It will be some time before we start to see UK case law on the age regulations. There is however interesting and relevant case law in other areas that employers could learn from and may find useful. Members can view this case law by signing in below.
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The Republic of Ireland has had age laws since 1998 and there are lessons UK employers can learn from the cases which have been brought there.
Issue 2 of the EFA's 'Working Age' magazine has more details about Irish and US case law - click here for the pdf.
Recruitment advertising
Ryanair advertised for a 'young, dynamic, professional', they claimed in their defence that 'young' could refer to being 'young at heart'. The evidence showed that none of the 28 candidates who applied for the job was over 40. It was also shown that the interview and selection procedures used by the company were not consistent with their equal opportunities policy. Ryanair lost the case.
Another case featured a Mr Reynolds who complained about an advert for a 'young, confident and enthusiastic' sales person. The Equality Officer decided that 'young' provided face value evidence that the company intended to discriminate. Mr Reynolds lost the case because it was decided that he did not have the relevant experience and therefore it would have been unlikely for him to have been called for interview - whatever his age - therefore there was no actual discrimination.
Recruitment interview question
Ms Hughes (53) complained that during an interview with Air Lingus for cabin crew she was asked discriminatory questions relating to her age - specifically how she would react to younger employees directing her. The Equality officer decided that the question was discriminatory, but that the selection procedure was not. In particular Air Lingus were able to show that there was a high number of over 50s shortlisted candidates and that the same proportion of over 50s were appointed as those under 50.
Comparator group
How large an age difference must there be in order to prove discrimination? In SuperQuinn v Freeman it was decided that the difference of three years between 2 candidates (one aged 31 and the successful applicant being 28) was not significant enough to prove a presumption of discrimination.
Promotion
In a promotions case, another Mr Reynolds took a claim against Limerick City Council. He argued that at 45 he had been discriminated against, when an applicant of 37 was appointed. The Council successfully defended the claim, because it was able to provide details of the education and qualifications of the other candidates, it could demonstrate that it had followed established criteria for interview, and was able to show the marks awarded to each candidate. The Council were also able to provide age profiling evidence from the appropriate grade level. Mr Reynolds claim was rejected as procedures were considered to have been conducted objectively, however, if the Council had not been able to produce this evidence, the case might have had a different outcome.
A Ms MaCormack claimed that here experience, skills and seniority (at age 57) made her more suitable for the role compared to the other candidate aged 45. However, it was judged that 'experience' was just one of the criteria taken into account by the employer.
Gillen v Department of Health: A civil servant won 40K Euro compensation because he was able to prove he had been discriminated against in two competitions for promotion because he was over 50. He was 54 when his applications for principal officer and assistant principal posts were dealt with. He produced figures to prove that no candidate over 50 was successful in such competitions between 1999 and 2003
Training
Ms Byrne who applied to go on an interior design course aged 48 claimed that the interviewer had made inappropriate comments including that older applicants had difficulties with the pressure of attending the course and the demands of technical drawing. Not surprisingly it was found that discriminatory presumptions had been made and the interview was discriminatory.
Harassment
Harassment is also covered in Irish case law. Mr O'Byrne claimed that by trying to establish a 'young and dynamic' image, his Department had discriminated against its older staff members and specifically that he was not selected to move to a higher pay scale on this basis. He won.
A young female manager won a claim for harassment which she made when she was called 'young foolish girl' by an older male member of staff.
Pay
Ms Perry (64) won her case against the Garda when she discovered that a colleague aged 59 was paid significantly more in compensation for early retirement. It was found that the difference in compensation was based entirely on the grounds of age and therefore that the early retirement scheme was discriminatory.
Learning points
Members sign in to download pdf
The Republic of Ireland has had age laws since 1998 and there are lessons UK employers can learn from the cases which have been brought there.
Issue 2 of the EFA's 'Working Age' magazine has more details about Irish and US case law - click here for the pdf.
