Age Discrimination … AT WORK
LEGAL
JULIAN BROWN Senior Associate
In April this year , a study conducted by The Conversation ( of 2100 men and women aged 45 years and over ) indicated that a one third of them perceived some sort of age-related discrimination while employed or looking for work in the last 12 months .
Section 18 of the Age Discrimination Act 2004 makes it unlawful for an employer to discriminate against a person on the grounds of a person ’ s age in determining to whom employment should be offered , the terms and conditions upon which employment is offered , determining access to opportunities for promotion , transfer or training or by dismissing the employee or subjecting the employee to any other detriment .
There are a number of exceptions in the Act , including the provision of youth wages .
The law also provides for mandatory retirement ages for certain
occupations such as for judges , police officers and public servants etc .
It used to be the case that companies and firms had “ retirement policies ”, which provided for employees to retire upon achieving a certain age , e . g . 65 . Although employees will often retire when they reach their superannuation preservation age or qualify for the age pension , there is indeed no requirement for them to retire upon achieving that age . Any policy which requires mandatory retirement upon the achievement of any age is likely to be unlawful and a violation of the Age Discrimination Act 2004 .
Note however that Section 18 ( 4 ) of the Act provides it is not unlawful for an employer to discriminate against another person on the grounds of the other person ’ s age if the person is unable to carry out the inherent requirements of the particular employment because of his or her age .
This section is directed to situations such as where occupational rules provide that persons above a certain age cannot continue to practice in their occupation . For example , certain jurisdictions prohibit pilots of certain classes of aircraft from holding the position of “ pilot-in-command ” if the pilot has obtained the age of 60 years .
This section does not apply to the situation where an employee , because of advanced years , becomes physically incapable of performing the work . Where older workers become unable to carry out the inherent requirements of the work , then performance management may be required , including providing warnings and opportunities to improve . Managing older workers who may no longer be able to fulfil the inherent requirements of the position that they once held can be extremely challenging for companies and firms .
70 | www . oasismagazine . com . au