14
   Exceptions to the law                             16
5. How does the law apply to you?                    19
   How will the new retirement procedure work?       27
   Unfair dismissal                                  31
   Too old for training?                             32
6. How do I enforce my rights?                       34
   How to make a claim about education or training   38
7. Getting help                                      39
   For free advice and representation                41
1.
Your new rights
New legislation, effective from
1 October 2006, means that employers
can no longer discriminate against
employees on grounds of age.
    The new law – the Employment
    Equality (Age) Regulations 2006 –
    applies in England, Scotland and
    Wales,1 and provides protection
    against age discrimination in
    employment, training and adult
    education, for people of all ages.
    Age Concern has produced this
    mini-guide to provide a summary
    of who will benefit from the new
    laws, and how you can take action
    – as well as showing you where to
    find more information. If you feel
    that you have been discriminated
    against on grounds of your age,
    read on to find out more.




1
    Similar regulations are being
    introduced in Northern Ireland.
                                         4
2.
What does the
new law cover?
The new law covers age discrimination
in most aspects of employment, such
as applying for a job, being considered
for training or promotion, being made
redundant and being dismissed.
It also covers most training courses.
Recruitment                            Unfair dismissal
With the new regulations,              The removal of the statutory upper
employers will generally not be        age limit means that employees
allowed to refuse to hire someone      over the age of 65 will now
because of their age. But there        be able to challenge for unfair
is an exception to this rule if the    dismissal. See page 25 for more.
applicant is over, or six months
away from, age 65, or the              Statutory sick pay
employer’s normal retirement           People who are still working after
age, if this is higher. See page       the age of 65 will now be entitled
20 for more. Employers can also        to statutory sick pay for up to 28
set age requirements for a job if      weeks, in the same way as other
there is a genuine occupational        employees are.
requirement or they can otherwise
justify doing so. See page 14.

Redundancy
If employees over 65 are made
redundant, they will now be entitled
to statutory redundancy pay. It will
also be unlawful for employers to
use age as a factor when selecting
people for redundancy (unless the
employer can justify this). See page
24 for more.




                                                                            6
                                       What areas
                                       won’t be covered?
Retirement                             Volunteers
If your employer tries to force        Volunteers won’t have protection
you to retire under the age of 65      from discrimination. Unpaid work
(or their normal retirement age        will be covered if it’s undertaken
if higher), you can claim for          as part of a training course.
age discrimination and unfair          Unpaid office holders will have
dismissal. And employees over 65       protection, but only if they are
have the right to request to carry     government appointed, for
on working. See page 25 for more.      example magistrates.

Training                               The provision of
If you’re in training which provides   goods and services
you with skills relevant to work –     The law doesn’t apply to the
whether you’re employed or             provision of goods and services.
not – you’ll be able to take           This means that it will still be
action if you’re discriminated         lawful for insurance companies
against because of your age.           and health care providers,
See page 32 for more.                  for example, to discriminate
                                       on the grounds of age.
Education
If you’re in further education,
higher education (including
universities) or any other
education programme which
provides you with skills relevant
to work, you are covered by the
legislation. However, school age
education is outside the scope of
the law. See page 32 for more.




                                                                            7
Who has rights under
the new law?
Under the new law, these people   Under the new law, these people
have rights in employment:        have rights in other areas:
  employees                         people using career
                                    guidance services
  self-employed people
                                    people applying for a
  office holders (for example,
                                    professional qualification
  company directors, clergy)
                                    members of trade unions
  contract and agency workers
                                    or professional associations
  job applicants
                                    members of occupational
  former employees                  pension funds

Under the new law, these people
have rights in education:
  people applying for adult,
  further or higher education,
  or training
  students in adult, further or
  higher education, or training
  former students in adult,
  further or higher education,
  or training




                                                                   8
3.
The different
types of age
discrimination
It’s not always easy to spot age
discrimination, as there are several
kinds, some of which are subtle
and may be unintentional.
Discrimination can be direct or        Indirect discrimination means
indirect. Under the new law, direct    having a policy or practice that
and indirect discrimination will be    puts people of a certain age group
unlawful unless the employer can       at a disadvantage, compared with
justify the discrimination, or if an   other people.
exception applies (see section 4).
Direct discrimination means            For example: A company restricts
treating someone less favourably       recruitment to recent graduates –
because of their age, or because       fewer older people would be able
of the age they appear to be.          to meet this requirement.

