Under The Employment Equality (Age) Regulations 2006 and The Equality Act (EA) 2010, the following regulations now apply:-
- Age discrimination is illegal in all areas of employment (e.g. recruitment, selection, training, promotion, etc).
- Direct and indirect age discrimination, victimisation, and harassment are illegal in the employment sphere. Direct age discrimination is where an employee is treated less favourably due to their age when compared with other employees in similar circumstances (e.g. denying an employee a promotion due to their age). Direct discrimination includes associative discrimination (where an employee is treated less favourably because they are associated with another person who possesses the protected age characteristic) and discrimination by perception (where an employee is treated less favourably because others perceive them to possess the protected age characteristic even if they don't). Indirect age discrimination is a provision, criterion or practice applied equally to all which is seemingly age neutral, but which places employees in a certain age group at a disadvantage when compared with others, places an individual employee in that age group at a disadvantage, and which the employer cannot justify as a proportionate way of fulfilling a legitimate objective (e.g. disproportionately excessive fitness tests which favour younger workers). Victimisation of those who assert their rights under the regulations is also outlawed as is harassment. Harassment is conduct which violates the victims dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for them. An employee can also bring a claim of harassment even where it is not directed at them personally, so long as they can show that the harassment created an offensive environment for them to work in.
- Age limits for unfair dismissal (upper limit: 65) and redundancy (lower limit: 18, upper limit: 65) have been removed.
- Generally, an employee can retire at a time of their choosing. An employer can only operate a compulsory retirement age if they can objectively justify it.
- The age limits for Statutory Sick Pay, Maternity Pay and Paternity Pay were removed. Under the regulations, all job adverts have to be age neutral without any reference to age or years of experience. Essentially, the focus of the advert has to be firmly upon the calibre and quality of the candidate. Moreover, training must be open to employees of all ages with senior employees being afforded the opportunity to train and develop with more junior personnel, and age should not be raised as an issue when an employee is appraised or evaluated
A tribunal claim must be made within three months of the discriminatory act (or last discriminatory act) complained of. Unlike in unfair dismissal claims, employees do not have to have had at least 2 years continuous service with the employer to be entitled to bring the claim. Should the employees claim be successful, the tribunal can make recommendations and award compensation. Should the employer fail to comply with recommendations made by the tribunal for action to reduce discrimination without reasonable justification, the tribunal can award additional compensation on top of what it may have already awarded. Furthermore, for claims brought from October 2010 onwards, Tribunals can now demand that employers implement changes to prevent further discrimination taking place. Compensation awards in discrimination cases are unlimited and unlike in unfair dismissal cases, there is no such thing as a 'basic' or 'compensatory' award. Instead, the award normally comprises the following:-
- Injury to Feelings: Comprise separate awards for hurt feelings, aggravated damages, and injury to health. The criteria for assessing compensation for hurt feelings were set out by the Court of Appeal in the case of Vento v Chief Constable of West Yorkshire (No.2) (2003), as amended by Da'Bell v NSPCC (2009). As a result of these cases, there is a top band of between £18,000.00 and £30,000.00 for the most serious cases, a middle band of between £6,000.00 and £18,000.00, and awards of between £500.00 and £6,000.00 for less serious and one-off cases. The Court in Vento stated that awards of less than £500.00 should be avoided. An injury to health claim can be incorporated into the injury to feelings claim, but should there be a separate award for it, the tribunal has to ensure that there is no element of duplication. Finally, aggravated damages can also be awarded as part of the injury to feelings claim, although awards for this element do not usually exceed £5,000.00 and are only awarded should the employers conduct have been especially cruel and malicious.
- Loss of Earnings: Normally makes up the bulk of the claim and includes both actual and future loss of earnings. Future loss can be extensive where psychiatric injury has been sustained as a result of the discrimination and makes it difficult for the employee to obtain new and appropriate employment.
- Injury to Health (Personal Injury): Is most commonly for psychiatric injury. Nevertheless, where a claim for personal injury is included, the employee loses the right to bring a claim in the civil courts for it.
- Ancillary Losses: These can be for items such as the cost of looking for alternative employment and pension loss.
- Interest: Interest on the compensation award can be claimed
What To Do If You Have An Age Discrimination Claim
Should you require advice on age discrimination, then please do not hesitate to contact us. We can be contacted either by telephoning us on 0333 3010 700, or by completing the questionnaire on the right hand side of this page.
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