The Employment Equality (Age) Regulations 2006 (“the Age Regulations”) came into force on 1 October 2006 so they have now been around for over 8 months. There have so far been no reported decisions of claims which have been brought under the Age Regulations, but this does not mean that there have been no cases brought. There is always a time-lag between new legislation coming into force and cases reaching a full hearing and judgment being delivered under that legislation. This is partly due to the fact that Tribunal procedures mean that cases can take 6-12 months to reach a final hearing, and also because it sometimes takes people a considerable length of time to know and understand their rights (despite the publicity that has surrounded the introduction of the Age Regulations).
It is also highly likely that there have been a number of cases which have been brought against employers where a deal has been done and the case has settled before it reached a full hearing : either because liability has been accepted by the employer, or (more likely) because the employer does not want the publicity associated with being the first case heard under the Age Regulations.
There have however been reports in the media of a few cases being brought under the Age Regulations, which (as far as we know) have not yet reached the Tribunals.
- A case which was heralded in the press as being the first “landmark” age claim was actually settled outside the Tribunals, and pre-dated the Age Regulations. A 67 year old clerical worker was dismissed from Royal Cornwall Hospital one day before the Age Regulations came into force. The case settled out of Court but press reports suggest that the hospital trust agreed to allow her to return to work and awarded her back pay from October. Whilst this case was not brought under the Age Regulations, similar cases could easily be brought now under the Age Regulations if a decision was made to dismiss an employee purely because of her age.
- A claim is being brought by a former partner of the law firm Freshfields which will be heard by the Tribunal in July. Peter Bloxham, 54, was one of about 30 lawyers who opted to retire from Freshfields’ partnership on a full pension late last year, instead of remaining a partner and accepting a significant cut in retirement benefits. According to press reports, the claim relates to the fact that Freshfields’ pension cuts affected partners differently according to their age at the time the changes were implemented.
- Last month, the Director of the Equality Tribunal in the Republic of Ireland published a decision on age discrimination which could give an indication of how a similar case might be treated in the UK. In that case, a candidate for a job was asked questions about his age at an early stage of the interview process, including questions on the application form such as "living with parents/ renting/ mortgaged accommodation", "number of children", "age" and "date of birth". The candidate provided incorrect information, saying that the questions were irrelevant and too invasive. He did not get the job despite being otherwise qualified for it. The Equality Officer decided that he had been discriminated against on the grounds of his age, and he was awarded EUR 5,000 in compensation. It will be interesting to see how a similar claim might be decided in the UK, but claims could potentially result from an employee’s refusal to provide this information. Unless an employee was a vexatious applicant (i.e. making speculative applications to numerous employers), such a claim could succeed in the UK if the employee could show he wasn’t given a position because of his age.
There have also been some minor amendments made to the Age Regulations themselves :
- Amendments to the Age Regulations under the Employment Equality (Age) (Consequential Amendments) Regulations 2007 came into force on 6 April 2007 and make a few minor amendments to the Age Regulations. The amended Regulations provide that a redundancy dismissal will be automatically unfair if the reason for selection is that an employee has exercised his or her right to be accompanied, or to accompany another, at a meeting to request working beyond the intended date of retirement. The amended Regulations also exempt Age Discrimination from the fixed conciliation periods for ACAS which so that it is treated in the same way as other forms of discrimination.
- The Single Equality Bill Green Paper released on 13 June 2007 by Ruth Kelly’s Department of Communities and Local Government includes recommendations clamping down on age discrimination outside employment. The proposals would, for example, mean that companies would no longer be able to refuse an older person with a good salary a store card or loan just because they were over 65.
- And finally, the latest series of The Apprentice has attracted a lot of publicity, not just because of the interesting characters who participated, but also because of the reasons given by Alan Sugar for saying the words “You’re Fired!”. Ghazal Asif, the youngest person yet to participate in The Apprentice (she is 23) was fired in week 8, and Sir Alan made a number of comments throughout the series about concerns that Ghazal was “too young” for the job (although she was ultimately fired for being “all talk and no do”). But, if Sir Alan had actually been Ghazal’s employer, comments made about Ghazal being too young for the job would be contrary to the Age Regulations. Just as it is discriminatory not to give someone a job because they are considered “too old” for the position, refusing to employ someone simply because they are considered “too young” would also be potentially discriminatory.
It can’t be long now before the first case of age discrimination reaches a full hearing. In the meantime, employers would do well to review their internal procedures to ensure that they are complying in full with the Age Regulations, so that they don’t become one of the first reported cases.