Discrimination in the workplace based on age is prohibited by the Equality Acts, and if discrimination occurs, an employee has a legal remedy available to them.
Discrimination as per the Equality Act is:
Discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.
The ‘’ground’’ in this case is that of age ie as between two persons at work, where one is discriminated against by reason of the persons age.
Employee Must Prove
It is a well-established practice that the complainant employee must firstly establish facts from which it can be inferred that they were treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited.
In the case of S. H. B. V Mitchell it was stated:
“The first requirement is that the Claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a Claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.
It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.
The burden of proof on the complainant was described further in the case of C.C.C. v M. which stated:
It is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.
The evidential burden on the complainant was set out further in the case of M V G.A.R.L. where it was sated:
The mere fact that the Claimant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The Claimant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.
Once the complainant gets over this initial hurdle, it is the duty of the employer to disprove the matter. The balance shifts.
The Retirement Defence
What happens when an employer sets a retirement age when it comes to any discrimination ie is this in itself discrimination ?.
There is an exception to the above rule prohibiting discrimination based on age, which is:
It shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) of employees or any class or description of employees if —
(a) it is objectively and reasonably justified by a legitimate aim, and
(b) the means of achieving that aim are appropriate and necessary.
It was stated in E.E.T. v R.L that:
As a matter of general principle, the termination of employment by the way of retirement should be distinguished from a dismissal on grounds of age. A retirement occurs where the employment comes to an end pursuant to a condition of employment which limits an employee’s tenure to the point at which they attain a specific age.
This means when it comes to retirement, there is a full defence of objective justification in age discrimination cases.
Time limits for Applications to the WRC
Strict time limits are in place for submitting an employment law related complaint to the Workplace Relations Commission. A legal action must be commenced within 6 months beginning on the date of the contravention to which the complaint relates. It is necessary to submit the Workplace Relations complaint form to the Workplace Relations Commission online or via post, and an applicant should ensure they have confirmation the claim has been received and registered.
Frequently Asked Questions
How do you prove age discrimination in the workplace ?
This is explained in the paragraphs above.
What constitutes age discrimination at work ?
Discrimination occurs where one employee is treated less favourably than another employee due to their age.
There is an unfairness element it it and it is contrary to the principle of equality and EU Charter of Fundamental Rights.
What is an example of age discrimination at work ?
If one employee is passed over for a promotion and the reason is based on the age of one applicant.
How do you deal with ageism or discrimination at work ?
Discrimination based on age at work is wholly unacceptable and laws are in place for employees to activate when discrimination occurs. If it is not the employer who discriminates against the employee, but a fellow worker, or manager, for example, the employer can he held vicariously liable for the acts conducted by a member of their organisation.
Thankfully we are living longer now and ages that were considered old fifty or eighty years ago are not looking so old anymore.
People are working longer now and older employees have much to contribute to the workplace and society, and any discrimination based on age is just not acceptable and should be challenged, in our opinion. Some Employees who sustained age discrimination are concerned that as indirect discrimination can be opaque, it can be more difficulty to prove than, for example, direct discrimination, and this can be correct, but a thorough investigation of the facts can be very helpful when putting the evidence together which then shows clear patterns of employer behaviour, and the affect on the employee.
What can you do about age discrimination in the workplace ?
Age discrimination at work is prohibited by the Equality Acts in Ireland & the EU Charter of Fundamental Rights, therefore an employee can active their legal rights and take legal action against the an employer who engages in an activity prohibited by law.
What is discrimination in the workplace? / What would be considered discrimination?
Discrimination is where one person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds referred to the discriminatory grounds. It is must be because of one of the grounds mentioned in the above paragraph.
So, for example, the discrimination must be related to one of the grounds such as disability. If one was treated unfairly at work which was connected with their epilepsy, this would be discrimination contrary to legislation.
What are 3 examples of discrimination?
- If a female employee is treated unfairly due to gender;
- if an employee with a disability is treated unfairly which is connected to having the disability;
- If an employee is treated unfairly due to their race.
What is not considered discrimination?
If you were treated unfairly which is not related to one of the specified grounds.
Please be advised that the above-mentioned material is intended as an overview and as a broad out-line of the topic discussed. It should not be considered as complete and comprehensive legal advice, nor act as an appropriate substitute. Legal advice should be sought from a solicitor prior to relying on anything in this article.
Due care has been taken in the publication of this article and we do not accept legal liability as a result of reliance on any material covered in the above article.