For example: A company refuses         For example: A firm introduces
to recruit a person, simply            a fitness test, which all employees
because they’re over 50.               are required to pass. This could
                                       be indirect discrimination if fewer
                                       older employees are likely to be
For example: An organisation
                                       able to pass the test. However,
has a practice of only promoting
                                       it may be possible for the firm
people under the age of 50
                                       to justify this policy. It would
to senior positions.
                                       have to show that the testing
                                       policy was necessary to achieve
                                       health and safety aims, and that
                                       there was no less discriminatory
                                       way of achieving them.




                                                                        10
Harassment
Harassment, or bullying, based          For example: An older worker’s
on someone’s age is unlawful            colleagues repeatedly make
under the new law. The legal            jokes about them at work, based
meaning of harassment is:               on their age, which the person
unwanted conduct, on the grounds        finds offensive.
of age, which has the purpose
or effect of violating a person’s
                                        For example: Someone has
dignity, or creating an intimidating,
                                        a partner who is significantly
humiliating or offensive
                                        younger than them and this is
environment for that person.
                                        the basis of repeated comments
It is also unlawful to harass           and jokes from colleagues.
someone on the grounds of the age       This could be unlawful if the
of someone they associate with.         person finds it humiliating
                                        or offensive.

                                        If you make a complaint of
                                        harassment to the employment
                                        tribunal (see section 6), it will
                                        consider whether it was reasonable
                                        for you to be offended in the
                                        circumstances. So if someone
                                        is seen to have taken offence
                                        unreasonably, the tribunal can
                                        decide that the behaviour was
                                        not unlawful.




                                                                         11
Victimisation                        Instructions to discriminate
This has a very specific meaning     If an employer instructs an
under discrimination law.            employee to do something
Victimisation means being            which would amount to age
treated unfairly as a result of      discrimination, it will be unlawful
making a complaint of age            for the employer to treat that
discrimination, or giving evidence   employee unfairly because they
when somebody else complains         refuse to carry out the instruction,
of age discrimination.               or because they complain about
                                     the instruction.
For example: An employee is
dismissed after complaining that     For example: An employee
they are not receiving the same      involved in a recruitment decision
training as younger colleagues,      is disciplined for not carrying out
because of their age.                the employer’s instruction only
                                     to invite people under age 40
                                     for a job interview.
For example: A worker is passed
over for a promotion that they
otherwise would have got, because
they made a witness statement
supporting a colleague’s complaint
of age discrimination.

Unlike direct and indirect
discrimination, harassment
and victimisation can never
be justified by an employer.




                                                                       12
4.
When is age
discrimination
allowed?
There are certain circumstances
where it is lawful for employers to
discriminate on the grounds of age.
Some types of age discrimination
are not covered by the law, and some
other types of discrimination can be
justified by employers.
Where age discrimination
can be justified
There may be certain                 It is up to the employer to
circumstances when employers         argue that the aim they are trying
can justify discriminating on        to meet is a legitimate one.
grounds of age, but they have        Examples of aims that employers
to prove, with evidence, that it’s   might use could be:
a proportionate way of achieving
                                       health and safety of employees
a legitimate aim. Proportionate
                                       and customers;
means that what the employer
is doing has to be appropriate         the need for an employee to
and necessary, so they would           be in the post for a reasonable
have to show that:                     time before retirement; or
  there was no alternative,            business needs and efficiency.
  less discriminatory way of
  achieving their aim;
  what they are doing does
  actually achieve the aim; and
  the benefits of achieving the
  aim outweigh the harmful
  effects of the discrimination.




                                                                      14
It will be for the tribunals and        For example: An employer could
courts to decide, on a case by          advertise a position saying that at
case basis, whether a measure           least five years’ experience in that
is justified or not. Here are           or a similar position is required for
some examples of arguments              the job. This is potentially indirect
an employer might make.                 age discrimination, as fewer
                                        younger people (say in the age
                                        group 16-24) would have five
For example: An employer might
                                        years’ work experience. The
argue that it was appropriate and
                                        employer may try to argue that
necessary to refuse to recruit
                                        this requirement is justified,
people over 60 where there is a
                                        because it is genuinely necessary
long and expensive training period
                                        for the needs of the business
before starting the job (for example,
                                        for the employee to have that
air traffic controllers). In this case,
                                        amount of experience to be
the legitimate aim would be the
                                        able to fill the post, and that
need for a person to be in a job for
                                        there is no alternative, less
a reasonable period before they
                                        discriminatory way of achieving
retire, and for the employer to see a
                                        their aim. Depending on the
return on the investment they have
                                        circumstances, this argument
put into training the employee. The
                                        may or may not succeed.
employer would have to show that
there was no less discriminatory
way of achieving the aim.




