CHAPTER 7 Age discrimination and disability discrimination

Age discrimination and disability discrimination: the Framework Directive THE FRAMEWORK DIRECTIVE Direct discrimination Direct discrimination occurs where one person is treated less favourably than another has been, is, or would be treated in a comparable situation. Indirect discrimination Indirect discrimination occurs where an apparently neutral provision, criterion or practice would put persons at a particular disadvantage compared with other persons.

Harassment Harassment is a form of discrimination. It occurs when there is unwanted conduct which takes place for the purpose or effect of violating a person’s dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment. Age discrimination and disability discrimination: the Framework Directive An instruction to discriminate will be deemed to be a form of direct or indirect discrimination. This is intended to stop discrimination by third parties on behalf of the employer.

Exceptions Occupational requirements and justifications of differences in treatment are not clearly explained – but there are some examples: The setting of special conditions on access to employment and vocational training, employment and occupation for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection Age discrimination and disability discrimination: the Framework Directive

The fixing of minimum conditions of age, professional experience or seniority of service for access to employment or to certain advantages linked to employment The fixing of a minimum age for recruitment which takes into account the training period and the need for a reasonable period of work before the individual retires. Age discrimination and disability discrimination: the Framework Directive

Positive action Positive action includes measures to counter the effects of past discriminatory practices and to assist the protected group to compete on an equal basis with those not in the protected group. For example: encouraging applications from the disadvantaged through extra advertising, or the provision of special training opportunities for employees in the disadvantaged group. Age discrimination and disability discrimination: the Framework Directive

AGE DISCRIMINATION The Regulations make standard provisions for indirect discrimination – but with some notable features in relation to direct discrimination. Age discrimination and disability discrimination: age discrimination

Direct discrimination It is possible to objectively justify direct age discrimination if less favourable treatment is a ‘proportionate means of achieving a legitimate aim’. Discrimination on the grounds of age is the only ground for which it is possible to justify direct discrimination – apart from the limited possibility of a genuine occupational requirement. Age discrimination and disability discrimination: age discrimination

‘Age’ includes apparent age. It applies to all those who appear to be older or younger than they actually are. This is an important step towards stopping discrimination because of appearance. Age discrimination and disability discrimination: age discrimination

Objective justification There is wide scope for justifying exceptions. The tests are: that the discrimination has a legitimate aim, and, that it is an appropriate and proportionate means of achieving that aim. The Directive uses the words ‘appropriate and necessary’, rather than the word ‘proportionate’. The courts in the UK hold that this means that the test is ‘appropriate and reasonably necessary’. Age discrimination and disability discrimination: age discrimination

Provisions in respect of discrimination by victimisation instruction to discriminate harassment are identical to provisions in other equality legislation. Age discrimination and disability discrimination: age discrimination

It is unlawful to discriminate on the grounds of age in: arrangements made for deciding to whom employment should be offered terms on which employment is offered, or by not offering employment offering promotion, transfers or training awarding any other benefits or refusing or deliberately stopping such opportunities dismissing or subjecting to any other detriment. Age discrimination and disability discrimination: age discrimination

Discrimination on the basis of age is allowed for those applicants who would be employees if recruited and who are older than the employer’s normal retirement age or 65 years of age if the employer does not recognise a ‘normal’ retirement age. Age discrimination and disability discrimination: age discrimination

Provisions in respect of genuine occupational requirements are identical to those in the Sexual Orientation and the Religion or Belief Regulations. Age discrimination and disability discrimination: age discrimination

Vocational training It is unlawful to discriminate on grounds of age against a person seeking or undergoing training in the arrangements made for the purpose of selecting who should be offered training in the terms on which access to any training is provided Age discrimination and disability discrimination: age discrimination

by refusing access by terminating the training by subjecting the applicant or person to be trained to any other detriment during the training. Harassment of an applicant or a person undergoing training is unlawful. Age discrimination and disability discrimination: age discrimination

‘Training’ means all instruction that helps fit a person for any employment vocational guidance facilities for training practical work experience assessment related to the award of a professional or trade qualification. Age discrimination and disability discrimination: age discrimination

In respect of relationships that have come to an end, it is unlawful to discriminate by subjecting to detriment or harassment after the relationship has ended, if this discrimination ‘arises out of or is closely connected to the relationship’. Age discrimination and disability discrimination: age discrimination

Aiding unlawful acts If a person knowingly aids another person to commit an act that is made unlawful by the Age Regulations, that person is to be treated as having done an unlawful act of ‘the like description’. A person may have a defence if they rely upon a statement by the other person that the act would not be unlawful by virtue of some aspect of the age regulations and that it is reasonable for them to rely on the statement. Age discrimination and disability discrimination: age discrimination

