On 1 October 2006, the Employment Equality (Age) Regulations made it unlawful to discriminate against workers because of their age. The regulations cover recruitment, terms and conditions, promotions, transfers, dismissals and training. They do not cover the provision of goods and services. On 1^st October 2010 the government introduced the Equality Act which made it unlawful for employers to discriminate against workers because of “protected characteristics”, age being one of the characteristics. We are currently producing an updated version of this factsheet, contact us to request updated information when it is available.

Who is covered?

Age Discrimination Regulations cover virtually all workers, whether or not they are employees. The following workers can claim age discrimination:

• Job applicants
• Employees
• Agency workers
• Temporary workers
• Contract workers
• Self employed workers where they are personally engaged to do the work.
• Trainees
• Office holders
• Police
• Partners in firms, e.g. solicitors. Tenants/pupils of  barristers
• A member of a trade union with reference to their union

The regulations apply to all workplaces regardless of how many people work there. There is no minimum length of service requirement. Workers are also covered when applying for jobs and from the first day in the job. It is also unlawful for an employer to discriminate against a worker after the working relationship has ended.

Workers of all ages are covered. You must not be discriminated against because of your age, whatever it is. Discrimination against a worker based on their perceived or apparent age is also unlawful.

Types of Discrimination

Direct discrimination: this is when an employer treats you less favourably than others because of your age or apparent age. For example, if a worker fails to get promotion or is paid less, or is made redundant because of his/her age this could be discrimination. Direct discrimination covers the widespread and often unconscious stereotypical views about appropriate ages for certain jobs. Examples of this stereotype can include the view that an older person is unsuitable for a demanding role or a job that requires physical strength, and that a younger person cannot be relied upon for a responsible job.

It is best to look for ‘different’ treatment on grounds of age. Always ask yourself whether your employer would have treated you in the same way if you had been younger (or older).

Indirect discrimination: this is where an employer applies an apparently neutral provision, condition or practice but it puts workers of a certain age group at a particular disadvantage. For example, an employer advertises a job requiring 5 years’ experience. The person does not get the job because s/he does not have 5 years’ experience.  The person is 22. A requirement to have 5 years’ experience would tend to put 22 year olds at a particular disadvantage compared with those aged over 30. In cases such as this, an employer will be forced to justify why they require 5 years’ service in order to defend a complaint of indirect age discrimination.

Harassment: this is unwanted conduct that violates your dignity,or creates an intimidating, hostile, degrading, humiliating or offensive environment for you. For example stereotyped comments or behaviour which associate older people with incompetence, ill-health, or inability to cope with technology, may well be regarded as humiliating or contributing to an offensive environment. Likewise, conduct or comments that associate younger workers with unreliability or irresponsibility may likewise fall foul.

Victimisation. The law protects workers against victimisation for complaining about age discrimination. Victimisation is where a worker is treated less favourably because s/he has alleged discrimination, whether formally or informally, in a tribunal or in an internal grievance or verbally on behalf of him/herself or someone else.

For example, a worker makes a complaint about age discrimination and as a result s/he has been made redundant

Retirement procedure

If your employer has set a retirement age before 65 it must be objectively justified otherwise it is unlawful. It can be difficult for an employer to prove that they have good reason to justify it.

Where an employer has not set a retirement age, the law has set a default retirement age of 65. This has nothing to do with the age at which the retirement pension is paid. The same age applies to men and women. An employer does not have to make workers retire at 65, s/he can choose to allow an employee to continue working past 65. The default retirement age is to be phased out. Employers are only able to “retire” workers who are 65 on or before 30^th September 2011.

1. The employer`s letter

When an employer wants a worker to retire s/he must write to him/her, setting out the intended retirement date and the worker’s right to request to continue working. This letter should be written 6 – 12 months before the intended retirement date. If this letter is not written within that time-scale, the worker is entitled to 8 weeks pay as compensation. If the letter is still not written 14 days before the retirement date, the worker’s dismissal will be automatically unfair.

Because the default retirement age is being phased out. the last day for issuing this letter is 5^th April 2011, and the last day that a notice of retirement can take effect is 5^th April 2012 (unless the retirement date has been extended by 6 months; see stage 4 below).

