October 9, 2012 § 1 Comment
Historically ‘age’ has struggled for recognition as an equality issue. The emergence of other discrimination legislation emphasised this point. Discrimination on grounds of sex and race has been unlawful in the United Kindgom since 1975 and 1976 respectively. Discrimination on grounds of disability has been unlawful since 1995 and more recently discrimination on grounds of sexual orientation and religion and belief has been unlawful since 2003.
It took the emergence of the Equality Directive 2000/78/EC which gave age its rightful place alongside the other protected grounds. This Directive required Member States to enact specific legislation to combat age discrimination, which the United Kingdom did in the form of the Employment Equality (Age) Regulations 2006. Presently we have the Equality Act 2010, representing years of debate on how to improve equality law, and this consolidated and replaces a number of previous discrimination legislation including the Employment Equality (Age) Regulations 2006.
Differences of treatment between individuals or groups on the grounds of age are often based on generalised assumptions or stereotypes. Ageism allows us to think of others purely in terms of their chronological age or perceived age regardless of how experienced they are or how able they are to perform a task. It is a widespread stereotype that older persons are often assumed to lack flexibility, the ability to absorb new ideas are less motivated, are risk averse and may resist training/are resistant to change. Another stereotype frequently encountered is that the physical and mental abilities decrease with age. The stereotypes that exist are often inaccurate and do not reflect the true diversity of individuals. Age does not automatically mean a diminution of skills or a diminution in cognitive capacity or physical strength and endurance. The concern was that by allowing employers to justify direct age discrimination the defence may give rise to misuse and/or facilitate stereotypical assumption.
A review of the reported case law and observation of age discrimination claims at the local Employment Tribunal reveals the consensus that despite the existence of legislation to combat unlawful age discrimination ageism will inevitably occur at the recruitment stage for older workers and that is a fact of life. However an Employment Tribunal is willing to compensate individuals for the risk of continued discrimination.
In the case of Killa v Electronic Motions Systems Ltd the Claimant had been employed as an electronic engineer for 8 years and was selected for redundancy, with no evidence of any objective criteria being applied. The Employment Tribunal found that the dismissal amounted to age discrimination. In the remedy judgment it was held that ‘it is not, unfortunately, the case that someone aged 59, 60 or over, competes on a level playing with younger people. The reality is that age discrimination exists and is likely to be highly influential in limiting his opportunities.”’ The Employment Tribunal goes onto confirm that ‘not only his age, but also his recent dismissal, in a non voluntary redundancy, is against him. He has already found that that was a factor making obtaining work more difficult’ andgoes as far as to conclude that Mr Killa has realistically ‘no chance of getting work in his own field at his age, and at the level he previously enjoyed. He has no chance of getting equivalent earnings in another field in the years he has left.’
We do not know what evidence the Employment Tribunal had in order to reach these findings, except the unsuccessful efforts of Mr Killa to find alternative work. Therefore we do not know whether the Employment Tribunal is acting on its own view about recruitment or whether there was clear evidence that Mr Killa was unsuccessful in securing alternative employment because of his age.
More recently in an age discrimination/unfair dismissal case that I observed at a local Employment Tribunal there was a common thread throughout the evidence as to how difficult it would be for a 58 year old to find alternative employment. The Claimant himself felt: ‘At 58 I will never get another job… Simple as that.’ One witness for the Respondent, an agent of significant experience in the relevant field of the Claimant’s work, initially commented that the Claimant ‘…would be top of the pile with his experience’ and stated that he would consider the Claimant for a role. However later in the questioning the witness acknowledged that looking purely at the ages without knowing the candidates by recommendation then he would be unlikely to pick the 58 year old. Indeed in her closing submission Claimant’s Counsel hypothetically asked the Employment Tribunal ‘is an employer really going to give the job to a 58 year old man?’
There was no acknowledgement or indication by any of the witnesses that the culture of ageism may have changed as a result of age being a protected characteristic within the Equality Act 2010. However the Employment Tribunals are recognising this struggle to combat age discrimination and are sending a clear message that Claimants will be compensated accordingly.