Recruitment advertising
Ryanair advertised for a 'young, dynamic, professional', they claimed in their defence that 'young' could refer to being 'young at heart'. The evidence showed that none of the 28 candidates who applied for the job was over 40. It was also shown that the interview and selection procedures used by the company were not consistent with their equal opportunities policy. Ryanair lost the case.
Another case featured a Mr Reynolds who complained about an advert for a 'young, confident and enthusiastic' sales person. The Equality Officer decided that 'young' provided face value evidence that the company intended to discriminate. Mr Reynolds lost the case because it was decided that he did not have the relevant experience and therefore it would have been unlikely for him to have been called for interview - whatever his age - therefore there was no actual discrimination.
Recruitment interview question
Ms Hughes (53) complained that during an interview with Air Lingus for cabin crew she was asked discriminatory questions relating to her age - specifically how she would react to younger employees directing her. The Equality officer decided that the question was discriminatory, but that the selection procedure was not. In particular Air Lingus were able to show that there was a high number of over 50s shortlisted candidates and that the same proportion of over 50s were appointed as those under 50.
Comparator group
How large an age difference must there be in order to prove discrimination? In SuperQuinn v Freeman it was decided that the difference of three years between 2 candidates (one aged 31 and the successful applicant being 28) was not significant enough to prove a presumption of discrimination.
Promotion
In a promotions case, another Mr Reynolds took a claim against Limerick City Council. He argued that at 45 he had been discriminated against, when an applicant of 37 was appointed. The Council successfully defended the claim, because it was able to provide details of the education and qualifications of the other candidates, it could demonstrate that it had followed established criteria for interview, and was able to show the marks awarded to each candidate. The Council were also able to provide age profiling evidence from the appropriate grade level. Mr Reynolds claim was rejected as procedures were considered to have been conducted objectively, however, if the Council had not been able to produce this evidence, the case might have had a different outcome.
A Ms MaCormack claimed that here experience, skills and seniority (at age 57) made her more suitable for the role compared to the other candidate aged 45. However, it was judged that 'experience' was just one of the criteria taken into account by the employer.
Gillen v Department of Health: A civil servant won 40K Euro compensation because he was able to prove he had been discriminated against in two competitions for promotion because he was over 50. He was 54 when his applications for principal officer and assistant principal posts were dealt with. He produced figures to prove that no candidate over 50 was successful in such competitions between 1999 and 2003
Training
Ms Byrne who applied to go on an interior design course aged 48 claimed that the interviewer had made inappropriate comments including that older applicants had difficulties with the pressure of attending the course and the demands of technical drawing. Not surprisingly it was found that discriminatory presumptions had been made and the interview was discriminatory.
Harassment
Harassment is also covered in Irish case law. Mr O'Byrne claimed that by trying to establish a 'young and dynamic' image, his Department had discriminated against its older staff members and specifically that he was not selected to move to a higher pay scale on this basis. He won.
A young female manager won a claim for harassment which she made when she was called 'young foolish girl' by an older male member of staff.
Pay
Ms Perry (64) won her case against the Garda when she discovered that a colleague aged 59 was paid significantly more in compensation for early retirement. It was found that the difference in compensation was based entirely on the grounds of age and therefore that the early retirement scheme was discriminatory.
Learning points
- Even if it is found that discrimination has not taken place - employers will have to use large resources to successfully defend a claim.
- Age claims now count for 11% of all cases in the Republic of Ireland.
- Recruitment and promotion will be 'popular' areas for claims - specifically internal recruitment where individuals have knowledge of a company's culture and are likely to be more confident.
- Procedures need to be transparent as well as fair, and should be backed up by records.
- Interview methodology is important - and training essential to avoid unconscious (or even conscious) age prejudice slipping through.
- Attitudes and language will have to change to meet the law.
- Trainers will have to ensure that they are able to deliver to all age groups.
