Ageism in employment
Direct and indirect discrimination outlawed

The Employment Equality (Age) Regulations 2006 (the Regulations) came into force on 1 October 2006. The Regulations prohibit discrimination on the grounds of an individual's age in the UK for the first time.

The Regulations outlaw direct and indirect discrimination on the grounds of age in employment, vocational training, the award of professional qualifications and trade union membership. They make specific provision for victimisation and harassment and contain a statutory retirement procedure which allows employers to retire employees once they reach age 65 (or their Normal Retirement Age) without facing liability for unfair dismissal.

The Regulations apply to charities in exactly the same manner as other employers and there are no exceptions.

As with other areas of discrimination law, the new rules will apply to anyone who is employed under a contract of service, apprenticeship or a contract to execute any work or labour personally. This is a wider definition than employee.

There are also territorial restrictions, the rules apply to employment or contracts at an establishment in Great Britain which generally means they apply to employees who work wholly or partly in Great Britain.

The Regulations do not apply to unpaid volunteer workers. This is of particular importance to charities.

There are two important exceptions to this:

• If the unpaid volunteer worker forms part of a paid employment relationship. If they are harassed on the grounds of age during that time they can still bring a claim, even though they were carrying out unpaid volunteer work at the time of the harassment.
• If the unpaid volunteer work forms part of a vocational training relationship.
  

Before relying on the unpaid volunteer exception, charities should ensure that there is no way that the volunteer could be viewed as receiving pay for carrying out work, and therefore may be classed as a 'worker' or 'employee' in law.

The Regulations outlaw the following forms of discrimination:

• direct discrimination;
• indirect discrimination;
• victimisation; and
• harassment.

Both direct and indirect discrimination can be defended on grounds of justification. There are a number of other exceptions and defences.

For the direct discrimination to be unlawful it must relate to one of the following:

• the arrangements an employer makes for the purpose of determining to whom he should offer employment (advertising);
  
• refusing to offer or deliberately not offer a person employment;
  
• the terms on which employment is offered (recruitment);
  
• the terms afforded by an employer to a person in employment (benefits);
  
• promotion, transfer or training opportunities or receiving any other benefit;
  
• dismissal or subjecting an individual to any other detriment.

Discrimination on grounds of a person's age also includes discrimination on grounds of a person's apparent age.

Unlike other areas of discrimination law, direct discrimination on grounds of age can be justified.

Indirect discrimination will occur where, for example, a charity applies to an employee a provision, criterion or practice which he applies or would apply equally to all employees, but:

• that provision, criterion or practice puts or would put persons of the same age group as that employee at a particular disadvantage when compared to other persons;
  
• the employee is actually put at a disadvantage; and
  
• the charity cannot objectively justify it.
  

The concept of the employee's "age group" will therefore be critical to any age discrimination claim. How narrow or wide the age range should be is likely to be one of the issues in dispute in any claim.

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