Exceptions The Age Regulations list eight general exemptions: –by reason of statutory authority –for the purposes of national security –to permit positive action –in relation to retirement –in relation to the national minimum wage –in relation to benefits based on length of service –in relation to enhanced redundancy payments –in relation to life assurance for retired workers Age discrimination and disability discrimination: age discrimination

Enforcement The Commission for Equality and Human Rights will have similar roles in relation to advice and guidance on age as with regard to other grounds of discrimination, as well as powers to investigate and challenge discrimination on its own authority and through the support of others. Age discrimination and disability discrimination: age discrimination

DISABILITY DISCRIMINATION Discrimination on the grounds of disability is made unlawful under the Disability Discrimination Act 1995 and the amendments of the Disability Discrimination Act 2005, the provisions of which are soon to be incorporated in the Equality Act. Age discrimination and disability discrimination: disability discrimination

The DDA 1995 makes it unlawful for employers to discriminate against existing or prospective staff for a reason relating to their disability. People are also protected if they have recovered from a disability that is covered by this Act. It also applies to other persons who are discriminated against by virtue of associating with a disabled person. Age discrimination and disability discrimination: disability discrimination

The Act covers employees and contract workers, apprentices and those working under a contract to do any work. The Act was amended by the Disability Discrimination Act 2005, which introduced a general duty for employers to take into account the need to eliminate unlawful discrimination and harassment in carrying out its functions. Age discrimination and disability discrimination: disability discrimination

The DDA makes four forms of discrimination unlawful: direct discrimination failure to make reasonable adjustments disability-related discrimination victimisation. Age discrimination and disability discrimination: disability discrimination

Direct discrimination Direct discrimination ‘shall be said to occur where one person is treated less favourably than another has been, is, or would be treated in a comparable situation...’. Direct discrimination depends not only upon the treatment taking place because of a person’s disability, but also by comparison with the treatment given to an appropriate comparator. This must be a person who does not have the disability in question. It can be a non-disabled person or another person with a different disability. Age discrimination and disability discrimination: disability discrimination

Defining disability A person has a disability ‘if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities’ (Section 1(1) DDA 1995). Age discrimination and disability discrimination: disability discrimination

Impairment is determined by the effect that it has on the person’s ability to carry out normal day-to-day activities. Some impairments are easy to identify, but some are not so obvious. A disability can arise from a wide range of impairments. The cause of the impairment is not relevant. Age discrimination and disability discrimination: disability discrimination

Persons deemed to be disabled Some people automatically meet the definition of disability, so do not have to formally demonstrate that they have an impairment that has a substantial long- term effect on the ability to carry out normal day to day activities: –a person who has cancer, HIV infection or multiple sclerosis –a person who is certified blind or partially sighted. Age discrimination and disability discrimination: disability discrimination

Whether an impairment has a ‘substantial effect’ can be discovered by observing: the length of time it takes to carry out an ordinary activity the way in which a day-to-day activity is carried out – eg someone with obsessive compulsive disorder may wash hands after handling every individual element of a meal he or she is preparing the cumulative effect of impairments. Age discrimination and disability discrimination: disability discrimination

Who has a disability? The EAT has concluded that a tribunal should look at the evidence with reference to four different conditions: the impairment condition the adverse effect condition the substantial condition the long-term condition. Age discrimination and disability discrimination: disability discrimination

The duty to make adjustments The DDAA Regulations 2003 make it very clear that a failure by an employer to comply with the duty to make reasonable adjustments in relation to the disabled person will amount to discrimination. Age discrimination and disability discrimination: disability discrimination

‘In order to guarantee compliance … reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer’ (Equal Treatment Directive, Article 5). Age discrimination and disability discrimination: disability discrimination

The following are examples of steps that an employer may have to take in order to comply with the obligation to make reasonable adjustments: making adjustments to premises allocating some of the disabled person’s duties to another transferring the disabled person to fill an existing vacancy altering the disabled person’s working hours assigning him or her to a different place of work Age discrimination and disability discrimination: disability discrimination

allowing him or her to be absent during working hours for rehabilitation, assessment or treatment training or arranging for training to be given to him or her acquiring or modifying equipment modifying instructions or reference manuals modifying procedures for testing or assessment providing a reader or interpreter providing supervision. Age discrimination and disability discrimination: disability discrimination

Unlawful discrimination It is unlawful for employers to discriminate against disabled people: –in the arrangements for determining who should be offered employment –in the terms on which employment is offered –by refusing or not offering employment. Age discrimination and disability discrimination: disability discrimination

It is also unlawful to discriminate against disabled employees: –in the terms of employment –in the opportunities for training, promotion, etc –by refusing any such opportunities –by dismissing or subjecting the disabled person to any other detriment. Age discrimination and disability discrimination: disability discrimination