                                                                           15
Exceptions to the law

The legislation contains some        Generally, any benefit linked to
exceptions which enable employers,   length of service will be lawful, but
under certain circumstances, to      if the length of service required is
discriminate on the grounds of       more than five years, the employer
age, without having to justify it.   must show that it is expected to
(For information on exceptions       meet a business need, such as
relating to the recruitment and      encouraging loyalty, motivating
retirement of people over 65         workers or rewarding experience.
see section 5).                      This is an easier test for employers
                                     to meet than the normal test for
Where there are benefits             justifying discrimination.
that link to length of service
                                     If the length of service required
Many employers have policies
                                     is less than five years, it will
which link pay and benefits to
                                     automatically be lawful, without
an employee’s length of service.
                                     the employer having to meet the
For example, additional holiday
                                     business need test.
entitlement for employees after
two years’ service.
This may indirectly discriminate
against younger people as they
are less likely to have been with
an employer long enough to
qualify for the benefit. There is
an exception to allow this kind
of practice to continue in most
circumstances.




                                                                         16
Where there’s a genuine                 Where there’s a need
occupational requirement                for ‘positive action’
An employer can set an age              ‘Positive action’ means doing
requirement for a job if there is       something to prevent or
a genuine need for a person to          compensate for disadvantages
have a characteristic related to a      experienced by people of a
certain age. The example usually        certain age group. This will
given is of an actor playing the role   be allowed in two areas:
of a person of a particular age.
                                           for access to training and
                                           education facilities; or
                                           to encourage people to take
                                           up employment opportunities.
                                        This means employers will be
                                        able to target their recruitment
                                        advertising at older people, for
                                        example, as long as the position
                                        itself is open to all ages. Selection
                                        on the basis of a candidate’s
                                        age will not be lawful, unless it
                                        can be justified.

                                        For example: A company
                                        with a disproportionately young
                                        workforce, aware that older people
                                        rarely apply to it for jobs, could
                                        advertise saying: ‘we particularly
                                        welcome applications from people
                                        over the age of 45, as this
                                        age group is currently under-
                                        represented, but appointment
                                        will be made on merit alone.’


                                                                           17
Where existing law stipulates      Where the employer relies on
an age requirement                 the National Minimum Wage
An employer can discriminate       for young people
on the grounds of age if this is   The National Minimum Wage
required by existing law.          is split into three different rates
                                   depending on the age of the
                                   worker. It will be lawful for
For example: An employer
                                   employers to pay workers different
can refuse to employ someone
                                   rates according to their age as
under 18 to serve alcohol in
                                   long as the age bands mirror
a bar, in order to comply with
                                   those of the minimum wage
licensing requirements.
                                   (16-17 year olds, 18-22 year olds
                                   and adult rate), and the younger
                                   workers are paid less than the
                                   adult rate of the minimum wage.
                                   It does not allow employers to pay
                                   different rates to those within the
                                   same age category.




                                                                    18
5.
How does the
law apply to you?
This section looks at your new rights
in relation to particular problems you
may be experiencing with employment
or training.
“I’m looking
 for work”
Proving age discrimination in           A lack of protection
the recruitment process can be          for people over age 65
difficult, as an employer is unlikely   There is an exception under
to make it obvious that they            the new law which means that
turned someone down because             if you are:
they were too old, or too young.
                                          over age 65;
How do you prove age                      over your employer’s normal
discrimination in recruitment?            retirement age if this is higher
In order to successfully claim            than age 65; or
age discrimination in relation to
                                          within six months of age 65,
recruitment, an applicant will need
                                          or the employer’s normal
to show evidence that age could
                                          retirement age if this is higher,
have been the reason that they
did not get the job.The employer        then you have no protection
will then have to prove that they       against age discrimination when
did not discriminate against the        applying for jobs. An employer will
applicant. There is a questionnaire     be able to refuse to consider you
procedure that can be used to           for a job over this age, without
obtain extra information from           having to justify it, and you will
employers; see page 36 to find          have no way of challenging or
out more about this.                    appealing against the decision.




                                                                          20
What about job adverts?             Q: “I’m applying for a job and
Employers should not include age    the application form asks me to
limits in job adverts, and should   give my date of birth. Do I have
avoid using words which could       to provide it?”
suggest they are looking for
applicants from a particular age
                                    A: Employers can still ask for your
group. For example an advert
                                    date of birth. This would not
which states that the company
                                    automatically be age discrimination,
requires a ‘young, enthusiastic’
                                    but it could be used as evidence to
person could be used as evidence
                                    suggest discrimination, if you do
of age discrimination.
                                    not get the job, and you believe
                                    this is because of your age.
                                    It is good practice for employers to
                                    remove the date of birth from the
                                    application form and to ask for this
                                    on a separate equal opportunities
                                    monitoring form instead. The
                                    person deciding who to shortlist
                                    for interview or who to hire should
                                    then not see this information.




