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Age Discrimination and Employment Law in Scotland

p.

Midgie Bite #70

Summary of the law on

*AGE DISCRIMINATION AND EMPLOYMENT *

*LAW IN SCOTLAND *

What are my

I am being

employment

treated

*Talk to *

differently

rights?

Thompsons

because of

my age

[*In Scotland Age Discrimination claims have increased in 2015/16 *]

by nearly 20 times as compared with the previous year

0800 081 0070

help@thompsons-scotland.co.uk

1

AUTUMN 2016

Contents

*3. *

Time Limits For Lodging A Claim

*13. *

*Is there an age limit for claiming *

  • *

[*unfair dismissal and redundancy? *]

*3. *

ACAS Early Conciliation

*14. *

[*Is it easy to prove a claim? *]

*4. *

Fixed Fee

*14. *

*How do claimants gather *

*4. *

Hourly Rate

  • *

[*information from their employer? *]

*4. *

Legal Expenses Insurance

*14. *

[*What remedies are available? *]

*4. *

No Win No Fee Agreements

*14. *

Declaration

*5. *

Top 5 Facts on Age & Work

*15. *

Compensation

*6. *

[*What does the Act cover? *]

*15. *

Recommendations

*6. *

[*Who is protected? *]

*16. *

Useful Contacts

*6. *

[*Who is liable? *]

*18. *

*Thompsons can do more for *

  • *

your family

*6. *

Guidance available to employers

*7. *

*When can age *

  • *

[*discrimination arise? *]

*8. *

*What is the public sector *

  • *

[*equality duty? *]

*9. *

[*What is positive action? *]

*10. *

[*What does the Act outlaw? *]

*13 *

[*Are there any exceptions? *]

*Please note, if you are receiving this leaflet along with a letter engaging you as a client of this firm, this leaflet forms part of our advice to you about your case. You should read it carefully and raise any questions you have with your appointed adviser. If you are reading this leaflet and you are not a client of this firm, then the information that follows does not constitute legal advice. You should always seek formal advice on your case before deciding what to do next.*

2

TIME LIMITS FOR LODGING A CLAIM

There are strict time limits which apply to claims relating to discrimination. In particular, any claim regarding discrimination, where the employment is in Scotland, must be lodged with the Central Office of Employment Tribunals office in Glasgow within 3 months less one day of the act of discrimination that the person is complaining about.

In exceptional circumstances the three month time limit may be extended if a Tribunal believes it is just and equitable to do so.

When discrimination has occurred over a long period of time, this may amount to a continuing act extending over a period. A claim must then be brought within three months less one day of the last act in the series of acts.

If is useful to be able to demonstrate that a written grievance has been issued to the employer setting out the complaint in order to prevent any possible reduction in any Tribunal award.

However, lodging a grievance does not alter the time limits.

ACAS Early Conciliation

Any prospective Employment Tribunal claim must go through the ACAS Early Conciliation process before it can be submitted to the Employment Tribunal. This free service aims to resolve more employment disputes before they reach a Tribunal. You will get a certificate from ACAS if Early Conciliation is unsuccessful. You will need a copy of this certificate to submit a claim to the Employment Tribunal.

The time limit for making a claim to the Employment Tribunal is extended by the amount of time your claim has spent in ACAS Early Conciliation. For example, if your claim spent 3

weeks in Early Conciliation, the deadline is 3 weeks later. You will always get at least one month to make a claim.

You should get legal advice on your situation before pursuing any case.

Please contact our unique specialist employment support team if you wish further details at helpme@thompsons-scotland.co.uk

3

At Thompsons Scotland we recognise that almost as important as the time limit is looking at how *to fund your Employment Claim. *

We offer specialist Scottish Claimant Employment Law advice and Tribunal representation to Claimants and may be able to offer the following options: Fixed Fee

Thompsons Scotland can offer a range of options to pay for and to progress your employment claim, we can often provide initial legal advice on a fixed fee basis.

Hourly Rate

We can, like many other law firms, help you with your employment claim on the usual hourly rate basis.

