A recent high profile case involving the former presenter of the BBC’s Countryfile programme has highlighted the issue of age discrimination.
Miriam O’Reilly took the case against the BBC after being dropped from the show after 8 years. Three other presenters aged over 40 were also axed from the show. Miriam O’Reilly won her age discrimination claim and it was found by the tribunal that she had also been victimised on the basis of her claim.
From 1 October 2006 the Employment (Age) Regulations (Northern Ireland) 2006 make it unlawful to discriminate against a worker on the grounds of age. The Regulations protect job applicants and those already in employment. They also cover vocational training, which includes further and higher education. The Regulations make it unlawful to discriminate against a worker/trainee for being too young as well as for being too old. Age includes apparent age, so a worker/trainee will qualify for protection if they are discriminated against on the grounds of their perceived age, even if this is not their actual age.
The Regulations prohibit:
direct discrimination on the grounds of age unless this is objectively justified;
indirect discrimination where a criterion, provision or practice puts persons of a certain age group at a particular disadvantage unless this is objectively justified;
harassment on the grounds of age;
victimisation where a person is treated less favourably for making a complaint about age discrimination.
Unlike other forms of discrimination in employment, justification is a defence for direct as well as indirect age discrimination. In order to justify direct or indirect discrimination, an employer will have to show that it is a ‘proportionate means of achieving a legitimate aim’. The Regulations do not give examples of what would be a legitimate aim or what would be a proportionate means of achieving it. In a consultation document the Government suggested that the following might be legitimate aims: health, welfare and safety (including the protection of younger or older workers), facilitation of employment planning, particular training requirements, encouraging and rewarding loyalty, the need for a reasonable period of employment before retirement and recruiting or retaining older people.
There is no minimum length of time a worker needs to have worked for an employer before being able to take an age discrimination claim. The normal three month time limit applies. An employee wishing to bring a claim under the Regulations must normally first raise a grievance with their employer. Claims relating to further and higher education are dealt with by county courts and have a six month time limit.
The Government has recently confirmed that the default retirement age will be removed. It is to be phased out between 6 April and 1 October 2011. Currently employers can make staff retire at 65 regardless of their circumstances but after October 2011 employers will not be able to compulsorily retire employees at this age. If employers wish to use retirement ages they will have to able to demonstrate that these are objectively justified, for example, in some jobs such as the police or air traffic controllers it may be impossible to keep working past 65.
Further information on age discrimination is available from your local CAB or from the Equality Commission for Northern Ireland on 028 90 890 890 or from www.equalityni.org Siobhan Harding is an Information and Policy Officer with Citizens Advic