Latest Age Diversity News

Man wins age discrimination case

NHS worker wins job back in landmark case

Woman, 20, sacked for being too young wins bias case

Age discrimination and retirement - the new law

Man wins age discrimination case

A County Down man has won the first ever case of ageism in Northern Ireland brought under legislation introduced last October.

Terence McCoy from Newtownards brought the case after being turned down for a job of salesman with Belfast timber firm James McGregor and Sons.

An employment tribunal concluded that but for his age Mr McCoy would "more probably than not" have been selected.

Mr McCoy, then 58, said he felt as if he had been "flung on the scrapheap".

"I know that my experience and knowledge of the timber trade made me a strong candidate for one of these posts," Mr McCoy said.

"I was convinced that I was passed over because of my age, and felt as if I had been flung on the scrapheap.

"I am very pleased that the tribunal has made this finding which confirms that I was subject to unlawful age discrimination."

Mr McCoy had applied for one of two salesmen posts with the firm and, after two interviews, was told he was unsuccessful.

The tribunal drew an inference of discrimination from the use in the recruitment advertisement of the phrase "youthful enthusiasm".

It also concluded that there was a link made between the issue of age and the concept of what has been variously referred to as "enthusiasm", "motivation" and "drive".

The tribunal also said that Mr McCoy was asked age-related questions.

Eileen Lavery of the Equality Commission, which supported the tribunal, said the decision highlighted the fact that discrimination on grounds of age was unlawful.

"The tribunal determined that the company, and those involved in the recruitment, took account of Mr McCoy's age as being a relevant factor in the selection process, and that this constituted unlawful discrimination," she said.

"This empathises the need for everyone involved in recruitment exercises to guard against making decisions based upon assumptions that the age of applicants might mean they would be less likely to have certain qualities. "

BBC News 10 January 2008

NHS worker wins job back in landmark case

A 67-year-old NHS employee who was sacked the day before new age discrimination regulations protecting older workers came into force has won her job back in a landmark victory that could help others in a similar position.

Ann Southcott was dismissed from her post as a clerical worker at Treliske Hospital, Cornwall, on September 30 2006 - one day before the Employment Equality (Age) Regulations were introduced.

The regulations, based on a longstanding European directive that the UK is obliged to follow, make it illegal for employers to discriminate on the grounds of age.

Mrs Southcott was told she would receive the contractual requirement of 11 weeks pay – equal to her notice period - rather than the 11 months pay she would have been entitled to had she been dismissed a day later under the new rules.

With the backing of Unison, the public sector trade union, Mrs Southcott launched a claim for unfair dismissal and age discrimination at her local employment tribunal.

Following a preliminary hearing, the Royal Cornwall Hospitals NHS Trust agreed to reinstate Mrs Southcott and a group of other workers dismissed in similar circumstances.

Employment lawyers said Mrs Southcott’s case is thought to be the first age discrimination claim to have reached an Employment Tribunal since the new regulations were introduced.

Edward Cooper, head of employment law Russell Jones & Walker, said it was significant because it is “the first case to illustrate the very real unfairness that exists for older employees - which was allowed to go entirely unchallenged before the new laws took force.”

Mr Cooper added that there are “likely to be many other similar cases where rash decisions by employers to seek to avoid the impact of age discrimination prior to October 1st 2006 are successfully challenged.”

Employees who believe they were the victim of age discrimination have until the end of this month to file a claim – although they will need to have already complained in writing to their former employer.

However, other employment experts said Mrs Southcott’s case had wider significance because her solicitor - Mark Gray of Thompsons - was able to persuade an Employment Tribunal that she had a potential age discrimination claim despite the fact that she was dismissed prior to the new regulations taking effect.

The Employment Equality Regulations are not retrospective and so employees can only bring claims under them if the alleged discrimination took place after October 1, last year.

But Mr Gray argued that following a landmark ruling in a German case at the European Court of Justice (ECJ), the tribunal should accept Mrs Southcott’s age discrimination claim because the EU directive had already been introduced.

