1 Feb 2008
In the latest column for VBJ on personnel issues in practice, GILLIAN DOWLING looks at developments in age discrimination legislation in the UK
THE EMPLOYMENT EQUALITY (Age) Regulations 2006 came into force on October 1, 2006. From that date, until March 31, 2007, 972 claims were lodged at the Employment Tribunal on age discrimination matters.
This seems a fairly insignificant amount when you consider that the total number of Employment Tribunal claims lodged within the period from April 1, 2006 to March 31, 2007 was 132,5771. Should we all rest on our laurels and breathe a sigh of relief? Is age discrimination really such a big issue?
A YouGov survey, commissioned by Croner, of 1,992 workers found that for 11 per cent of employees, age discrimination was the most frequent form of discrimination among those who admitted to being treated unfairly in the workplace, while sex discrimination was not far behind at eight per cent. Age and sex were also pinpointed as the most prominent forms of harassment among those who experienced such aggravation at work.
Could it be the case that age discrimination is likely to be a more important issue in the future than other types of discrimination? After all, many people have an issue with age, whatever age they are.
Despite the massive efforts by public bodies and organisations such as Croner to ensure all employers were aware of how to comply with age discrimination legislation, this form of prejudice has quickly become one of the more prominent forms of workplace discrimination defined by employment law. There is a very real risk to employers of increasing tribunal claims on the back of age prejudice.
Other key findings of the survey were:
• a total of 73 per cent respondents have never been the victim of discrimination on the grounds of age, sex, race, religion or belief, sexual orientation or disability;
• Eighty-four per cent of respondents have never been the victim of harassment on the grounds of age, sex, race, religion or belief, sexual orientation or disability;
• only four per cent of male respondents experienced sex discrimination at work, compared to 11 per cent of females
• age discrimination is experienced by almost equal numbers of men and women (11 per cent for men compared to 10 per cent);
• only three per cent of respondents felt they had been discriminated against because of their race or disability; and
• only two per cent of employees felt they were discriminated against because of their sexual orientation or religion or belief.
In December 2006, a group connected with Age Concern, known as Heyday, made a judicial review application to the High Court on the basis that the compulsory retirement age of 65, set out in the Employment Equality (Age) Regulations, was inconsistent with the EU Equal Treatment Framework Directive. The case was referred to the European Court of Justice (ECJ) and is likely to be heard in about 18 months’ time.
The issue being contested is whether the UK’s retirement age of 65 is unlawful or whether it can be objectively justified. Legal advisors have been looking at a recent Spanish case – Palacios versus Cortefiel Services SA – which was heard by the ECJ in October 2007, for guidance. That case held that it was possible for EU member states to have mandatory retirement ages, provided that the national legislation could be objectively and reasonably justified by legitimate aim. The legitimate aim in this case was the Spanish employment policy to promote full employment.
This appears to be a different reason from the Department for Business, Enterprise and Regulatory Reform’s reasons (formerly the DTi), which according to its information are “to meet employers’ concerns”, workforce planning and effect on pension entitlement. The Employment Tribunal has now ordered the stay of all claims and all future claims regarding the compulsory retirement age of 65, pending the Heyday decision.
Although publicity over the Heyday case may make it more likely for employees who are compulsorily retired at 65 to consider bringing employment tribunal claims, private employers are still entitled to rely on the regulations until such a time as they are repealed or amended, potentially as a result of the ECJ decision.