– Lyndsey Martin
October 1, 2012 § Leave a comment
A fundamental feature of UK and EU anti discrimination law is the distinction between direct and indirect discrimination. For direct discrimination there is usually no justification defence, however for indirect discrimination there is usually a defence. Article 6 of the Equality Directive 2000/78 provides that Member States may provide differences of treatment on grounds of age shall not constitute discrimination if they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives and if the means of achieving that aim are appropriate and necessary. Therefore differences of treatment on grounds of age will not constitute direct discrimination provided they are objectively justified.
The Employment Equality (Age) Regulations 2006, and more recently the Equality Act 2010, took full advantage of the wording of Article 6 and provides a general justification defence in respect of direct age discrimination. In other words we do not have an exhaustive list of accepted grounds as an exception to the prohibition against direct age discrimination. Direct age discrimination is justified if ‘the treatment is a proportionate means of achieving a legitimate aim’ (section 13 Equality Act 2010).The general justification defence leaves the law in a state of uncertainty as to what may or may not constitute a legitimate aim. However there have been a number of decisions by the Court of Justice of the European Union that have considered the justification of direct age discrimination. Having examined these decisions the following points will assist in determining whether there is a legitimate aim in a particular case:
1. The legitimate aim must be linked to a social policy objective, as opposed to a individual reason particular to the employer’s business such as cost reduction or improving competitiveness.
2. What is legitimate will depend upon the context of the measure. For example in the case of Palacios de la Villa v Cortefiel Servicios SA C411/05 the fact that the economic background characterised by high unemployment was relevant to whether the measure in question pursued a legitimate aim.
3. Flexibility for employers is not a legitimate aim but a certain degree of flexibility may be permitted to pursue the social policy objective.
4. The following are examples of potential legitimate aims (some are more controversial than others):
i. The prevention of job blocking ‘the fair innings argument’ /sharing employment opportunities between generations
ii. Promoting access to employment for young people
iii. Enabling older people to remain in the workforce
iv. Ensuring a mix of generations of staff so as to promote the exchange of experience and ideas
v. Encouraging and rewarding loyalty
vi. Providing a target age for succession planning/efficient planning of the departure and recruitment of staff
vii. Encourage employees to save for retirement
viii. Avoiding the need to dismiss employees on the ground that they are no longer capable of doing the job which may be humiliating to the employee concerned
ix. Avoiding disputes as to the employee’s ability to do the work which contributes to a congenial workforce.
x. The avoidance of a windfall to an employee whether that windfall is large or small.
The fact that a particular aim is capable of being a legitimate aim under the Equality Directive (and the Equality Act 2010) is only the first step. There must then be a consideration as to whether it is the aim being pursued and whether it is appropriate and necessary in that particular case. An example provided by Lady Hale in the Supreme Court decision of Seldon v Clarkson Wright and Jakes  EWCA Civ 899 is that avoiding the need to performance manage an individual may be a legitimate aim but if the business in question has a ‘sophisticated management measure in place it may not be legitimate to avoid them for only one section of the workforce.’
The case of Ormerod v Cummins ET case number 2508268/09 is an example of the employer falling at this hurdle. In that case the Claimant brought a claim of direct age discrimination arising from his redundancy payment calculation. He did not receive his full entitlement because he was approaching retirement and thus in the Company’s view would provide him with a windfall. Although the Tribunal recognised that the avoidance of a windfall is a potential legitimate aim, it was not legitimate in this case. The Tribunal placed great reliance on the lack of attempt by the employer to advance a case as to what the windfall was. Furthermore the redundancy package and the early drawing of the pension actually deprived the Claimant of various other benefits including the loss of opportunity to work on and enhance his pension and the loss of potential bonus and overtime. Therefore the Tribunal will not simply accept the fact that it may be a legitimate aim then go straight to determine whether the means of achieving that aim are appropriate and necessary. There must be a consideration of that aim against the facts of the particular case.
– Lyndsey Martin