In the German case, Mangold v Helm, the ECJ ruled that individual country deadlines for implementing the EU directive were purely practical measures and they did not mean that the individual country is free to ignore the directive until that date.

Although Mrs Southcott’s case was settled before an Employment Tribunal was asked to rule on it, lawyers said the fact that the Tribunal – at the preliminary stage – accepted that Mr Gray’s argument based on the Mangold ruling was worth further discussion, was itself significant.

James Davies, head of employment at Lewis Silkin, said: “The Mangold ruling surprised a lot of people and many expect its effects will be watered down or even reversed in subsequent ECJ rulings. But the fact that a UK Employment Tribunal has embraced aspects of it is potentially very significant.”

One possible consequence, Mr Davies said, is that UK lawyers may try to use the Mangold ruling to argue that private as well as public sector employers can be challenged in circumstances where UK laws do not go as far as the EU directive.

This is because another radical aspect of the Mangold case, Mr Davies said, was that it overturned a previous understanding that employees could only attempt to bring claims against public sector employers in an individual country that had not yet formally adopted the rules.

This is because another radical aspect of the Mangold case, Mr Davies said, was that it overturned a previous understanding that employees could only attempt to bring claims against public sector employers when using the directive rather than the local country laws.

Following the Employment Tribunal’s acceptance of the Mangold ruling, Mr Davies said that private sector workers who feel they were discriminated against because of their age could now attempt to bring cases against their employers – opening a potential new set of age discrimination claims.

Times Online 12 April 2007

Woman, 20, sacked for being too young wins bias case

A woman who lost her job because managers at an exclusive London club thought she was too young won a discrimination case yesterday.

Megan Thomas, 20, claimed that she had been dismissed from her job as a membership secretary at the Eight Member Club because managers told her that at 19 she was not mature enough to deal with members.

Ms Thomas, from Shirley Oaks Village, Surrey, disputed her dismissal and claimed discrimination for being too young, the first case of an employee doing so.

She started her job at the club in April and her contract was terminated at the end of July.

Yesterday, a ruling by the Central London employment tribunal ruled that Thomas was unfairly dismissed and discriminated against on the grounds of her age.

The tribunal is set to award her a four-figure sum in compensation for injury to feelings and unpaid notice money, Lawrence Davies of Equal Justice solicitors, who acted for Thomas, said.

He added: "Young workers are vulnerable in the workplace and often get a raw deal in today's society.

"This is the first time that the courts have said age discrimination adversely affects the young and young-looking as well as the old.  We would hope that more young workers exercise their employment rights."

Thomas said after the ruling: "I was upset to lose my job. I had never lost a job before. It was humiliating, especially because I was told I was too young and if they had met me a few years later there may not have been a problem.

"They also said that I was deceitful, sly, and lacked integrity, which was hurtful and untrue."

She told the tribunal that within four days of being dismissed she had found another job with a salary of £25,000 as an office manager for a group of City traders. "I enjoy my new job where the employer treats me with respect and does not look down on me because of my age," she added.

A spokesman for the Eight Members Club, which has about 800 members and likes to be known as Eight, said they had not discriminated against Thomas and the club employed many people of her age.

The club is located in the City and describes itself as for those "searching for a discreet and private haven in which to enjoy the simple pleasures of sublime drinks, card play and shooting pool".

He said: "It's a very strange ruling, because this is a young person's business and many of the waiters and waitresses working here are the same age or even younger than Megan.

"She had finished her six months' probation and had made some mistakes, so we decided to end her employment."

He said the club had not had a chance to address the issues raised at the tribunal. He said the owners would appeal against the ruling.

Last month, the Employers Forum on Age said that an average of 200 age discrimination claims were lodged with tribunals each month.

The Employment Equality (Age) Regulations 2006 state that it is unlawful to discriminate against workers under 65 on the grounds of age.