                                                                      21
Q: “I’m applying for jobs for          Q: “I’ve been told by an
which I am well qualified, but         employer that they won’t
I haven’t been offered any             consider me for a job because
interviews yet. I think this is        I’m too old. I’m age 66 and
because of my age (I’m 61).            the employer has a retirement
Does the new law help me?”             age of 65. Can they do this?”

A: It is unlawful for employers to     A: The new law allows employers
reject you for a job on the grounds    to reject people for a job if they
of your age (unless they can           are over age 65, or the employer’s
justify this, or it is allowed by an   normal retirement age if this is
exception under the new law such       over 65, or if they are within six
as the exception covering people       months of that age. Unfortunately,
over 65 or for genuine occupational    this means that you do not have
requirements – see pages 14-18).       any protection under the new law,
It can be difficult to prove that      even if the employer openly admits
discrimination has taken place,        that your age is the reason they
but the questionnaire procedure        are not considering you for a job.
can help you to get more
information from the employer.




                                                                       22
“I’m not getting a
 fair deal at work”
 The new law gives you the right      Q: “I have been passed over
 not to suffer a disadvantage         for promotion, even though
 at work because of your age.         I have more experience and
 This means you should not            qualifications than the younger
 have less favourable terms and       person who got the position.
 conditions, or access to promotion   I think it is because of my age.
 opportunities, than younger          It seems that it is only people
 colleagues, because of your age.     under age 50 who are promoted to
                                      senior positions in this company.”

                                      A: If your employer has a practice
                                      of only promoting younger
                                      people, this will be unlawful age
                                      discrimination. The difficulty could
                                      be in proving this behaviour to
                                      have taken place. You will need
                                      evidence to show that age could
                                      have been a factor in the decision
                                      not to promote you – for example,
                                      this could be evidence that you
                                      were better qualified for the job,
                                      and that people over 50 rarely get
                                      promotion. It will then be for your
                                      employer to show that age was
                                      not the reason and that they
                                      did not discriminate against you.
                                      You could use the questionnaire
                                      procedure (see page 36) under
                                      the new law to request information
                                      from your employer about why you
                                      did not get the job, and about the
                                      ages of people who are promoted
                                      to senior positions.

                                                                        23
“I’ve been made
 redundant”
Q: “I am being made                   This means that older people
redundant. I’m age 65.                will continue to be paid at a
What am I entitled to?”               higher rate than younger people,
                                      even though this appears to be
                                      discrimination on the grounds
A: The new law abolishes the
                                      of age. The government has
upper age and lower age limits for
                                      said it believes this difference
statutory redundancy payments,
                                      in treatment is justified.
so people aged 65 and over are
now entitled to redundancy pay        You may be entitled to more
calculated in the same way as         than the statutory minimum
for younger people.                   redundancy payment under your
                                      contract of employment. The law
Age and length of service will
                                      sets out ways in which employers
still be used as a factor in
                                      can make enhanced redundancy
calculating statutory redundancy
                                      payments using the same age
pay (and compensation for unfair
                                      bands as used in the calculation
dismissal). People will be entitled
                                      of statutory redundancy.
to one and a half week’s pay
(capped at £290 per week) for         It will be unlawful for employers
each year of service in which they    to use age as a factor when
were aged 41 or over, one week’s      considering who to select for
pay for each year they were under     redundancy (unless they can
41, and half a week’s pay for         justify this). Using length of
each year they were under 22, up      service (for example, last in first
to a maximum 20 years’ service.       out) to decide who to select could
                                      be indirect discrimination, but
                                      employers could try to justify this.




                                                                        24
“I feel I’ve been                    “I don’t want
 unfairly dismissed”                  to retire”
Previously, if an employer wanted    There is no national retirement
to dismiss an employee who           age. It’s important not to get
was aged over 65 (or above the       ‘retirement age’ confused with
employer’s normal retirement age     ‘pension age’, as they’re different
if different), the employee had      things altogether. The state
no rights to dispute it. This was    pension age – the age when you’re
because there was an upper age       entitled to draw your state pension
limit for unfair dismissal claims.   – is currently 60 for women and
                                     65 for men, but employees do not
The new law gets rid of this age
                                     actually have to retire at this age.
limit, which means that employees
                                     Working after state pension age
over age 65 will be able to
                                     does not affect your right to the
challenge an employer’s decision to
                                     state pension. However, you can
dismiss them, as long as they meet
                                     choose to delay drawing your state
the other eligibility requirements,
                                     pension while you’re still working
such as having at least one year’s
                                     and this will entitle you to a higher
service. However, the introduction
                                     annual income or a lump sum
of the new provisions on retirement
                                     payment when you do retire.
(see below) creates a limit to this
new right – where the employer       Around one third of employers have
says the reason for dismissal is     compulsory normal retirement
retirement and follows the correct age. The rest have no retirement
procedure, the employee cannot       age at all and work more flexibly.
successfully claim unfair dismissal.