Legal Expense Insurance

Thompsons Scotland can work with your Home Content or other similar Insurer who may offer legal expense insurance who may offer to fund at least some of your fees.

These policies will generally only provide some funding for employment claims where they are satisfied that it has reasonable prospects of success and you have exhausted your employer’s internal processes.

No Win No Fee Agreements

If you do not have access to legal expenses insurance, then once an Employment Lawyer has assessed your claim, we may be able to offer you a form of No Win No Fee agreement, meaning that you don’t pay any further sum to us if we can’t successfully resolve your claim and we will cap our fees based on a percentage of the compensation secured.

We can look in some instances to combine the agreements referred to above to suit your particular claim and your needs.

Employment claims are subject to tight deadlines. For example the majority of claims must be brought within 3 months of the matter you are complaining about so it is important that you act quickly. Thompsons Scotland will not be deemed to be acting for you, until there are signed terms of business and appropriate identity checks in place.

4

TOP 5 FACTS ON AGE & WORK

1. In Scotland in over 1,000 Age Discrimination claims were brought against employers in 2015/16.

2. Across the U.K. the proportion of those aged 65 and over who work has almost doubled since records were first collected There were 1.19 million aged 65 and over in employment in the period for May to July 2016. In the same period for 2006 - 609,000 of the 65+ population had a job.

In March to May 1992 (when records first began), as few as 478,000 were in employment.

3. Legislation which prevented employers from compulsorily retiring workers once they reached 65 came into force in October 2011.

4. Under existing legislation, the number of people of State Pension Age (SPA) and over is projected to increase by 32.5% from 12.4 million in mid-2015 to 16.5

million by mid-2030.

5. The working world for people aged 65 and over is similar to those aged 16 to 64

with 6 industries being responsible for just over 60% of the employment of both age groups.

(ONS, MoJ and EHRC statistics)

5

WHAT DOES THE ACT COVER?

The Act covers all forms of discrimination in the workplace, including recruitment, terms and conditions, promotions, transfers, dismissals and training or any other detrimental treatment because of age.

[*Who is protected? *]

It covers all employment and applies to apprentices, those working under a contract of employment and the self-employed working under a contract personally to do the work.

Ex-employees can also make a claim against a former employer, if they are complaining about something that was closely connected to their employment.

[*Who is liable? *]

The employer is generally liable for acts of discrimination, harassment and victimisation in the workplace. However, individual employees may also be liable for example if they have subjected a colleague to harassment related to age.

Guidance available to employers

This guide is intended to provide advice and guidance to employees. It was worth noting that employers do have a wide range of readily available guidance of how to comply with their obligations including free guides from the independent conciliation service ACAS who have published 3 guides on equality:-

Equality and Discrimination: Understand the basics

Prevent Discrimination: Support equality

Discrimination: What to do if it happens

6

WHEN CAN AGE DISCRIMINATION ARISE?

Age discrimination can arise in relation to:

The arrangements made for deciding who should be offered employment such as short listing and interviews.

The terms upon which employment is offered (although there are exceptions relating to some service-related benefits of five years or less).

Refusing or deliberately omitting to offer employment.

The ways in which access to opportunities for promotion, transfer, training or other benefits, facilities or services are offered.

  • *

*0800 248 6478 *

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  • *

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*0800 248 6478 *

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  • *

for a workplace injury

  • *

[*Is your workplace safe for everyone? *]

*You have every right to claim compensation *

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7

[*What is the Public Sector Equality Duty? *]

Public bodies such as local government, the NHS and those carrying out public functions are under a duty to consider equality when making day to day decisions both in terms of service delivery and employment.

This consists of a general duty and specific duties.

The general duty has three aims and requires public bodies to have due regard to the need to:

Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act.

Advance equality of opportunity between people from different groups.

Foster good relations between people from different groups.

The specific duties (which don’t apply to all public authorities) are designed to help public bodies comply with the general duty.

Broadly these require specified public bodies to publish information on how the general duty is being met, set equality objectives and engage with others such as employees and unions when setting the objectives.

