IER EQUALITY UPDATE 2009: Part B AGE DISCRIMINATION & HARASSMENT Stuart Brittenden Employment Equality (Age) Regulations 2006

Heyday the S.A.G.A. tour R (on appn Age Concern England) v SofS BIS; EHRC intervener September 2009, Blake J Regulation 30 designated retirement age (DRA) Schedule 6 retirement procedure EHRC arguments: (i) DRA unnecessary case by case basis; (ii) alternatively should be set at 70 Justification for DRA Retirement acts as natural break allows people to leave with dignity

Workforce planning Prevention of job blocking/progression Facilitation of employment of older workers ER can recruit old staff without uncertainty when/how employment will end or concern about how to deal with their declining competence at a later stage (@ para 75) Judgment Blake J DRA & macro policy tension; There is an acute policy tension in this area. On the one hand there is the government's interest in promoting employment, continuity of employment, self-sufficiency in employment, tax revenues from

people who remain in employment after 65, reducing the burden on the state pension, and ensuring that as people live longer they work longer and are able to lead both socially and economically productive lives. On the other, there is the need for reassurance, clarity and flexibility to reduce the social cost of regulation, maintain competitiveness, address issues as to career planning, and ensure availability of jobs in industry and public service to workers of different ages. (para 95) Why the case failed: Not for court to identify when a particular age for DRA would be justified Age 65 had some support from past practice in UK (and elsewhere in EU) No one made a case for age 68 or so during the consultation

process Age 70 (at the time) commanded little popular support Govt must be afforded an appropriate margin of appreciation in (i) selecting DRA and (ii) monitoring the impact of DRA Govt announced review brought forward from 2011 to 2010 Working to the grave? If Regulation 30 had been adopted for the first time in 2009, or there had been no indication of an imminent review, I would have concluded for all the above reasons that the selection of age 65 would not have been proportionate. It creates greater discriminatory effect than is necessary on a class of people who both are able to and want to continue in their employment. A higher age would not have any general

detrimental labour market consequences or block access to high level jobs by future generations. If the selection of age 65 is not necessary it cannot therefore be justified. I would, accordingly, have granted relief requiring it to be reconsidered as a disproportionate measure and not capable of objective and reasonable justification in the light of all the information available to government (@ para 128). Parting shot: I cannot presently see how 65 could remain as a DRA after the review Review of DRA? (i) abolition of DRA? (ii) increase of DRA to age 70?

Consequential increase to state pensionable age? Redundancy & Age Discrimination Rolls-Royce Plc v Unite [20090 IRLR 576 CA Redundancy selection agreement Selection matrix agreed with union Points awarded for length of service Indirect discrimination Reg 3 but capable of justification Need for legitimate aim, and proportionate means of achieving that aim Legitimate Aim? the length of service criterion qualifies under Article 6 [of the Directive] as legitimate

employment policy and a labour market objective. In my judgment, to reward long service by employees in any redundancy selection process is, viewed objectively, an entirely reasonable and legitimate employment policy, and one which a conscientious employer would readily and properly negotiate with a responsible trade union (@ para 95). It was also recognised that the Directive must be constructed in a manner which is practical and realistic (@ para 96) per Wall LJ

there is no doubt that one of the legitimate aims of an employment policy is to reward experience and that this can be done through a length of service provision (without the need to show any special justification By analogy, a length of service criterion can in my judgment also be a legitimate aim of redundancy selection terms especially where, as here, it is part of an agreement freely come to with representatives of the vast majority of the workforce (@ para 156) per Arden LJ length of service criterion was included for the principled reason that it was employees who had served longest who were likely to find it more difficult to find new

employment (@ para 162) Proportionate as only 1 of a number of factors & not selfevidently determinative of selection Analysis: Threshold for justification set too low? Assume same scores save for length of service provision means younger EE selected consistent with aims of Regs? Concepts of loyalty, experience become legitimate code for disadvantaging young EEs Is this covert positive discrimination? Severance Pay & Age McCulloch v ICI PLC [2008] IRLR 846 McC age 37 severance pay 55% gross salary