                                                                        25
What the new law will do                What the new law will not affect
The new law creates a new               The new law does not affect
‘default retirement age’ of 65          voluntary retirement. It will still be
(this will be the same for men          possible for a person to choose to
and women). This means that if          retire under age 65 if they agree
your employer tries to force you        this with their employer. It will
to retire under the age of 65, you      also not affect state pension age.
can claim for age discrimination        Employers can still set minimum
and for unfair dismissal. To force      and maximum age limits for
retirement under age 65                 membership of occupational
employers will have to justify it.      pension schemes. There are a
See page 31.                            number of other exceptions aimed
                                        at allowing occupational pension
From 1 October 2006 employees
                                        schemes to continue to operate
have a new right to request to
                                        without significant changes.
continue working beyond the date
when the employer wants them
to retire. However, it will usually
be lawful for an employer to force
employees over the age of 65
to retire, as long as they follow
the correct procedure.
The ‘default retirement age’ only
applies to employees and civil
servants. Other sectors of the
working population, such as
police officers, office holders and
partners in firms will not be covered
and so forced retirement at any
age would have to be justified.




                                                                            26
How will the new retirement
procedure work?
From 1 October 2006 you have         1. Your employer gives
the right to request to stay on in   you notice of retirement
your job after your employer’s       From 1 October 2006 your
retirement date. It’s important      employer must give you a minimum
to remember, though, that this       of six months’ (and a maximum
is only a right to request staying   of twelve months’) notice of your
on. Your employer can refuse         retirement date. At the same time,
the request, and the law does        they must tell you that you have the
not require them to give reasons     right to request to continue working.
for their decision. It will only     There are special arrangements
be possible to challenge the         for employers to give notice of
employer’s decision if they          retirement to people whom they
have not followed the correct        wish to retire between 1 October
procedure, which is as follows.      2006 and 1 April 2007 (the first
                                     six months after the law comes
                                     into force). Employers are not
                                     required to give at least six months’
                                     notice in this situation, as the law
                                     will not have been in force at the
                                     relevant time for giving notice.

                                     Details of the special arrangements
                                     can be found on the Age Concern
                                     website www.ageconcern.org.uk/
                                     agediscrimination




                                                                       27
2. You can request                    “I am writing to request not to
to carry on working                   retire on your intended date of
If you make a request not to be       [insert employer’s intended date
retired, your employer has a duty     of retirement]. I am making this
to consider that request. The         request under paragraph 5 of
procedure they must follow is         Schedule 6 of the Employment
known as the ‘duty to consider        Equality (Age) Regulations 2006.
procedure’. Your request must be in
                                      I propose that my employment
writing, and be submitted three to
                                      should continue [you must specify
six months before the intended
                                      one of the following]:
retirement date. The wording
below shows what information            indefinitely
you must include in your letter:        for [insert a specific period,
                                        e.g. twelve months]
                                        until [insert specific date]

                                      [You could also include
                                      information in support of your
                                      request, such as examples of how
                                      allowing you to continue working
                                      could benefit the organisation.]

                                      I look forward to hearing from you
                                      with your suggested time for a
                                      meeting to discuss my request.”




                                                                         28
3. Your employer holds                   4. The right to appeal
a meeting with you                       If your request is refused, or your
Your employer must then hold             employer agrees to continued
a meeting to discuss the request         employment for a shorter period
with you, within a reasonable            than was requested, you have
period of time. You’re entitled to       the right to an appeal meeting.
be accompanied to this meeting           The employer must inform you
by a colleague of your choice.           of this right when they give you
Your employer must then notify           notice of the original decision.
you of their decision as soon as         If you request an appeal you
is reasonably practicable. If the        must do so as soon as is practical
employer has agreed to the               after being told of your employer’s
request, they must confirm               decision, setting out the grounds
whether employment will continue         of the appeal. Your employer
indefinitely, or for a certain period.   must arrange a meeting within
If the request has been refused,         a reasonable period. Again, you
they must confirm the intended           have the right to be accompanied
date of retirement.                      by a colleague of your choice.

                                         5. Your employer’s final decision
                                         As soon as is reasonably
                                         practical after the appeal
                                         meeting, your employer must
                                         give notice of their decision,
                                         giving details as in step 3 above.