Making someone redundant or barring workers from training or promotion because they are too old - or too young - is illegal under the legislation.

The Guardian  13 November 2007

Age discrimination and retirement - the new law

On 13 June 2006 the final Employment Equal (Age) Regulations (NI) 2006 were published.  These Regulations will come into force on 1 October 2006 and will make it unlawful to discriminate against a person on grounds of age.

As changes cannot be made overnight, organisations will now need to review how they will outlaw age discrimination in the workplace. One of the key areas of change involves how employers handle retirement.  As transitional provisions will apply to those retiring employees in the period 1 October 2006 to 31 March 2007, companies may need to take action now to ensure compliance with the Regulations. In this article, Michelle McGinley, focuses on retirement and considers the transitional provisions.

RETIREMENT AGES
The Regulations set a national default retirement age of 65 which permits employers to retire employees (or set a retirement age in the company above 65) without it being unlawful age discrimination.

The government intend to review the default age in 2011 and rumblings suggest that it may be removed. The default age is not an obligatory age and employers can choose to set a higher one, or have none at all. Retirement ages below 65 will be unlawful, unless objectively justified.  In practice, it will be extremely difficult to justify a lower retirement age.

FAIR TREATMENT
In order to retire a person fairly it must occur at the default retirement age (65) or on, or 0 after, the company’s normal retirement age (NRA). The NRA is defined “as the age which the employer requires employees in the same position to the employee to retire”.

Additionally, the employer must give the employee written notice of both the intended date of retirement (IDR) and the right to request to continue working beyond their retirement.  In order to benefit from the presumption that retirement is the reason for the employment ending, this notice must be given at least six months (but not more than 12 months) before the IDR. This is called standard notification. There is an ongoing duty on the employer to give this notice up to the fourteenth day before the IDR (fall-back notice).  If fall-back (and not standard) notice is given, then the employer does not benefit from the presumption that retirement is the reason for the employment ending. The employee can pursue a claim for failure to give standard notice and receive up to eight weeks’ pay which is capped at the weekly limit (currently £290).

RETIREMENT DEFINITIONS
Default retirement age: - Government’s set retirement age of 65 (to be reviewed in 2011).
Normal retirement age (NRA): - The age at which the employer requires employees in the same kind of position as the employee to retire.
Contractual retirement date: - Not necessarily the same as NRA, as may have changed over time.
Pension age: - The point at which an employee can draw down their pension. For many, but
not all, it is when they retire.

REQUEST TO CONTINUE WORKING
If the employer has given standard notice, then the employee can file a request to continue working anytime between six and three months before the IDR. If the employer has given fall-back notice, the employee can make a last minute request (ie any time before his employment ends) and the employer will have to consider it. The employment will continue until the employer has considered
the request and provided a written decision.

To be valid the employee’s request must be made at the appropriate time (see above) and in the appropriate format. This means it must be in writing and state that it is made under “Paragraph 5 of Schedule 5 of the Regulations.” The employee must also propose that the employment continues: indefinitely or; for a stated period or; until a stated date.  If the employer has failed to give written
notice of the IDR it must state the date the employee believes is the IDR. There is no requirement to consider an invalid request.

DUTY TO CONSIDER
Schedule 5 of the NI Regulations (Schedule 6 of GB Regulations) sets out the “duty to consider” procedure which in summary involves: holding a meeting; giving a written dated decision; offering
an appeal; holding an appeal meeting; giving a written dated appeal decision.

The meetings must be held within a reasonable period unless the request is agreed or both sides agree that the employment should continue indefinitely. A modified right to be accompanied by a fellow worker applies to the meetings. The employer must confirm the decision in writing and, if the request is accepted, must state this and for how long the employment will continue. If the request
is refused, then the written decision must confirm that fact and that the employee will retire with the date of retirement. Unless the employee’s request is agreed in its entirety, the employer must offer an appeal.

