Q. An employee wants to work beyond the age of 65 but the company would like them to retire using the Statutory Retirement Procedure. What can the company do?
A. At present you are entitled to follow the retirement procedure and dismiss on reasons of retirement. Currently, this would be a potentially fair dismissal and would not amount to unlawful discrimination.

However a case has been referred to the European Court of Justice on the grounds that statutory retirement is unfair and discriminatory on the basis of age.

A decision in this case (known as Heyday's Challenge) is expected in the autumn of 2008 and until then all claims relating to this issue have been stayed by the Employment Tribunal Chairman.


Q. What would amount to disability discrimination?
A. Disability is defined by the Disability Discrimination Act as:

“A person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long term effect on his ability to carry out normal day to day activities”.

This definition then poses four questions that all have to be answered positively when determining whether an individual comes within the meaning of a person having a disability under the Disability Discrimination Act 1995.

So:

- Does the person have a physical or mental impairment?
- Does that impairment have an adverse effect on the employee's ability to carry out day
to day activities?
- Is the effect substantial?
- Is that effect long term?

The legal definition has often caused confusion amongst employees and employers alike.

For example, would hay fever amount to an impairment? Would substance addiction amount to an impairment?

To clear this up, Parliament passed regulations entitled The Disability Discrimination (Meaning of Disability) Regulations 1996.

However, some conditions still remain unclear. Such an example would be dyslexia. This condition, for example, has various degrees and expert's opinion from an educational psychologist would be needed to determine the extent of one's dyslexia.

Once the condition is established, one would then have to apply the remainder of the legal tests outline above.


Q. What is the difference between direct and indirect race discrimination?
A. The difference between direct and indirect race discrimination is not always an easy distinction to make.

If an employer had a rule that all job applicants had to be white, this would clearly directly discriminate against all those that are not white.

If an employer has a requirement that all job applicants had to be graduates, one would have thought this to be a reasonable criterion.

However, if it can be established that members of a particular ethnic minority are under represented at universities in the UK, such an innocuous and on the face of it reasonable criteria, may well amount to indirect race discrimination.

Careful consideration needs to be given both during the recruitment and retention of individuals and one should always consider the possibility of indirectly discriminating against individuals belonging to a particular race, nationality, colour or ethnic or national group.



Q. Can men also benefit from the protection offered by the Sex Discrimination Act 1975?
A. This question is seldom asked as the vast majority of claimants who use the Sex Discrimination Act 1975 to bring claims in the Employment Tribunal are women.

However, Section 2 of the Sex Discrimination Act 1975 deals with sex discrimination against men by confirming that Parts 2 and 3 of the Act “read as applying equally to the treatment of men…”

Such protection afforded to us is demonstrated in the case of Riley v Base t/a GL1 Heating where an apprentice successfully claimed sex discrimination on the grounds that his principal had subjected him to violence and physical abuse which would not have been inflicted on a female apprentice who was the appropriate comparator.

While the facts of this case are somewhat extreme, it confirms that men can benefit from the protection afforded by the Sex Discrimination Act 1975.

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