                                                                          29
Q: “I’ve been given less than six        Q: “What if retirement might
months’ notice for retirement.           not be the real reason for
What are my rights?”                     dismissal?”

A: If you’re given less than six         A: The requirement for employers
months’ notice of your retirement        to give a minimum of six months’
date, or of your right to request not    notice of retirement is intended to
to retire, you can claim up to eight     prevent employers using retirement
weeks’ pay at the employment             to cover up for another reason
tribunal. This is currently limited      for dismissing the employee –
to a maximum of £290 per                 for example, redundancy or an
week, so the maximum total               employee’s poor performance.
compensation would be £2,320             As long as there is a minimum of
(figures correct as at October           six months’ notice, an employment
2006). The compensation limits           tribunal will accept that retirement
usually go up every February.            is the genuine reason for the
                                         dismissal, and if the ‘duty to
If your employer fails to give you
                                         consider procedure’ has been
at least six months’ notice, they
                                         followed correctly, the dismissal will
should still tell you about your right
                                         be fair. If retirement is not the real
to request to continue working,
                                         reason for dismissal, when less than
as soon as possible. If they give
                                         six months’ notice has been given,
you less than two weeks’ notice,
                                         it will almost certainly be an unfair
the retirement will automatically
                                         dismissal, as the employer will not
be an unfair dismissal.
                                         have followed the correct procedure
If the dismissal was out of the          for dismissing for another reason.
blue, with little notice, and little
attempt has been made to follow
the ‘duty to consider procedure’,
the tribunal is less likely to accept
that retirement was really the
reason for the dismissal.


                                                                            30
Unfair dismissal

A forced retirement will not         A forced retirement could
be an unfair dismissal if:           be an unfair dismissal if:
   you are over 65 (or over your        you are given less than
   employer’s normal retirement         six months’, but more than
   age if this is higher), and          two weeks’, notice of your
                                        retirement date and/or your
  your employer gives you
                                        right to request staying on.
  between six and twelve months’
  notice of your retirement date,    In these circumstances it will
  and your right to request not      be for the tribunal to decide if
  to retire, and                     retirement was the real reason
                                     for the dismissal.
  your employer follows the
  correct procedure if you do
  make a request to stay on.

A forced retirement will
be an unfair dismissal if:
   you are given less than two
   weeks’ notice of your
   retirement date and/or your
   right to request staying on, or
  your employer does not
  follow the ‘duty to consider
  procedure’ if you make a
  request to stay on.




                                                                        31
Too old for training?

It’s not just people who are           Course providers can set age
employed who benefit from the          limits for admission to a course
new legislation. People in adult       if they can show this is covered
education and training are             by the positive action exception
protected, too, as course providers    (see page 17). They have to
are not allowed to discriminate        show that the age restriction
on the grounds of age. All further     is expected to compensate for
education, higher education            disadvantages experienced by
(including university courses),        people in the age group at which
adult learning and training which      the course is aimed.
provides you with skills relevant to
work is covered by the legislation.
                                       For example: An IT course
Training provided by employers
                                       restricted to people over 60
and other organisations on their
                                       would be lawful if it could be
behalf is also included.
                                       shown that people over 60 face
As with employment, both direct        a disadvantage in that area of
and indirect discrimination is         work, and that the age restriction
unlawful, unless the course            for admission to the course
provider can justify the               was expected to compensate
discrimination. Victimisation          for this disadvantage.
and harassment on the grounds
of age is also unlawful.
A course provider has to provide
courses to people of all ages on
the same terms, without treating
people of a particular age group
less favourably (again, unless
this can be justified or is covered
by an exception).




                                                                        32
Q: “My employer won’t agree              Q: “A course I want to go on
to let me go on a training course        at my local college has an
that my younger colleagues               upper age limit of 60. I’m 67.
are all going on. He says it’s           What can I do?”
not cost-effective to invest
in training for me when I’m
                                         A: Your college would be acting
approaching retirement.”
                                         unlawfully by setting an age limit
                                         for people attending a course,
A: This could be unlawful direct         unless they can show it is
discrimination (see page 10)             justified, or it is covered by an
as you are being treated less            exception under the new law.
favourably than younger                  They cannot argue that a course
colleagues because of your age.          is for working age people, as you
Your employer may try to argue           may be 67 and wanting work.
that they are justified in refusing
you training for reasons of
business efficiency. They would
need to take into account the cost
of training staff of all ages, bearing
in mind that other staff may leave
soon after training, for reasons
unconnected to retirement. If you
were to claim age discrimination,
the tribunal would have to decide
whether refusing you training was
an appropriate and necessary way
of achieving a legitimate aim.




