Public and Commercial Services Union

DWP/BB/131/07

Age discrimination and employment

The employment equality (age) regulations (2006) were introduced on 1 October 2006 to bring into effect the european employment directive.

The age regulations make it unlawful to take decisions on employment and vocational training which are based on a person’s chronological age rather than their competence. The regulations define age discrimination so that it is unlawful to:

• discriminate directly against anyone – that is, to treat them less favourably than others because of their age – unless objectively justified;
• discriminate indirectly against anyone – that is, to apply a criterion, provision or practice which disadvantages people of a particular age unless it can be objectively justified;
• subject someone to harassment. Harassment is unwanted conduct that violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for them having regard to all the circumstances including the perception of the victim;
• victimise someone because they have made or intend to make a complaint or allegation or have given or intend to give evidence in relation to a complaint of discrimination on grounds of age.

This branch briefing provides guidance for branches about the application of the attendance management policy and procedures and age discrimination.

Age and sickness absence

Sickness absence may be age related. The age regulations mean that it would be unlawful to discriminate against certain groups of staff/potential recruits simply because the analysis of sickness absence in the civil service has shown that:

• younger staff tended to have more spells of absence whilst older staff tended to have longer spells;
• older staff in the lowest grades tended to have the highest absence levels;
• young, female, part time lower grade staff tended to have a high level of absence.

However this does not mean that the DWP attendance management procedures can not be lawfully applied to members of such groups.

Employment rights act

The aim of the age regulations is to ensure that all workers, no matter their age, are treated fairly when they are dismissed. Under the Employment Rights Act 1996 (the ERA), most employees who have one year’s qualifying service with their employer have the right not to be unfairly dismissed. This means that:

• The reason for dismissal must be one of the reasons set out in the legislation as being potentially fair (e.g., redundancy, capability, conduct, ‘some other substantial reason’); and
• Employers must act fairly in the way they carry out the dismissal (e.g., did the reason justify dismissal in the particular circumstances? Did the employer carry out fair procedures?)

When an employee’s contract is brought to an end by reason of retirement, this will be a “dismissal” and will only be unfair if the employer has failed to follow the “notification” or “right to request” procedures set out in the amendments to the ERA introduced by the age equality regulations (see PCS/LRD law at work 2007 booklet pages 183/184 for dismissal/retirement).

Age and attendance management

The application of the attendance management procedures will be consistent with the age regulations where action does not discriminate on grounds of age or discrimination is objectively justified.

An employee, no matter their age, can be fairly dismissed on grounds of capability due to a poor sick record.

The obvious objective justification would be based on the simple fact that the employee is or has been unable to work due to illness. In such circumstances the employee is not subject to formal action because of their chronological age but because the employer is not prepared to support their continuous absence or absence record. The continuous absence or absence record would be the “objective justification”.

Advice to branches

The age regulations do not exempt employees from formal action under the attendance procedures simply because of absence due to an age related illness. The Disability Discrimination Act (DDA) remains the more appropriate anti discrimination legislation to consider in attendance cases, when providing support, advice and representation for members.

Basic legal advice on disability discrimination is provided in the PCS/LRD booklet the law at work 2007 issued to branch secretaries by PCS HQ. PCS advice on DWP attendance management is published on the PCS DWP group website.