The Employment Equality (Age) Regulations (Northern Ireland) 2006

Explanatory Note

(This note is not part of the Regulations)

These Regulations, which are made under section 2(2) of the European Communities Act 1972 (c. 68), implement (in Northern Ireland) Council Directive 2000/78/EC of 27^th November 2000 establishing a general framework for equal treatment in employment (OJ L 303, 2.12.2000, p.16) so far as it relates to discrimination on grounds of age. The Regulations make it unlawful to discriminate on grounds of age in employment and vocational training. They prohibit direct discrimination, indirect discrimination, victimisation, instructions to discriminate and harassment.

Direct discrimination, defined in regulation 3(1)(a), arises where a person is treated less favourably than another on grounds of his age or apparent age. Indirect discrimination, defined in regulation 3(1)(b), arises where a provision, criterion or practice, which is applied generally, puts persons of a particular age or age group at a disadvantage. Discrimination will occur where the difference in treatment or disadvantage cannot be shown to be a proportionate means of achieving a legitimate aim. Victimisation, defined in regulation 4, occurs where a person receives less favourable treatment than others by reason of the fact that he has brought (or given evidence in) proceedings, made an allegation or otherwise done anything under or by virtue of the Regulations. Instructions to discriminate are dealt with in regulation 5. It is a form of discrimination to treat a person less favourably than another because he has failed to carry out an instruction to discriminate or because he has complained about receiving such an instruction. Harassment, defined in regulation 6, occurs where a person is subjected to unwanted conduct on grounds of age with the purpose or effect of violating his dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

Regulations 7 to 25 prohibit discrimination, victimisation and harassment in the fields of employment and vocational training. In particular, they protect employees (regulation 7), contract workers (regulation 10), office-holders (including police and those seconded to the Serious Organised Crime Agency (regulations 13 to 16)), and partners in firms (regulation 18). They not only prohibit discrimination etc by employers, but also by trustees and managers of occupational pension schemes (regulation 12), trade organisations (regulation 19), qualifications bodies (regulation 20), providers of vocational training (regulation 21), employment agencies (regulation 22) and institutions of further and higher education (regulation 24). By virtue of regulation 25, discrimination, victimisation or harassment occurring after the relevant relationship has ended is unlawful if it arises out of, and is closely connected to, the relationship. The Regulations also apply to Crown servants (regulation 50). Regulation 49 and Schedule 4 address the validity of discriminatory terms in contracts and collective agreements.

Not all differences of treatment on grounds of age are unlawful. There are exceptions: in regulation 28 in relation to acts done in order to comply with a statutory provision; in regulation 29 in relation to acts related to safeguarding national security or protecting public order or public safety; in regulation 30 in relation to national security certificates; in regulation 39 for positive action; in regulation 32 in relation to retirement; in regulation 33 in relation to the national minimum wage; in regulation 34 in relation to the provision of certain employment benefits based on length of service; in regulation 35 in relation to the provision of enhanced redundancy payments; and in regulation 36 in relation to the provision of life assurance cover to workers who have had to retire early on grounds of ill-health. Regulation 8 provides an exception where possessing a characteristic related to age is a genuine and determining occupational requirement for a post if it is proportionate to apply the requirement in the particular case. Schedule 1 provides exceptions for various rules, practices, actions and decisions relating to occupational pension schemes.

Regulations 37 to 39 confer powers and duties on the Equality Commission for Northern Ireland in relation to the ground of age. Regulation 37 confers a general duty of working towards the elimination of discrimination, promoting equality of opportunity between persons of different ages and keeping the Regulations under review. Regulation 38 permits the Commission to undertake research or educational activities, and regulation 39 permits it to issue codes of practice in the field of employment and vocational training.

Regulations 40 to 48 deal with enforcement and provide remedies for individuals, including compensation, by way of proceedings in industrial tribunals and in the county courts. There are special provisions about the burden of proof in those cases in regulations 42 and 45, which transfer the burden to a respondent to a case once a complainant has established facts from which a court or tribunal could conclude, in the absence of an adequate explanation, that an act of discrimination or harassment has been committed by the respondent. Regulation 46 and Schedules 2 and 3 also include a questionnaire procedure to assist complainants in obtaining information from respondents, and regulation 47 enables the Commission at its discretion to assist individuals in the preparation and presentation of their complaints under the Regulations where there is some special reason for affording assistance.

Schedule 5 establishes a new duty on employers to consider requests by employees to continue working beyond retirement. Schedule 6 contains transitional provisions in relation to that new duty.

Schedule 7 amends legislation containing age-discriminatory provisions that cannot be shown to be a proportionate means of achieving a legitimate aim. It also includes amendments to the Employment Rights (Northern Ireland) Order 1996 (S.I. 1996/1919 (N.I. 16)), which introduce a new potentially fair ground for dismissal of employees – dismissal on the grounds of retirement (where the duty to consider procedure in Schedule 5 has been followed).

Schedule 8 contains repeals and revocations.

A Regulatory Impact Assessment of the effect that these Regulations will have on business costs, and a Transposition Note showing how the age provisions of Council Directive 2000/78/EC have been implemented in Northern Ireland have been placed in the Library of the Northern Ireland Assembly. Copies of each may be obtained from Equality and Rights Division, Office of the First Minister and deputy First Minister, Room E.3.18, Castle Buildings, Stormont, Belfast, BT4 3SR.