8

[*What is positive action? *]

The Act allows employers to treat someone with a protected characteristic more favourably during the process of recruitment and promotion.

If they “reasonably” think the person with a protected characteristic was disadvantaged because of that characteristic (or there are fewer people with a particular protected characteristic employed), they can choose that person over someone who does not have the characteristic provided that:

The person is “as qualified” as the other candidate.

The employer does not have a recruitment or promotion policy of treating people of the underrepresented group more favourably.

The more favourable treatment is a proportionate means of achieving a legitimate aim (the legitimate aim being encouraging participation and overcoming disadvantage).

These provisions are voluntary. An employee cannot bring a claim because the employer did not apply positive action during the recruitment or promotion process, although they may still be able to bring a claim if they were discriminated against during it.

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WHAT DOES THE ACT OUTLAW?

Direct Discrimination

This means treating a person less favourably than someone else because of age.

Under the Act a person claiming discrimination because of the particular characteristic of age means a particular age group. In other words, someone bringing a claim on this ground can define the particular age group to which they belong as “21-year-olds” or “the under-50s”.

In order to determine whether someone is directly discriminated against, a comparison has to be made with someone not of that particular age group and whose circumstances are the same or not materially different.

The definition is wide enough to cover those who are also discriminated against because they are perceived to be of a particular age group or because they are associated with someone of a particular age group.

Examples of direct discrimination include:

Someone who is not promoted because they are under 25.

Someone who is refused flexible working to look after their mother who is over 70 when other workers who do not have an elderly parent have been allowed flexible working.

Someone who is prevented from attending a training session because they are thought to be over 50.

Unlike other forms of direct discrimination, employers can justify direct age discrimination if they can show it was “a proportionate means of achieving a legitimate aim”.

Indirect Discrimination

This arises if an employer applies a provision, criterion or practice (whether formal or informal) which applies or would apply to everyone equally, but which puts or would put those of a particular age group at a disadvantage and the employer cannot justify it.

Like direct discrimination, employers can justify indirect age discrimination if they can show it was “a proportionate means of achieving a legitimate aim”.

10

Harassment

This occurs when one person subjects someone else to unwanted conduct related to age that has the purpose or effect of violating a person’s dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment.

The definition of harassment also applies to those subject to unwanted conduct because of another person’s age. So, for example, an employee who is subject to offensive comments about their elderly parent will be protected under the Act.

Unwanted conduct covers overtly ageist behaviour such as verbal put downs or expressions or assumptions about the employee as a person, as well as bullying behaviour with no direct ageist content but which is only directed at that person because of their age.

For instance, if an employer shouts at a younger employee when they would not have shouted at an older colleague.

In determining whether the conduct amounts to harassment, the Tribunal will take into account the perception of that person and whether it was reasonable for them to consider the comments or behaviour to be offensive.

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11

Victimisation

This occurs when an employer subjects a person to a detriment because they have done or may do a protected act.

A protected act includes:

Bringing proceedings under the Act, or previous discrimination legislation.

Making allegations of a breach of the Act or previous discrimination legislation.

Giving evidence or information in connection with proceedings that someone else has brought.

Doing anything else such as raising a grievance or giving evidence in someone else’s grievance.

The person complaining of victimisation does not need to show they are of a particular age group in order to bring a claim. However, they do have to have acted in good faith when doing a protected act. A false allegation will not amount to a protected act.

12

ARE THERE ANY EXCEPTIONS?

Occupational Requirement

The Act does not apply when the employer can show that there is an occupational requirement to do with the nature of the job, which means they need to recruit someone of a certain age, as long as they can show it is a proportionate means of achieving a legitimate aim.

The requirement must be crucial to the post, and not merely one of several important factors.

It also must not be a sham or pretext.

There are very few circumstances where age can be a valid occupational requirement for a job. One example would be where an acting part requires an actor of a particular age.

Statutory redundancy pay

The Act does not apply when calculating statutory redundancy pay or contractual redundancy pay which is calculated on the same basis as statutory redundancy pay.