                                                                          33
6.
How do I enforce
my rights?
If you think you’ve experienced age
discrimination at work, when applying
for a job, or in connection with
education or training, there are certain
procedures you’ll need to follow.
                                    2. Use your employer’s
Generally, if your claim is against grievance procedure
your current employer, you won’t    If the problem is not resolved
be able to start the claim at the   informally, you should make a
tribunal unless you’ve attempted    formal complaint using your
to resolve the dispute first of all employer’s grievance procedure.
through your employer’s grievance Your employer is required by law
process. Follow these steps if      to have such a procedure in place.
you think that you have been
                                    You should put your grievance in
subjected to age discrimination
                                    writing, and your employer must
by your employer.
                                    then arrange a meeting to discuss
                                    it with you. You have the right to
1. Raise the subject                be accompanied at this meeting
informally with your employer       by a colleague or a union
First of all, you should raise      representative. If you are a
the problem informally with         member of a union, contact your
your manager.                       union representative for advice
                                    on using the grievance procedure.
                                    If your complaint is against a
                                    training or education provider,
                                    you could try using that provider’s
                                    complaints procedure if it has one.
                                    If your complaint is about dismissal,
                                    or discrimination when applying for
                                    a job, you do not have to use the
                                    employer’s grievance procedure.

                                    3. The right to appeal
                                    If you’re not satisfied with your
                                    employer’s decision following this
                                    meeting, you have the right to an
                                    appeal meeting, again with your
                                    employer, and again you have the
                                    right to be accompanied.
                                                                       35
4. The questionnaire procedure
If you need more evidence or          Or it could provide evidence to
information in order to decide        suggest that discrimination did
whether you should bring a claim      take place, for example if only
at the employment tribunal            applicants under a certain age
under the regulations, there is a     were invited to interview, and
questionnaire procedure you can       you were more qualified than
use in order to request information   the successful candidate.
from your employer, or the person
                                      You should send the questionnaire
who your claim would be against.
                                      before starting a tribunal claim,
This is particularly useful if you    or within 21 days of submitting
think you’ve been discriminated       your claim to the tribunal. If the
against when applying for a job,      employer fails to respond to your
but have no firm evidence of this.    questionnaire within eight weeks,
For example, you could ask the        or gives evasive answers to
employer why your application was     reasonable questions, you can
not successful, and to provide        ask the tribunal to infer that the
information such as the ages of       employer has discriminated
other applicants, the age of those    against you, in the absence of
invited for interview and the age     an explanation to the contrary.
of the successful applicant.
                                      You may want to seek advice
This information could suggest
                                      before using the questionnaire
that no discrimination took place,
                                      procedure. See section 7 to find
for example if there was a good
                                      out where you can get help.
reason that you were not offered
the job, or the person who was        For an example of a questionnaire
hired was actually older than you.    for this procedure, see
                                      www.ageconcern.org.uk/
                                      agediscrimination




                                                                         36
5. Taking a claim to tribunal
To start a claim at the employment    If you have submitted your
tribunal for discrimination,          grievance in writing to your
harassment or unfair dismissal,       employer within three
you must complete the                 months from the date of
application form ET1 and return       the discrimination, you will
it to the tribunal office within      automatically get an extension
three months of the date of the       of another three months in
discrimination or dismissal.          which to submit your tribunal
The time limit is the same for        application.
most other types of claim, but for
                                      If you submit your application
claiming a redundancy payment,
                                      within the initial three months,
the time limit is six months rather
                                      without having first tried to
than three.
                                      follow your employer’s grievance
You are expected to use your          procedure, your application
employer’s grievance procedure        will be returned to you, and you
before applying to the tribunal.      will be given an extension of a
You should submit your grievance      further three months, as long as
in writing and then allow at least    you start your grievance within
28 days to pass before submitting     one month of the original three
your application to the tribunal.     month deadline.
The three month time limit can
be extended, to allow you time
to follow the grievance procedure,
in the following circumstances:




