The Development Of Equality Within Employment Law Law Employment Essay

Published Date: 02 Nov 2017

I will first touch upon the development of equality within Employment law and the impact it has had in the removal of discrimination. This will lead me to discuss the abolishment of the Default Retirement Age and the methods in which employers continue to regulate the employment of the older generation. Throughout the essay I will use case law to analyse and evaluate whether the change of law has made a difference or whether age discrimination is still on going.

Age discrimination is a protected characteristic under the Equality Act 2010. The EqA 2010 was put into effect to incorporate all Employment legislation that impedes discriminatory behaviour, victimisation or harassment against applicants, trainees or employees. The aim was to make the system more coherent and simple. Age discrimination is a protected characteristic of this Act and is regulated by the Employment Rights Act 1996, the Council Directive 2000/78/EC (Equal Treatment in Employment) and the Employment Equality (Age) Regulations 2006.

The Council Directive 2000/78/EC (Equal Treatment in Employment) was founded in regards to Article 6 of the Treaty on European Union and established a framework for states to ensure that no person is treated unfairly within the workplace [1] .

The Employment Equality (Age) Regulations 2006 derived from the 2000 Directive to impede discriminatory behaviour, victimisation or harassment against applicants, trainees or employees due to age; age is defined as being of a particular age or being a part of an age group [2] .

There are two types of discrimination. The EqA 2010 s13 (2) states that it is prejudiced to treat an individual less favourably than he would treat another due to their age [3] . To treat a person less favourably means to place them at a disadvantage. This is known as Direct Discrimination. However, the decision in Incorporated Trustees of the National Council on Aging v Secretary of State for Business [2009] held that States were permitted to disregard the 2000 Directive if the discrimination could be justified by "legitimate social objectives, including matters of employment policy, the labour market or vocational training" [4] ; legitimate reasons is to be determined by national courts.

Indirect discrimination is explained in s19 of the EqA 2010. It states that is it unlawful to place provisions, criterions or practice that places certain age groups at a disadvantage [5] . The case of Homer v Chief Constable of West Yorkshire Police [2010] held that employment legislation was not established to prohibit barriers that stem from retirement. The claimant was unable to obtain a promotion without a law degree and claimed this was indirect discrimination. The Court held that this was not a barrier due to age itself, but due to him being four years from retirement age [6] .

Although the 2006 Regulations were said to be implemented to inhibit discrimination, ss98ZA-98ZH of the Regulations introduced a Default Retirement Age of sixty five years. This meant that six months prior an employees’ sixty fifth birthday the employer could inform the employee of the termination to his contract.

However, employees did have the right to request to work beyond the retirement age, and this application would have to be considered by the employer. If the request was refused then the employer would have to inform the employee of the date of his termination and notify him of the appeals procedure. If the appeal was denied, the employer would confirm the employees’ date of retirement. If the procedure was not followed accordingly, the employee would have had a claim for automatic unfair dismissal. [7] 

October 1st 2011 saw the abolishment of the Default Retirement Age (DRA). This arose due to the vigorous campaigning by Age UK who felt that the introduction of the DRA, ss98ZA-98ZH of the 2006 Regulations, was itself discriminatory. This change in law now provided individuals aged 65 and over with full employment protection rights as they could no longer be dismissed due to their age.

Although the DRA was removed the Government permitted employers to introduce their own Employer Justified Retirement Age (EJRA). An EJRA enables an employer to continue to dismiss employees on retirement grounds if it is a proportionate response to a legitimate aim.

For instance, an ERJA will be lawful if its purpose is to maintain the health and safety of the individual concerned, co-workers or the public, or for work place planning; this means that there is a need for a retirement age so businesses can continue to recruit new employees, offer promotion opportunities in order to keep skilled staff and effectively manage succession [8] . These two examples of what constitutes as a legitimate aim demonstrates the power that a business holds to continue the use of a retirement age. With the reasons permitted for an ERJA, is could be said that the DRA has not actually been abolished, but renamed.

It was the case of Sheldon v Clarkson Wright & Jakes [2012] that provided a guideline for Courts to determine when an ERJA is justified. Mr Sheldon was a parent in a law firm and had been compulsorily retired at the age of 65 years in accordance to the company’s retirement policy. Mr Sheldon argued that his dismissal was direct age discrimination. The tribunal found that Mr Sheldon had suffered less favourable treatment due to his age; however, it was justified due to the retirement policy and the reasoning behind the policy. The retirement policy was enacted to ensure that promotions could be offered to current solicitors of the firm. This was to encourage continuous high standards of work and commitment; the ability to offer employees a partnership ensured the firm would keep their skilled employees without losing them to other firms in order to progress in their career. Sheldon appealed this decision, but the Appeal Tribunal upheld the previous decision. The Court agreed that the policy itself was justified, but allowed the case to be remitted to examine whether the age of 65 years for the retirement policy was justified. The Court identified three issues to be assessed. Firstly, it was important for the Court to examine whether the purpose of the policy was in fact justified. Secondly, it had to question whether the Law firm had to justify how they had applied the policy to all employees and the individual concerned. Finally, whether the tribunal made the right decision in upholding the retirement policy was a proportionate means of achieving aims. [9]