EEs 50 57 10 yrs service 175% salary ET justified: (i) rewarded loyalty (ii) older workers more vulnerable on labour market cushion (iii) encouraged older workers to leave voluntarily (iv) avoided job blocking (v) avoided/reduced need for compulsory redundancy EAT reasoning older workers can be a block on recruitment and it encourages turnover and the prevention of blockage in the employment system if some older workers are tempted to leave as a legitimate

objective (@ para 47) per Elias P Well known by all in the industrial relations field that older workers find it harder to find work than younger workers, notwithstanding the existence of age discrimination laws as a basis for granting older workers more generous severance pay (@ para 48) Access to Employment/benefits Chief Constable West Yorks Police v Homer [2009] IRLR 262 Pay pegged to qualifications. H argued discriminated against persons in his age group effectively denied access to higher pay EAT reverse ET decision not discrimination but

ageing No different to generous pay award (!!) someone nearing retirement will have the benefit for shorter period than young EE Barrier of qualification applied to all Not (in principle) more difficult for older person to obtain degree than younger EE

the financial disadvantage - if it could be properly be so described resulting from the operation of the criterion was the inevitable consequence of age; it is not a consequence of age discrimination. The disadvantage follows from the simple fact that it is necessary to be employed to earn pay; the shorter the remaining working life the less would be earned by way of future earnings. It seems to us that the claimants case would require more favourable treatment for older workers to mitigate the fact that as they got older so their working lifespan decreases and the future value of benefits conferred by the employer is reduced. That, however, was the human condition, and not even Parliament could change it (@ para 39) Harassment English v Thomas Sanderson Blinds Ltd [2009]

IRLR 206 CA Sexual orientation harassment (NB EE married, EEs knew he was heterosexual) If one were to ask the question whether the repeated and offensive use of the word faggot in the circumstances of this case was conduct on grounds of sexual orientation the answer should be in the affirmative irrespective of the actual sexual orientation of the claimant or the perception of his sexual orientation by his tormentors (para 45) per Collins LJ If, as is common ground, tormenting a man who is believed to be gay but is not amounts to unlawful harassment, the distance from there to tormenting a man who is being

treated as if he were gay when he is not is barely perceptible. In both cases the mans sexual orientation, in both cases imaginary, is the basis that is to say, the ground of the harassment. There is no Pandoras box here: simply a consistent application of the principle that, while you cannot legislate against prejudice, you can set out in specified circumstances to stop peoples lives being made a misery of it (para 38) per Sedley LJ Contrast harassment DDA/Religion or Belief/SDA Richmond Pharmacology Ltd v Dhaliwal [2009] IRLR 336 3 limbs (1) Did R engage in unwanted conduct? (2) What was (i) the purpose; OR (ii) the effect of that

conduct? Did it violate dignity or create adverse environment? That means that a respondent may be held liable on the basis that the effect of his conduct has been to produce the proscribed consequences even if that was not his purpose; and, conversely, that he may be liable if he acted for the purposes of producing the proscribed consequences but did not in fact do so The latter category of claims are likely to be rare. (3) The grounds for the conduct was it on one of the specified grounds? Bruce Forsyth in EAT?

We accept that not every racially slanted adverse comment or conduct may constitute the violation of a persons dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase (para 22) Equality Bill: Harassment

Clause 25: on the ground of formula replaced with related to a relevant protected characteristic NB marriage, civil partnerships, maternity & pregnancy NOT covered Extends racial harassment to now cover colour and nationality (presently uncovered)

Clause 38 extension of Third Party Harassment (only exists under SDA at present) 2 prior acts of harassment ER knowledge Harasser need not be the same

Liability if ER fails to take reasonably practical steps to halt treatment What steps are reasonably practicable: signs; direct intervention; reporting to 3rd party ER Contact London 10 - 11 Bedford Row London WC1R 4BU DX 1046 London / Chancery Lane

T +44 (0) 20 7269 0300 F +44 (0) 20 7405 1387 Bristol 3 Orchard Court, St Augustines Yard Bristol BS1 5DP DX 78229 Bristol 1 T +44 (0) 117 930 5100 F +44 (0) 117 927 3478 E [email protected] W

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