REFUSING REQUESTS & PROVIDING REASONS
The “duty to consider procedure” is a procedural duty only and there is no obligation on the employer to provide a reason if the request is refused. The ACAS guidance –  http://www.acas.org.uk/media/pdf/d/ t/6683_Age_and_the_Workplace_AWK.pdf
“Age in the Workplace” highlights that there is no need to give reasons. However, employers
should consider how they will handle requests.  They will also manage employees’ expectations
if, for example, they can refer to a retirement policy which sets out the criteria under which requests will be considered. For example, specimen policies could state that requests will only be accepted in exceptional circumstances.

RETIREMENT: KEY FEATURES

• Default retirement age of 65.
• Default age not obligatory; can set higher, or have none.
• Retirement age below the default age must be objectively justified.
• Employer has a duty to inform the employer of the intended retirement date (IDR).
• Employee has a right to request continuing working beyond retirement.
• Employer has a duty to consider requests under a set procedure.

DUTY TO CONSIDER PROCEDURAL BREACHES
A breach of the duty to consider procedure will result in the dismissal being automatically unfair and the employee being entitled to a minimum basic award of four weeks’ (capped) pay. There is no distinction between major and minor breaches.  Consequently, a failure to date a letter will
be as fatal as a failure to offer an appeal.

TRANSITIONAL PROVISIONS (RETIREMENTS BETWEEN 1 OCTOBER 2006 AND 31 MARCH 2007)
During the first six months, there will be insufficient time to provide the standard notice of six months or more before the IDR.  Instead, the transitional provisions will apply to retirements taking place in the transitional period. The basic rule for these retirements is that the employer must provide the longer of their contractual or statutory notice to expire on their IDR. The employee will also need to be advised of his/her right to request to continue working. When this needs to be done will depend on the date that the employer sends out the notice advising of their intention to retire that employee.

NOTICE GIVEN BEFORE 1 OCTOBER 2006
If the employer provides written notice to the employee of their intention to retire him/her before 1 October 2006 they must provide the full contractual notice, or if the contractual notice exceeds four weeks, at least four weeks’ notice which will expire on the IDR. At the same time, the employer must also inform the employee that (s)he is being retired on the date that the notice expires. Then on 1 October (or if that is not practicable as 1 October is a Sunday) as soon as possible thereafter, the employer must advise the employee in writing of his/her right to request not to retire. Notices sent out prior to 1 October 2006 will not be valid.

WRITTEN NOTICE AFTER 1 OCTOBER 2006
If the employer gives written notice to the employee after 1 October 2006 then they must provide the employee with the longer of their full contractual notice or statutory notice to expire on the IDR. At the same time, the employer must inform the employee in writing of their right to request not to retire.
The employee in either of the scenarios can raise a request at least four weeks before the IDR, or if this is not practicable up to four weeks after retirement, of their wish to continue working. If this is received then the request must be considered under the duty to consider procedure.

Breach of the transitional provisions ie failing to give notice of the IDR (and/or of the right to request to continue working and/or to follow the procedure for considering any valid request) will result in the dismissal being automatically unfair and the employee being entitled to at least eight weeks’ pay for breach of the procedure.

FAIR RETIREMENT

• A fair retirement is one:
  • that takes effect on or after the default retirement age (or on or after the employer’s NRA if there is one) and;
  • where the employer has given the employee written notification of the intended retirement date (IDR) and their right to request continuing to work.•
• Written notification must be given at least six months (not more than 12) before the IDR.
• Employer has followed duty to consider procedure.
• Only applies where reason for dismissal is retirement.
  

REMEDIES
If the above procedure is complied with then the employer will avoid claims for unlawful age discrimination and automatic/unfair dismissal arising out of retirement. However, if the employee’s employment continues past the NRA, employees are not precluded from pursuing claims for unlawful age discrimination completely. For example they could claim direct discrimination arising out of less favourable contractual terms and conditions, unlawful age harassment and/or victimisation.

The Journal of the Law Society of Northern Ireland July/August 2006

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