Article by Elizabeth Stephenson
Age discrimination, especially against women, is everywhere these days. Or in the news at least, which may suggest there is a lot of it going around. Since she succeeded in her Tribunal claim that she had been discriminated against because of her age, the BBC has apologised for its treatment of Miriam O’Reilly. This highlights further issues that were brought to the fore in relation to Arlene Philips being axed from Strictly Come Dancing.
But what about “women of a certain age” in everyday life? And come to think of it, who ever hears that expression said about men? Does their age matter less than ours does? In these times where we are all expected to be working longer hours and later in life many women are very willing and more than able to do so. However, many older employees are facing redundancy and suffering discriminatory treatment.
Age Discrimination and The Law
Since 1 October 2006 it has been possible for employees to claim that they are being treated less favourably on the grounds of their age. The Age Regulations have now been replaced by the Equality Act 2010 predominantly for treatment occurring on or after 1 October 2010.
The Equality Act 2010 provides that direct discrimination occurs where a person discriminates against another if, because of a protected characteristic, they treat that person less favourably than they treat or would treat others. Age is one of the protected characteristics under the law (as is sex), and you could therefore argue that you are being treated less favourably than, for example, people in the 20s, are or would be treated.
Indirect age discrimination occurs where the employer applies a provision, criteria or practice which puts or would put people of a particular age or age group at a disadvantage. For example, specifying that an employer is looking for a recent graduate could adversely affect older workers.
Employers have a defence to both types of age discrimination if they can show that the measure is a proportionate means of achieving a legitimate aim.
What to do if you think you are being discriminated against
If you think you are being discriminated against in the workplace and you want to take action about this you should try to resolve it informally in the first instance. If this proves unsuccessful, check whether or not your employer has an internal grievance procedure. Even if they don’t have their own procedure, the ACAS Code of Practice on Discipline and Grievances, provides that:
“If it is not possible to resolve a grievance informally employees should raise the matter formally and without unreasonable delay with a manager who is not the subject of the grievance. This should be done in writing and should set out the nature of the grievance.”
You should ensure that the grievance sets out the treatment you are complaining about and that it states clearly that you believe this is age discrimination. This is especially important if you may seek to bring a Tribunal claim later on, as if you fail to raise a grievance in accordance with the Code, the employer can argue that any compensation awarded to you should be reduced by up to 25%.
If you set out your grievance in writing they should:-
1. allow you to attend a meeting to discuss the issue
2. provide you with a written outcome, and
3. offer you the opportunity of appealing against that decision if you are not satisfied.
These steps are also set out in the ACAS Code, and if the employer fails to comply with them, then if you win your Tribunal claim you can argue that any compensation awarded to you should be increased by up to 25% for their failure to follow the Code of Practice.
If you are treated less favourably because you raised a complaint of age discrimination you may have a claim for age victimisation.
What about Redundancy and Age Discrimination?
Redundancies unfortunately are only too common these days, and the treatment of older women in the workplace is not something about which we need to suffer in silence.
If you think you are being discriminated against in a redundancy process then you may wish to consider raising a grievance. The employer may halt the redundancy process whilst it deals with the grievance. This may, at best, lead to some change in your treatment, and if not, may extend your employment for a period, at least hopefully giving you the advantage of slightly longer service, meaning your salary for that period and potentially an increased redundancy payment.
Statutory redundancy pay rules provide that if you have more than two years complete service and you are made redundant, you should receive
• half a week’s pay for each complete year of employment when you were below the age of 22
• a full week’s pay for each complete year of employment when you were between the age of 22 and 40
• a week and a half’s pay for each complete year of employment when you were 41 or above.
The calculation of a week’s pay for these purposes is, however, limited to £380, although this is due to increase to £400 for redundancies occurring on or after 1 February 2011.
Be aware that employers do not have to halt the redundancy process to go through the grievance procedure, as if there is a considerable overlap in the issues, they may think it best to deal with them all within the redundancy process. In a sense, therefore, if your grievance contains matters unrelated to the redundancy, this may make it more likely that they will deal with it as a separate process.
If you want to bring a claim for Age Discrimination
If you believe you have a claim for age discrimination, or any other Tribunal claim, you should ensure that your claim is received by the Tribunal within 3 months less one day of the act complained of.
These cases often turn on the evidence you have been able to obtain, and there is a specific questionnaire procedure, which can be used to obtain information in support of such a claim or to help you decide whether or not to bring one. Further information on this and other discrimination issues can be found at www.equalityhumanrights.com, www.employmenttribunals.gov.uk and www.acas.org.uk.
The content of this article is intended to provide a general guide only to certain aspects of the subject matter. Legal advice should be sought about your specific circumstances.
Elizabeth Stephenson is a Solicitor specialising in Employment Law at Pattinson
& Brewer Solicitors. If you would like to obtain legal advice on the
above or any other employment law matters contact her via our website
at www.pbemploymentlaw.co.uk or email: firstname.lastname@example.org