The minimum wage

The Act does not apply to the national minimum wage provisions.

Service-related benefits

Any benefits (such as holiday entitlement or pay linked to length of service) that depend on less than five years’ service are specifically exempted from the Act. If the benefit requires more than five years’ service, employers have to show that providing it fulfils a business need, such as encouraging loyalty and motivation or rewarding experience.

[*Is there an age limit for claiming unfair dismissal and redundancy? *]

No, employees who have reached the age of 65, or the normal retirement age for their job, can claim unfair dismissal and/or a statutory redundancy payment if they have been unfairly dismissed or dismissed by reason of redundancy.

13

[*Is it easy to prove a claim? *]

Someone complaining of discrimination has to prove, on the balance of probabilities, that their employer discriminated against them because of their age.

Tribunals are aware that it can be difficult for claimants to provide clear evidence of discrimination so once an employee has established facts from which a Tribunal could conclude that there had been discrimination then the burden shifts to the employer to show that they did not discriminate against them.

[*How do claimants gather information from their employer? *]

Workers can no longer use standard forms (the questionnaire procedure) when requesting information from their employer about their complaint. They can still ask their employer to provide them with information, but there is no obligation on the employer to provide it. It is helpful to identify any documents which could be requested through tribunal procedure at the earliest opportunity.

[*What remedies are available? *]

There are three remedies available to a Tribunal :

Declaration.

Compensation.

Recommendations.

Declaration

A declaration is a statement of the rights at the end of a claim, for instance that a worker has been subject to direct discrimination.

14

Compensation

Compensation can be awarded for injury to feelings and financial losses, if there are any. There is no formal limit to the amount of compensation which can include loss of earnings (past and future), loss of pension, interest and any other outlays associated with the discrimination.

The amount of compensation for injury to feelings can vary enormously. The person’s age and vulnerability may be considered, and also the severity of the discrimination.

Claimants can also ask for compensation for personal injury if they have been seriously affected by the discrimination, particularly in harassment cases which can lead to illness and depression. If so, claimants need to produce a medical report to support their claim.

Recommendations

The Tribunal can make recommendations for the purpose of preventing or reducing the effect of the discrimination on the claimant.

If the employer fails to comply with a recommendation, then the Tribunal may order the compensation to be increased.

ACCIDENTS TO EMPLOYMENT DISPUTES, COMPENSATION CLAIMS TO WILLS

“so sorry to hear about your terrible

workplace injury….

“…what time will you be in

tomorrow?”

16. 18

*You have every right to claim compensation *

*for a workplace injury *

*08000 015 160 *

15

USEFUL CONTACTS

PACE

The Partnership Action for Continuing Employment (PACE) is the Scottish Government’s initiative operated through Skills Development Scotland dedicated to helping individuals with the advice and support they need when faced with redundancy.

PACE offers free impartial advice and support to help you including:

Check what state benefits you may be entitled to and review your tax calculation

Look for jobs

Write CVs, application forms and covering letters and prepare for interviews

Identify learning and training opportunities

Start up a business after you have been made redundant

Make the most of your money

Cope with redundancy related stress

Public Enquiry Line 0800 917 8000

Online: www.redundancyscotland.co.uk (redirects to myworldofwork.co.uk/my-career-options/redundancy-help-scotland maintained by Scottish Government Agency Skills Development Scotland for PACE)

16

ACAS in Scotland

Operating throughout the UK ACAS provide a helpline providing clear, confidential, independent and impartial advice to assist with resolving issues in the work–place.

[*Public Enquiry Line: 08457 47 47 47 *]

[*Minicom: *]

  • *

08456 06 16 00

[*Online: *]

  • *

www.acas.org.uk

Employment Tribunal Service in Scotland

The Employment Tribunals are independent judicial bodies who determine disputes between employers and employees over specific employment rights. Their website provides information about the Tribunal’s procedures and gives guidance on how you make or respond to a claim.