                                                                    37
                                       6. Conciliation through ACAS
It is extremely important that         If you start a claim, an Advisory,
you get your form to the tribunal      Conciliation and Arbitration
before the relevant time limit         Service (ACAS) officer will contact
expires, as your claim will almost     both you and your employer and
certainly not be considered if it is   act as a mediator between you,
late. If you are in any doubt about    to attempt to reach an agreement
which time limit applies to you,       to settle the dispute.
you should seek expert advice.
                                       ACAS is an independent, publicly
The main thing to remember is
                                       funded organisation with a duty
not to leave it too late before
                                       to attempt to help the parties
getting help.
                                       in an employment dispute to
You can obtain an application          reach a settlement, before the
form (ET1) from the employment         case is decided at an employment
tribunals public enquiry office        tribunal hearing.
(0845 795 9775) and return
it by post, fax or by hand; or
you can complete and submit
                                       How to make a claim
the form online at
                                       about education or
www.employmenttribunals.gov.uk
                                       training
                                       If your claim relates to an
If your claim is about                 education or training course
discrimination in recruitment,         provided by a further or higher
you are not expected to follow         education institution, it must
the employer’s grievance               be made at the county court
procedure before making a              (sheriff court in Scotland), rather
claim to the tribunal, as you          than at the employment tribunal.
are not actually an employee.          You’ll need to complete claim
You must submit a claim to             form N1, giving details of your
the tribunal within three months       claim. The time limit for starting
of the act of discrimination.          your claim is six months from the
                                       date of the discrimination.


                                                                         38
7.
Getting help
For further information and advice
on your rights under the new law
there are a number of organisations
you can contact.
ACAS (Advisory, Conciliation          The Employers’ Forum on Age
and Arbitration Service) provides     (www.efa.org.uk) offers a wealth
guidance on the regulations and       of invaluable information aimed
on employment rights in general.      at employers.
Call its helpline 08457 47 47 47
                                      Help the Aged – information
or visit www.acas.org.uk
                                      for and about older people –
Advicenow                             visit www.helptheaged.org.uk
(www.advicenow.org.uk) is a
                                      National Institute for Adult and
website that brings together
                                      Continuing Education (NIACE)
high-quality information about
                                      provides information about the new
the law and your rights, including
                                      legislation as it affects education
on age discrimination.
                                      and training. Call 0116 204 4200
Age Concern Information Line          or visit www.niace.org.uk
– as well as sending out this mini-
                                      TAEN (The Age and Employment
guide, Age Concern has a wide range
                                      Network) is committed to creating
of information for older people –
                                      an effective job market for people
call free on 0800 00 99 66. In
                                      in mid and later life. It works
Scotland call the Scottish Helpline
                                      through 250 member organisations
for Older People at Age Concern
                                      and by influencing public policy.
Scotland on 0845 125 9732,
                                      Call 020 7843 1590 or visit
textphone 0845 226 5851.
                                      www.taen.org.uk and
Age Positive is a government          www.agebusters.org.uk
campaign promoting age
diversity in employment. Visit
www.agepositive.gov.uk for more.




                                                                       40
For free advice
and representation
Your local Age Concern can give          Some solicitors offer a free initial
you information about the law and        meeting to discuss whether you
will help you find advice in your area   have a potential claim.
– visit www.ageconcern.org.uk,
                                         If you have legal expense
call 0800 00 99 66 or check
your local phone book for the            insurance, perhaps as part of
contact details. In Scotland,            a household insurance policy,
call 0845 125 9732 or visit              you should check this to see
www.ageconcernscotland.org.uk            if it will cover a solicitor’s costs
                                         for a tribunal claim.
Visit your local Citizens Advice
Bureau – find one near you on            Age Concern's new book
www.citizensadvice.org.uk or             Your Rights: Working over 50
look in your local phone book.           is a comprehensive guide to
                                         employment options for the
There may be a law centre,               over 50s. Topics covered include:
or independent advice agency             the new age discrimination law,
providing free advice in your area.      redundancy and employment rights,
See www.lawcentres.org.uk,               job hunting, self-employment,
www.adviceuk.org.uk, in                  support for those out of work,
Scotland www.govanlc.com/salc,           planning for retirement and much
or look in your phone book.              more. It is packed with advice
Community Legal Service (CLS)            on the many questions that arise.
Direct (England and Wales only)          It costs £8.99, and can be ordered
can give free initial advice over        by phoning 0870 442 2120
the phone, and direct you to local       or online at www.ace.org.uk/
advice agencies and solicitors –         bookshop
contact www.clsdirect.org.uk
or phone 0845 345 4345.
In Scotland contact the Scottish
Legal Aid Board www.slab.org.uk,
0131 226 7061.
If you’re a member of a trade
union, you’ll be able to contact
your representative for advice.
                                                                                41
Produced by Age Concern,
with funding from the DTI.
The content of this document
is designed to provide general
information only. While every
effort has been made to ensure
that the information provided is
accurate, it does not constitute
legal or other professional advice.
The mini-guide is available in
Welsh and in accessible formats.
Contact the Age Concern
Information Line 0800 00 99 66
Did you find this mini-guide
useful? Please let us know by
visiting www.ageconcern.org.uk/
agediscrimination
Age Concern is a federation
of registered charities.
Printed on recycled paper.
Published September 2006.
Copyright Age Concern England.

								
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