Legal Q&A: Age discrimination

Eight months after the legislation was introduced, age discrimination claims are picking up in momentum and reaching the headlines. The Observer recently reported that Buckingham Palace may have fallen foul of the age discrimination legislation by placing advertisements saying that it won’t recruit anyone aged 64 or over.

Q What was wrong with Buckingham Palace requiring applicants to be under 64 when they would have had to retire at 65 anyway – is this not justifiable?

A The Age Regulations only provide an express ‘get out’ clause if the applicant is within six months of retirement, not one year. The Royal Family will have to objectively justify excluding any applicants aged between 64 and 64-and-a-half from job opportunities.

The most likely objective justification would be that training requirements make it impractical to employ anyone so near to retirement. However, if a position does not require significant training, the objective justification defence will be much more difficult, and the Royals may have to look to another business need to justify the requirement.

Q Can I sue Buckingham Palace over the job advertisement even if I didn’t apply?

A No. A Bristol employment tribunal has ruled that a person needs to actually apply for a job and be refused either an interview or be unsuccessful at interview to have suffered less favourable treatment. The tribunal said the legislation was not intended to enable members of the public to act as ‘age policemen’, and that advertising in this way, unwise as it is, is not itself illegal.

Q Last year was full of warnings and alerts – the age regulations were on the way and I’d better be ready or else. So why haven’t I heard about any big cases?

A You may not hear about big age discrimination cases in the same way that ‘Sex in the City’ discrimination cases have hit the headlines in the past few years, but don’t be fooled into thinking that the hype was over nothing. Ageism claims have steadily been flowing into the employment tribunal system. According to the Department of Trade and Industry, about six months after the laws came into force on 1 October 2006, nearly 600 claims were lodged.

So why haven’t you heard about them? The first claims have only begun within the past three months or so to reach the tribunal hearing stage. This is because of the requirement to raise a grievance and attempt to resolve the dispute internally before filing a claim at tribunal. The employment tribunal procedure itself then means that it takes yet more time before cases are actually heard. In addition, employment tribunal decisions are not openly published, which means that cases are currently being reported by word of mouth.

Q Six hundred claims doesn’t sound like much. Has it all been a lot of hot air then?

A No. Six hundred age claims in a little over half a year is not insignificant. To put the figure into perspective, it is approximately equal to the combined number of all sexual orientation and religious discrimination claims that were filed in the entire first year after they were introduced.

Q So what’s the biggest ageism news story?

A Heyday v Secretary of State for Trade and Industry, the case challenging the UK’s default retirement age of 65, made big headlines earlier this year. The case has been referred to the European Court of Justice (ECJ). However, a recent opinion of the advocate general (head of the European court), in a related Spanish ECJ case (Felix Palacios De La Villa v Cortefiel Servicios SA), indicated that having a retirement age can be lawful. This Spanish case will be finally decided by the ECJ later this year, and if the court confirms the advocate general’s opinion, the chances of the UK Heyday case succeeding will be considerably weakened.

However, although retirement hit the headlines, it has not been the biggest focus of the claims reaching the employment tribunals.

Q What claims are the tribunals seeing?

A Recruitment appears to be resulting in the most claims. This is surprising, as this is the one stage of employment over which employers have a lot of control, as they can put in detailed processes and provide training on recruitment to managers and HR personnel.

Recruitment was, and still is, the source of the most complaints in Ireland, which has had age discrimination legislation in place since 1998.

By Vanessa Hogan, associate, Lovells Employment Group

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