*Public Enquiry Line 0845 795 9775 *

*Mincom *

  • *

0845 757 3722

[*Online: *]

  • *

[*www.justice.gov.uk/guidance/courts-and-tribunal/ *]

[* tribunals/employment/index.htm*]

17

THOMPSONS CAN DO MORE FOR YOUR FAMILY

At Thompsons Solicitors we offer a whole range of legal services which can support you and your family.

Injury

Thompsons’ award winning solicitors are experts in personal injury law. If you’re hurt at work, in a road traffic accident or anywhere call us. With Thompsons, if you have an accident you get:

A 100% no win no fee service

Expert Solicitors who will fight to get the maximum compensation in the shortest possible time.

For accident advice or to make a claim CALL FREE on 0800 089 2060 or text “CLAIM” to 60155.

Accident Management Service

When you crash your car or motorbike there’s a lot to sort out like the hire of a replacement vehicle and organising repairs. If the crash wasn’t your fault, one simple call to Thompsons and we’ll do it all for you for free. With this free service you will get:

A like for like replacement vehicle delivered to your door within 24 hours.

Your vehicle recovered and repaired.

No win no fee legal representation to recover your losses.

For more information or to arrange your hassle free accident management service CALL

FREE on 0800 089 2060 or text “INJURY” to 60155.

Bereavement Services

Thompsons is there for you and your family should the worst happen. Our expert bereavement services will give you clear peace of mind. We offer:

Wills

An expert service dealing with all the complicated administrative and legal requirements after death for no more than 3% of the estate’s value when death occurs.

For more information or to let Thompsons give you peace of mind should the worst happen CALL FREE on 0800 089 2060 or text “EXECUTRY” to 60155.

18

PERSONAL INJURY SOLICITORS IN SCOTLAND SEEKING JUSTICE FOR YOU

We are a leading firm of accident claim lawyers – professional, friendly and *dedicated to achieving the best outcome for you. *

Accidents at Work

Asbestos

Brain Injury

Car Accidents

Compensation Claims

Cycle Accidents

Employment Law

Foreign and Travel Claims

Head Injuries

Industrial Diseases

Lung Disease

Personal Injury

Serious and Fatal Injuries

Spinal Injury

Whiplash

Call us now on 0800 0891 331

[*Go online to www.thompsons-scotland.co.uk for more information. *]

19

Thompsons Solicitors & Solicitor Advocates are regulated by The Law Society of Scotland and have offices throughout Scotland: Glasgow

Edinburgh

Aberdeen

285 Bath Street

16–20 Castle Street

42–44 King Street

Glasgow

Edinburgh

Aberdeen

G2 4HQ

EH2 3AT

AB24 5JT

Tel: 0141 221 8840

Tel: 0131 225 4297

Tel: 01224 793 949

Peebles

Galashiels

5 Cherry Court

84 Channel Street

Cavarly Park

Galashiels

EH45 9BU

TD1 1BD

Tel: 0131 473 6616

Tel: 0800 001 5163

Further Midgie Bites Scottish Legal Guides are available – please contact 0141 433 7768 for details, this and other Midgie Bites are available as Ebooks please let us know which format you would find most helpful.

[*OUR SISTER FIRM THOMPSONS SOLICITORS LLP ARE REGULATED VIA THE LAW SOCIETY OF ENGLAND & WALES *]

AND HAVE OFFICES IN: NEWCASTLE, MANCHESTER, LEEDS, SHEFFIELD, LIVERPOOL, STOKE-ON-TRENT, CARDIFF, *CHELMSFORD, NORWICH, NOTTINGHAM, CENTRAL LONDON, DAGENHAM, WIMBLEDON, OXFORD, BRISTOL *

*AND PLYMOUTH AND HAVE AN ASSOCIATED OFFICE IN BELFAST. *

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Age Discrimination and Employment Law in Scotland

In Scotland Age Discrimination claims have increased in 2015/16 by nearly 20 times as compared with the previous year

  • Author: Rory McPherson
  • Published: 2016-10-10 12:50:14
  • Words: 3890
Age Discrimination and Employment Law in Scotland Age Discrimination and Employment Law in Scotland