The Age Regulations apply to vocational training and all facets of employment, including recruitment, terms and conditions, promotions, transfers, dismissals and training. They cover employees, applicants for employment and former employees. It is unlawful for an employer to:

• Discriminate directly by treating another person less favourable that others because of their age.
• Discriminate indirectly by applying a provision, criterion or practice that disadvantages people of a particular age, where this cannot be objectively justified.
• Subject someone to harassment on grounds of age.
• Victimise someone because they have made or intend to make a complaint or allegation or has given evidence against someone else in relation to a compliant of age discrimination.
• Discrimination may be permitted in certain limited circumstances:
  • An employer might be able to rely on a genuine occupational requirement (GOR) for an employee to possess a characteristic related to age.
  • “positive action” might be allowed in the form of a targeted advertising or training to address exiting inequalities.
  • An employer can dismiss an employee by reason of retirement at or over the default retirement age of 65.
  • An employer might be able to award a benefits based on length of service.

The Age Regulations also:

• Introduced a duty for employers to consider employees’ requests to continue working after they are due to retire.
• Removed the upper age limit for unfair dismissal and redundancy rights.

Direct discrimination

Law provides that A directly discriminates if it treats B less favourably than it treats or would treat a comparator on grounds of B’s age.

Indirect discrimination

Law provides that A indirectly discriminates where A applies to B a provision, criterion or practice (PCP) which it applies or would apply equally to persons not of the same age group as B but which:

Puts or would put persons of the same age group as B at a particular disadvantage when compared with other persons.

A cannot show the treatment or, as the case may be, provision, criterion or practice to be a proportionate means of achieving a legitimate aim.

A might discriminate indirectly, for example, where it invited applications only from “recent graduates”. This would favour employees who are far more likely than older employees to have finished their studies “recently”.

Harassment

Law provides that A harasses B where, on grounds of age, A engages in unwanted conduct which has the purpose of effect of:

Violating B’s dignity; or

Creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

Mirroring other discrimination legislation, to constitute unlawful harassment, the conduct must be on grounds of age and unwanted.

Harassment cannot be justified and an employer will find itself liable for its employees’ conduct unless it can establish that it took such steps “as were reasonably practicable to prevent the employee from doing that act or doing in the course of his employment acts of that description”.

Victimisation

Law provides that A victimises B if it treats B less favourably than it treats or would treat a comparator, for a prohibited reason. Victimisation is usually committed by the employer  who was the subject of the original discrimination compliant (or its employees), but this need not always be the case. For example, a prospective new employer can be liable for victimisation if it refuses to employ someone because they gave evidence against a previous employer in a discrimination case.

Prohibited reasons are that:

B has performed a protected act.

A knows that B intends to perform a protected act.

A suspects that B has performed intends to perform a protected act.

Protected acts are:

Brining proceedings against any person under the Age Regulations.

Giving evidence or information In connection with proceedings brought by or against anybody under the Age Regulations.

Alleging that any person has committed an act which (whether or not the allegation so states) would amount to a contravention of the Age Regulations.

Otherwise doing anything under or by reference to the Age Regulations in relation to any person.

Making an allegation or giving information that turns out to b false can still be a protected act, provided it was done in good faith.

Who is protected?

Those who can claim protection from discrimination on the grounds of age under the Age Regulations include former, actual and prospective:

• Employees
• Contract workers
• Members of occupational pension schemes
• Office-holders
• Police constables
• Barristers and pupils
• Partners
• Advocate pupils
• Members of trade organisations
• Persons applying for professional or trade qualifications
• Persons applying for vocational training.
• Persons using employment agencies or related careers guidance services.
• Persons applying to use government-run facilities or services to obtain employment.

Who is liable?

Those with obligations not to discriminate on the grounds of age under the Age Regulations include:

• Employers.
• Providers of vocational training (including adult, further and higher education).
• Trade unions, professional associations, and employers’ organisations.
• Trustees and managers or occupational pension schemes.
• Partnerships.