Guidance for members



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WHAT IS AGE DISCRIMINATION?

GUIDANCE FOR MEMBERS
JULY 2012









This brief guide for NUT members outlines the legal definitions of age discrimination, explains who is protected, and summarises the first steps you should take if you think you have been discriminated against at work.
Who is protected from age discrimination?
All teachers have specific protection from discrimination at work on grounds of age under the Equality Act 2010. You are protected regardless of your age. Discrimination because you are perceived as being a particular age, or because you associate with someone who is a particular age, will be unlawful. You are protected whether you are a permanent, fixed term, full-time, part-time, supply or agency teacher.
Your colleagues, managers and governors are prohibited from discriminating against you. If you are an agency teacher working on a day to day or longer term contract, your agency and the schools in which you are working are prohibited from discriminating against you.
What is age discrimination?
Treating you less favourably in similar circumstances than another teacher or colleague, on grounds of your actual or apparent age, or because you are in your 20s, 30s, 40s, 50s, 60s or 70s, would be direct age discrimination.
Applying to all staff a workplace provision, criterion or practice, that you and other teachers of the same age cannot comply with because of your age, would be indirect age discrimination if it puts you at a disadvantage.
Employers are permitted to discriminate on grounds of age where they can justify the less favourable treatment or the impact of the practice or rule on you or your age group. For example, employment benefits related to service of no more than 5 years are permitted.
When am I protected from age discrimination?
You are protected from age discrimination before, during and after your employment. There should be no unlawful discrimination in recruitment including advertisements, short-listing and interview procedures; pay; terms and conditions of employment; access to training; opportunities for promotion; transfers; dismissals; and after your employment has ended, for example, in the provision of references.
What sort of treatment is covered?
A refusal to short-list a teacher in her 50s for a vacancy on grounds that she was not in the first 5 years of her career would be discrimination; the requirement would disadvantage older teachers and is unlikely to be justifiable. It would be age discrimination to select a teacher for redundancy on the ground that he was over 60.
What sort of treatment is not covered?
Treatment that is nothing to do with your age, which the employer can show is wholly and genuinely for a non-discriminatory reason, or treatment which lawfully can be justified by the employer, will not be discriminatory. Treatment that you might feel is unfair will not necessarily be discriminatory.
Your employer is permitted to set a pay scale related to service of 5 years or less.
Selection criterion for redundancy such as “last in first out” may disadvantage younger teachers but might be lawful if the objective of the practice is to address the disadvantage experienced by older teachers in the labour market.
What should I do if I think that I have been discriminated against?
You should gather all the written evidence that you have and keep a diary of all incidents of less favourable treatment including dates, times, places and the names of any witnesses. It is not always clear whether the treatment is because of your age or for some other genuine reason so it is sensible to record all the information you are worried about. Your employer may or may not intend to discriminate against you or may try to cover up discrimination against you. The objective should be to find out the real reason for the treatment, to stop the treatment if it is discriminatory and to secure appropriate action, for example, to obtain a full written apology or to make a pay award that you had been denied.
You should inform your NUT school representative or association or division secretary who should contact your regional/Wales office. Your colleagues may have made similar complaints and you may be advised to tackle the issue with them collectively. The NUT urges all schools to adopt policies and procedures which prohibit unlawful discrimination and which allow schools to address any discrimination fairly and quickly. Ask your NUT representative or school office for a copy.
The NUT will be able to advise what steps you should take. You may be advised to lodge a formal grievance which may resolve the issue. In rare cases you may be advised to take the matter to an employment tribunal. The objective in all cases will be to stop any discrimination and allow you to continue teaching in a professional environment free from discrimination.
What should my employer or agency do if I complain about discrimination?
Your employer or agency should investigate your complaint, stop any discrimination, take appropriate action and prevent it from happening again to you or someone else. If your employer is a local authority or the Governing Body of a school it will have a public sector equality duty to eliminate discrimination.
What if the employer treats me worse after I have raised the issue?
Your employer must not subject you to detrimental treatment in retaliation or as punishment for raising a complaint of discrimination. Such treatment is called ‘victimisation’ and is prohibited by the Equality Act.
Where can I find more information on age discrimination or harassment?
You are urged to inform your NUT school representative or association or division secretary or regional/Wales office if you suspect that you have been discriminated against on grounds of age.
Information on your rights your rights before you retire, and guidance on harassment and discrimination on grounds of race, sex/gender, pregnancy and maternity, transgender status, disability, sexual orientation, religion or belief and age can be found at www.teachers.org.uk



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