2. The worker`s request to work beyond retirement age

Workers may request to continue to work beyond the retirement date. If a worker wants to continue working beyond the retirement date that has been notified to her/him, s/he can write to the employer 3 – 6 months before the retirement date.

3. The meeting and decision

The employer must consider the request seriously, and hold a meeting with the worker, but there is no automatic right to work beyond retirement age, and employers do not have to give a reason for turning a request down. However, If an employer fails to hold a meeting to consider a request, the dismissal will be automatically unfair.

4. 6 month extension of retirement

An employer can agree to a 6 month extension on the retirement date without having to then issue a further notice of retirement. Because the default retirement age is being phased out, the last day on which a notice of retirement extended by 6 months can take effect is 5^th October 2012.

Other Provisions

Redundancy Payments

Upper age limits on redundancy payments have been removed. This means that workers beyond the age of 65 are entitled to receive redundancy payments. See our factsheet on redundancy.

Age Discrimination Dismissal

Workers who are dismissed for reasons relating to their age or apparent age may have a claim for unfair dismissal. An employer can fairly dismiss if the reason for dismissal is genuinely retirement. The employer must follow a correct procedure to comply with age discrimination legislation.

Statutory Sick Pay

The upper age limit on receiving Statutory Sick Pay (SSP) has been removed which means that workers above the age of 65 are entitled to SSP.

Who is responsible for acts of discrimination?

The law makes employers responsible for all acts of discrimination in the workplace whether they know about them or not. This means that the employer is responsible for any discrimination or harassment carried out by its managers or individual employees.

It is also discriminatory for employers to instruct others to commit acts of discrimination; for example where a company tells an employment agency not to discuss their vacancies with workers of a certain age.

Exceptions where age discrimination does not apply

There are limited circumstances where employers may be able to justify treating workers differently because of their age:

• An employer may be able to justify direct or indirect discrimination on the grounds that it was necessary to efficiently run his/her business. For example, it might be necessary to fix a maximum age for the recruitment or promotion of employees. For example, this maximum age might reflect the training requirements of the post or the need for a reasonable period of employment before retirement. An employer must however provide evidence of reasons why they have applied conditions or provisions as mere assertions will not be enough.

• Age-related pay bands of the national minimum wage are exempt.

• Service-related pay and benefits are excluded for the first 5 years of service and easier to justify after that.

• Employers can refuse to consider recruiting a worker if the worker is older than, or within six months of, the employer’s normal retirement age, or 65 if the employer doesn’t have one.

• Where there is a genuine occupational requirement (GOR) that a person must be of a certain age – for example, if an employer is producing a play which has parts for older or younger characters.

Enforcement of your rights

If your rights under the Age Discrimination Regulations are breached you should first of all send your employer a grievance letter. See our factsheet on Grievances for guidance about this.

Getting Help

Besides ourselves there are other organisations that can help :

Equality & Human Rights Commission advises on all types of discrimination; call on 08456 046610 or visit the website equalityhumanrights.com.

Law Centres and Citizen Advice Bureaux (CAB): contact Community Legal Services (CLS) on 08456 081122 to find the nearest advice service to you.

CLS direct gives advice by telephone; call 08453 454345.

Trade unions: If you are a member of a trade union, they should be able to help you. If you don't belong to a union, but would like information about which one would be best for you, ring North West TUC on 0151 236 5432.

Advisory, Conciliation and Arbitration Service (ACAS): ACAS will be able to provide you with information regarding the law and employment issues 08457 47 47 47.

This factsheet is intended as a general guide and is not a full statement of the law.  Please seek advice before taking any action.

This factsheet is also available in other formats, please contact us with your requirements.

If you need more information about pay and employment rights, contact

Greater Manchester Pay and Employment Rights Advice Service

0161 839 3888 phone 0161 839 3883 fax

or write to us at

4^th Floor, Swan Buildings, 20 Swan Street, Manchester M4 5JW

We provide telephone advice only and cannot see people face to face

or visit our website: www.gmemploymentrights.org.uk

Greater Manchester Pay and Employment Rights Advice Service is an independent research and information body funded by all local authorities in Greater Manchester under the AGMA grant scheme.

May 2011