Age discrimination: anomaly in current legislation

With people choosing to work longer into their careers, employers need to be mindful of factors that may lead to a claim for discrimination on the grounds of age. Arising from the Irish Employment Equality Acts, it is unlawful for an employer to discriminate against an employee, or a prospective employee, on the grounds of age in access to employment, conditions of employment, training or experience for or in relation to employment, promotion or re-grading or classification of position.

Employers will also fall foul of the legislation if their actions indirectly put an employee of a particular age at a disadvantage and where such actions cannot be objectively justified. In Ireland, the age ground applies only in relation to people over 16. An employer may also set a minimum age, not exceeding 18, for recruitment to a position within its company.

The Equality Tribunal hears such cases in the first instance and it has very extensive powers. Not only can it give applicants who succeed in making a claim for discrimination on the grounds of age a monetary award, it can also direct to an employer that the claimant is to receive equal pay or treatment, and/or that the employer is required to take a specified course of action to alter the employer's discriminatory practices. The tribunal can award a claimant who is employed compensation of up to two years' pay or up to €12,697 if the claimant is not an employee, for example if they were an applicant for work. In equal pay claims which are based on age discrimination, the claimant may be entitled to equal pay and up to three years' arrears of pay from the date of the claim.

Ireland also has an enforcement body – the Equality Authority – which has the power to investigate discrimination.

There is one glaring anomaly in the Employment Equality Acts, which allows employers to set the retirement age(s) applicable to its workforce without having to justify the particular choice of retirement age. The very fact that the legislation sets no minimum retirement age would appear to be in itself an invitation to discriminate without any threshold of reasonableness. This is open to challenge under the relevant European directive if there are no reasonable grounds for the choice of retirement age.

Oisin Scollard is a barrister and legal counsel with legal HR company